Legal Commentary

To no one's surprise, the Canadian Human Rights Commission has dropped its bizarre investigation of MacLean's magazine for printing a chapter of Mark Steyn's book, America Alone. The Commission had brought the case before the Human Rights Tribunal, charging that Steyn's chapter constituted "hate speech" under section 13 of the Canadian Human Rights Act, S.C. 1976-1977, c. 33, because it might tend to "expose a person or persons to hatred or contempt" because they were Muslims. Steyn's book did not remotely resemble "hate speech," if that term means "speech intended to incite hatred or contempt." Steyn had merely argued -- accurately -- that many Fundamentalist Muslims did not share, and therefore might threaten, the liberal and secular values of many Europeans, if the numbers of the former increased more rapidly than the numbers of the latter. The notion that such speech could be suppressed because it hurt someone's feelings had inspired widespread outrage from Canadians and Americans.

I had noted in an earlier post that, despite its goofy and oppressive investigations, the Human Rights Commission might not be a serious threat to freedom of speech in Canada. Canada's political and journalistic elites, I predicted, would bring the bureaucratic censors at the Commission to heel, because those elites would not tolerate violations of Canada's culture of a free press. The Canadian Supreme Court has done little to restrain the Commission, but the Conservative Government of Canada has moved for an investigation by Parliament's Justice committee of the Commission's enforcement of section 13. My prediction: The Commission's powers will be severely trimmed following such an investigation. (Merely giving successful respondents their reasonable attorneys' fees would go far to eliminate the threat posed by run-amok investigations).

The dismissal of the Steyn case is a small data point tending to bear out my prediction. The continued attacks on the Commission suggest that more data will be available soon. Some will say that, in the mean time, the Commission will "chill" speech in Canada. I have yet to see the slightest indication of such chilling: To the contrary, the provincial and federal commissions' ham-handed investigations seem to have provoked an extraordinary degree of very vocal ridicule and contempt from Canadians, including at least one columnist's begging the commission to investigate the author. (As one envious writer noted, the commission's investigation of Steyn has been pure gold for his book sales).

In short, I continue to think that free speech is alive and well in Canada -- sustained not by courts or constitutional doctrine but by a political culture that values a free press and a press that loves a donnybrook.