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Sunday, February 3

Dispelling manufactured confusion about Section 13 complaints against Maclean's Magazine

On Friday I participated in a discussion in the comment section at Jason Cherniak's website; this was in response to his post There is no freedom to message hate, which relates to the Section 13 matter.

In this post I address comments posted today at Cherniak's site by Andrea Neat and "For Tolerance" in response to his Friday essay. My original intention was to again post to his comment section but my reply, which presents a mass of detail, is very long and I decided I didn't want to chop it down.

Readers who are new to the Section 13 issue can reference my January 8 post to get into the ballpark. For readers who have kept up with the unfolding story, this post represents a departure for me. All the earlier Section 13 posts dealt with fundamental issues. This one deals with a specific Section 13 case, the Maclean's one, and turns a microscope on the manufactured confusion surrounding it.

The substance of Andrea Neat's arguments are taken almost verbatim from statements made by four members of the Canadian Islamic Congress who are involved with the Section 13 complaints against Maclean's magazine, et al.

Various statements made by those individuals are deliberately misleading. However, because the comments have been widely disseminated by various Canadian media outlets, it's entirely possible that Neat is unaware that's she's passing on false information.

In any event, given the importance of the issue, the confusion created by the misleading statements needs to be ended. And because Jason Cherniak mentioned in his post that he'd not studied the Maclean's case I'll go into some detail in my explanations.

The second paragraph of Neat's comments states in part that the "complainants in the Maclean's matter have made it quite public that they do not want censorship. They believe that Macleans [sic] and Steyn (who isn't even NAMED in the complaint) can continue to publish the garbage that they wish, but that on some occasion they owe a duty to their readership to allow the targeted group some chance to respond to allegations that are ridiculous and hate-filled."

Neat is correct in observing that Mark Steyn is not named as a respondent in any of the three Section 13 filings under discussion. (He has been called to give testimony in a June Section 13 hearing.)

However, Neat is wrong to assert that there is more than one complainant. There is only one complainant in the Maclean's filings -- Mohamed Elmasry, who president of the Canadian Islamic Congress.

The persons Neat refers to are four members of the CIC, as I noted above, and who were students at Osgoode Hall Law School at York University at the time they approached Maclean's on the matter of the Steyn article. The persons are Naseem Mithoowani, Khurrum Awan , Muneeza Sheikh and Daniel Simard; I'll term them collectively the 'Osgoode 4.'

In writings published in Canadian newspapers starting in December 2007, the Osgoode 4 have represented themselves as the complainants in the three Section 13 filings made by Elmasry. Because of the Osgoode 4's intimate association with the filings, there is no question that they knew that they were not the complainants. So they have lied on the record and done so repeatedly.

See All we want is a chance to respond December 20, 2007 National Post
Muslim students file rights complaints over Maclean's article, CBC, December 5, 2007

Why have the Osgoode 4 represented themselves as the complainants? I don't know but I have read speculation that it's because Mohamed Elmasry is a controversial figure, a discussion of which is outside the scope of this writing.

In addition, the Osgoode 4, by their published admission in a newspaper, were involved in helping Elmasry prepare the three Section 13 filings. Thus, they are also aware that in the key filing, which is with the federal HRC (the CHRC), Maclean's magazine wasn't named as a respondent. Yet the Osgoode 4 do not mention this in their published statements; instead, they focus on Maclean's.

Why did they do this? Watch carefully; don't blink:

The respondents are "Rogers Publishing, Brian Segal, Kenneth Whyte, and Mark Stevenson." Whyte and Stevens are Maclean's editors; I don't know about Segal's function. Rogers Publishing -- actually Rogers Communications, Inc. -- is the parent company, and more to the point the owner of the Maclean's website.

See PDF Copies of Mohamed Elmasry's Section 13 complaints with three human rights commissions via Steyn Online.

The wording of Elmasry's filing makes it clear that his complaint is directed at the website, which still carries the Steyn article in question. The filing also makes clear that Elmasry, his attorney Faisal Joseph, and the Osgoode 4 are familiar with the CHRC mandate to review cases of hate speech published on the Internet.

A copy of the CHRC filing and the wording of the CHRC queries sent to Rogers (which can be found at Mark Steyn's website) very definitely indicates that the CHRC is investigating the complaint with regard to the Internet.

