By Haroon Siddiqui
Sometimes it is useful to return to a contentious topic long after it has disappeared from the headlines, public passions have subsided and minds are perhaps more open to sober second thought.
One such subject is free speech vs. freedom from hate.
A debate on it raged for months, triggered by complaints by a group of Muslims against Maclean’s magazine for being allegedly anti-Islamic. But the issue was never fully resolved. Understandable, given that there’s no easy answer.
"Clearly both are desirable in any civilized society but they are often seen as being in conflict. Need this necessarily be so? Except as between unrepentant hate-mongers, on the one hand, and over-committed freedom of speech freaks, on the other, I do not see why they should be."
So writes Max Yalden, distinguished federal civil servant who spent years refereeing such competing rights while serving as Official Languages Commissioner (1977-84) and head of the Canadian Human Rights Commission (’87-96).
In his just-released memoir, Transforming Rights: Reflections from the Front Lines, he is particularly critical of the media, the main trumpeters of free speech.
The media are "not entirely neutral." In fact, they have a conflict of interest that they rarely declare. "`Public interest’ can sometimes get confused with what `interests the public,’ i.e. what sells newspapers."
Yalden believes that the media shouldn’t have any more rights or immunity than anyone else.
Free speech, yes. But there’s the duty to curb hate: "We must, if we see ourselves as a civilized society, go after it as forcefully as we possibly can. Hate speech cannot be exempt from limits simply because it’s been carried in the media."
The Supreme Court of Canada has repeatedly ruled that restrictions on hate speech "do not compromise the values of free speech."
Yalden does not entirely dismiss the argument that the best defence against hate is public opprobrium (the censure-not-censor argument). But he’s also "aware that editorialists who promote this line have newspapers to sell … and are not usually members of the minorities who are subjected to abuse."
Human rights issues are not well-served by the media, which "thrive on exaggeration and sensationalism, and have little regard for accuracy when it suits them not to."
The same point was made last year by the Quebec commission on reasonable accommodation, which accused some Montreal media outlets of inventing a crisis.
As for the Muslim group’s case against Maclean’s, Yalden told me that he, too, would have dismissed it, as the federal human rights commission and the one in B.C. did, while the one in Ontario rejected it for want of jurisdiction.
But he upholds the right of people to file complaints: "Where there’s a right, there must be a remedy."
Yalden would not do away with section 13 of the Canadian Human Rights Code, either. That’s the one that prohibits hatred or contempt on the grounds of race, religion, ethnic origin, etc.
Stephen Harper has already announced that he has no intention of dropping the clause that has been used by Jewish, gay and other groups to go after anti-Semites, homophobes, etc.
Anti-Semitism remains "a real threat," Yalden writes, "though I should have thought a diminished one. … Of course, the position of the State of Israel in the turbulent events in the Middle East has brought out different critics who are also sometimes accused of being anti-Semites. Doubtless some of them are, but there are others who are critical of Israel on grounds that have little or nothing to do with religious intolerance.
"One might say much the same with regard to Canada’s Muslim population. This difficult situation is rendered more complex by considerations of race and colour, but some of the indignation on the part of other Canadians clearly relates to unacceptable, violent behaviour outside Canada. The two should not be confused, just as evidence of violence or potential for violence on the part of some Muslims should not be generalized to the Muslim community as a whole."
Yalden’s central message is that Canada’s human rights regime works reasonably well, notwithstanding the media’s hissy fit.