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From the archives

The Trust Spiral

Restoring faith in the media

Dear Prudence

A life of exuberance and eccentricity

Who’s Afraid of Alice Munro?

A long-awaited biography gives the facts, but not the mystery, behind this writer’s genius

Trial by Anecdote

A controversial polemicist takes on Canada's commitment to human rights

Mark J. Freiman

Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights

Ezra Levant

McClelland and Stewart

216 pages, hardcover

ISBN: 9780771046186

On January 11, 2008, Ezra Levant, his lawyer and a video camera attended an interview with a human rights officer from the Alberta Human Rights and Citizenship Commission. In 2006, Levant had published in the soon-to-be-defunct Western Standard the twelve famous Danish cartoons of the prophet Mohammed that had caused riots in Europe and Asia, leading to many injuries and a number of deaths, ostensibly because the visual depiction of Mohammed constituted an insult to Islam. In Alberta, Levant’s publication led to two complaints against him under the provision of the Alberta Human Rights Code that deems it a discriminatory practice to disseminate material “likely to expose” minorities to “hatred and contempt.”

The interview at the commission lasted 90 minutes and, as Levant tells it, for every moment the human rights officer spoke, he spoke for ten. He has not stopped talking about it since.

In Shakedown: How Our Government Is Undermining Democracy in the Name of Human Rights, he gets to talk about it some more. The book is part exposé, part polemic and part self-promotion. Levant has a breezy, amusing style that works well when he is skewering alleged knaves and fools, although he is also prone to veering off into bathos and pomposity when he feels the need to celebrate his own courage and wit.

Levant picks his targets inclusively if predictably, given his neoconservative leanings. His ultimate target is the whole concept of equality as a human right. Although he starts and ends with hate speech provisions in human rights codes, before he is done he has taken on both federal and provincial human rights commissions and tribunals, those who work for them, those who complain to them and those who support them. Within the bounds, one assumes, of the laws of libel, he settles grudges and scores with a long list of adversaries old and new, who parade through his pages in their assigned roles of dupes, rogues, buffoons and hypocrites.

Levant practises argument by anecdote. The anecdotes are well chosen and effectively narrated, allowing him to present a rolling cavalcade of surrealistic scenarios that demonstrate bureaucratic affronts to reason and common sense.

Shady characters with apparent radical or totalitarian sympathies appear as human rights complainants or even investigators. A restaurant is ordered to compensate a worker for discrimination on account of a disability after she has been let go because a medical condition makes it impossible for her to wash her hands as often as the health code requires. In another restaurant incident, a local layabout insists on exercising his legal dispensation to smoke medical marijuana by toking up at the front door of the establishment. This puts the owner in the impossible position of having to choose between being found guilty of discrimination on the one hand and driving away his customers and potentially losing his licence on the other.

These and similar tales of Keystone Kommissars are meant to support Levant’s argument to delegitimize human rights regimes. According to Levant, there was a time when human rights were worth fighting for, a time when racial prejudice and religious discrimination were real. But, he says, those days are gone. The battle has been won. Today we live in a tolerant cosmopolitan society in which human rights have become a weapon wielded by feckless claimants and cynical left-wing ideologues to advance personal or political agendas that in fact conflict with the “real,” still-valid fundamental rights underlying democracy, such as freedom of property and the freedom to say whatever one chooses. In this “shakedown,” the scheming antidemocratic conspirators are enabled by “useful idiots”—the investigators and adjudicators employed by human rights commissions and tribunals—and by the unprincipled politicians who support the entire ramshackle regime in order to curry favour with special interests. For Levant, human rights code provisions dealing with “hate messages,” such as those under which the Alberta complaint against him were made, are only the extreme manifestations of a human rights regime whose hallmark is a wanton disregard of individual rights in the name of political correctness.

There is a lot wrong with large swaths of this argument. Both at its widest point, with his claim of the obsolescence of the human right of equality in an age of tolerance triumphant, and at its narrowest point, with his allegation that the regulation of hate messages is nothing more than a craven concession to political correctness, Levant’s assertions simply do not stand up to scrutiny.

