Human rights complaints against Maclean's magazine

The Canadian Islamic Congress human rights complaint against Maclean's Magazine was filed in December 2007, by the Canadian Islamic Congress with the Canadian Human Rights Commission, British Columbia Human Rights Commission and the Ontario Human Rights Commission against Maclean's magazine accusing the periodical of publishing eighteen articles between January 2005 and July 2007 that they considered Islamophobic in nature. The offending articles included a column by Mark Steyn titled "The Future Belongs to Islam". According to the CIC complaint, Maclean's is "flagrantly Islamophobic" and "subjects Canadian Muslims to hatred and contempt."

The complaint prompted criticism of the CIC from various writers as well as a federal cabinet minister, Secretary of State for Multiculturalism Jason Kenney, who said "attacking opinions expressed by a columnist in a major magazine is a pretty bold attack on the basic Canadian value of freedom of the press and freedom of expression."

Response from Canadian Islamic Congress

Faisal Joseph, a lawyer for the complainants, said he was "delighted" by the Commission's strong stance against the magazine, despite the failure of the complaint. He said he knew the complaint would probably be dismissed, "but we thought this would be an excellent way to demonstrate the gaping hole in human rights legislation in Ontario, and the [Commission] has done exactly that." He also noted that other provinical human rights codes have provisions against published writings, and argued that it is "ridiculous" that Ontario does not. He said the inconsistency will require intervention by the Attorney-General to broaden the scope of the legislation."

Ongoing Complaints

The British Columbian and federal complaints were still unresolved as of April, 2008. The British Columbia Human Rights Commission is scheduled to hear the compaint in June of 2008.

Ontario Human Rights Commission

In April, 2008 the Ontario Human Rights Commission (OHRC) stated that it did not have jurisdiction to hear the complaint based on a gap in the legislation (the relevant portions of Ontario Human Rights Code only address discrimination via signs or symbols, not printed material). Despite not having jurisdiction, the Commission published a statement condemning the articles published by Maclean's as "xenophobic", "destructive", "Islamophobic" and "promoting prejudice". The Commission indicated that more discussion on the topic of Islamophobia in the media was warranted.

The OHRC was one of several Canadian human rights commissions that investigated, or is currently investigating whether author and syndicated columnist, Mark Steyn, is guilty of violating the human rights of Mohamed Elmasry, president of the Canadian Islamic Congress, who was offended by an article which appeared in Maclean's magazine.

Elmasry launched human rights complaints against Maclean's claiming that the article The Future Belongs To Islam, an excerpt from Mark Steyn's book, "America Alone: The End of the World as We Know It," subjects Canadian Muslims to "hatred and contempt." [3]

OHRC Statement on Maclean's Magazine

In April of 2008, the Ontario Human Rights Commission (OHRC) dismissed the complaint by the Canadian Islamic Congress against Maclean's Magazine but issued a statement denouncing Maclean's, accusing it of being "xenophobic", "destructive", "Islamophobic" and "promoting prejudice,". In an interview, Chief Commissioner Barbara Hall stated that "When the media writes, it should exercise great caution that it's not promoting stereotypes that will adversely impact on identifiable groups. I think one needs to be very careful when one speaks in generalities, that in fact one is speaking factually about all the people in a particular group."

Criticism of Hall

Hall's statement drew harsh criticism from a number of sources:

• Tarek Fatah, who stated that the OHRC had sided with Islamist fundamentalists in a broader cultural debate among Canadian Muslims and that for the Commission "to refer to Maclean's magazine and journalists as contributing to racism is b**s***, if you can use that word."

• Jonathan Kay of the National Post also criticized Hall's leadership of the OHRC in the aftermath of the decision, writing that Hall was had been influenced by "radicals" in the OHRC bureaucracy. Kay also stating that the OHRC statement was "a genuinely frightening manifesto written by people who have a thinly disguised contempt for press freedom and heterodox opinions." Kay argued that if a media outlet chooses "to be "unfair," or simply to have an opinion that some people, or even everyone, disagrees with, that's our right. We'll pay the price in lost readers and advertisers."

• Mark Steyn, who wrote the article in Maclean's that the complaint was based on, commented that "Even though they (the OHRC) don't have the guts to hear the case, they might as well find us guilty. Ingenious!"

Hall's Response

In a later interview, Hall defended further defended her actions and her comments about Maclean's Magazine, stating that:

"Every day we comment on things that aren't [formal] cases. Part of our job is to identify discrimination and to work to address it, but more often it is putting out a statement, having a debate, meeting with people, discussing and understanding the impact. Whenever we comment on what someone has said or done, we comment because we want them to think about the Human Rights Code, and the implications of it, and to think seriously about what they're saying or doing does to other people. I think that's an important and legitimate part of our role... I think that part of freedom of speech is being able to say things and another part of it is being able to be critical of things that are said. I don't view it as a chill. I view it as responsibility."

Maclean's Responds

The editors of Maclean's denounced the OHRC, Hall, and her staff for the "zealous condemnation of their journalism" for "morphing out of their conciliatory roles to become crusaders working to reshape journalistic discourse in Canada." Maclean's wrote that Ms. Hall's press release was "a drive-by smear," and "perhaps the greatest disappointment in this whole saga." Maclean's editors wrote that:

"[Hall] cited no evidence, considered no counter-arguments, and appointed herself prosecutor, judge and jury in one fell swoop. If we weren't tolerant and charitable people, we'd be calling for her resignation."