Even a cursory review of Internet hate speech decisions with regard to Section 13 reveals that one of the 'remedies' applied to the respondent is removal of the writing from the internet. In addition, the respondent is enjoined from publishing anything else that might relate to the speech in question. I repeat, anything else. And by "enjoined," I also mean the respondent can face prison if he does not carry out the remedy.

So while Elmasry's complaint did not specify a remedy, it didn't need to, given the CHRC mandate. The complaint was clearly filed with the intention of having the Steyn article removed from the Maclean's website. And with preventing Maclean's from later publishing anything that could be considered exposing Muslims to the likelihood of hatred and contempt.

Of course that would include even a discussion by a Muslim scholar or terrorism expert about the threat of Islamist terrorism and issues relating to Islam. It could even preclude Maclean's from publishing news reports on Islamist terror plots and attacks.

And of course, if the tribunal associated with the CHRC found against the respondents, this would send a message to every media organization in Canada that they self-censor, or face what happened to Maclean's.

So the Osgoode 4 are dissembling when they claim that they do not want censorship. The CHRC mandate with regard to hate speech posted on the Internet is all about censorship, and this is clearly indicated on their website.

Ms Neat also repeats the Osgoode 4 when she states that the complainants felt that on some occasion Maclean's owes a "duty to their readership to allow the targeted group some chance to respond to allegations that are ridiculous and hate-filled."

Maclean's did fulfill their duty. The Osgoode 4, and Mohamed Elmasry, had plenty of opportunity and a ready platform at Maclean's to respond to Steyn's article. They didn't take the opportunity by writing a letter to Maclean's at the time the article was published.

(For more detail on the meeting and surrounding events, see footnote 1)

They also didn't take the opportunity five months later, when Maclean's editors made a special exception for the students by granting them permission to publish a letter. As Elmasry's lawyer, Faisal Joseph, stated in a December 4, 2006 press conference, they wanted more than a letter.(1)

See CIC press release December 4, 2007

So the Osgoode 4 rejected the Maclean's offer; moreover, according to Maclean's they made demands that were so outrageous that any editor of a publication would reject if he wanted to keep his job.(1)

See Maclean's editor responds to CIC allegations, Maclean's magazine, December 4, 2007.

Elmasry's account of the meeting, which comports with the one published several times by the Osgoode 4, differs from the version that Maclean's published.(1)

If you consider the documented willingness of the Osgoode 4 to brazenly lie on the record, and if you consider Faisal Joseph's press statement, which inadvertently supports the Maclean's version, you're best advised to give more weight to the Maclean's side of the story.

If the Maclean's account is correct, then the Osgoode 4 knew going into their meeting with the Maclean's editors that their demands would likely be rejected. In that event, why would they make such unreasonable demands?

Within less than three weeks of the meeting, Elmasry filed his first complaint -- with the British Columbia HRC. The complaint, as with the other two, included the Osgoode 4's description of their meeting with the Maclean's editors.

The description is the only objective "reasonable grounds" for Elmasry to assert in the complaints that Maclean's was taking discriminatory action against Muslims.

In other words the meeting with Maclean's editors created grounds, which also closed the gap between the publication of the article and (by the time of the first filing) the nearly six-month delay in responding to it.

A less obvious question is why the Osgoode 4 and Faisal Joseph waited until December 2007 to announce the Section 13 complaints. The answer is found in a Dec 4 press release put out by CIC:
The Canadian Islamic Congress recently found that Maclean's has a disturbing trend of publishing content that is Islamophobic. In its report Maclean's Magazine: A Case Study of Media-Propagated Islamophobia, the CIC identifies at least 18 prominent articles with similar inflammatory content between January 1, 2005 and July 31, 2007. [...]
I note that comments inserted today at Cherniak's site by "Pro Tolerance" exactly match the smoke-filled style of the Osgoode 4:
The complaint against Maclean's is FOR free speech and not against it! Maclean's, Canada's only national magazine, recently published 19 defamatory articles against the Muslim community. Representatives from the Muslim community approached Maclean's and requested that a single counterview article by a mutually agreed upon author be published. Rather than politely refuse, Maclean's indicated, "we would rather go bankrupt". All the complainants wanted was a chance to respond to the 19 articles with a single article and reach Maclean's estimated one million subscribers who have had an obviously biased account of the Muslim community. The complainants could have chosen to pursue their complaint through the traditional court system (Canada's hate speech laws), but the potential punitive outcomes would do little to achieve their rights to free speech and open-debate. As a result, the HRC is the only avenue that the complainants could pursue, the only body which could enforce a variety of outcomes including "the chance to respond". ...
TRANSLATION: We knew this complaint wouldn't fly in a defamation suit so we used Section 13. I hope my so far has made clear that:

> Elmasry's Section 13 complaints were not motivated by the desire for a "chance to respond" to one Maclean's article, which I see has mushroomed to 19.