On his broad claim, Levant is hardly the first to allege that all meaningful battles against discrimination have been won and that claims currently being advanced are, in fact, nothing more than reprehensible assaults on basic civil liberties. A decade ago it was gays and lesbians, having had their sexual practices decriminalized, who were advancing the “bizarre” notions that spousal benefits and marital status should be extended to same-sex partners. Twenty years before that, women, having achieved legal equality with men, were making preposterous demands for preferential treatment when they voluntarily compromised their ability to continue with their employment by getting pregnant. Before that it was the Jews, fully protected from the excesses their co-religionists had suffered abroad, who were pushily trying to subvert property rights guaranteed in the Magna Carta itself by challenging property owners’ liberty to sell or not to sell to whomever they wished. As was the case in all previous instances, it seems a bit premature, not to say presumptuous, for Levant to unfurl his particular “Mission Accomplished” banner over the present social landscape.

Levant is also wrong on the other end of his argument, in which he solicits recruits to join with him in a campaign to delegitimize, as a pernicious attempt to enforce political correctness, “hate message” human rights provisions in general and section 13.1 of the Canadian Human Rights Act in particular.

Section 13.1 deems it a discriminatory act to use the Canadian telecommunications system for the repeated dissemination of hate messages based on race, ethnicity and gender. It has been used effectively against hate-based websites, starting with Ernst Zundel’s notorious Zundelsite and, perhaps because of its successes, has increasingly become the focus of scrutiny by commentators spanning a broad range on the respectability meter as an alleged assault against expressive freedom.

As it happens, the Supreme Court of Canada examined section 13.1 two decades ago. In the course of finding that this provision does not violate the guarantee of freedom of expression contained in the Charter of Human Rights and Freedoms, Chief Justice Brian Dickson, one of the heroes of Canadian civil liberties jurisprudence, made it exquisitely clear that section 13.1 cannot be used to suppress unpopular opinions or offensive speech. It is only applicable to messages truly preaching “hatred and contempt,” which he defined as meaning messages that arouse “unusually strong and deep-felt emotions of detestation, calumny and vilification” based on a portrayal that “allows for no redeeming qualities” in its target. This is a very narrow definition designed to apply to extreme speech that crosses the line into becoming a danger.

Anyone doubting that extreme speech can be dangerous has not studied much history, and anyone who believes that the marketplace of ideas is an adequate regulator to defuse such danger has not thought through the economics analogy. The invisible hand of an unregulated economic free market has shown itself capable in the long run of rewarding efficiency and suppressing inefficiency, but along the way populations have had to tolerate cyclical joblessness, occasional depressions and, in extreme cases, even famines, to “correct” erroneous choices and initiatives. Similarly, the marketplace of ideas did eventually reject the ideology of National Socialism, but only after its consequences of genocide and total war had demonstrated its practical “inadequacies.”

Still, wrong as Levant may be in his big picture claim about the bankruptcy of equality as a human right and in his specific allegation that going after hate speech is inevitably just a disguised assault on freedom of conscience, the totality of his bill of indictment cannot simply be dismissed.

It is undoubtedly true, as demonstrated by the baleful consequences of the anecdote-based assault during the Reagan and Bush eras on all aspects of financial and environmental regulation, that argument by anecdote is logically suspect. Nevertheless, anecdotes can be telling. Caveats about the representative nature of the stories Levant tells and quibbles about details he has left out (and there are plenty of significant facts he omits in his stories) can only get you so far. Levant’s anecdotes make plenty of important points that simply cannot and should not be ignored.

