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Saturday, May 17, 2008

Mark Steyn, and a demand for "accurate news and information"

Since Mark Steyn has been brought before the B.C. and Canadian human rights tribunals, I have read the demands of those who wanted the government to punish Mr. Steyn for his opinions expressed in Maclean's magazine. The complainants continue to demand that Maclean's not  only guarantee their right of reply, but that the B.C. or Canadian Human Rights officials also give them editorial control over that section of the magazine that will  publish their response.

Maclean's has declined to give in on the matter. The complainants' wish to dictate what Maclean's will publish remains key to their demands, as in a "compromise" a few weeks ago, they offered to drop their human rights complaints if only Maclean's would print what they wanted. Maclean's, evidently fearing setting a precedent that a compulsory "right of reply" would be seen as a "reasonable" settlement or punishment in future cases such as this, continues to stand its ground. So, a provincial and federal government body may soon dictate what will be published in a magazine.

All along, I have been thinking that I have seen a similar demand for "accurate news and information" by government order. Something similar being the infamous Alberta "Accurate News and Information Act", the "Press Gag Bill" passed by the Aberhart Socreds in 1937 to stop press criticism of the government.

If I read the Supreme Court of Canada's decision to set aside the legislation correctly, the B.C. Human Rights Tribunal--which starts its hearings on Mr. Steyn's writings on June 2--is wasting its time, as questions relating to provincial government regulation of press content have been ruled "ultra vires"--beyond the power of a provincial government (let alone an informal provincial body, such as a human rights council) to rule on.

If nothing else, I hope that what happened then may provide Mr. Steyn and his friends with a useful moral precedent, as we look at some of the details of what happened then and how I think they may relate to what is happening now....

Mr. Steyn and his allies will no doubt be pleased to know that even the Canadian Human Rights Commission recognizes the decision to set aside the "Press Gag" legislation as the first case to give freedom of speech  a "measure of constitutional protection". The ongoing relevance of the case to freedom of speech issues has led the Alberta government to set up a useful website on the case for history teachers, where I found many of the  documents that I will be quoting below.

The first thing that stands out to me in the relevant sections of the Accurate News and Information Act  is the extensive outline of how a Social Credit Party official could require a newspaper to print, verbatim, what the government demanded ("...such statement shall be given the same prominence as to position, type and space as the statement corrected thereby..."). Other provisos of the Act included a requirement that a newspaper name all its anonymous sources upon demand. Punishments included fines and gave the government power to suspend publication of a newspaper, or to ban a particular person from writing for the newspaper.

Early in 1938, five out of six Supreme Court justices ruled that such powers were "ultra vires" to a provincial government, in addition to being contrary to British traditions of freedom of speech. Wouldn't it logically follow, in a precedent setting sense, that a body subservient to a provincial government, such as the B.C.Human Rights Council, can't have the power to compel Maclean's to publish a "corrective" statement with "..the same prominence as to position, type and space as the statement corrected thereby..."?

I wonder if Mr. Steyn's lawyers will be telling the B.C. Human Rights officials, "The remedy asked for by the complainants has already been ruled 'ultra-vires' in a similar case and we expect that if you order such relief that the courts will override your decision." Of course, I can imagine a Human Rights adjudicator doing the bureaucratic equivalent of rearing up and crying out "Pay no attention to the legal precedent behind the curtain! I am Oz!". But, such a direct precedent should prove telling. The operative word here being "should".   

Mr. Steyn's friends may note that, at the time, outrage against the "Press Control Bill" was so widespread that an October 2, 1937 Edmonton Journal story quoted Elmer E. Roper, editor of The People's Weekly "and long prominent in labour and C.C.F. ranks here", speaking against the legislation. They may ask why the left is so silent now.

William Aberhart, then premier of Alberta and a guiding force behind the legislation, made an argument for what would be enshrined in the legislation that would sound familiar to modern ears in some ways. Press abuses, he argued in a June 5, 1937 radio speech over the CBC, demanded to be treated with "rigid discipline", as it would be that fall when the Accurate News and Information Act was passed:

(Aberhart begins his argument)

....But life today is complex. It is no longer merely individualistic or paternal. People have combined into a state, and the individualistic law of the liberty of the jungle no longer can be maintained in its entirety. The state refuses to allow the Britisher to inflict inhuman cruelty upon his wife, his children or even his domestic animals. Civil liberty therefore is a freedom limited by laws established for the welfare of the community generally or of the state as a whole, rather than of the individual.

