Liveblogging the Maclean's Trial V: Stand and Deliver

Merciful heavens, it’s the last day. Time for final arguments…

Faisal Joseph for the complainants: We’re here to right a terrible wrong. Case involves a complicated intersection of two important values — free speech and the right to be free from discrimination. Neither trumps the other, in his view. Not all speech is afforded the same protection — speech that is not close to the “core value” of free speech is not as well protected. That would be hate speech. Doesn’t advance truth-seeking, because it silences the target group. Doesn’t advance their self-development, etc.

Not offensive speech we’re after, but hate speech. And only on enumerated grounds — so just exposing individual polticians, say, to hatred is okay, but not those groups listed in the code. Two-part test under the code: does the speech itself espouse hatred, and is it likely to cause others to hate.

Going through the case law on Sect. 7.1 of the BC Human Rights code. Factors to take into account: the vulnerability of the target group, the tone of the message, whether it’s presented as opinion or fact, the context, the method of dissemination. Particular case that’s noteworthy: Canadian Jewish Congress vs. North Shore News (ie the “Doug Collins” case.)

Stressing that it’s a two-part test, so free speech is well protected. eg. Speech that is neutral in tone, but might cause someone else to hate, is not caught; ditto speech that is itself hateful, but might not cause others to hate. Catches “only the speech that is appropriately silenced.” Application ensures there will be no — he pauses to do big air-quote — “chilling” effect.

Concedes some speech within a “shaded” area will be suppressed — but will only require authors who are “close to the line” to “think very carefully” about how they say it.

Using “Taylor” definition (from eponymous Supreme Court decision) of hatred and contempt — “extreme ill will,” group presented has having “no redeeming qualities”, “looking down upon” targeted group etc.

Law focuses on effects on targeted group, not the intentions of the author, so as to allow reparations. Test to apply is how a reasonable person would interpret the content, in this time and place, and if informed of its social and historical context: would a reasonable person find it hateful.

9:51 AM Now he’s reviewing the evidence we heard earlier. Ayoub: Steyn’s article claims Muslims in “an underground conspiracy to take over the world.” Rippin: shows them having a single, unchanging identity. Habib: Muslims told they don’t fit in, they’re not westerners, they’re foreigners. Experts agree that article makes no distinction between fringe elements in Muslim world and ordinary Muslims. Presented as a global, homogeneous group, with no identity outside religious belief.

Steyn article uses “subtle, seemingly intellectual arguments” rather than “overtly racist” speech. But that’s not going to save him — it’s “venom clothed in the language of reason.” Again citing the “obligatory of courses” passage against him. Nice work: An explicit disavowal of generalizations is rather evidence of generalizations.

Article uses sensationalist, fear-mongering tone, warns of dire events, “bloody” takeover. Cover used again: the picture of the little girl, in particular. There’s an obvious contradiction here: Habib said yesterday she looked frightened and vulnerable, playing on stereotypes of women in Muslim life. Joseph says she looks ominous and threatening, like something from “a horror movie.” Well, which is it?

Going through the “hallmarks of hate,” with passages from Steyn to support. First, targeted group is presented as taking over society, depriving others of safety, comfort etc. Second, group is presented as preying upon children, the aged, the vulnerable. Third, targeted group is presented as dangerous and violent by nature. In addition, Muslims are dehumanized by comparison to insects — true, Steyn was quoting a radical imam at the time, but that just shows how he uses radical fringe to tar the rest.

Also, he uses sarcasm.

10:10 AM Having convicted Steyn of hatred in the first part, we’re on to the second part of the “two-part” test. That would be the infamous Belgian/American blog posts.

Cites Expert witness Hirji to show that racism is prevalent in the media, and also in the article. Examples: Distortion of jihad. Claim that Islam oppresses women. Claim that Islam is antiquated.

Article tries to couch its hatred of Muslims in “true” anecdotes to make generalized statements. Article uses a number of statistical facts, but then jumps from these to negative generalizations about Islam. Uses radical imams and Col Khadafy as representative figures for the entire Muslim community. Does not provide contextual details that would lessen impact. Incomplete or misleading anecdotes.

Besides, he’s talking about Muslims in Europe, not in Canada.

Hatefulness of article was never mitigated by published debate, “where you have both sides coming and the public can make up their own mind.” But “Maclean’s doesn’t want it.” Why? A stand-alone article without any response. (Leaving aside the 27 letters to the editor.) “You can’t have a debate with only one side of the story.”

Whoops, now he’s going through the letters to the editor. Some are pro-Steyn, or rather pro-hate. By his count, 10 are critical of Steyn — of which several were part of a letter-writing campaign on the part of the Council on American-Islamic Relations (Canada). Maclean’s note of this fact is entered as evidence of malfeasance. But anyway, letters to the editor don’t count.