Take the central anecdote in Shakedown, the story of the Alberta human rights complaint against Levant himself. The Supreme Court of Canada’s careful articulation of the narrow definition of hatred and contempt is all well and good, but how can it be that any reasonable human rights officer, exercising even the slightest modicum of common sense, could have concluded that there was any reasonable possibility that twelve cartoons published by Levant could be seen as preaching messages capable of arousing detestation against Muslims and portraying them as lacking any redeeming merit? No doubt the very fact of a visual depiction of the Prophet would be offensive or even hurtful to some Muslims, but that is not the test. Some might feel bruised by the satirical message in several, though not all, of the cartoons (for example, Mohammed depicted with a turban in the shape of a bomb), which might be seen as unfair attacks on a generally peaceable religion. But that is not the test either. (Remember? Chief Justice Dickson’s words are messages that arouse “unusually strong and deep-felt emotions of detestation, calumny and vilification.”) Any reflection by any person familiar with the jurisprudence could lead to no other conclusion than that there was never any possible prospect that the complaints would be upheld.

The Alberta Human Rights and Citizenship Commission (unlike, unfortunately, its counterparts in British Columbia and Ontario) has a gatekeeper function to weed out frivolous or hopeless complaints. The complaint against Levant should have been nipped in the bud, and no investigation should have been commenced. That the complaint was allowed to proceed through a 30-month investigation feeds into significant concerns, widely expressed, about how human rights investigations in Canada are launched, at whose behest and into what. While the records of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal are generally excellent in terms of going after only those types of expression that fit comfortably within the Supreme Court’s definition of hatred and contempt, the record of provincial tribunals is a good deal more spotty.

It is true that the Alberta commission decided not to proceed with the complaints against Levant, but Levant is entirely correct that a lengthy investigation into a frivolous complaint is itself an expensive and unwarranted chill on expressive freedom.

Levant is also right that the issue of cost is an important one. The state underwrites the entire cost of the investigation and, where a charge is laid, of the prosecution of a claim regardless of outcome. The respondent, by contrast, is left to bear his or her own costs of the defence (including preparing for and appearing at investigative interviews or as Levant insists on hyperbolizing them, interrogations) even if entirely vindicated by the result. The complainant risks nothing, pays nothing and has his or her interests represented by commission counsel. The respondent either pays for legal representation or takes the risks of self-representation against a trained lawyer. The unfairness and the opportunities for abuse are obvious.

Administrative tribunals and commissions often have wider, less supervised powers to requisition personal documents than even those given to courts. Some, including some human rights bodies, even have been given power to require persons to answer questions, a power that no police force currently has. These are worrying encroachments on civil liberties. Levant is wrong in apparently believing that these powers are unique to human rights bodies, but the fact that other boards and tribunals have the same powers is less, rather than more, comforting to anyone concerned about the power of the state to go fishing into people’s privacy.

Staffing and appointments can also be issues. There is no doubt that human rights bodies have many dedicated and talented investigators, administrators, lawyers and adjudicators who perform admirably under often difficult institutional conditions. It still needs stressing, however, that high standards of ethics and competence must be made mandatory and must be rigorously maintained and enforced. The issues to be dealt with by human rights bodies will almost by definition include a sensitive balancing of rights and interests. Staffing and appointment decisions cannot be made casually or for ulterior partisan or ideological motives. Real training must be available and ongoing. All these are genuine issues and legitimate concerns that arise from the stories that Levant tells. They deserve genuine attention and effective responses. On the other hand, the specific conclusions that Levant draws should be treated with caution and a healthy dose of skepticism. In the real world, after all, a targeted dose of medicine and judicious changes to lifestyle are usually preferable to amputation.

When he is not doing his Rush Limbaugh imitation, Levant provides the reader with a good warm-up for the serious intellectual work needed to address the issues that arise in the adjudication and enforcement of human rights claims. He’ll get your heart pumping and your faculties ready to be challenged.

Just don’t mistake the warm-up for the real work or you are likely to miss the whole point of the exercise.

Mark J. Freiman practises law at Lerners LLP in Toronto. He is a former deputy attorney general for Ontario. In his private practice he has appeared on a wide variety of human rights matters, including acting on behalf of the Canadian Civil Liberties Association.