The similarities between the Abrams case and CIC v. Maclean’s are plentiful.  And it doesn’t require an astute legal mind to reconcile the two.

Their are, however, key points so critical and germane to the current dispute between the opposing camps that they must be highlighted and not overlooked.

1.  The Tribunal in particular and the expert witnesses recognized that the articles taken as a collection was a major contributing factor to the racist discourse.

2. Blatant overt statements are not necessary to promulgate discriminatory thought; the tone, specious arguments, playing on stereotypes and faulty analogies are powerful tools that masquerade racist ideology.

Moving Beyond the Debate of Freedom of Expression and Other Obfuscations

Putting aside this ostensible debate between free speech and the right not to be a offended, a clever ploy by the writers and publishers who are disseminating the discriminatory messages, and stepping away from the appropriateness of human rights commissions as a legal forum to advance such claims (another tactic), there is much to take away from the Abrams case and the multitude of academic literature in related domains.

Mr. Abrams, with no doubt support from the intervener on his behalf B’nai Brith, had the benefit of a litany of expert witnesses to deconstruct the articles and explain their effects.

Eminent scholars and professionals on racism, journalism and linguistics submitted in depth analyses and gave testimony to the effect that the subtle tactics employed in the articles may not be perceived as discriminatory to the average reader but in fact are full of pejoratives and discriminatory language.

Further, it was well noted that the consistent dissemination of these discriminatory themes to the local community through newspaper publications will effectively transmit these messages in a covert form.

The larger academic community has shed light in this area through numerous empirical studies in various fields.  Very recently, and highlighted on this site, the ‘turban effect’ was explained to be an implicit and nonconscious bias that many individuals hold without their knowledge against people of the Muslim faith.  The head researcher attributed this phenomenon to on one-sided media portrayals.

Additionally, a vast majority of psychological studies have noted that consisted exposure and priming of derogatory images, words, thoughts and expressions when paired with a specific group can cause the mind to nonconsciously associate these negative thoughts with the targeted population.

When an individual is consistently digesting material that couples a group (Muslims) with a negative association such as Islamist, terrorist, fundamentalist etc., then that individual’s mind will be trained to nonconsciously hold a negative association towards that group - even if the intent is not to portray ‘all’ Muslims in this light.  This effect is heightened and exacerbated through stereotypes. This is the type of mental programming that the press can impose when circulating persistently negative topical portrayals.

And the list of relevant academic research goes on… 

Another Example of a Community’s Concerns Being Disregarded by Maclean’s Editor Kenneth Whyte

Many critics have advocated for a resolution outside government intervention between Maclean’s and the CIC and Muslim community.  According to the CIC and its advocates this position was simply not feasible for numerous reasons, many of which were outside their control.  

Other minority organizations have had similar experiences with editors and publishers.  The situtation described below is an example of a minority organization trying to resolve a concern they had with one sided portrayals and being pushed aside by current Maclean’s editor-in-chief Kenneth Whyte. 

Around the time of the new millennium, The National Post’s Diane Francis openly admitted to being on an anti-immigration ‘crusade’ with particular reference to the Chinese boat people who began arriving in British Columbia in 1999.

In her writings she attacked Canada’s immigration and refugee policies, and the immigration minister for a malfunctioning refugee system.

To do this she resorted to innuendo, relevance, misleading statements, ridicule and hyperboles.

Her misguided articles did not go unnoticed.  The Centre of Excellence for Research on Immigrant Settlement organized a seminar specifically addressing Francis’s biased columns.

During this period the Canadian Council of Refugees was performing a media watch about the arrival of the Chinese refugees and it was the National Post that contained the strongest anti-immigration perspective.  They then wrote to Kenneth Whyte, then Post editor-in-chief, in protest about the disproportionate amount of negative news stories and commentaries concerning refugees and immigrants in Canada.

The Post’s lawyer replied with a letter stating:

The menacing tone of your letter and its slanderous allegations cannot form the basis of any constructive discourse between your Association and the newspaper.

Subsequent letters and emails to the editor and Diane Francis were simply ignored.

No human rights commission, no attempted “censuring” of free speech and no resolve.  The immigrant community bearing the adverse effects of this one-sided media portrayal was left with the insurmountable task of fending themselves from the attack of this media conglomerate.

Conclusion

The power of the press is a well documented phenomenon capable of infecting our institutions, government, education and social climate with very harmful views.  In the present CIC v. Maclean’s case the Respondents and several right-wing and some left-leaning journalists have failed to acknowledge that their is a problem and shifted the debate to one between free speech, hurt feelings and human rights commissions.