I conclude therefore that modern liberty lies in the freedom of the individual from selfish control, duress, fear or exploitation inflicted by another or others. If an autocrat, or a plutocrat, or a large corporation controls, directs or regiments the actions of any individual or number of individuals without their consent, these latter have to that extent lost their liberty in the true sense of the word…

After some thought I am inclined to agree with Walter Lippman, who a decade ago wrote that the crisis of democracy is a crisis in journalism.

It seems to me that in the decade which has passed, this crisis of democracy has been followed by decadence instead of recovery, and it is feared that the so-called free Press is rapidly dying, and its freedom with it.

I am wondering if we should not do everything in our power to revive it and restore its freedom.

If anything is to be done to restore the press to its proper place in the public consciousness, we must consider wherein its weaknesses lie, and prescribe some form of rigid discipline that will enable these weaknesses to be removed…

…I propose to summarize [the weakness of the modern press] under four headings:

1. Commercial
It is claimed that newspaper standards are too often determined by a preponderant desire for circulation, which is so basic to large advertising returns.

2. Patronage
Most newspapers today are subservient to local political machines, and therefore colour their news items in accordance with the propaganda of the political party supporting them. The policies of the paper are therefore intended for the welfare of the party, and not for the welfare of the community.

3. News and Moral Values
Dean Ackerman declares that news values of many papers are often superficial and trivial. Headlines frequently do not correctly reveal the facts nor the tenor of the article. A great majority of the reporters are quite inaccurate when reporting interviews, and it is not an uncommon thing to find that news and photographs even are falsified.

4.Social and Educational
Too many of our citizens have learned by experience that the newspaper violates the individual right of privacy.

Newspapers unhesitatingly make heroes of criminals by glowing accounts of wrongdoing, vice and the sordid details of lust and violence…

This discussion is hardly complete without the further consideration of some means which might accomplish such a result but my time is up.  Thank you, Ladies and Gentlemen.....

(Aberhart concludes)

I can hear a similar argument being made today. The public needs to be "protected" from the evil press owned by "a large corporation", who insist on individual rights at the expense of the "welfare of the community generally". The press needs to be "corrected", so it is more "accurate".

Mr. Aberhart arguments could perhaps have been made, in more modern terminology, by Mr. Steyn's opponents. Instead of being protected from tawdry accounts of lust and crime, for example, the modern public instead needs to be protected from "racism" and "Islamophobia."   

Students of Alberta history, by the way, will recall that Aberhart's friends were not paragons of journalistic virtue. In a "government-sponsored" pamphlet, nine of Aberhart's political opponents were dubbed "Banker's Toadies" . The authors of the pamphlet wrote "Exterminate them!". Not having the power to pass an "Accurate News and Information Act", these victims sued the pamphlet's authors for libel instead, proceeding to a court which had rules to protect the rights of both sides in the case, when deciding whether the pamphlet had been a appropriate use of free speech. 

In summing up I would add that Mr. Steyn, being a fan of older forms of American music, may no doubt understand what I mean when I note, in the words of the big band tune, "It seems I've heard this song before."

We may have difficulty appealing, as the Supreme Court of Canada did when striking down the Accurate News and Information Act, to the notion that, as people who inherited "British" notions of freedom of the press, citizens should not have to tolerate government restrictions on press freedom.

We can however, point to what happened to the "Press Gag Bill", and note that protecting freedom of speech from mischief-minded governments and their minions has always been a Canadian value. I wish Mr. Steyn well in doing so.

Posted by Rick Hiebert on May 17, 2008 | Permalink


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You are dead-on about the Alberta reference. Another great case on the subject is Switzman v. Elbling [1957] (SCC), known as the "Padlock case." That one was about a Quebec law that made it a crime to propagate communism. For the majority, Justice Ivan Rand wrote possibly the best defence of free speech in Canadian case law. The case is available on Canlii.org. The law's supporters claimed it was in tune with the 'property and civil rights' allocation in the BNA Act, but Rand J. would have none of it. He wrote,

"The aim of the statute is, by means of penalties, to prevent what is considered a poisoning of men's minds, to shield the individual from exposure to dangerous ideas, to protect him, in short, from his own thinking propensities. There is nothing of civil rights in this..." Now does that sound familiar, or what? He just described s.13 (and s. 7 in the BC Human Rights Code). Anyway, Rand and the rest of the majority struck down the law on the 'Alberta Reference' principles.