> The version of the meeting recounted by "For Tolerance" is in dispute. See footnote for a detailed description.

Also, I see that at least according to For Tolerance, "Islamaphobia" has been revised to "defamatory," and that 2+ years covered by the report have been revised to "recently." And there's the Orwellian twist of representing the Section 13 filing as in favor of free speech.

Moving along, Neat is also misinformed when she states that human rights commissions are "neutral, non-government third parties ..." The HRCs are government bodies. The tribunals, which proceed on the investigation findings provided by the HRCs, are independent.

Neat can resolve her confusion on this matter by studying the information on Section 13 provided at the CHRC (federal HRC) website under the 'watch on hate' section.

Regarding Neat's statement that the HRCs/tribunals are "subject to basic principals [sic] of due process and fairness ..." she is misinformed, if she means to imply that the HRCs and tribunals are subject to the laws that govern Canada's justice system.

The tribunals are termed "quasi-judicial." But if you study the procedures and decision-making processes of the tribunals, you will see that they are a grave affront to court procedure, not to mention the very concept of legal justice in a democracy. The tribunals are judicial only in the sense that they can hand down decisions that have the backing of the state.

While the decisions can be appealed in court, as Neat points out -- I am open to correction but to my knowledge no court has struck down a tribunal decision on a Section 13 case. Given the wording of Section 13, I assume the courts would have no recourse but to uphold the decision, no matter how gravely it affronts the laws governing the justice system.

To give one example of how the tribunal process ignores courtroom procedure, consider the decision in the Boissoin Section 13 case:

About two weeks after a newspaper printed a letter in which Boissoin opined that homosexuality was immoral, physically dangerous and should not be promoted in schools, a homosexual was beaten. The tribunal decision found a "circumstantial" cause-and-effect connection between Boissoin's "hate speech" and the attack on the gay. Yet the tribunal had not heard evidence of such a connection.

And indeed, the wording of the decision suggests that Boissoin was judged to be engaged in "hate speech" -- a technical term in Canada's criminal justice system -- even before the tribunal decision was handed down.

With regard to Neat's observation that Canada's human rights commissions are presided over by people "who have developed an expertise in discrimination law," again, I think Neat has the HRCs confused with the tribunals. Either way: before a person can be an expert on discrimination law, he must first be somewhat cognizant of the concept of "law."

Law -- objective law -- pertains to acts. Get away from that basic concept, and you have the Spanish Inquisition, the Salem Witch Trials, and every other kind of inhumane justice system.

It's not humane to threaten people with prison on the suspicion that something they said might lead to the possibility of a crime. If Neat tells me that Section 13 doesn't exactly say that -- go back and read Section 13, and keep re-reading it, until it's clear that the wording makes it virtually impossible for any kind of adjudicating body to proceed on an objective concept of law. It's for that reason that the entire section needs to be struck from the human rights code.

Neat told readers at this comment section to "get informed." I believe she should follow her own advice. Once she's made a study of how Section 13 is administered, she'll understand why there is the "panic" that she considers "a bit unfounded."

The panic, as Neat put it, is coming from Canadians who never before studied how Section 13 is actually administered, and who are only now learning that justice meted out under Section 13 finds parallel only in the most oppressive dictatorships.

Yes, the same Canada that bills itself to the rest of the world as a bastion of liberal democracy. The same Canada that has promoted multicultural policy to governments around the world -- without bothering to explain to those governments just how Canada has managed to enforce that policy.

Study the "reasonable limits" clause in Section One and the wording in Section 15(2) in the Canadian Charter of Rights and Freedoms to understand how Canada pulled off the hat trick. Canada's government retains such sweeping powers to suspend the protection of rights named in the Charter that it mocks the concept of 'rights.' But all that is a conversation for another day.

