How Mark Steyn got Canada on the cover of the New York Times

Posted on June 13, 2008 by Douglas Bell

Whenever our home and native land gets a mention in the mighty New York Times, we feel that concomitant frisson of recognition. For a moment, we’re a little closer to the centre of things. Today we made the front page above the fold, and not in a way that was especially flattering. The subject, in part, is the discrimination complaint before the B.C. Human Rights Tribunal involving a piece Mark Steyn wrote for Maclean’s. I’ve written before about this sorry situation and expressed my opinion that the sooner we put paid to this sort of frivolous prosecution, the better. While Times legal reporter Adam Liptak takes seriously the Supreme Court’s efforts to balance speech rights with other societal concerns, he appears to imply that the situation in B.C. is the bridge too far. His argument, after the jump.

In his opening statement in the Canadian magazine case, a lawyer representing the Muslim plaintiffs aggrieved by the Maclean’s article pleaded with a three-member panel of the tribunal to declare that the article subjected his clients to “hatred and ridicule” and to force the magazine to publish a response.

“You are the only thing between racist, hateful, contemptuous Islamophobic and irresponsible journalism, and law-abiding Canadian citizens,” the lawyer, Faisal Joseph, told the tribunal.

In response, the lawyer for Maclean’s, Roger D. McConchie, all but called the proceeding a sham.

“Innocent intent is not a defense,” Mr. McConchie said in a bitter criticism of the British Columbia law on hate speech. “Nor is truth. Nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.”

Jason Gratl, a lawyer for the British Columbia Civil Liberties Association and the Canadian Association of Journalists, which have intervened in the case in support of the magazine, was measured in his criticism of the law.

“Canadians do not have a cast-iron stomach for offensive speech,” Mr. Gratl said in a telephone interview. “We don’t subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.”

That last bit reminds me of a serious problem presently going down in courts across Canada. Despite direction from the Supremes suggesting that transparency matters, lower courts make it difficult, if not impossible, to scrutinize public records of ongoing court proceedings. One reporter, whose regular beat is a superior provincial court, told me that if you ask a clerk of the court to even sneak a peek at trial exhibits, “they look at you as if you’re asking for porn,” and direct you to get an order from the judge in the case. This as opposed to the U.S., where trial exhibits in federal court are often made available on-line as a matter of course.

This is only one of a related constellation of problems that I hope to address in future posts, but suffice it to say that the unwillingness of our institutions to engage in rough and tumble, open-ended public debate is a problem with the broader Canadian experience. After all, why should we trust a judicial system to dictate what we can and cannot say when we can’t even examine the inner workings of the system itself?

• Unlike Others, U.S. Defends Freedom to Offend in Speech [New York Times]

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