Alberta's human rights act says that nobody may publish something likely to expose others to hatred or contempt for reasons of race, religion, place of origin, age, sex, odour, pimples, etc., etc.

The Price of liberty is eternal litigation -- we're back in court

Letter From The Publisher | Link Byfield

THERE are people, apart from lawyers, who quite enjoy hanging around courtrooms. They savour the process of law: the quiet decorum, the subtle distinctions and impartial reasoning, the air of gravitas. I'm not one of them. I find courtrooms much like hospitals: places of seething distrust and anxiety all forcefully silenced by professional etiquette. Yet there we were again two weeks ago, back in court in Calgary.

The case arose in 1997, when we quoted someone in a story observing critically that Jewish people dominate commercial real estate development and are sometimes rough on outsiders. Seven months later a complaint was brought to the Alberta Human Rights Commission (AHRC) by the vigilant Harvey Kane, Calgary spokesman for the Jewish Defence League.

The matter was investigated and dismissed by the southern Alberta office of the AHRC. Mr. Kane then appealed to the AHRC's chief commissioner, Charlach Mackintosh, who chose to put Mr. Kane's grievance to an appeal panel, and urged that panel to seek an opinion from the Court of Queen's Bench on a point of law. Which is why I found myself in court, chatting amiably with Mr. Kane (whom I quite like) while six lawyers representing various interested parties laid out arguments and ran up billable hours. The Calgary Herald was there on our side. Against us were the Human Rights Commission, the AHRC appeal panel, the Women's Legal Education Action Fund (federally sponsored radical feminism), a group for community living of the handicapped, and someone who's mad at the Herald for reasons I didn't understand.

The legal question is this: Alberta's human rights act says in Section 2(1) that nobody may publish something likely to expose others to hatred or contempt for reasons of race, religion, place of origin, age, sex, odour, pimples, etc., etc.; and it says in Section 2(2) that "Nothing in this section will be deemed to interfere with the free expression of opinion on any subject." What torments the mind of Chief Commissioner Charlach Mackintosh is the possibility that the law he is supposed to enforce contradicts itself. How could the Alberta Legislature say in one and the same breath that nobody may be exposed to serious criticism and nobody's freedom to criticize may be interfered with?

After almost 30 years, I'd have thought by now the commission would have sorted out a thing so basic and obvious. But apparently not. Thus does our magazine end up spending $20,000 (so far) at the whim of a government bureaucrat who has refused to cover our costs, for a complaint dismissed by his own bureaucracy.

There are two ways of answering Mr. Mackintosh's question. The sensible view is that the Legislature used the word "opinion" as any dictionary defines it -- reasoned judgment about facts and values. The Concise Oxford says it means "a belief or assessment based on grounds short of proof."

If you read sections 2(1) and 2(2) of Alberta's human rights act literally, it means you may talk and think freely, even if someone vehemently disagrees. You may discuss, for example, why so many Indians drink too much, whether certain sexual practices are unnatural, whether there are too many immigrants, or whether all our ills are caused by white males like me. What you may not do is hang up a sign saying "No Indians Allowed" or "Immigrants need not apply." For these are not opinions, they are imperatives. Nor might you necessarily be free to hang out a swastika, or burn a cross. For a swastika is a symbol, not an "opinion."

Read this way, the commission may not act on any complaint against someone's beliefs, only what he does with those beliefs. He may think anything he wants, popular or not, and may defend and advance his beliefs free of intimidation by the Alberta government. If he gets too carried away, and starts uttering grotesque calumnies or advocating violence, he'll be caught by the federal Criminal Code provisions against spreading hate.

This was our argument, and the Herald's. The AHRC and others countered that "opinion" must be taken in its broadest possible context -- swastikas, news broadcasts, letters to the editor, large billboards, bad jokes, 2+2=3, colour coordination, Triple-E lapel pins, little white lies -- everything's an opinion, and all opinions are equally subject to scrutiny by the government. If someone takes offence, it then falls to the government to balance "freedom of expression" with "freedom from hatred and contempt," guided by the latest Charter pronouncements from the courts. All of which (I note) will furnish plenty of work for human rights commissions, panels and lawyers, and endless cost for people (like us) who sometimes publish opinions offensive to the prevailing left-liberal sensibilities of our governing class.

Our side replied that had the Legislature wanted to subject all forms of expression to government scrutiny, it would have said so. A straight reading of the statute shows that it plainly wanted opinion exempted. Moreover, to accept that all human expression amounts to "opinion" is the death of logic, and with it the death of liberty. There are facts, feelings, symbols, tones, questions, commands, calculations, representations and many other human expressions that are in no sense "opinion." If we try to pretend they are all one and the same, we soon reach the dismal point where all expressions are equal, and the government must decide which ones are "helpful" and which are not. We soon reach the point where to criticize the Alberta Human Rights Commission is the same as attacking the groups it purports to defend.

The judge reserved his decision. When he returns with an "opinion," I'll let you know. But whatever he decides, I suspect this matter has just begun.

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