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Monday, February 09, 2009

Intellectual Freedom in Canada: Mark Steyn "addresses" the legislative hearing on the Ontario Human Rights Commission - with a haymaker

Earlier today, in the Fire. Them. All. News Service roundup, I reported that Mark Steyn was to testify against the anti-civil rights Human Rights Commission today. I am just back, and am transcribing what he said, in sections, below. Update: Here's a leaked transcript of the whole day (all the witnesses). Here are Steyn's reflections on the day - on the stages in which proud Western multicultural nations lose their freedom.

This from the earlier story:


Commentator Mark "one-man global content provider" Steyn is testifying today on the Ontario "human rights" commission (= trampling civil liberties in the name of social engineering) at the province of Ontario's legislature (Queen's Park), Room 155. Ontario's commission dropped its charges against Steyn for his famous Maclean's article, an excerpt from his book, America Alone, but issued a media release implying that he really was guilty - which gives you some idea how much it resembles a real court. As Kathy "I'm with the banned" Shaidle says, "Can't find room 151? Just follow the buzzing sound: Steyn tends to be surrounded by a flock of ardent admirers."
Here's a transcript:

The Ontario Human Rights regime is incompatible with a free society.

I'd just like to make a brief statement and then answer any questions.

The Ontario Human Rights regime is incompatible with a free society. It is useless on real human rights issues that we face today and in the cause of such pseudo-human rights as the human right to smoke marijuana on someone else's property or the human right for a transsexual labiaplasty - in the cause of pseudo-human rights, it tramples on real human rights, including property rights, free speech, the right to due process, and the presumption of innocence.

Far from reducing racism or sexism, the Ontario Human Rights regime explicitly institutionalizes racism and sexism from its inability to view any dispute other than through the narrow prism of identity politics.

It's at odds not just with eight centuries of this provinces legal inheritance, but with the United Nations' Universal Declaration of Human Rights. Canada likes that one so much, it sticks it on the back of the $50 bill, even though Ontario's Human Rights regime is in sustained, systemic breach of Article 6, Article 7, Articles 8, 10, 11, 12, 18, 19, 21, and 27 of the UN Declaration. The good news is that Ontario is not in violation of as many articles as Sudan or North Korea.

If you are not rich or powerful, "the Ontario Human Rights regime will destroy your savings, your business, your life, for no good reason."

"All are equal before the law and are entitled without any discrimination to equal protection of the law." That's how it was said It's not true in Ontario. The Ontario Human Rights Commission effectively gave Maclean's and myself a drive-by verdict. They couldn't be bothered taking us to trial but they decided to pronounce us guilty anyway. That evades the most basic principle of justice: Aude alteram partem. (Hear the other side.)

[Human rights commissioner] Barbara Hall didn't bother to hear the other side. She simply declared us guilty. That is the very defining act of a police state. An apparatchik announcing that a citizen is guilty of dissent from state orthodoxy.

But, and here's the point: Maclean's and I have no fear of Barbara Hall, the Commission, or the Tribunal. You are welcome to try to your worst with us. We have deep pockets, we push back, and we filled the newspapers with stories about all these wacky cases that Barbara Hall and others are so obsessed about.

And like all tinpot bullies, the Commission couldn't take the heat and backed down. If you're just a fellow who happens to own a restaurant in Burlington, the Ontario Human Rights regime will destroy your savings, your business, your life, for no good reason. The verdict's irrelevant. The process is the punishment.

When you suborn legal principles to ideological fashion, you place genuine liberties in peril.

I'd like to say one third thing. When Mohamed El-Masry announced his suits against Maclean's, he was supported by Terry Downey of the Ontario Federation of Labour. And, Ms. Downey, explaining her support for El-Masry, said, "There is proper conduct that everyone has to follow."

Sorry, I pass on that one.

For one thing, there is no proper conduct in the wacky world of pseudo-human rights in this province. The rules are made up as they go along, so even if you wanted to follow them, you can't. In John Locke's words, "They dispose of the estates of the subjects arbitrarily."

Secondly, it's all too easy to imagine the Terry Downeys of the day telling a homosexual fifty years ago that there is proper conduct that everyone has to follow. Or a Jew seventy years ago that there is proper conduct that everyone has to follow. That's why free societies do not license ideologues to regulate proper conduct. When you suborn legal principles to ideological fashion, you place genuine liberties in peril. And that's the state in Ontario today.

Thank you.


