Muslims must “demand that right to participate” in national media, Khurrum Awan, the primary witness in the Maclean’s magazine hate speech hearing, told a weekend conference of the Canadian Arab Federation.
“And we have to tell them, you know what, if you’re not going to allow us to do that, there will be consequences. You will be taken to the human rights commission, you will be taken to the press council, and you know what? If you manage to get rid of the human rights code provisions [on hate speech], we will then take you to the civil courts system. And you know what? Some judge out there might just think that perhaps it’s time to have a tort of group defamation, and you might be liable for a few million dollars,” he said.
On a discussion panel with Barbara Hall, Chief Commissioner of the Ontario Human Rights Commission, and Haroon Siddiqui, editor emeritus of the Toronto Star, Mr. Awan described his increasingly high-profile struggle “against particular elements in media that are misusing and abusing their responsibility” in writing about Islam.
Under the sponsorship of the Canadian Islamic Congress, and with the help of a small team of fellow recent graduates of Osgoode Hall law school, that struggle has so far involved complaints to the British Columbia, Ontario and federal human rights commissions over an excerpt of Mark Steyn’s book America Alone in Maclean’s magazine in 2006.
The only case to be heard so far, in B. C, concluded last week with a decision pending.
In Ontario, Ms. Hall - who joked to the audience that she can finally speak freely with her co-panellist Mr. Awan about his complaint - dismissed it in April as out of her jurisdiction, but issued a press release denouncing Maclean’s for Islamophobia. The federal commission is still considering whether to forward that complaint to the tribunal.
In the process, Mr. Awan’s campaign has roused a broad contingent of free speech advocates, from the most bombastic bloggers to the more refined wits of the comment pages and the news talk shows.
A parallel controversy about investigatory techniques on hate speech files at the federal commission, now being examined by the federal privacy commissioner and the RCMP, has helped to fuel a full-blown national controversy over human rights law and freedom of expression.
Speaking to a crowded lecture hall at a downtown Toronto civic building, Mr. Awan said he had difficulty drumming up support until Ms. Hall called Maclean’s Islamophobic, and then “everyone wanted to be our uncle.”
He said that the argument for limitless free speech “is really a far-right Republican argument that is being imported into this country.”
He repeated his complaint that Maclean’s, based in Toronto, does not belong to the Ontario Press Council, and thus there is no authority with the power to “condemn the journalist, condemn the publication, direct them to publish a letter to the editor.”
He said the criminal law against “wilful promotion of hatred” is “practically useless” because prosecutors require the federal Attorney-General’s consent to lay charges.
“That’s never going to happen. You know, if it’s a Liberal Attorney-General, he will never give consent to prosecute the Toronto Star, for instance. If it’s a Conservative Attorney-General, he will never give consent to prosecute the National Post for instance, no matter how hateful the publication. So the only practical remedy that is available are the human rights commissions,” he said, calling it “the only process in which you as the complainant have control.”
He had particular scorn for The Globe and Mail, which has occasionally denounced human rights hate speech law - even called for its abolition - on its editorial pages, and all but ignored it in the news pages.
“You would think that if they’re editorializing about it, that they would actually be covering the news. They didn’t cover a single unbiased news report about what our position is, or what anyone else’s position is,” he said.
Like many in the Maclean’s camp, Mr. Awan said he would “love” to see this case appealed into the regular courts - a likely outcome, if Maclean’s loses - even as high as the Supreme Court of Canada.
Provincial human rights codes take varying approaches to hate speech, but at the federal level, that appeal could involve a re-analysis of the 1990 ruling in the case of John Ross Taylor, who refused an order of the Canadian Human rights Tribunal to shut down a neo-Nazi phone line. He challenged the hate speech section of the Canadian Human Rights Act, but lost when the Supreme Court ruled by a 4-3 majority that it was a reasonable limit on the Charter right to free expression.
The federal law, Section 13-1, applies to “telecommunication” of any material “that is likely to expose a person or persons to hatred or contempt,” based on 11 specific grounds such as race, colour or religion.
Critics argue that decision needs updating, because it was written before Section 13-1 was extended in 2001 to include not just telephone communications but the Internet as well, as part of the security response to 9/11. In the process, the law came to cover mainstream media, almost all of which are now online. At the federal commission, most section 13-1 cases are Internet-based.
Mr. Awan said a pending parliamentary motion to scrap 13-1, by Liberal MP Keith Martin, was only brought because Mr. Awan and his fellow complainants are Muslims, and that no one complained about the “90%" of previous complaints filed by aboriginal people, blacks or Jews.
“It is the first time that the Muslim community has filed a complaint, and suddenly this is a big national issue,” he said.