The Globe & Mail
Monday, January 11, 1999

Sorry, your ideas will have to satisfy the commission

by Anthony Keller, akeller@globeandmail.ca

It's like waking up one morning to discover that impolitic opinions have become illegal.

In the past year, the Regina Leader-Post, Alberta Report, the North Shore News, the Saskatoon Star-Phoenix and The Toronto Star have all had to appear before tribunals to answer charges of publishing "discriminatory" material, in violation of the human-rights codes in their provinces. A quick refresher: Human-rights law was created to prevent discrimination in lodging and employment. So why is it now being used to prevent the dissemination of certain ideas? Isn't this the sort of thing the free-expression section of the constitutional Charter of Rights and Freedoms is supposed to prevent?

The strangest case of the bunch is the one against Alberta Report. Last year, reporter Patrick Donnelly wrote a feature article for the magazine entitled, "Scapegoating the Indian residential schools: The noble legacy of hundreds of Christian missionairies is sacrificed to political correctness". The thrust of Mr. Donnelly's argument was that residential schools, government-funded institutions operated by religious orders, were on the whole positive for natives.

His argument was supported with quotes from former students and teachers, many of whom said that they had nothing but positive memories of the residential system. He alleged that this point of view has been buried by Indian advocates hungry to capitalize on white guilt by portraying the institutions as a form of cultural genocide.

Whether his analysis is insightful or misguided is, legally speaking, entirely beside the point. Or rather that's the way the law used to work. Not any more.

University of Calgary law professor Kathleen Mahoney responded to the publication by filing a complaint with the Alberta Human Rights and Citizenship Commission, alleging that Alberta Report had "expose[d] First Nations people to hatred or contempt on the basis of their race or ancestry". She asked for remedies including "an apology, damages, and an order that the respondents attend education sessions about human rights in Alberta."

The creepy call for "education sessions" was not laughed out of the Alberta commission. Instead, the commission has asked Alberta Report to respond to the complaint. It will then consider whether to prosecute the magazine.

The antecedent to all this is the Doug Collins case. Mr. Collins, a columnist for Vancouver's North Shore News, has a habit of getting worked up over all things Jewish. He thinks the Jews control Hollywood, and claims there is an excessive media focus on the Holocaust. He calls it "hate literature in the form of films". In a 1994 article he took potshots at Schindler's List, calling it "Swindler's List" and predicting that it would surely win an barrow-full of Academy Awards because it is part of "the most effective propaganda exercise ever".

For these statements, he and his publisher ended up in front of the British Columbia Human Rights Tribunal, charged with "exposing Jewish persons to hatred or contempt on the basis of their race, religion or ancestry". Mr. Collins won, though the case has become a sort of revolving-door inquisition, with his columns being hauled before subsequent hearings.

Mr. Collins is crotchety, cranky, and irrationally antagonistic to things Jewish -- and I don't doubt that the majority of public opinion agrees with me. But the law shouldn't be enforcing those conclusions. It shouldn't even be asking such questions.

It shouldn't be, but it is. Last year the Regina Leader-Post ran an advertisement from someone opposing Gay Pride Week. The ad quoted a Biblical passage to the effect that homosexuality is a mortal sin; Saskatchewan's Human Rights Commission looked into it and ruled that it wasn't enough to constitute discrimination. But the commission is continuing with a complaint against the Saskatoon Star-Phoenix, which carried a similar ad from the same advertiser, rendered stronger by an accompanying drawing of two men holding hands with a red circle and a slash over it.

The trouble with trying to shut down "wrong" ideas is that people necessarily disagree about which ideas those are. That is precisely why liberal societies protect free speech: not because we are all in agreement, but because most of us disagree about many things most of the time. This is the insight of liberalism: that we can all get along by agreeing to peacefully disagree.

When human-rights law tries to step in where free-speech doctrine has long held that the law should not tread, dangerous precedents are the only sure outcome. For example, after The Toronto Star declined to publish three letters critical of a 1995 story about a Jewish Holocaust survivor, the former president of the Canadian Polish Congress, Toronto District, accused the newspaper of -- what else -- racism.

Hanna Sokolski argued that the Star's refusal to publish the letters was a denial of equal access to a public service, a kind of discrimination against Canadians of Polish ancestry. Taking a cue from Alberta and B.C., Ontario's Human Rights Commission has not rejected the complaint out of hand. Instead, two years later, it is still investigating.

Which is precisely what human-rights commissions should not be doing. Any sensible application of free speech -- the principle that ideas should be debated, not imposed -- would allow the Star-Phoenix to run or decline whatever ad it liked. It might find itself in trouble with its readership for its choices, but, short of libel, it shouldn't face legal sanction.

The same goes for The Toronto Star. If it prefers to steer clear of certain letters or articles, the law should not second-guess that decision -- an exercise of discretion that is itself covered by freedom of expression. That discretion can be removed only by undermining founding principles of our civilization. If people no longer have the freedom to say what they believe and to believe what they want, even when most of us think they're wrong, we don't live in a liberal society any more.

Anthony Keller is assistant editor, editorial board of The Globe and Mail. His column on free speech appears every fourth Monday on this page.

Copyright © 1999 by The Globe & Mail. All Rights Reserved. Reprinted with permission.