From Denyse: What impressed me most powerfully about the hearing was not Mark's address but the hatred visible on the faces of the apparatchiks. Imagine a man boldly declaring defiance of their nascent nanny state, backed by thugs. It was never supposed to happen.

People who think Canadians are wimps tend to forget that our national sport is hockey ...

More below, but first this:




Canadians tend to be resigned to bad government on the theory that it is cheaper to keep a fat pig fat than to fatten up a thin one (an Irish proverb). But they can only push us so far, and then ...

Selections from the Question and Answer period:

[From Denyse: I was not able to see all the name plates of the committee members, so I will simply give the gist of some of the questions, but transcribe Steyn's responses. Myself, I was not particularly impressed with the questioners. They seem not to understand that more and more Canadians are coming to realize that their new made-up "human rights", via their many recent bizarre decisions, trump the traditional civil rights of Canadian citizens. As more and more people discover that fact with each bizarre decision, the uproar grows. ]

The ultimate minority is the individual

A committee member noted that the Ontario Human Rights Commission case brought against Steyn and Maclean's had dominated discussion among the human rights appointees, and she asked if they believed that free press trumped discrimination. The same question was asked earlier today of the chair of the Ontario Human Rights Tribunal, and the response was "Neither trumps either." She wanted to know Steyn's view on this.

Steyn: With respect to the witness the morning, that has become a standard equivocation at the Ontario Human Rights Tribunal. Whenever Tribunal judges take away individual [unintelligible], they do so under the guise of balancing, what they call "balancing"or competing rights. So, going back to the Scott Brockie* case, they claimed to be balancing freedom of religion with the right of the gay people seeking printed materials to be free from discrimination. But in practice, they almost never balance those rights. They always defer to collective rights, group rights, in favour of individual rights. I am an absolutist on this. I am of the view that the ultimate minority is the individual. And classically, historically, common law has been entirely antipathetic to group rights. Because who can speak for a group?

The notion of group rights should be an abomination to a settled democracy.

[*Scott Brockie was a printer who was persecuted for many years by the Commission, because he was unwilling to print literature advocating the gay lifestyle, and lost huge sums of money in defending himself against them.]

(Note: Recently, Ontario moved to a two-tier structure where the Commission finds promising cases and the Tribunal is the business end that despatches them.)

What you see progressively is the shrivelling of the bounds of public discourse.

The same questioner wanted to know whether the "human rights" trial of Mark Steyn and Maclean's Magazine in three different jurisdictions had chilled media coverage of controversial topics.

Steyn: Yes, I would say that's undoubtedly the case. Essentially, Maclean's and I - Maclean's in the corporate sense - decided the amount of money it was willing to spend to see off these assaults on freedom and I made a personal calculation of the amount that I was willing to spend on that. I am fortunate that, unlike most of the people caught in the human rights trap, to have that amount of money that I can spend. But the reality is that most editors and most publishers don't want to get caught in this business. And what you see progressively is the shrivelling of the bounds of public discourse.

People said to me, well, don't worry - you will be acquitted eventually. That happened to that guy in Saskatchewan, the one who took out the ad in the Saskatchewan Star-Phoenix, the one who took out the ad, not even quoting the Biblical passages [that identify homosexual acts as contrary to Jewish or Christian lifestyles], just citing the chapter and verse. It was an ad in the Saskatoon Star-Phoenix. Four years later, that was overturned at the Saskatchewan Court of Appeals. In reality, nobody could place that ad today. You couldn't take that ad to the Saskatoon Star-Phoenix, and expect them to run it today. So in that sense, the public space, the space for public discourse, shrivels remorselessly, under this regime.

[From Denyse: But is that an accident? I doubt it. Nanny and her thugs like it that way.]

The human right "not to be offended" should not exist in a free society. That's the first and most basic thing that this system failed.

The questioner then asked for a response to the "drive-by verdict" at the Ontario Human Rights Commission in the Mark Steyn-Maclean's case.

Steyn: Truth is no defense. No one was disputing the truth of what I wrote. Nobody was arguing that it was libellous or seditious or false, for all of which there would be appropriate legal remedy. In essence, the plaintiffs were arguing that they had been offended.

Well, offensiveness is in the eye of the offended. I have no way of commenting on that one way or another. It's not possible, in the legal sense, to mount a defense to the accusation that you've offended somebody - which is why the human right "not to be offended" should not exist in a free society. That's the first and most basic thing that this system failed.