So, the question is, why does the BC Tribunal think it has jurisdiction if this has all been decided in the Alberta reference and the padlock case? Well, the Tribunal, by way of a whip-smart decision by member Nitya Iyer in Canadian Jewish Congress v. North Shore News, got around the problem by deciding that hate speech is not, in the fullest sense, political speech. Iyer cited Dickson C.J.C. from Keegstra, saying that "expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values." His meaning there was that hate speech does not deserve the same protection as other political speech because of its potential to harm society's democratic institutions.

Iyer then runs with that idea, saying that "If hate speech is only tenuously related to the democratic rationale underlying s. 2(b) of the Charter, as described in Keegstra, it cannot be maintained that it falls within the category of speech removed from provincial jurisdiction by the implied bill of rights doctrine because it is so essential to the functioning of Parliamentary institutions that restricting it would substantially interfere with the workings of those institutions."

She makes a fundamental error here. Dickson said that some political speech (that is, hate speech) is anti-democratic, and therefore subject to limitations under s.1 of the Charter (such reasonable limitations as can be justified in a "free and democratic society"). Iyer, though, takes it to mean that hate speech can be repressed either by the provinces or by the feds. That is a critical misreading of the reasons in Keegstra. What Keegtra said was that the right to make political speech can be infringed. It does not stand for the principle that the provinces can do so.

The good news is that Iyer's decision was wrong. The bad news, as you'll see if you read it, is that it is otherwise so goddamn well written that it is easily capable of pulling the wool over the eyes of just about any judge - including, I daresay, a few on the SCC today.

Posted by: Davin Burlingham | 2008-05-17 7:59:01 PM

This whole rights/censorship fiasco reminds me of a really great advertisement that appeared in the 'skin' magazines back in the 1970s.

The whole page ad had a picture each of Hitler, Stalin, Mao and Casto.

The caption as I recall proclaimed:

'The experts all agree!
Censorship works!'

Posted by: rockyt | 2008-05-17 9:21:50 PM

I don't think you understand the Accurate News and Info Act very well.

It was ruled unconstitutional because it was ancillary to the Alberta Social Credit Act . If the Accurate News Act hadn't been ancillary to the SoCred Act it would have been ruled constitutional. Maybe you missed this part of the judgement:

"The question, discussed in argument, of the validity of the legislation before us, considered as a wholly independent enactment having no relation to the Alberta Social Credit Act, presents no little difficulty. ...Some degree of regulation of newspapers everybody would concede to the provinces. Indeed, there is a very wide field in which the provinces undoubtedly are invested with legislative authority over newspapers: but the limit, in our opinion, is reached when the legislation effects such a curtailment of the exercise of the right of public discussion as substantially to interfere with the working of the parliamentary institutions of Canada as contemplated by the provisions of The British North America Act... "

Its actually a very narrow decision that sez, in a nut shell, as long as a provincial law does not limit expression about the elective process or the operations of our democratic institutions (the House of Commons and the provincial Legislature) it would be competent the province to regulate newspapers distributed within its territory. Only the Feds can pass legislation that can limit the above under either the criminal law power or the POGG power. ( of course today any such laws would also have to comply with the Charter).

Here's another quote all the free speech warriors should consider from that case:

The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth, [[1936] A.C. 578], "freedom governed by law."

Here's what Lord Wright said in the James case:

"Free" in itself is vague and indeterminate. ... Free speech does not mean free speech; it means speech hedged in by the laws against defamation, blasphemy, sedition and so forth; it means freedom governed by law.

So much for our " ancient" freedoms being destroyed by human rights legislation!

Posted by: Nbob | 2008-05-17 10:11:22 PM

"Maclean's, evidently fearing setting a precedent that a compulsory "right of reply" would be seen as a "reasonable" settlement or punishment in future cases such as this, continues to stand its ground. So, a provincial and federal government body may soon dictate what will be published in a magazine."

from a marketing point of vue, Maclean's couldn't be better served.

Posted by: Marc | 2008-05-17 10:12:59 PM

The obvious invervening factor between 1937 and today, though, would be the Charter which, for all of its words, ultimately means whatever the hell the Supreme Court wishes for it to mean.

Steyn is resigned to losing. He's surely right. Maclean's will appeal. It will probably lose all the way to the Supreme Court.

And then, look at the composition of this Court - some of its members openly confess to being judicial activists. They'll probably lose there as well.

The deck is stacked against them.

Posted by: Adam Yoshida | 2008-05-17 11:47:19 PM

Charter of Rights and Freedoms is nothing but a tool for the Supreme Court to interpret as it sees fit. It's a gold mine for legals.