OHRC's Letter to Maclean's

On April of 2008, OHRC Chief Barbara Hall wrote a letter to Maclean's, which Maclean's subsequently published as a letter to the editor. Hall wrote that once that decision to dismiss the complaint was made, the OHRC was "free to comment on the issues raised. We followed the correct process for both aspects of our mandate under section 29 of the Ontario Human Rights Code – protecting and promoting human rights in order to create “… a climate of understanding and mutual respect for the dignity and worth of each person…,” as set out in the Preamble.

Hall further stated that:

Maclean’s and its writers are free to express their opinions. The OHRC is mandated to express what it sees as unfair and harmful comment or conduct that may lead to discrimination. We need to keep in mind that freedom of expression is not the only right in the Charter. There is a full set of rights accorded to all members of our society, including freedom from discrimination. No single right is any more or less important than another. And the enjoyment of one depends on the enjoyment of the other. This means if you want to stand up and defend the right to freedom of expression then you must be willing to do the same for the right to freedom from discrimination. The human rights system exists in Canada, in part, to shine a light on prejudice and to provoke debate – and action. We called for debate and dialogue; we still do. We have taken controversial views before and no doubt will again. That is inevitable because we have a mandate to promote change – away from unfair stereotypes and discriminatory behaviour and towards a culture of human rights. We agree with the Editors of Maclean’s: critics are entitled to their opinions. Sometimes we must be critical. We have that duty, enshrined in law, to speak up on human rights issues of the day – and we will continue to do so.

Complaint Status at the British Columbia Human Rights Tribunal

On June 2, 2008, the British Columbia Human Rights Tribunal began to hear the case. Mohamed Elmasry was not present. The complainant in this case is Naiyer Habib, the BC board director for the Canadian Islamic Congress, who is filing the complaint on behalf of all Muslims in British Columbia.

Joseph Faisal, legal council for the Canadian Islamic Congress opened his arguments by stating that the article Maclean's published presented Muslims as "a violent people" who hold traditional Canadian values "in contempt," and depicted Islam as "inhuman" and "violent." He also stated taht the cover image that Maclean's chose to run, the image of two Muslim women, along with the magazine's cover line, "could have been the picture of a horror cult movie." Faisal also criticized "20 other articles" that ran in Maclean's, beginning in January, 2005 that he claimed were offensive to Muslims and slammed Maclean's for publishing letters from readers praising the magazine and Mr. Steyn. Faisal added that "We're prepared to deal with those articles piece by piece, paragraph by paragraph, and those things that we find objectionable."

Faisal and Habib's complaint claims that Maclean's and Mark Steyn, who wrote the article, violated Section 7-1 of British Columbia's Human Rights code, which stipulates that a person must not publish or cause to be published anything that discriminates against a person or group, or exposes them to hatred or contempt.

Faisal implored the BC Human Rights Tribunal to take action, arguing that it is "the court of last resort. You are the only opportunity to right a terrible wrong to a clearly identifiable group numbering hundreds of thousands in this great country, and tens of thousands in the beautiful province of British Columbia. You are the only thing between racist, hateful, contemptuous Islamaphobic and irresponsible journalism, and law-abiding Canadian citizens."

Lawyers for Maclean's plan to argue that publication of the article is part of free speech and open debate. Julian Porter, a lawyer for Maclean's stated that the Steyn's article "does not meet the standard of hatred or contempt, and that's what we'll argue later in the week".

If Maclean's is found to have violated BC's Human Rights Code, it could face sanctions, including payment to the complainant "an amount that the member or panel considers appropriate to compensate that person for injury to dignity, feelings and self respect or to any of them." However, Faisal has stated that he only wants the Tribunal to order Maclean's to publish "an appropriate response."

The case conitunes to be heard by the Tribunal and a date for a ruling has not been set.

Criticism of the Tribunal and the Complaint

Brian Hutchinson, of the National Post, criticized the BC Human Rights Tribunal for agreeing to hear testimony from Khurrum Awan, one of the student lawyers who helped with the human rights complaint in Ontario on how Muslims in British Coloumbia were affected by the article. Maclean's argued that because Awan is not a resident of British Columbia, he should not be allowed to give testimony about the harm the article allegedly caused to Muslims in B.C.. However, Heather MacNaughton, the Chairwoman of the Tribunal, allowed his testimony, justifying the decision by stating that "strict rules of evidence do not apply" in cases before the Tribunal.

Jason Gratl, a lawyer for the Canadian Association of Journalists and the B.C. Civil Liberties Association, criticized the hearing, stating that "We're of the view in the first place that the human rights tribunal doesn't have any business deciding what appropriate expression in Canada might be. Its activities and jurisdictions undermine the ability of journalists and members of the public to discuss important public issues such as race and religion."

Ezra Levant, former publisher of the defunct Western Standard, and the former target of a complaint to the Alberta Human Rights Commission, criticized the hearing, stating that "I think this strikes at press freedom and even the freedom of thought of all Canadians. I think it's really an embarrassment that this is happening."