I was rather alarmed by the number of Canadian journalists who were quite happy to serve, in effect, as eunuchs of the politically correct state.

Then the questioner pointed out that support for Steyn in the Maclean's/Steyn case over his article in Maclean's included Egale (a gay rights organization), PEN (a writers' rights organization, and the Canadian Association of Journalists), to say nothing of supportive editorials in media such as The Toronto Star and The Globe and Mail. She wondered whether he was surprised by the fact that he had so much support.

Steyn: No, because I think it should be obvious that, if anything, I was rather alarmed by the number of Canadian journalists who were quite happy to serve, in effect, as eunuchs of the politically correct state. I can't understand why anybody would want to do that. It took a while - the organizations you mentioned were late getting on the bandwagon.

In a sense, if you want to make this a right-wing/left-wing thing, the left, the international left, in the United States, the United Kingdom, Australia - people who loathe me personally - have caught the essence of this far quicker than the Canadian left has: That if you don't believe in free speech for people you loathe, you don't believe in free speech at all.

So every time you have someone like Haroun Siddiqui at the Toronto Star saying that it's all about striking a balance and all the rest of it, every time that someone tiptoes down that primrose path, it leads only to tyranny. If you don't believe in free speech for people you hate, you loathe, you revile, you don't believe in free speech at all.

If there has to be a Tribunal, it should be brought within the bounds of normal legal practice in this province.

A second questioner, noting that Steyn had pointed out that the process itself is the trap, apart from any ruinous punishments, asked what remedies Steyn would suggest.

Steyn: I believe in the abolition of the Commission, because I believe the Commission are nothing but ideological activists, and I have no objection to that. I've been accused of that myself. But I do it on my own dime and I do not see why Commissar Hall and her colleagues should not do it on their own dime. The Tribunal, I think, needs to be brought within the codes and conventions of this country's legal system. At the moment, it upends them. The burden of truth ought to be on the accuser. The accuser should not be allowed unlimited funds to frivolously torment people for no reason, beggaring them for something that serves no public purpose. ... So the idea that people should be punished, essentially punished by a system that does not allow them equality with their accuser is a mark of great shame for this province. If there has to be a Tribunal, it should be brought within the bounds of normal legal practice in this province.

[From Denyse: But wouldn't that render it useless for its intended purpose - as an instrument of government-funded persecution outside the law?]

The third questioner, obviously hostile, wanted to know whether, in the absence of the current state apparatus, "No Jews need apply" sign would appear in store windows.

Steyn countered that when, in the 19th century, only two signs had ever appeared in New York windows announcing that "No Irish need apply," it became the basis of a very popular song.

Steyn: In its day, No Irish Need Apply, No Jews Need Apply, No Muslims Need Apply was a very rare. ... I recognize laws of accommodation. I recognize, for example, that if you have a restaurant, you can't say that Jews sit at this table and Muslims sit at that table ....

This is the classic human rights dodge, by the way. To identify a non-problem that you claim to be solving. Nobody is putting No Jews Need Apply signs ...

[From Denyse: This questioner did not appear to understand, but I found her mostly boring and irrelevant.

For example, she proclaimed that women earn less than men, as if that was relevant to freedom from extra-legal commissions and tribunals.

I'm a woman, and have lived on a low income from freelance writing for decades, including a long period when I was a sole support mom. But I'd far rather be poor than have the likes of her running my life - or anyone else's. Also, I know epithets that apply to women who prefer money to dignity, but as a matter of principle, I do not use them on this blog.]

But I think we need another break just now, so here is "No Irish Need Apply!":



If either lack of time or superior cultural refinement prevented you watching "No Irish Need Apply," I commend to your attention the following line, "And I gave him such a beatin' as he'd get in Donnybrook," which may help to explain why so few such signs appeared in windows ... But now back to work.

This is again the sham of the Human Rights Tribunal, in that it does not treat all hate equally.

Steyn: Let me just [unintelligible] about this "hateful words" business. This is again the sham of the Human Rights Tribunal, in that it does not treat all hate equally. At the time when there is interest in women's rights, we have honour killings, we have arranged marriages against the wishes of the brides in this province. The Human Rights tribunal is silent about that. The Human Rights Tribunal accepts implicitly the two-tier system whereby if you are a Western woman and you are fired from the strip joint in Mississauga*, ... they'll take up your case tormenting some hapless male strip joint owner. But if you are sixteen year old Aqsa Parvez and you get killed in an [alleged] honour killing, they accept implicitly that that is a two-tier system in which multicultural sensitivity [voices interrupt] ... you brought this up, madam. At the time my case came into the news, there was a fellow in Toronto who went onto the Internet and explicitly urged the killing of a Minster of the Crown and Canadian troops and nobody bothers to investigate him, for instance.