The HRC's are Communist inspired Kangaroo Courts enabled by the Charter. The FIX is in for anyone hauled up before them, they cannot win.....and we thought we lived in a Democracy!

Posted by: Liz J | 2008-05-18 8:01:46 AM

I agree. We have reached the point where many of us are are coming to realize that there is no pravda in izvestia and no izvestia in pravda.

It's slow motion Lefty Fascism.

Posted by: h2o273kk9 | 2008-05-18 11:33:06 AM

I am a member of a political party and neither I nor my family are going to send another donation or, for that matter,the membership fee to said party until the governing party and the opposition parties stand up to be counted.
We will instead send the donation to the accused to help with their defence. I am appalled that my tax dollars are going to pay for the accusers in this kangaroo court while the accused have to pay for their own defence. Why are Canadians so silent or do they just not care?
This is one positive way to send a message to the political parties. No more donations until you get rid of these so called Human Rights Commissions.

Posted by: Gill Osmond | 2008-05-18 12:01:05 PM

Good plan Gill. Wish I'd thought of it when they phoned last week.

Posted by: dp | 2008-05-18 12:09:54 PM

One of Mark Steyn's few errors in judgement involve his assessment of PMSH as a "libertarian incrementalist" as opposed to being a conservative. Based on his inaction on this and other files, he appears to be neither.

Trudeau's virus ("just society") continues to infect and destroy Canada.

Posted by: John Chittick | 2008-05-18 12:15:37 PM


They don't care. Or, rather, they believe that Steyn is the disturber of social peace, rather than those who support Islamic fascism.

A large percentage of the electorate, like myself, came up through the public school system - which, in this country, the teacher's unions have turned into a factory of ideological conformity. They have been indoctrinated into the cults of unthinking multi-culutralism, relativism, and trans-national progressivism. They are, for the most part, too drugged and deluded to ever be awoken from their slumber.

Ever read "Brave New World"? That's probably our future. Until other people conquer us, that is.

One of the great Orwellian delusions of our day - one that the establishment has very effectively prepetuated - is that leftism is still rebellious and edgy when, in fact, objectively there is nothing more conformist than modern left-liberalism.

Posted by: Adam Yoshida | 2008-05-18 12:34:46 PM

What enough of us have to do is send a direct email to the Justice Minister and demand action.

If they want to be duds and just glide along pandering to special interest groups, ignoring the common good they're duds and do not deserve our support.

Trudeau's "Just Society" was just another one of his socialist fog brain waves, he had no bloody idea what it entailed.

Posted by: Liz J | 2008-05-18 12:58:58 PM

E-mail? You think that's going to work? Ha.

Posted by: Adam Yoshida | 2008-05-18 1:17:54 PM

Yes, 'think it would work if a large number of people sent him E-mails. Politics is all about numbers. A large number of people demanding action on something is taken seriously by MP's. It's worth a shot, it's free.

Posted by: Liz J | 2008-05-18 1:40:15 PM

I'm not a leagle beagle, but I am thinking about Joseph Howe of Nova Scotia and his triumph for freedom of the press.

The Dictionary of Canadian Biography Online states:
(Joseph Howe) stood for “the Constitution, the whole Constitution, and nothing but the Constitution.”

The truth was important enough to him when he criticized the magistracy and police of Halifax only to be charged with criminal libel. He won his trial and said, ever so proudly, "the press of nova scotia is free." That victory established that no one person or group is protected or immune to published criticism or reproach.

My point?

I recognize that the above is about criminal libel, however, freedom of the press and to another extent, freedom of thought is established and paramount in our Constitution. To all those who are facing the wrath of the CHRC and their provincial counterparts -- keep up the good fight; you must win.

Posted by: Shawn | 2008-05-18 3:00:11 PM

Is it true that this weasel Steyn doesn't even have the stones to even LIVE in Canada?

Posted by: joe bleau | 2008-05-19 3:58:10 PM

Gill has the right idea. The party depends on a steady supply of money. I have been a faithful contributor for several years. When I told the solicitor last week why he could expect no further donations from me, he was shocked.

Hit the party in the pocketbook and they will get the message.

Posted by: john | 2008-05-19 7:00:48 PM

If this case is appealed to the highest court and loses, then Canada has departed the fellowship of free nations, and I would urge its citizens to take up arms and re-establish limited government by main force.

Posted by: John Skookum | 2008-05-22 3:23:37 PM

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