Human Rights Commissions and the Media

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Human Rights Commissions and the Media

• Pearl Eliadis

CASHRA Session 9 June 16 2008

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Setting the stage

• Controversy restricting speech that incites
  hatred
• Members of Muslim community filed human rights
  complaints in late 2007 following 22 articles
  about Islam in Macleans magazine
• OHRC dismissed complaints for lack of
  jurisdiction, but the articles, and the poisonous
  blogs they spawned, were deemed sufficiently
  harmful to raise concerns about Islamophobia
  lack of editorial balance
• Other cases ongoing at the federal and B.C.
  levels
• Media hysteria about thought police,
  prosecutions and drive-by shootings, and
  convictions - Commissions are not criminal or
  quasi-criminal bodies. Distorted and deliberate
  use of language.

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How has it come to this?

• Two are longstanding issues of principle focus
  of talk today
• Have HRCs really strayed from their original
  purpose?
• Immunity (for speech) and impunity (for media)
• Two are firestarters transforming an
  interesting debate to a storm of controversy
• the Muslim home invasion
• That speech is restrained / chilled by the
  current complaints
• No time to discuss all in detail

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1. Have HRCs strayed from their remit?

• Early laws regulated speech from the start (first
  commercial)
• Ontarios 1944 Racial Discrimination Act
• Ontarios 1962 Human Rights Code
• Anti-Jewish and anti-black hate propaganda
  appeared the 1960s, with neo-Nazi and white
  supremacist groups.
• Led to the creation of a federal committee to
  examine the issue, chaired by the legendary Max
  Cohen, including Pierre Trudeau

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Have HRCs strayed from their remit?
Special Committee on Hate Propaganda (1965)

• freedom of speech does not mean the right to
  vilify the arithmetic of a free society will not
  be satisfied with over-simplified statistics
  demonstrating that few are casting stones and not
  many are receiving hurts. What matters is that
  incipient malevolence and violence, all of which
  are inherent in "hate" activity, deserves
  national attention.. the individuals and groups
  promoting hate in Canada constitute 'a clear and
  present danger' to the functioning of a
  democratic society.
• 1966 Report of the Special Committee

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Legislative Record
Have HRCs strayed from their remit?

• Findings of the Special Committee influenced not
  only the criminal law, but also human rights law
  
• Next generation of commissions were being
  created, e.g. the federal, B.C. and Alberta
  commissions
• Section 13 was in the first Canadian Human Rights
  Act there was no mission drift
• Adding the Internet was a point of clarification,
  not a new area (s. 13(2) CHRC)

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Are new rights bad rights?
Have HRCs strayed from their remit?

• Argument By Alan Borovoy and others because
  commissions were created to do one thing (prevent
  discrimination in jobs, etc.), regulating speech
  is illegitimate
• - As noted above, this does not reflect the
  actual history, and even if it did, there have
  been many important innovations in human rights
  laws, which were not contemplated at the outset
  
• -Should the law be frozen in the Cold War epoch?

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Are new rights bad rights?
Have HRCs strayed from their remit?

• Consider the following examples
• Roger Tassé is on record saying that it was not
  the intent of the Charters drafters to use s. 15
  for social and economic rights, and yet, the case
  law now extends equality rights to social
  services, etc.
• The Quebec Charter of Human Rights and Freedoms,
  is not restricted to social areas like jobs or
  housing, and includes a new ground, social
  condition
• Gay and lesbian rights are new

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2. Should speech be immune as a form of
discrimination?