[*Here Steyn refers to a recent Ontario "human rights" case where a strip joint fired a stripper on the grounds that she was too old. Presumably, the proprietor believed that men would no longer pay to see her take her clothes off?]

Shouting fire: The problem with the Human Rights Tribunal is that falsely - falsely - shouting fire is not at issue.

The next questioner launched a long overtime discussion of the American Supreme Court judge Oliver Wendell Holmes's supposed dictum that no one has the right to shout "fire" in a crowded theatre. The questioner seemed to think that Holmes had said that in the 1930s, but Steyn pointed out that he had in fact said it in 1919, and the context was the government's right to prevent the distribution of flyers opposing the draft.

Here's some background from NationMaster:


Shouting fire in a crowded theater" is a misquote that refers to Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919 and that is used to express the limits upon which free speech may
be expressed under the terms of the First Amendment of the United States Constitution.

Holding Defendants criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war.

Freedom of speech is the right to freely say what one pleases, as well as the related right to hear what others have stated.

Holmes, writing for a unanimous majority, ruled that it was illegal to distribute fliers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war.

Holmes wrote: The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Holmes wrote of falsely shouting fire, because, of course, if there were a fire in a crowded theater, one may rightly indeed shout "Fire!". Falsely shouting "Fire!" in a crowded theater, i.e. shouting "Fire!" when one believes there to be no fire in order to cause panic, was interpreted not to be protected by the First Amendment.

Schenck was later overturned by Brandenburg v. Ohio, which ruled that speech could only be banned when it was directed to and likely to incite imminent lawless action (e.g. a riot), the test which remains until this day. Some now see the Schenck argument to be mistaken, contending that pamphleteer was more like yelling fire outside a building to prevent people from entering than it was trying to encourage people to stampede out. Holding Ohios criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action. ... Imminent lawless action is a term used in the United States Supreme Court case Brandenburg v. ... Teamsters, armed with pipes, riot in a clash with riot police in the Minneapolis Teamsters Strike
of 1934. ...

Despite Schenck being overturned, the phrase "shouting fire in a crowded theater" has since come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are blatantly obvious.

Steyn: He was upholding espionage charges against an antiwar protester. So by his measure, thousands of Canadian liberals would have been rounded up for protesting the war in Afghanistan. ... [voices interrupt, chair calls for order, Steyn resumes] Oliver Wendell Holmes said that the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre. The problem with the Human Rights Tribunal is that falsely - falsely - shouting fire is not at issue. It doesn't matter whether the theatre actually is on fire, because under the Human rights Tribunal, truth is not a defense. In my particular case, no one has ever pointed to a single fact in the Maclean's article - an excerpt from my book - that is inaccurate.

[From Denyse: The questioner appeared not to understand that the point of Holmes's (later overturned) judgement was that the "fire" claim must be false before it is actionable. It's not clear that Holmes, despite his pronounced authoritarian tendencies (cf. Buck vs. Bell, supporting forced sterilization) would support a Human Rights Tribunal regime in which truth and falsehood are irrelevant to the proceedings.]

When you accord your Tribunal the power to regulate speech is that you replace a social ill, people using racial epithets, with a worse ill

The questioner then offered a focused question: "Nobody is free to yell provocative racial epithets in a multiracial society like Toronto or [Detroit?]. Would you agree with that?"

Steyn (arguing that society should have a bias against using racial epithets): A member of the British Foreign Office was arrested over the weekend for yelling, "effing Jews," "kill the effing Jews," ... I don't think he should have been arrested. I think he should be publicly shamed.

This is not a hateful province. This is not a jurisdiction where people openly insult and use racist epithets. But what happens when you accord your Tribunal the power to regulate speech is that you replace a social ill, people using racial epithets, with a worse ill.

It's far worse to allow government the sole power to arbitrate what is acceptable speech or not. If a guy uses the "n-word" in a bar, I would rather somebody slugged him on the chin rather than him being dragged up before your tribunal.

