If the controversy over Canadian human rights law and free speech could be said to have had a singular genesis, it was one evening two years ago at the Al Madina Egyptian restaurant in a Waterloo strip mall, when a group of York University law students sat down for dinner with their patron, Mohamed Elmasry, a professor of microchip design and national president of the Canadian Islamic Congress.
At issue was the treatment of Islam in Maclean’s magazine, and after considering criminal complaints or a civil case, the group decided on the quasi-judicial compromise, human rights commissions.
The campaign against Maclean’s that was born that night has now failed in three jurisdictions, and the public outcry at its perceived frivolity has drawn Canada’s entire human rights bureaucracy, fairly or unfairly, into scandal and disrepute. The debate has expanded to include other cases, and drawn together many threads, from white supremacy and immigrant integration to media freedoms and the rise of the blogs.
It will come to a climax on Monday when Richard Moon, a University of Windsor law professor, releases his independent review of the Canadian Human Rights Commission’s mandate to fight hate on the Internet.
“I don’t use, actually, the word ‘failed,’ ” Prof. Elmasry said of his complaints this week over a fine lunch at the Al Madina of braised chicken and stewed cauliflower, in his first interview since filing them in Ontario, British Columbia and federally. He called it “the right decision,” took credit for sparking debate and said all three commissions made the wrong decisions because of inappropriate pressure by media and politicians, “in that order.”
“The first point that I did learn from this exercise is that Islamophobia is alive and well in Canada, in the media and also in politics,” he said. “In all of this, we’ve been victimized.”
Prof. Elmasry said he represents more than 70% of Canada’s Muslim population, which he pegs at one million. Over two hours, he was friendly and forthcoming, good-humoured if not actually funny, not as well informed on the particulars of human rights law as his pro bono lawyer Faisal Joseph, nor as bullishly charismatic as Khurrum Awan, the front man of the young lawyers, who are popularly known, even, in jest, by themselves, as the “Sock Puppets” because it was widely assumed they were acting on Prof. Elmasry’s behalf
Prof. Elmasry said both those men, in their numerous public and media appearances, were always acting “upon my instruction.”
He dismissed the most controversial episode of his four decades of public life -- his declaration on the Michael Coren Show in 2004 that “anybody above 18 is a part of the Israeli popular army” and thus a valid target --by saying it was taken “out of context,” and his full beliefs about the Middle East can be found in his online writings.
“I have political enemies, and they are entitled to advance their political agenda,” he said.
In his own agenda, Prof. Elmasry revealed a vision of human rights law that, while not uncommon, is at odds with the established Canadian model, and he danced around some of the philosophical and moral questions with which Prof. Moon has likely been wrestling. Is it proper to bring the same complaint in multiple jurisdictions? Do people have a right not to have their religion mocked or derided? Should journalists enjoy a special exemption, and if so, what? Are violations worse if a victim is a member of a cultural minority, and if so, how? Do human rights belong just to individuals or also groups?
“Criticizing is not a big deal [in Islam],” he said, referring to the Dan-ish Muhammad cartoons controversy. “You should understand there is a difference between criticizing a religion, OK, comparing it to another religion, and to make a mockery of the symbol of that religion. This is up to the legal system to decide.”
Prof. Elmasry said Canadian law is deficient because it lacks the concept of “group defamation,” which would “make it easier” for tribunals to uphold complaints such as his.
“There is individual human rights and there is collective, group human rights, and both of them are very important,” he said.
In fact, the Canadian Human Rights Act is explicitly directed “to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have ... “
Nor is the common law tort of defamation, group or otherwise, addressed in Canada’s human rights law, which is meant to be restorative rather than punitive. Prof. Elmasry said hate speech against a majority is less serious than speech against a minority because the majority is “anchored.”
“If somebody makes a joke that you’re white, who cares?” he said.
This is also not a distinction with a basis in human rights law, which prohibits discrimination on certain grounds such as race, but does not distinguish between races.
In his campaign against Maclean’s, which he emphasized was very costly, Prof. Elmasry said his goal was to promote “hate-free free speech.” At stake, he said, is a potential genocide of Canadian Muslims. “It happened to the Jews in Europe. It happened to the natives here in Canada. We don’t want it to happen to us,” he said.
He came prepared with a list of recommendations, some of which seemed improbable and wonky, such as proportional representation in Parliament and mandatory voting in elections, while others revealed his skeptical view of Canadian journalists and politicians, and his willingness to tar his political opponents, many of whose names he could not call to mind, as Islamophobes.
Keith Martin, for example, the British Columbia Liberal MP who proposed scrapping the hate speech provision of the Canadian Human Rights Act, was “obviously” motivated by fear of Muslims, Prof. Elmasry said.
“Before, section 13 [the federal human rights hate speech provision] was used mainly by Jewish groups. Nobody really had any concern,” he said. “There was not much fuss.”
“We are not politically engaged like the Jewish community. We have less senators, MPs and MPPs than the Jewish community. We are a community under construction, and then an earthquake came to challenge that community, which is 9/11,” he said. “Politicians ignore Islamophobia, while in the Jewish community, if there is any indication of anti-Semitism, the politicians are up front, saying this is not acceptable. This is the right way to do it.”
He said he has begun to lobby “sympathetic ears” in Parliament for the establishment of a National Media Council, modelled on the Canadian Radio-television and Telecommunications Commission, but including print and online media as well. It would provide a forum for complaints, and advocate for what he called “fairness, professionalism, ethnic diversity, all the good stuff.”
“This would be a buffer between the readers, the viewers and the listeners and the legal system,” he said. “The media itself has to be convinced that the best guarantee to free speech is to make sure that this council is in place.... The government has to work in concert with the media.”
He also said he will lobby for a review of media concentration, calling it “the antithesis of democracy.”
All in all, the man behind the curtain in the HRC debate revealed the importance of clearer thinking about hate speech in the Internet age. On one hand, he advocates for further restrictions on media, such as group defamation laws and a greater role for government through a National Media Council. But on the other, he said the problem of Islamophobia can be remedied by alternative media, meaning blogs and Web sites, which currently include both his fiercest critics and a smaller number of passionate supporters, all subject to a hate speech law that predates the Internet.
This is the tension with which Canadians must grapple after Prof. Moon presents his report next week. Do we favour the balancing of human rights, with freedom of expression weighed against freedom from hatred? Or do we take the absolutist view that the answer to hate speech is more and better speech? Prof. Elmasry, for one, cannot seem to make up his mind.
In the evolving history of human rights law in Canada, the Internet has made this review of online hate speech laws necessary. But among those who can take credit for making it possible, Prof. Elmasry has few competitors, save perhaps the blogger and free speech advocate Ezra Levant.
“I don’t want the media to be a public relations arm for the Canadian Islamic Congress. It’s unrealistic. Or to promote Islam. Or to promote Muslim causes. Or to be a propaganda tool for XYZ issue,” Prof. Elmasry said.
“What I want is for them to be fair.”