Free speech fails again in Canada

On its way to the USA

[Reprinted from Issues & Views August 26, 2002]

As we have discussed in earlier reports [7/9/01; 8/27/01; 11/26/01; 3/25/02], Canada is a land of convoluted "hate crime" laws and "Human Rights Tribunals."  In this country, where minority ethnic groups enjoy special legal protections not granted to the white majority, a member of any of these privileged groups can bring charges of an offense, even if he is not a directly offended party.

In a recent case, a homosexual, Mark Schnell, decided that a website that was critical of homosexuals and pedophiles created a "climate of homophobia" on the Internet, which might possibly expose homosexuals, as a group, to "hatred or contempt."  In Canada, according to the Human Rights Act, this is enough "evidence" to bring a lawsuit against a Canadian citizen.  As bizarre as it may seem, it is not necessary to show that anyone is actually harmed by a "climate" of homophobia or racism or anti-Semitism; one need only express hurt or discomfort at the existence of derisive, unsympathetic or satirical portrayals of particular groups.

John Micka, the owner of the offending website, described what he believes to be the homosexual agenda, that is, to legalize pedophilia and to normalize it in society.  He urged Canadians to become politically active, in order to foil these homosexual goals.  Schnell filed charges against Micka, claiming that the website "compromised" his rights, and the case went before a one-man Tribunal ruled over by Judge J. Grant Sinclair.

Here in the United States, we have ongoing legal struggles over the meaning of sections of the Constitution, but Canada's Human Rights Act (passed in 1985) is a judge's dream come true.  This law, so vague in its wording, is subject to equivocal interpretations, and its sections and clauses end up meaning whatever the sitting Tribunal declares.  In this case, Judge Sinclair decided that the website's contents were messages of "hate" and, therefore, warranted a "limitation upon the freedom of expression."

According to Canada's Globe and Mail (8/21/02), Micka was ordered to shut down his website and, along with his webmaster, was cited for having created a "climate of homophobia."  Because messages on the Internet are "simultaneously and instantaneously" transmitted to a worldwide audience, opined the judge, "the reasons of the court apply with even greater force."

In explaining his decision, Judge Sinclair claimed that, "Protected rights must be interpreted broadly," however, "defences and exceptions are to be applied narrowly."  Does this mean that members of the officially protected groups will be granted almost unlimited leeway when it comes to their rights, but that defendants will get potluck?

Of course, there was never any question raised about the truth of Micka's allegations about the homosexual mission.  Nor should such questions have been raised, since his contentions are his own observations and opinions.  Once upon a time, even in increasingly totalitarian Canada, such opinion lived in the realm of free speech.