Individual Freedom and the Common Good

The Canadian Constitution Foundation (CCF) is hosting a conference this weekend in Toronto on Defending Human Rights in a Free Society.

The line-up promises a keynote by David Frum, a Canadian lawyer/journalist. Frum was also a former speech-writer for outgoing U.S. President, George W. Bush. But don’t hold that against him – instead look at Frum’s new book due late this year that defends the Iraqi invasion, and advocates adding Iran and Syria to the list.^[*]

 Starring Line-Ups

CCF is also presenting some semblance of balance by pairing off Elizabeth Brubaker of the Energy Probe Research Foundation, with Ramani Nadarajah of the Canadian Environmental Law Association and Prof. Russell Brown of the University of Alberta Faculty of Law on the role of private property legislation in protecting the environment. Brown is on the Advisory Board of the CCF.

In another round closer to home, Alan Borovoy of the Canadian Civil Liberties Association and Philippe Dufresne of the Canadian Human Rights Commission (CHRC) discuss whether human rights need to be redefined and if freedom of expression is under attack.

But this last match is not as balanced as it would appear. In the highest profile case recently addressing freedom of expression, the CHRC dismissed the complaints and sided with the respondent.

There is a third voice missing on this panel – one of the communities that have used Human Rights Commissions (HRCs) to combat hatred in the past.

When Media Try by Public Opinion

The case itself was not remarkably striking. Human rights complaints have been filed on remarkably similar grounds before, without the uproar. And as defenders of Human Rights Commissions repeatedly said, complaints are made all the time and are regularly dismissed. There was no real attack on free speech occurring.

What distinguished the case from previous complaints was not the merits or the nature of the complaint, but rather that the respondents and their supporters sought to have the case heard in the court of public opinion. Rather than having the case resolved quickly and quietly, they called for a complete dismissal of HRCs in Canada.

They also engaged in an active smear campaign against the complainants, anyone who openly supported HRCs generally, and even those associated with any of the above, irrespective of their actual positions on the case.

Instead of a “chilling effect” on the media, a chilling among activists was observed, with one of the complainants (a writer for Law is Cool) officially dropping out of the case for all public purposes.

 The Controversy Entrepreneurs

One of the commentators targeted by smear campaigns was human rights lawyer Pearl Eliadis, a former HRC director. Eliadis recently wrote an article in the current issue of maisonneuve, called The Controversy Entrepreneurs.

Eliadis states that detractors have perpetuated misinformation on the threat of HRCs. She points out and elaborates on Seven False Statements surrounding the controversy:

1. Free Speech is an Absolute Right
2. Human Rights Laws were not Made to Restrict Speech
3. Human Rights Laws only Apply to Discriminatory Conduct, Not Discriminatory Speech
4. Human Rights Laws do Not Apply to the Media
5. Human Rights Commissions Dispense Parallel Justice, “Prosecuting” and “Convicting” People Outside Normal Legal Channels
6. Human Rights Tribunals are Rabid, Out-of-Control Bastions of Political Correctness, with 100% Conviction Rates
7. Free Speech is under Attack by Frivolous, Expensive, Time-Consuming Complaints

The CCF is not a neutral party to this debate either. They fund litigation litigation in defence of s. 2(b) Charter rights.

This makes sense when expressing purely political speech infringed upon by the government. But when dealing with multi-million dollar respondent company, and the most marginalized community in Canada, the imbalance of power lays elsewhere.

Questions Remain Unanswered

Unsubstantiated, and quite serious allegations, are also observed by some American media towards Senator Obama. Although he is far less vulnerable, it does demonstrate the extremes that media messaging can take.

The Bouchard-Taylor Commission identified two major factors for the rise of xenophobia:

1. Most media reported factually incorrect information, and magnified issues beyond their reality
2. The exclusion of marginalized communities from decision-making and participation in centers of power, including politics, government and the media

The report calls for vigorous soul-searching, indicating that the material similar to the subject of the recent complaint is likely to accentuate marginalization and actually create the problems it fears. The media plays an important role in bridging the divide, and healing rifts in Canada.

HRCs as they are currently constructed by legislation might not be the appropriate venue to hear these complaints. The question of how these issues should be addressed, and by whom, has yet to be answered.

It does not have to be at the HRCs. But the answers are not likely to be found at the upcoming CCF conference.

^[*] Hon. Bob Rae gave a great speech at UWO Law last weekend which expressed that Canadian national interests are distinct from that of the U.S., and that Canada has its own voice. Rae excused any partisanship inadvertently creeping into his speech, and I will do the same, with the Federal election concluding recently.