10:29 AM Talking about the power of the media to shape opinion. Ordinary citizen has only letters to the editor “if they’re lucky.”

Quoting from previous human rights tribunal rulings on how media cannot be exempted from its writ. Indeed, the more mainstream and respectable they are, the more essential it is that they be included, because people might be more inclined to believe racist propaganda when it appears there.

Evidence of actual increase in hate as result of article is unnecessary under law, but you have plenty of it before you: the blog posts. Cites the Western Standard blog, among others, as “directly related” to Steyn article. “There has never been a case in this country that has such clear concise evidence, ever. There will never be a more demonstrable case.” Cites comments calling for Muslims to be killed en masse, deported.

Now quoting Martin Luther King Jr. as he sums up.

Wants a judgement ordering Maclean’s to publish a counter-argument to the piece, or to publish the tribunal’s decision finding it was promoting hatred.

We’re breaking now, with final arguments from the Maclean’s side to come…

11:08 AM Back in session, probably for the last time…

McConchie rises for the respondents… “The Steyn article does not convey hatred or contempt or otherwise contravene Sect. 7.1 (b) of the human rights code.”

And sits down.

Kidding! But part of me wishes…

Asking the tribunal to dismiss both Elmasry and Habib complaints. Pointing out that students, Elmasry, Joseph et al have all travelled from Ontario to have case heard in BC — ie “forum-shopping.” This reflects the students “political enthusiasm” to obtain (quoting their retainer letter to the experts) “a successful outcome in this complaint (that) could provide the impetus for prohibiting disciriminatory publications in other provinces.”

Reminding the tribuanl of all the traditional defences that are not available to us: fair comment, innocent intent, good faith, truth.

If this were an ordinary court proceeding, Maclean’s would be seeking an order that the complainants pay costs. But as a show of respect “to this tribunal … and the Muslim community,” we are not.

Quoting from their experts. Ayoub: “I have not read Mr. Steyn before. I am interested in the way he writes because it’s interesting… It’s a very entertaining style he has.” Rippin: was unaware of article until the Ontario students brought it to his attention — so it did not make “much of a ripple” in discussion online, contrary to the “tsunami” presented by the complainants. “The blog world is never quiet. It never sleeps. Its’s 24/7, 365, and there are a lot of strange people out there. And this article did not stir them to life.”

Elmasry did not bother to appear, notwithstanding his intent to represent all Muslims in BC — “must have slipped down his list of priorities.” Clearly does not engage his interest.

Notes that Awan said on Mike Duffy LIve that Macleans, Steyn “can publish any articles they like.” They just want the right to reply.

Putting all these together, what is going on here? “These complaints are not about hate speech at all. These complaints seek a fundamental change in speech regulation by human rights authorities which would empower tribunals across the country to force magazines and newspapers to publish replies at equal length” to articles that some group disagrees with — ie a statutory right of reply.

This is not a new movement. There were attempts to legislate such things in the past. They’re contrary to the constitution, and this tribunal is not the place to try to invent such a doctrine.

Notes that this is about speech that does not fall under the criminal code’s proscription. Availability of human rights code route means “that anyone can be dragged into costly hearings without the protection afforded under criminal law.”

“A hard shove down the slippery slope to censorship.” Must be met “with unflagging resistance form everyone who values freedom in a democratic society.”

11:30 AM Now going through the relevant provision of BC human rights code: anything that “is likely to” expose members of identifiable group to hatred or contempt. Based on Sect. 13.1 of federal human rights code. Invoking the Supreme Court’s Taylor ruling — both sides agree on this — with its definition of hatred: “extreme ill will and an emotion that allows for no redeeming qualities” in the person at whom it is directed. Also involves “unusually strong and deeply-felt emotions of detestation, calumny etc.” Intent was clear in definition — that definition was meant to be reserved for only the most extreme cases, and not to chill expressive activity.

Must be an objective test of whether hatred present — central question of law. Citing case law: It’s not how particular individuals understand a message that qualifies it as hate speech — must use an objective approach, ie the reasonable person standard.

Collins decision (actually decisions — there were two cases) are “of uncertain value.” Made clear in the text of these decisions that tribunal considers itself an administrative tribunal and and as such is not bound by previous decisions, ie precedent does not have the same weight as in regular courts. So Maclean’s suggests tribunal not emulate approach followed in those decisions, which applied “unnecessarily complicated” tests In balancing free speech against other concerns.

Have to follow the objective test. Maclean’s suggests “reasonable person” would not understand Steyn piece as exposing Elmasry and Habib to hatred on account of their religion. Tribunal must ignore Awan’s subjective testimony about the meaning he attributed to the piece — it’s “merely background narrative.” Ditto Habib — his subjective reaction cannot be considered.

