The Calgary Herald

Hearing complaint alters rights body's mandate

A. Alan Borovoy

March 16, 2006

The furor over those Danish cartoons simply refuses to die. It has even migrated to Canada.

In Alberta, both the Western Standard and The Jewish Free Press have republished the cartoons. This provoked a response from the Canadian Muslim community that could develop into a legal quagmire.

The Islamic Supreme Council of Canada has filed complaints under Alberta's Human Rights Act. Presumably, the group is hoping the Alberta Human Rights Commission will take action under the section of the act that targets material "likely to expose" any person to "hatred or contempt" on the basis of religion and certain other grounds.

Despite my considerable involvement in pressuring the Ontario government, many years ago, to create Canada's first human rights commission, I regret this use of the law. It's one thing to invoke the law against discriminatory deeds; it's another thing entirely to employ it against discriminatory words.

During the years when my colleagues and I were labouring to create such commissions, we never imagined that they might ultimately be used against freedom of speech.

Admittedly, we always supported narrow restrictions against speech that advertises or facilitates prohibited discrimination in areas such as jobs or housing. Thus, for example, we had no objection to stopping business operations from effectively advertising "no blacks, aboriginals, or Muslims need apply."

Indeed, we have long believed such enactments should be read in this narrow way.

In recent years, however, there has been a growing movement in favour of a broader interpretation. Many now see such provisions as a more general restriction against the transmission of certain news and
opinion.

Consider, therefore, the sheer magnitude of what could be triggered by upholding the current complaint. This provision of the Human Rights Act contains no defence for truth or reasonable belief in the truth; nor does it require an intent to foment hatred or contempt.

What, then, would be the fate of newspaper and magazine articles that truthfully describe the conflicts in Rwanda, Bosnia, Northern Ireland, and Israel? Some such articles would be "likely to expose" at least one of the contesting parties to hatred or contempt on the basis of "religious beliefs," "ancestry" or "place of origin." Thus,
this provision has the capacity to authorize pervasive censorship.

Hardly the role we had envisioned for human rights commissions.

There should be no question of the right to publish the impugned cartoons.

Religious prophets no less than political leaders or even deities must be legally permissible targets of satire or even scorn. This is the essence of free speech in a democracy.

No ideology -- political, religious or philosophical -- can be immune.

It would be best, therefore, to change the provisions of the Human Rights Act to remove any such ambiguities of interpretation.

But questions of legality cannot adequately resolve the response to these cartoons. Just because such cartoons must be legally permissible does not make them morally acceptable. There is no contradiction between legally defending and morally denouncing any particular material.

For moral purposes, the issue is whether the material gratuitously offends. Civilized people should not look kindly upon those who inflict hurt when there is no legitimate reason to do so.

Even at that, great care must be taken. Legitimate purposes must not be confined to those which we may like or admire. Democrats must acknowledge and defend the moral propriety of expressing satire and criticism even when they personally don't like it.

Thus, our civilization has acknowledged the moral acceptability -- and sometimes, even the greatness -- of literature bitterly critical of various religious and political beliefs.

A free culture cannot protect people against material that hurts. It can't even morally condemn the material simply because it hurts. But, if it gratuitously hurts, such condemnation becomes appropriate.

In attempting to spell out the applicable criteria, I leave to others the formidable task of passing moral judgment on these particular publications. For me, the overriding issue is the distinction between legally censoring and morally censuring.

A. Alan Borovoy is the general counsel for the Canadian Civil Liberties Association.