• Much is made of the fundamental distinction
  between conduct and speech
• Speech is the most powerful human act.
• It shapes ideas, accounts for most of our
  communication with each other, builds
  civilizations and creates cultures
• It is also a powerful weapon

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2. Should speech be immune from discrimination
law?
Shielding speech

• Speech is subject to several legal limits not
  only in criminal and libel laws, but also in
  discrimination law
• In each of these cases, the offensive conduct
  IS the speech
• Cant use speech to harass an employee Dhillon v.
  F.W. Woolworth Co. (1982) (Ont. Bd. of Inq)
• Cant use racial epithets in the workplace, even
  where the complainant is not from the targeted
  group Lee v. T.J. Applebee's Food Conglomeration
  (1988) (Ont. Bd. of Inq.)
• Verbal insults in a taxi cab Peters v. United
  Cabs of Victoria Ltd. (1988) (B.C. Human Rights
  Council)
• These are all speech but they are not
  protected
• Not because they are offensive but because they
  are discriminatory

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Ross v. New Brunswick School District No. 15,
1996 1 S.C.R. 825
Shielding speech

• The key issue in this Supreme Court case was
  speech.
• For several years, Ross, a teacher, publicly made
  racist, discriminatory comments against Jews.
• The evidence established a "poisoned"
  environment. 
• No direct evidence to establish an impact on the
  school district caused by R's off-duty conduct,
  but, a reasonable inference is sufficient in this
  case to support a finding that Ross's continued
  employment impaired the educational environment
  generally in creating the "poisoned"
  environment. 
• THE SPEECH ALONE HAD THIS EFFECT

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Examples of pure speech discrimination
Shielding speech

• Racist insults between neighbours on the basis of
  race and colour CDPDJ v. Cyr (1997, TDPQ).
  Ruling in favour of plaintiff
• Aggressive remarks to a woman in a public market
  for wearing hijab. CDPDJ v. Drouin-Pelletier
  (2004, TDPQ). Ruling in favour of plaintiff
• Issue was the comments/ remarks

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Should the media enjoy more rights / immunity
than everyone else?

Media impunity?

• Are comments that are poisonous and would be the
  subject of a valid human rights case in any other
  context immunized merely because they are in
  print? Or broadcast?
• Real issue is access to the equal amplification
  of free speech, according to the Globes Rick
  Salutin. This is an economic issue as much as
  anything else how you respond to that in a
  society where money controls media, I have no
  idea.

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International law Art. 19(2), (3)(a) ICCPR

Media impunity?

• 2. Everyone shall have the right to freedom of
  expression this right shall include freedom to
  seek, receive and impart information and ideas of
  all kinds.. through any other media of his
  choice.
• 3. The exercise of the rightscarries with it
  special duties and responsibilities. It may
  therefore be subject to certain restrictions, but
  only as are provided by law and ..necessary
• (a) For respect of the rights or reputations of
  others ..
• CANADA HAS SIGNED THIS CONVENTION AND LIKE MOST
  OF THE REST OF THE 150 SIGNATORIES, HAS
  COMMITTED TO RESPECT IT

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No evidence of chilling effect on media

Empirical evidence does not support concerns
about chill

• No recorded instance of a commission ever
  ordering an editorial board to print anything
• Reporting on this topic has skyrocketed, with no
  abatement since OHRC criticised Macleans
• Successful cases against extremists are used as
  proof that very borderline cases against
  journalists might/ will succeed bait and switch
  tactic.

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Is truth a defence The fear of home invasion

About truth

• Controversy entrepreneurs raise concerns about a
  Muslim home invasion, citing various statistics.
• Does it matter if the stats are true? Yes, in
  part. But using facts to attack people and vilify
  them, subjecting them to hatred, may still be a
  human rights violation.
• Rwanda / Radio RTLM, used facts, humour and fear
  (Kagames invasion from Uganda) to incite hatred
  of Tutsi and fear of loss of real estate Should
  the station have been jammed? Some said no..
  because of freedom of speech.

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Conclusion

Media impunity

• Domestic law clearly restricts and has always
  restricted speech as a form of discrimination
  but the bar is high and should only be used in
  the clearest cases. The fact that activists may
  try to use them in less clear cases is not
  grounds to repeal our laws.
• Canada has clear international obligations
• Support liberty as a default position and free
  speech, but with balances for extreme cases
• Respected journalist, the late George Bain, once
  said there is no real freedom of speech if
  the media do not provide an outlet for other
  viewpoints more nearly equal to the outlet they
  reserve for their own." 
• Macleans magazine, December 22, 1992.