[From Denyse: The context of "yell provocative racial epithets" needs some unpacking. I've lived in Toronto forty-five years, and the only people I've ever heard yelling provocative racial epithets were drunk, mentally ill, or involved in a dispute. However, it is no longer illegal in Ontario to be drunk in a public place (and the drunk can always claim ignorance of what he was saying); the mentally ill are presumably protected by their disability; and the disputants, if sane, can be charged with disturbing the peace. The British official should be asked to resign, if he hasn't been already; whatever the explanation for his behaviour, he is clearly unsuited to a position in the Foreign Office. ]

Free societies should not be in the business of criminalizing opinion

This questioner then asked: "Your feeling is that individual rights should trump group rights, that you're an absolutist on that point? Suppose we have, not a group right, but an individual right that is in conflict with an individual right of free speech?"

Steyn: ... free societies should not be in the business of criminalizing opinion. When you go down that road, all you do is lead to the situation that you have in, say, Saudi Arabia. In Saudi Arabia, you can't print a newspaper and say what you think, so if you object to the House of Saud, the only thing you can do is blow stuff up. I think, actually, we don't need sensitivity training in this jurisdiction, we need insensitivity training. We need to learn to rub along in a much more agreeable, rough-and-tumble fashion.

[From Denyse: Re group rights: A majority of Canadians are "absolutists" on that point. That was why - despite the desperate urging of politicians and pundits, when the Charlottetown Accord (giving "group rights" to Quebeckers) was put to a public referendum - it was voted down. Since then, our governments have increasing depended on arbitrary measures like Human Rights Commissions/Tribunals to ram through their favoured social policies. Incidentally, Parliamentary Press gallery reporter Deborah Gyapong, a freespeecher, offers a different perspective on group rights from Steyn's here (scroll down). She points out that the new totalitarians can use individual rights to drive a wedge through groups as well, by backing an individual undermining a group - for example, a gay activist at an evangelical college.]

The questioner then repeated, "Nobody is free to yell provocative racial epithets at a busy intersection in Toronto or New York," seeking Steyn's response.

Steyn: I think if someone wants to yell things about Jews, obviously, in this town they are free to do so. They were yelling explicitly eliminationist genocidal rhetoric just a couple of weeks ago on the streets of Toronto, and neither the Ontario Human Rights Commission nor the Ontario Human Rights Tribunal seems the least bit interested in it. So you are identifying, essentially, something that is not the business - the Ontario Human Rights Tribunal is not in the business of people shouting explicitly eliminationist genocidal rhetoric on the streets of Toronto. That's not what this Tribunal or this Commission do. They couldn't care less about it.

[From Denyse: That, of course, is the key to understanding what these Human Rights Commissions/Tribunals really do. They exist to advance - with public power and at public expense - an ideological agenda. Anyone who falls outside that agenda can expect nothing from them except the gradual loss of the civil rights that do in fact protect all of us, not just those who advance the agenda.]

And in support of what I am saying:
Update February 12, 2009: Yesterday Commissar Barbara Hall made explicit to Toronto Sun columnist Christina Blizzard that aged strippers' rights trump the protection of teenagers from honour killings:
It was her response to Steyn's criticism of OHRC's silence on honour killings that shocked me.

"There are thousands of things that happen in the province of Ontario on a daily basis and we don't comment on all of them," she said.

But, I spluttered, women are being murdered.

"As I said, we are a small commission.

"There are many problematic things that happen in our community and we have to make choices because we can't respond to everything," Hall said.

So honour killings are merely "problematic"?

Here's a woman who's advocated for years on behalf of women's rights. She found time to crucify Steyn and Maclean's, but she's too busy to raise the issue of women who are being murdered over some hideous interpretation of "honour"?

Here's Steyn on that kind of thing, out in the hall after the hearing:




The Tribunal will be dealing with essentially freedom of expression cases, whatever the Ontario Code says to the contrary

Another questioner asked whether freedom of speech was not strictly a federal issue, and asked Steyn to distinguish between the Commission's involvement and the Tribunal's involvement.

Steyn: She [Commissioner Barbara Hall] thinks that these are exactly the kinds of issues that the Commission ought to be bringing before the Tribunal.(many voices interrupt, some referencing the Ontario Human Rights Code as allowing freedom of speech) Given the expansion of the definition in the years since the Taylor decision and given the Commission's own words on the kinds of cases it hopes to bring to the Tribunal, I think it's clear that the Tribunal will be dealing with essentially freedom of expression cases, whatever the Ontario Code says. (At this point, the Chair thanked everyone and ended the discussion.)

Well, that's all folks. Steyn was interviewed out in the hall and posed for pictures with various freespeechers, a few of which you can see here.

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