If it wasn’t for the fact that the CIC’s complaint is in effect waged against a profession and the very same journalists, pusblishers and editors being scrutinized for their abuse of powers, this would be somewhat surprising in view of all the research and documented complaints providing evidence to the contrary.

A review of human rights commissions and their powers may very well be in order but that is an issue distinct from the fact that large scale media organizations are imputing messages to the population at large through their one-sided portrayals and vitriolic commentary.

This second installment will focus primarily on past jurisprudence.  In particular, nearly 10 years back a strikingly analogous case was decided by the BC Tribunal, Abrams v. North Shore Press.

Summary of Facts

In the winter of 1993-94, the complainant, Harry Abrams an active member of the Jewish community in Victoria, began reading a ‘new’ newspaper, The Daily Victorian.  He became concerned about columns written by Doug Collins that he felt contained race-baiting themes that villified Jews. 

He subsequently discovered that these columns were syndicated versions of columns that appeared in the North Shore Newspaper which had a larger reach to communities across from Vancouver on the North Shore of Burrard Inlet.

Mr. Abrams then proceeded to file a human rights complaint under s. 7 of the BC Code. In particular, he alleged “that the continual barrage of articles written by Mr. Doug Collins promoting his views on Holocaust revisionism and Jewish conspiracies, have a cumulative affect [sic] of promoting hatred and contempt towards Jewish people.”  (Note: Although the columns were the work of one author, the complaint was filed against the organization; all articles in question can be found at the appendix of the decision linked above).

Arguments and Evidence

The Respondent failed to present any evidence on the issue of s. 7.  Their defense focused on the constitutionality of the provision which the British Columbia Supreme Court subsequently ruled was a matter to be decided by the Tribunal (Note: This issue is more complex than presented but outside the parameters of this particular post).

The Complainant relied on a number of articles, many of which were not part of the original complaint.  The Tribunal found that individually they were not helpful, only when taken in context as evidence with the other articles published. 

Expert Testimony

Dr. Frances Henry, a highly regarded professional in race relations and discrimination qualified to provide an opinion on anti-Semitism in society, and on the identification and effect of anti-Semitic propaganda reported in the Canadian media.

She expressly noted that the more serious forms of racism are those that are hidden in popular culture, such as in the words, images and descriptions used by media writers.

Techniques utilized in the reviewed articles were that of trivialization, indirect racism (i.e. not denying the holocaust, rather, stating that the numbers are greatly exaggerated), playing on popular stereotypes.

Her conclusions are as follows: 

…it is my opinion that any reasonable person would perceive discriminatory and biased ideas and statements in the four articles written by Doug Collins.  Although he does not make overtly anti-Semitic statements, the tone of the articles reveals little regard for Jewish people of their history.  Mr. Collins perpetuates the stereotypes against Jews especially those which allege widespread power and influence.

Dr. Barbara Harris is a professor of linguistics who applied a process known as discourse analysis to the four articles.  This technique looks at language in its interactional phase between a writer and a reader.

Her analysis concludes:

In short, these four articles are full of pejorative and derogatory language, and the rhetoric depends on devices intended to put the author in good light … expressed through faulty analogy, specious arguments and undocumented ‘facts’.  To the uncritical reader, they would undoubtedly say that Jews are powerful, vindictive, and hypocritical in upholding the historicity of an event the magnitude of which Collins and his fellows deny.

Another key factor considered during the decision making process was the fact of the vulnerability of the group being written about and the historical discrimination it has endured.

Additionally, it was made clear by several of the expert witnesses that print media and local newspapers are major transmitters of society’s standards, myths and images and that the media has the power to promulgate messages to effectively transmit discriminatory message in a covert form.

Decision

As the written decision by the Tribunal was brief and succinct, the whole decision is reproduced below:

Individually, and taken out of context, each of the four columns at issue might not convey messages that meet the high threshold that is necessary to be considered hatred or contempt within the meaning of s. 7(1)(b) of the Code.  However, collectively they do.  They repeatedly reinforce some of the most virulent forms of anti-Semitism.  They convey the message that Jews, individually and collectively, are selfish, greedy and manipulative; that they have conspired to control government institutions and the media; and they use that control to perpetuate inflated figures concerning the victimization of Jews during the Holocaust and to persecute anyone who speaks out against them.

