In the recently amended Alberta HR legislation Section 3 is the "offensive" section. Here it is:
3 (1) No person shall publish, issue or display or cause to be published, issued or
displayed before the public any statement, publication, notice, sign, symbol, emblem or
other representation that
(a) indicates discrimination or an intention to discriminate against a person or a
class of persons, or
(b) is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental
disability, age, ancestry, place of origin, marital status, source of income or family status
of that person or class of persons.
(2) Nothing in this section shall be deemed to interfere with the free expression of
opinion on any subject.
There are Criminal Code provisions that serve the same purpose and so it is arguable that these provisions in HR legislation are redundant. The Canadian Constitution Foundation has recently launched an Intervener Action to declare Section 3 of the Alberta HR legislation outside the jurisdiction of the province of Alberta. This matter will be in court in September and will be interesting to follow.
It was expected that the Alberta government would be repealing this Section 3 in the recent Bill 44 amendments to the new Alberta Human Rights Act. That repeal did not happen for some strange reason. Repeal was highly recommended by many informed sources including the Sheldon Chumir Foundation for Ethics in Leadership. No explanation for this unexpected shift in policy has yet been provided by the province of Alberta so far as I know.
For a more practical discussion and explanation of the implication and civil and ethical exercise of our Constitutional Right of freedom of speech I recommend this op-ed published in the Edmonton Journal. It is by Janet Keeping, President of the Sheldon Chumir Foundation. She really puts free speech matters in perspective.
I think her title for the op-ed frames the overarching duty for responsible speech perfectly, "Freedom of Expression Isn't a Licence to Offend." She, like me, endorses the principles behind Ezra Levant's push to eliminate Section 3. However Janet pushes back hard in this op-ed over how Mr. Levant is strategically pursuing his purposes.
She points out "It's not ethically OK to be obnoxious." She goes on to say "Even if you are legally entitled to be offensive, you are doing a bad thing - acting unethically - if you deliberately set out to harm people by your words or if you don't care about 'collateral damage' your offensiveness causes."
Life is not Disneyland easy. We can't live in a simple world like Bambi's mother described in admonishing Thumper: "If you can't say anything nice, don't say anything at all." We have too many fundamental differences and the world is very small, complex and inter-related place these days. Nobody is able to be an island any more. So while we can be definite and determined in our disagreements, we must also do it without being disagreeable or disrespectful.
What all this also means is that effective citizenship now requires that when we encounter offensive disrespectful speech, we must, as a matter of principle, actively speak up against such behaviours. To let it slide lets the offensive exercise of free speech become normative. Going along to get along is also an unethical and inadequate response.
Janet Keeping in her excellent op-ed serves as a role model. She is an example in how to be effective in taking on that responsibility of ethical citizenship and properly protecting of our right of free speech. Give it a read and share it widely.
How can people even have a chance to debate a topic the way the HRC is set up. In debate you will always offend one party, opening it up to prosecution is not right. The HRC tries to take the right of having an opinion away, I for one will not back it. If it is a real legal issue take it to court, a judge can decide if it is worthy of prosecution, not the AHRC!
ReplyDeleteInteresting post Ken. Part of the problem is related to the very nature of rights. Rights are political "trumps" in that if one can successfully lay claim to a right, that then superceeds virtually all arguments to the contary that are politically based, majoritarian, empirical, utilitarian, or ethical. In short, rights convey, by their design and nature, a license to behave unreasonably, selfishly and offensively (at least within the understanding of the dominent culture). As a result, the only effective responses to rights-based claims tend themselves to be phrased in the language of rights. The resulting clashes of rights create much heat but little light - Mr Levant's case is a prime example (where the Levant's right to the excercise of free speech was pitted against the human right claims of members of the Islamic community).
ReplyDeleteOf particular concern are religious rights. Religious beliefs are fundementally irrational (in the sense that they are ultimately based in faith rather than evidence. Religious rights then serve to privilege this irrationality above all other claims or discourse. It follows from all this that while rights play an important political role, legislatures should be very cautious when creating/acknowleging/inshrining new rights. (This is why Bill 44 is so problematic, it elevates to rights status was being dealt with in practice and policy as a matter of courtesy and respect for diversity.) One last note; when the Charter of Rights and Freedoms was adopted, it was explicitly acknowledged that these were subject to such limits as were reasonable and demonstably justifyable in a free and democratic society. This provision provides a way out of the public policy trap posed by the language of rights. There are several examples in the last few months where the courts have referenced this provision to restrain the exercise of rights and restore balance to political dialogue.
Although her comments are correct from the standpoint of "debating ethics" -- it is absolutely wrong to use the force of law to restrict speech to a subjective norm of good taste.
ReplyDeleteThanks for the kind words on my piece, Ken. We are far from alone in recognizing that there are ethical standards applicable to what we write and say. I have received other appreciative comments today on the article.
ReplyDeletetemporicide - you make a good point. We can't decline into political correctness either. That just erodes robust debate and and avoids uncomfortable realities.
ReplyDeleteThere is no right not to be offended.
ReplyDeleteStill I know of at least 3 PC MLA's who wanted this section removed.
The new Alberta Human Rights Act has not yet been Proclaimed so far as I know. Maybe we can still get it amended in the Fall Session to take out Section 3 and the teacher persecution clauses too.
ReplyDeleteAs your 3 PC MLAs to help out with that task.
I too read Ms. Keepings op-ed in this morning's JOurnal was impressed with the balance demonstrated. I found it particularly interesting, having recently read: "Ezra Levant: Human Rights Defende", as found at http://communities.canada.com/ottawacitzen/blogs/katzenjammer/archive/2009/07/24/ezra-levant-human-rights-defender.aspx
ReplyDeleteI, too read the article and appreciated its tone. I have a problem with Section 3: of that, there is no doubt. However, I also have a concern that some (no one who posts on THIS site, of course...) who want it removed have their own political axes to grind in that regard and would be all too willing to replace the political correctness that Section 3 represents with their own brand of political correctness.
ReplyDeleteThx for the Comment Jerry - and for not being "Anonymous." HRCs really try to resolve disputes and concerns using mediation and conversation before they reverting to invoking their full legal powers.
ReplyDeleteSome of the recent high profile complaints before the AHRC were filed not to have the matters resolved amicably in a civil or even in a merely tolerant or accommodating manner, like an apology. At least one of the parties in these disputes would rather have the fight in public and for political and publicity purposes.
With that attitude prevailing in too many instances your comments about which brand of "political correctness" might we end up with are well founded.
we have to remember, for some people, just to disagree with them, is being offensive to them. These are the people the HRC are giving too much attention.
ReplyDeleteHRC should not be enforcing Political Correctness.