-Janet Keeping, President, Sheldon Chumir Foundation for Ethics in Leadership
It is perfectly understandable that people disagree on how human rights statutes should be amended to best protect free expression. But a recent speech by Jennifer Lynch, Chief Commissioner of the Canadian Human Rights Commission, should worry everyone for it reveals a serious misunderstanding of free expression.
To be fair, Lynch makes some valid points about the controversy over whether human rights agencies should have authority to punish offensive speech. Much, as she points out, of what has been said about human rights commissions is “inaccurate” or “unfair.” For example, commentators have suggested complaints about offensive speech make up much of the commissions' work. In fact, in Alberta, such cases constitute 1 to 3% of the case-load. Across the country, it is not much different.
Some critics have even claimed that discrimination no longer occurs, so human rights commissions have no “legitimate” work left to do. Tell that to the many women refused work or fired because they are pregnant. Legally, pregnancy discrimination is a form of gender discrimination, but many employers are good at making it look like something else. Aboriginal people, the disabled, gays and many others can provide plenty of evidence that discrimination, unfortunately, remains widespread.
But Lynch is wrong on some basic issues, most importantly on freedom of expression. She says that the “power (of words and ideas) while overwhelmingly positive, can also be used to undermine democracy, freedom and equality.” For that reason “Canada, and many other nations, have enacted laws to limit forms of extreme hateful expression that have very minimal value in the free exchange of ideas, but do great harm to our fellow citizens.”
In fact, most ideas are neither “overwhelmingly positive” nor harmful – they are trivial. It's not only “extreme hateful expression” that has “very minimal value.” Just turn on the TV, go to nearly any blog or Twitter.
Why then is freedom of expression so important? Because it is too dangerous to let people decide for others what they can say or hear – except in a few limited circumstances, where the harm is serious, and irreparable or imminent, such as, yelling “fire” in a crowded theatre.
Curtailing freedom of expression is no idle concern. For example, the reasoning behind the ruling that Reverend Stephen Boissoin's letter to the editor violated Alberta's human rights statute was abysmal, the penalty imposed on him absurd. Boissoin is banned, for life from expressing his sincere, religiously-founded opinion that homosexuality is evil. While I detest Boissoin's opinions, giving a single human rights commissioner the power to shut you up forever because he or she thinks something you said is offensive or hateful is dangerously wrong. Boissoin's views may have no social value, but what about the next visionary dissident with an unfashionable truth to tell?
The fact is that stifling people like Boissoin will not make their views go away; it will only force them underground instead, where they can fester, inspiring even worse down the road.
Lynch's opinion that “the modern concept of rights is that of a matrix with different rights and freedoms mutually reinforcing each other to build a strong and durable human rights system,” invites us to think of freedom of expression as just another ingredient in an evolving recipe – a dash of equality here, a pinch of liberty there – for the perfect human rights concoction.
But freedom of speech is not just another human right. It has a pragmatic priority, because it is necessary for the realization of all other rights. Freedom is not more important than equality, but you will never have equality if you can't speak freely. Think of Iran: women there will never have equal rights, if their demands for them can't even be articulated.
Whatever good could possibly come of human rights commissions' censorship is vastly outweighed by these harms and can, in any event, be achieved through other means. We don't have to file human rights complaints to protest obnoxious speech. We can shun the source of it, demonstrate or protest, make calls, send e-mails, and so on.
Lynch's remarks were disappointing in other ways. Here's one that especially rankles. The Alberta legislature recently confirmed the provincial commission's jurisdiction over offensive speech, but Lynch notes “not without a chorus of ‘boos' from the far right.” The Chumir Foundation, other organizations and individuals presented carefully constructed arguments against Alberta's hate speech provision. It is disrespectful to dismiss our reasoned objections as “boos” or to comment on the Alberta debate without adequate knowledge of it.
And to assume all Albertans are on the far right is to engage in the very stereotyping human rights commissions were set up to combat. We should demand better of our human rights commissioner.