The publication of these messages in a community newspaper that is delivered to almost every home in the community is likely to increase the risk to Jewish people of being exposed to hatred and contempt because of their race, religion or ancestry.  Mr. Collins expresses hatred or contempt indirectly and subtly.  He does not overtly incite hateful or contemptuous expressions.  However, he reinforces negative stereotypes of the Jews that have been promulgated for centuries.  Further, publication of these ideas in a credible newspaper increases the likelihood that others will manifest hateful and contemptuous views in a more directly harmful manner.

I find that the four columns, which were written by Doug Collins and published by the North Shore News, and which were the basis for this complaint, are likely to expose Jewish persons to hatred or contempt because of their race, religion or ancestry contrary to s. 7(1)(b) of the Code.

As the decision in the highly publicized and controversial Canadian Islamic Congress (CIC) v. Maclean’s BC Human Rights Tribunal case is due to be rendered any time now, I thought it would be fitting to preview some of the issues germane to litigation under section 7(1)(b) of the BC Human Rights Code and to counter some of the baseless attacks on human rights commissions generally.

If you’re looking for misinformed rhetorical diatribes and miscontrued rantings on these topics (and most likely others) please peruse these sites here, here, here, here, here, and here.  I am referring to the type of far right thought that attempts to befuddle the public and gain political support through chicanery and subterfuge whilst keeping clear of the real problem(s) in question. 

For a more factual and less partisan perspective read on…

The central focus of this ‘rant’ will revolve around the powers of human rights tribunals (for the sake of clarity and consistency human rights tribunals and commissions will now be referred to collectively as HRCs).  In particular, the powers that mandate HRCs to curb discriminatory publications and their remedial effects (also known by its critics as its egregious ability to “censure free speech” ), and the judicial support and affirmation of its objectives specific to discriminatory publications.

The infamous referential epithet ”kangaroo court” has been used to discredit HRCs, including their powers, capabilities, processes and staff.  The fulminating critics explicitly emphasize that issues so fundamental and pivotal to Canada’s liberal democracy, such as laws censuring free speech, should be left to our ‘real courts’ and judicial system.

What often gets left out are some of the critical facts and points of law necessary to substantiate such a dysfunctional portrait of HRCs.

First, Human Rights Codes are drafted by parliament, in the same fashion and manner as other laws that are litigated through Canada’s civil and criminal courts.  Tribunals are simply applying the law according to their respective Codes through the powers downloaded to them by government and parliament.

Second, the Supreme Court of Canada (SCC) has explicitly endorsed HRCs as a better way to combat hate propaganda and discriminatory publications:

…human rights statutes are pointed to as being a less severe and more effective response than the criminal law.  Such statutes not only subject the disseminator of hate propaganda to reduced stigma and punishment, but also take a less confrontational approach to the suppression of such expression.  This conciliatory tack is said to be preferable to penal sanction because an incentive is offered the disseminator to cooperate with human rights tribunals and thus to amend his or her conduct (R. v. Keegstra, [1990] 3 S.C.R. 697).

Third, in the now famous Taylor case (Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892) the SCC upheld the constitutionality of s. 13 of the Canadian Human Rights Act which makes it unlawful to publish material that is likely to expose a group to hatred or contempt.  Essentially identical to s. 7(1)(b) of the BC Code, the provision the CIC filed its complaint under.

Although this provision has withstood a consitutional challenge, the respondents and their supporters have declared their desire for the CIC v. Maclean’s case to be granted leave to appeal to a ‘real court’ and, if necessary, to the highest court in Canada.

All the while, they have argued that HRCs were formulated to safeguard discriminatory practices in employment and landlord/tenant disputes and should not be used against private, media corporations.  To strengthen this claim, they have garnered support from civil libertarian and one of the pioneering advocates for human rights tribunals, Alan Borovoy.

It is their view that combatting racist speech is not within the purview of HRCs.  The Codes, laws and mandates should not evolve, they should be stagnant.  They scoff at the notion that Human Rights Codes should move beyond their initially intended purpose (30 plus years ago) into areas that may require attention in the present context.

Now the ubiquitous hypocrisy from the right-wing…

They expect HRCs to stay true to the initial intent of its crafters (the type of prescient foresight the Charter of Rights and Freedoms does not even hold) yet they hope to re-challenge the validity of discriminatory publication provisions in the BC courts and perhaps again in the SCC.

To put it simply, in their view the consitutionality of s. 13 of the CHRC may change over two decades to fit the present political climate–one created by their own media campaigning–but the purpose of HRCs must stay frozen and not intrude in areas where discrimination may exist but was not initially recognized.

Thus, when trying to protect the vulnerable and marginalized we must not venture into unchartered waters, but to ensure the status quo we must re-try and scrutinize any laws to the contrary.