Objective test also means the blog posts are irrelevant. Nothing more than a subjective assessment of meaning. No guarantee that it even reflects the poster’s sincere belief. Might be a mischievous agent provocateur stirring up trouble for the website (cf Richard Warman, passim.) No reason to hold Maclean’s accountable for whatever “deranged, idiotic, wacko or psychopathic” posts appear on blogs, whether originating in BC, or the States, or Belgium.

No weight should be attached to the Buffy expert, “instructor” Hirji. “Her testimony amounts to what is known in legal circles as ‘special pleading.'”

As for Dr. Rippin: he described an ancient tradition of fundamentalist Islam, strict and unchanging, which goes on today, of which Osama bin Laden is a part. Reminding the tribunal of Rippin’s writings on Ibn Baaz, and his role in reviving and promoting Wahabbism in the 20th century. Rippin acknowledged under cross-examination that Islam includes a wide range of views, from very liberal to very conservative. That there exists an authoritarian, violent strand that promotes submitting individual lives to wide-ranging control by the state.

Dr. Ayoub was asked about Osama bin Laden’s statements, and agreed they should be cause for concern. “If there is any evidence of incitement to violence by anyone at this hearing, it’s in the words of Osama bin Laden.” And yet no one proposes to ban the book in which these words are found.

Whatever happened between the students and Maclean’s at the March 30 meeting, it’s not relevant to a determination of whether Sect 7.1 was infringed. Nor does Maclean’s refusal to print a reply constitute a violation. There’s nothing in Sect 7.1 about any of this.

So the relief sought is unwarranted by a fair reading of Sect 7. “This request is little more than an inappropriate attempt to have this tribunal rewrite Sect 7.1 (b).” Not to mention: Maclean’s is a national publication. The tribunal has no jurisdiction to order anyone to do anything outside BC.

Now he’s handing off to Porter….

Porter: There is an element of balancing of Charter values that is required. You are obliged to weighthe Charter values of freedom of expression when evaluating serious journalism, “the most essential of all daily spiritual foods.”

“Here it is clear that this work does not deserve such a smear as hate speech.”

“What madness would prevail if we could not argue as journalists that what Khadafy said was germane or significant.” (What he said was: “There are signs that Allah will grant Islam victory in Europe — without swords, without guns, without conquests. The fifty million Muslims of Europe will turn it into a Muslim continent within a few decades.”)

The complainants say that Steyn’s use of the word “obligatory” was sarcastic. I don’t know that at all. “Call this hate speech? What on earth have we come to?” Beware.

“When we are reduced to having an expert on Bollywood, mulling and sifting through the work, prospecting for prejudice, this surely cries out to society, ‘this is ridiculous.'”

These last five days have been about Meaclean’s vital detailed opinion. “This is what journalism does for liberty.” It’s part of “the essential trade of journalism — argument, fierece argument, dissent, contrariness — the very ‘tocsin of liberty.'” He’s quoting JFK there, and, well, imitating his accent.

Against the argument that you cannot cry fire in a crowded theatre: “Oh yes you can — you must, if in your considered view there is a fire. In that case there is a duty to cry fire.” And he’s done.

12:04 PM We’re hearing, last, from the intervenors: first, the Canadian Civil Liberties Association, then a joint submission from the BC Civil Liberties Association and the Canadian Association of Journalists. I’m going to go with the written texts here, if you don’t mind…

CODA: There will be no more liveblogging. As I left the courtroom for the lunch break, i was taken aside by a sheepish-looking court official, who said that he’d just learned that I had been “broadcasting” from inside the courtroom. So had I. Broadcasting, I said? I didn’t have a microphone, or a camera.

No, he explained: but liveblogging counts as broadcasting. It’s not the computer that’s the problem. You can type away on it all you want. If you step outside to send it, that’s okay, too. But if you send text from within the courtroom, that’s broadcasting.

Anyway, I gave him my solemn word that I would do no more broadcasting. What with the hearings being almost over and all. It seemed a fitting way to put a cap on the week.

Documents associated with the Maclean’s hearing—updated as we receive them:

  • Written submissions of the Canadian Association of Journalists and the British Columbia Civil Liberties Association
  • Written submission of the Canadian Civil Liberties Association
  • (new June 24) The complainants’ response to the CAJ, BCCLA and CCLA submissions
  • Outline of Maclean’s closing submissions
  • Closing arguments from Faisal Joseph, the lawyer representing the complainants
  • Statement by Julian Porter, Q.C.
  • (new June 23) Written submission by the Canadian Arab Federation as an intervenor
  • (new June 23) Maclean’s response to the CAF’s submission

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