Keith Martin’s good fight

National Post Editorial Board February 6, 2008

It has been about three years since the longtime Reform MP Keith Martin fled from the turmoil of the unite-the-right movement, which was then just about to reach its final consummation, and crossed the House of Commons floor to a new home in the Liberal party. It is good to see that his time amongst the Grits has not dulled his taste for the common-sense libertarianism that was Reform’s major selling point.

Last Thursday, Mr. Martin filed notice of a private member’s motion in favour of repealing subsection 13(1) of the Canadian Human Rights Act (CHRA). That section makes it a punishable offence to use telephones or the internet to promote “hatred or contempt” of any of the protected groups in the CHRA. By and large, the impugned behaviour is the same as that which is covered by the hate-propaganda section of the Criminal Code, Section 319. The difference in the context of human rights law is that a party who takes offence can have an investigation launched, and force a fellow citizen to undertake a legal defence, without having to comply with the rules of due process or the evidentiary standards that prevail in an actual courtroom.

This, indeed, is the entire pretext behind federal and provincial human rights laws as imagined by those who created them in the 1970s: to open a low-cost road to redress of grievances in employment and housing for society’s most vulnerable groups. But a tool originally created to mitigate economic injustice has now become a weapon against the freedom of news-gathering and opinion. Aggrieved Muslims have been using it to vex high-profile conservative targets such as Ezra Levant, Maclean’s magazine and Mark Steyn for daring to inform and pronounce on the relationship between Islam and terrorism. That engineered attempt to chill legitimate debate has led to an online backlash within Canada, and to unprecedented scrutiny of Canadian human rights law from without. Mr. Martin’s Commons motion was obviously intended to serve as a gesture of solidarity with freedom of expression, and perhaps he thought that it was the liberal, or the Liberal, thing to do.

Unfortunately, Liberals are not always reliably liberal in the best sense of the term. Mr. Martin has been challenged by some Liberal critics who want to know why he is proposing to proffer aid and comfort to potential preachers of hate speech, and Liberal leader Stéphane Dion has apparently taken their side of the question, asking the MP to withdraw his motion voluntarily. In the view of these critics, any change in the law that might make it slightly harder for the government to take action against some neo-Nazi creep in a mildewed basement is a threat to the entire edifice of Canadian democracy.

Consistently applied, of course, such a standard would allow for unlimited interrogation and arbitrary detention of those who promulgate “unacceptable” ideas — and heaven help you if you find yourself on the wrong side of the line of unacceptability. It would effectively annul the freedom of expression enshrined as “fundamental” in our Liberal-made Charter of Rights. (Those attacking Mr. Martin seem curiously confident that they would never in a million years utter an opinion so contrarian, exotic or surprising that it offended somebody.)

This freedom, and the limits to which it is subject, are part of the same legislative and judicial legacy. The wise and logically unimpeachable rule Canada has evolved is that such limits are tolerable only if they are minimally compromising, effective and rational; the ongoing spectacle of the absurdist human rights range war between Muslims and conservatives is sufficient, by itself, to show that none of these tests have been met.

It is nonsense to suggest that reining in human rights legislation, and leaving the policing of hate speech up to the actual police, would be some sort of treason to the legacy of Trudeauvian liberalism. Keith Martin should not be made to feel that he is committing sacrilege by treating permanent Charter values as more important than a particular federal statute. Indeed, he should be celebrated for doing it, and not just by Liberals.

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