Patrick Case, Director, Human Rights and Equity Office, University of Guelph
Guest Contributor
A recent magazine article on Asian students has stirred a heated debate about balancing freedom of expression with protecting Canadians from discrimination on the basis of race, ethnicity or national origin. The article sparked a debate about possible limits to speech in a country which prides itself on its ability to integrate peoples and beliefs from every corner of the world. That this debate is taking place should be no surprise; balancing freedom of expression with media representations of race, ethnicity and religion is at the forefront of everyday dialogue in almost every Western nation.
At the epicenter of the current debate is an article that appeared in Maclean’s in November 2010. It was first entitled, “'Too Asian'?” and subsequently re-entitled, “The Enrollment Controversy”. The article included quotes from members of the public that were based on stereotypes and prejudicial notions about Asian students. This raises questions for all of us who are concerned about our shared sense of community as a multi-racial and multicultural society.
In 2004, the polling firm Environics reported that 8 percent of Canadians were becoming less tolerant of new immigrants. In contrast, a November 2010 poll conducted by Abacus Data reported that 49 percent of Canadians believe that there are too many immigrants coming to this country each year, compared to 31 percent who think the numbers are about right, 7 percent who think there are too few immigrants entering Canada and 13 percent who don’t know. According to the Abacus Data poll, whether participants were born in this country or born elsewhere had little or no bearing on how they answered the question.
One can quibble about the specifics of how the Abacus poll was conducted – the questions that were asked, the sampling size, the time of day when the poll was done – but it does seem apparent that there is a shift taking place in how Canadians think about race and racialization.
It is hardly a methodologically sound barometer, but one has only to read the online comments to articles in the major dailies about race and immigration, or about reasonable accommodation and crime, to get a sense that the longstanding equilibrium between freedom of expression and equality rights is in danger of tipping toward fear of “the other” and even intolerance.
The recession has not helped. It has become commonplace, for example, to hear immigrants blamed for unemployment. Often, giving expression to such views is justified by proponents as exercising right free speech in a manner reminiscent not of the balancing of values that our Charter and human rights laws attempt to achieve in Canada but, rather, reminiscent of debates concerning untrammeled first amendment rights in the United States.
What about the strategies and tactics of those who seek to address disturbing views about specific racialized minorities, particularly in the media? In 2007, citizens from Muslim communities within Canada expressed concern with a Maclean’s article, “The Future Belongs to Islam”. They sought redress from the magazine’s editors through litigation and by making aggressive written demands. Similarly, some of the community groups concerned about the statements made in the article “Too Asian?” are demanding an apology from Maclean’s and planning litigation, if an apology is not forthcoming.
The human rights litigation initiated by those opposed to the 2007 Maclean’s article, “The Future Belongs to Islam” was spectacularly unsuccessful. The Ontario Human Rights Code did not provide the jurisdiction for the complaint to be addressed in that province. The Code provision allowed the Commission to address the “publication or display before the public of any sign, symbol, emblem, or other similar representation” that infringes a right (see: Ontario Human Rights Code, R.S.O. 1990 s. 13(1)). The problem: An article in a magazine or newspaper does not constitute a “similar representation” to a symbol or emblem.
At the Canadian Human Rights Commission, the complaint against Maclean’s led to a review of the hate activities provisions of the Canadian Human Rights Act. A number of forces coalesced around the review, which morphed into a significant attack on attempts to maintain the precarious balance between freedom of expression and human rights principles. Indeed, the review and the surrounding dialogue may have impaired the ability of the federal human rights system to effectively rely on the hate activities provisions of the Act in future litigation.
At the British Columbia Human Rights Tribunal that body found in Elmasry and Habib v. Roger’s Publishing and MacQueen (2008) that, despite containing historical, religious and factual inaccuracies; despite the reliance on common stereotypes of Muslims; and despite attempting to rally public opinion by causing fear of Muslims, the Maclean's article did not violate the anti-hate provisions of their Human Rights Code.
All of these decisions, but particularly that of the BC Human Rights Tribunal, demonstrate the futility of attempts to litigate speech issues that emanate from the mainstream media.
Those opposing the “Future of Islam” piece also made written demands that Maclean’s meet with them, apologize and grant space for them to post a reply in the magazine. At that time, Maclean’s response to those demands was akin to ‘over our dead bodies’.
Fast forward to today: In the case of the article entitled “'Too Asian'?” there is evidence that Maclean’s is moving toward a negotiated resolution, perhaps including an apology. It is also clear that the magazine will not be swayed by litigation or threats of litigation. The idea that we are all freely willed individuals with equal powers of participation has achieved hegemonic status in our society and that idea will not be diminished by outraged citizen brandishing law books. Thus, there is little to no recognition that an inequality in power may exist between the media and the communities that might be seeking redress.
Working to bring about a sense of responsibility within the media when it comes to addressing issues of race and racialization is not the same as addressing many other violations of human rights. The same strategies cannot be used to address, for example, racial profiling by police as are used to address concerns that arise in broadcasting. On the one hand, the immunities from discrimination established by human rights laws and the Charter of Rights and Freedoms give rise to reasonably clear correlative duties to refrain from such conduct on the part of police forces. On the other hand, when it comes to the mass media, claims to immunity are met with claims to liberty-rights in the form of speech. As Wesley Newcomb Hohfeld noted some time ago, when it comes to the media there exists no apparent correlative duty to refrain from discrimination.
The anti-racism campaigners’ strategies for addressing this standoff between immunities and liberty-rights have taken three distinct paths: first, campaigners have attempted litigation; second, they have made various demands such as calls for an apology; and, third, they have engaged in what might be called relentless counter dialogue.
First, the record of attempts to address expression adverse to the interests of historically disadvantaged groups through litigation is not a good one. The only circumstances in which a litigation strategy has been successful or non- controversial have been those where the focus has been the extremist views of right wing zealots. The examples are well known. In R v. Keegstra (1990), the Supreme Court of Canada found that freedom of expression was violated, but, in this case, justified. In Ross v. New Brunswick School District 15 (1996), in response to Ross’ publicly made racist and bigoted statements, the Human Rights Commission of New Brunswick found that he had fostered a poisoned environment and ordered a series of disciplinary measures against him. The Supreme Court of Canada determined that while Ross’ freedom of expression had been violated, in this specific case the violation was justified.
Second, recent written demands for an apology about the “Too Many Asians” piece have been unsuccessful. Given the history of attempts to litigate about the “Future of Islam” article it seems inadvisable to litigate. Such attempts will not only fail but they will be used against those who object to the article on the ground that they are attempting to use the law to muzzle speech.
Third, the above begs the following question: Are there any strategies which have proven to be effective in combating real or perceived negative representations of historically disadvantaged groups in the media? Although in 1979 those protesting the portrayal of Chinese people by the CTV program W5 considered litigation, what worked in that case – and seems to be working in relation to the “Too Asian?” article – is a strategy of relentless counter dialogue, including seizing press coverage whenever possible, using social media, developing the broadest possible coalition of people committed to arguing the difference between freedom of expression and irresponsible journalism and engaging face-to-face with editors to discuss the negative impact that irresponsible representations may have on racialized communities.
Those seeking redress should continue to exercise relentless counter dialogue, to engage in media literacy, and abandon litigation. Undesirable speech can only be addressed with clear and unequivocal opposing speech.
Patrick Case is the director of Human Rights and Equity Office at the University of Guelph and chair of the board of directors of Ontario’s Human Rights Legal Support Centre.