With regard to Neat's observation that "Steyn states that "Little Mosque on the Prarie" [sic] is a conspiracy to make Islam as "acceptable" as homosexuality in Western society!" Neat is misinformed on key points.

First, Mark Steyn does not state or in any way imply in his review of Little Mosque on the Prairie that the creation/production of the series is a conspiracy. He does state, correctly, that the series is the product of the CBC. The Canadian Broadcasting Corporation is a crown corporation; i.e., state-controlled enterprise.

Any type of published message from a crown corporation, including a television series, which attempts to mold public opinion is propaganda. Steyn didn't say this but he didn't to need to for an informed readership; all he needed was to summarize one episode of the series to demonstrate that it was propaganda and, it could be argued, agitprop. That might be one of the reasons that reportedly Muslim members of Equity refused to act in the series.

The episode that Steyn described stigmatizes any Canadian -- that would of course include Muslims -- who expresses fear or concern about Islamist-related terrorism. Yet none of that is conspiracy; it's simply the power of government, which is why the power must be carefully monitored.

Secondly, nowhere does Steyn state in his review that the TV series is an attempt to make Islam acceptable. He refers to Muslims, not Islam. The difference is important because his use of the word 'Muslim' underscores that the government-produced series portrays Muslims as a monolithic group, which of course they are not. That might be another reason Muslims reportedly preferred not to act in the series.

Third, Steyn has the weight of television history, both in public and private broadcasting, behind his remark that "Muslim is the new gay." He could just have easily observed, "Muslim is the new Working Mother," or "Muslim is the new Mexican Illegal in America," or "Muslim is the new CIA."

(By the latter I am referring to a short-lived CBS series that portrayed the CIA as the standard for efficiency and teamwork. The series was broadcast soon after 9/11. This was at a time when everyone on the planet was asking, "How many CIA employees does it take to change a light bulb?")

In short, for decades television series producers in the US have been infamous for going overboard to shape public opinion on controversial groups, including gays. That's exactly why Steyn got a laugh from his American audience when he quipped that Muslims are the new gay. Everyone instantly knew what he meant.

Of course the difference between CBC producers and the CBS counterparts is that with the latter, viewer ratings can vote the excesses off the air, and often the producer out a job. Not so with a state-run television series.

If not for the fact that Little Mosque on the Prairie is propaganda, one might easily dismiss the opening episode by noting that Canada's Muslims should not hold their breath waiting for Canadian TV offerings that approach the high standard of Mississippi Masala when explaining a cultural divide.

CBC was not interested in explaining; they only wanted to condition responses, and so Steyn called them out. Neat's criticism of Steyn's piece, which is a chip off the Osgoode's 4 critique, completely misses his target and his point.

The same could be said for every one of the 49 or so criticisms of Steyn's piece for Maclean's that Elmasry listed in two of his HRC complaints, and the 19 or so listed in the federal complaint.

In their report on media-promulgated Islamophobia, the authors are clearly trying to establish that Maclean's demonstrates a pattern of bias against Muslims. The only objective pattern to emerge is the Osgoode 4's tactic at diverting attention from Steyn's points. It's as if they designed several jigsaw puzzles out of his words, then jumbled all the pieces and dumped them into a box labeled Islamophobia.

It might be that the authors are betting that no one will have the patience to unscramble all the puzzles. If so, I think they may be wrong. In any case, they needn't have gone to so much trouble to provide grounds for Elmasry's complaints, given the wording of Section 13. But from comments in the report the Osgoode 4+1 seem to have a bigger agenda than censoring Maclean's. They write:
Maclean’s is engaged in publishing flagrantly Islamophobic and anti-Muslim articles while refusing the request of Muslim organizations to publish a response to these articles. This refusal indicates that Maclean’s magazine is motivated by an anti-Muslim and anti-Islamic agenda rather than the promotion of open and free debate on issues related to indigenous Muslim communities, immigration, multiculturalism, and terrorism. In light of this agenda and its record of discriminatory publications, we appeal to schools, colleges, universities and other public institutions to condemn Maclean’s and to cancel their subscriptions to Maclean’s.
1) All three Section 13 filings state that part of Elmasry's sense of being discriminated against is due to how Maclean's handled the students' request to respond to Steyn's article. The wording of this part of the complaint is virtually the same in all the petitions, but I'll quote from the petition filed with the federal Canadian Human Rights Commission:
Muslim Community's efforts to resolve this matter were rebuffed by the Respondents. On Friday March 30, 2007 a delegation from the CIC met with the Respondents Mr Whyte [Maclean's Editor-in-Chief] and Mr Stevenson [Maclean's Editor] in Toronto. The delegation proposed that in order to avert the negative impact of the Article on Canadian Muslims, MacLean's should publish an article authored by a recognized member of the Muslim community, which responds to the inflammatory material contain [sic] in the Article. Mr Whyte indicated that the Respondents had no interest in publishing a response to the Article from the Muslim community. In particular, Mr Whyte informed us that MacLean's would rather go bankrupt than allowing the publication of a response from the Muslim community. [...]

In terms of impact, reading the Article and seeing the messages portrayed as objective fact by MacLean's had a serious impact on me and on Canadian Muslims community large. This impact included harm to our sense of dignity and self-worth as Canadian Muslims. This impact was further amplified by the experience of the CIC's meetings with members of MacLean's editorial board and obtaining their patently unreasonable response.
Elmasry's version of the rebuff is that it contradicts Whyte's version. And it tends to contradict a published statement by the CIC's own lead attorney, Faisal Joseph, who is representing Elmasry in the Section 13 complaints.

Here is Whyte's account of the students' demands:
"The student lawyers in question [Osgoode 4] came to us five months after the [Steyn excerpt] ran. They asked for an opportunity to respond. We said that we had already run many responses to the article in our letters section but that we would consider a reasonable request. They wanted a five-page article, written by an author of their choice, to run without any editing by us, except for spelling and grammar. They also wanted to place their response on the cover and to art direct it themselves.

We told them we didn't consider that a reasonable request for response. When they insisted, I told them I would rather go bankrupt than let somebody from outside of our operations dictate the content of the magazine. I still feel that way."
From Whyte's statement, it is clear that his rebuff concerned the student delegation's demand to take control of the magazine's editorial policy for their purposes. His comment about preferring that the magazine go bankrupt related specifically to that demand, and not to a refusal to allow the students to publish their views on the Steyn piece.

While Faisal Joseph does not detail Whyte's version of events, he does state in the December 4, 2007 press release that the students were seeking:
... "equal space [in the magazine] to respond to what we feel is an Islamophobic and unfair article. All we wanted was equal space and equal time, not a little letter to the editor."
Joseph's statement makes it clear that the students were unwilling to accept Maclean's editorial policy of publishing letters to dispute an article, even though this is standard practice. They wanted to set their own rules for how the magazine should handle their complaint.

Thus, Joseph's statement lends support to Whyte's version of his dispute with the students. And yet Elmasry's petition to the BC Human Rights Tribunal states:
[...] the respondent Macleans magazine has rebuffed attempts by Muslim residents in other provinces to resolve this matter reasonably. Therefore, it is important that this complaint be proceeded upon since no other avenues are available.
The wording of the statement makes it unclear whether Elmasry was speaking only of attempts by the Osgoode 4 at their meeting with the Maclean's editors or whether he had other attempts in mind. However, if other attempts were made, discussion of these have not been published by any of the parties.

In any case, given the number of letters (27) that Maclean's published in response to the Steyn piece, and that according to Joseph the claimants didn't want the avenue of publishing a letter in Maclean's, it is a misstatement to assert that no avenues other than a Section 13 filing were available for disputing the piece.

Yet Elmasry does not explain in his filings that he and others involved snubbed the opportunity of Maclean's publishing their letter of rebuttal, even though it was five months after the Steyn article had run.

And if Whyte's account is considered, Elmasry did not explain in his filings that Whyte offered even more to the students by way of a "reasonable" accommodation. It was only when they wanted to direct the magazine's editorial policy that he refused accommodation.

Elmasry also neglects to mention that an organization with the clout of the Canadian Islamic Congress, which, according to their website is Canada's largest national non-profit Islamic organization, should have been able to utilize public avenues other than Maclean's for disputing Steyn's piece.

When the CIC wanted to publicize their filings with the human rights commissions, they had no problem calling a press conference and distributing press releases. There were other venues as well that the students and CIC could have used to publicly argue against the Maclean's piece. It does not seem they exerted themselves in the task until December 2007 -- more than a year after Maclean's published the Steyn excerpt.
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