Parsing Stephen Harper

Maclean’s magazine has published their end-of-the-year interview with Prime Minister Stephen Harper.

There are important comments about the Liberal-Bloc-NDP coalition and the economy, but here I’d like to assess the PM’s answer to Ken Whyte’s question about human rights commissions. Here is the exchange:

Q: Will the government amend the Canadian Human Rights Act to prevent unwarranted interferences in free expression by human rights commissions?

A: The government has no plans to do so. We’re certainly aware of the issue. My understanding—we’ve been monitoring this closely—I think you’ll actually see there’s been some modification of behaviour on the part of the Canadian human rights commissions. The most egregious cases right now are mostly at the provincial level. And it is a very tricky issue of public policy because obviously, as we’ve seen, some of these powers can be abused. But they do exist for valid reasons, which is obviously to prevent public airwaves from being used to disseminate hate against vulnerable members of our society. That’s a valid objective. It’s probably the case that we haven’t got the balance right, but I’m not sure the government today has any answer on what an appropriate balance would be.

This has come as a disappointment to some free speech advocates who had hoped that, by now, the Prime Minister would have answered Whyte’s question more along the lines of “yes, we will amend it” or “we’re considering it."

I say “by now”, because the denormalization of Canada’s human rights commissions is well underway, and the obvious corollary to the almost universal view – including, evidently, the PM’s view – that HRCs are infringing upon our freedoms, is that legislative reforms must be undertaken. As long-time readers will recall, that’s the second step in the simple two-step plan I suggested a year ago:

1. Denormalize the commissions; and

2. Press legislators to act.

The first makes the second possible.

So what does it mean? Does it mean that no changes will come in the future? Hardly.

I am of the belief that, had the government won a majority government in October, and thus had some predictability in terms of its tenure, reform of section 13 would have been a certainty. And I am also of the belief that, had the three opposition parties not attempted their putsch last month, reform would have been cautiously undertaken, even with the current minority government, with Professor Moon’s recommendation of scrapping the censorship provision being the peg for such a reform.

But all the government’s priorities changed dramatically once the Liberal-Bloc-NDP coalition tried to seize power. That’s a trite observation – everything from the government’s approach to Senate reform to the budget has been overhauled with the opposition putsch in mind. And many other things, including very big things, have been put on hold.

Do I wish that the PM had answered Whyte in the affirmative? Of course. But it’s unrealistic to think that a Prime Minister who is focused like a laser on the country's economy and indeed his party's hold on office would have, in the few weeks since all the excitement, engaged a plan to reform section 13 – and if he had, to announce such a plan in response to a spontaneous question.

I have no doubt that the handful of pro-censorship voices in Canada will regard the above as wishful thinking, and indeed many impatient reformers will, too. But I submit that Parliament's laws are not changed on a dime; I challenge my skeptical readers to give me an example of legislation of this sort being changed on a timetable shorter than the one I predicted just a few days ago – that is, by the end of 2009. Parliament, especially a minority Parliament in a constitutional crisis, simply doesn’t move at the speed of the Internet.

Let me take you through the PM’s remarks sentence by sentence, and justify my interpretation, starting with the question:

Q: Will the government amend the Canadian Human Rights Act to prevent unwarranted interferences in free expression by human rights commissions?

First of all, you’ve got to admit that’s a great question by Whyte.

A: The government has no plans to do so.

Perhaps I’m being too literal, but of course the government has no plans to do so. We know this – that’s what we’re working to change. We knew it didn’t have those plans before the October election. In November, the party had its policy convention, and voted 99% to get those plans. But within days, the opposition putsch was launched.

Do readers genuinely think that the government would have gone from “no plans” to “plans” in that one-week period?

And, once the putsch had concentrated the mind of the government on two things – political survival, and economic policies – do you really think that the PM would focus on any other non-core issue, at least until the budget is passed?

I’m sorry, but I just don’t find it remarkable that the PM said he does not now have plans to amend the law. Didn’t we all know that – and isn’t that the focus of 2009’s efforts? Wasn’t 2008 the year of denormalization, and 2009 the year of legislative reform?

We’re certainly aware of the issue.

That’s what I mean by denormalization. I put it to you that twelve months ago, the PM was not “certainly aware” of the issue.

My understanding—we’ve been monitoring this closely—

Again, do you really think the PMO monitored HRCs closely before our campaign of denormalization? Would he be monitoring something closely if he didn’t think it were a live issue?

I think you’ll actually see there’s been some modification of behaviour on the part of the Canadian human rights commissions.

Of course, this is true. The CHRC refused to hear the Canadian Islamic Congress’s case against Maclean’s and Mark Steyn; the CHRC complaint against me (made by Rob Wells) was dismissed also; the CHRC has, in the past six months, dropped its cases against Fr. Alphonse de Valk of Catholic Insight magazine. We’ve discussed this: it’s the CHRC reacting to political pressure, and dropping the big fish (or, in the case of Fr. de Valk, sympathetic fish) in the hopes that the media scrutiny will subside. It’s corruption, of course – letting political trouble-makers go free, and grinding Joe Average, who can’t get press coverage, into powder.

I note that the PM said “some modification” – because, as the CHRC’s vendetta against the Free Dominion website shows, the CHRC’s behavior is not much modified.

The most egregious cases right now are mostly at the provincial level.

I love that -- "the most egregious". I agree with the PM. There are egregious cases, and there are more egregious cases, and then there are the most egregious cases.

I’d have to agree with the PM that the B.C. Human Rights Tribunal is the worst. They have the most cases go through, and the zaniest rulings (I predict that, under Barbara Hall, the Ontario HRC will soon overtake the BCHRT). Even in the Mark Steyn/Maclean’s case, the BCHRT were the lone fools to have a week-long trial – both the CHRC and the Ontario HRC declined to hear the matter. It’s the BCHRT that will have a trial of comedian Guy Earle; it’s the BCHRT that ruled a McDonald’s server didn’t have to wash her hands, etc. B.C. is the worst. But the CHRC is the biggest and most powerful HRC, and its conduct is the most troubling. I'd put them in the "more egregious" category.

As I’ve documented before, the CHRC engages in troubling conduct ranging from joining neo-Nazi organizations and publishing hundreds of anti-Semitic, anti-gay and anti-Black comments online; to hacking into private citizens Internet accounts; to illegally acquiring evidence obtained by police search warrants; to violating access to information and disclosure laws, etc., etc. They’re the HRC without an ethics code; they’re the HRC whose “hate speech” investigator says he doesn’t believe in freedom of speech, since it’s an "American” concept.

And it is a very tricky issue of public policy because obviously, as we’ve seen, some of these powers can be abused.

I take heart in this sentence. It’s not a statement that the HRCs might possibly abuse their powers. It’s a statement that they have indeed abused their powers, “obviously, as we’ve seen”. That’s quite an incredible statement.

But they do exist for valid reasons,

HRCs were invented for reasons that may have been valid forty years ago, when human rights issues were a genuine political problem (as I’ve argued before, those problems were trumped up). But, as the Supreme Court ruled in the 1990 Taylor case, HRCs had to beware of exceeding their mandate, especially when it came to censorship. Clearly, they’ve strayed from their original purpose – and strayed beyond the scope permitted to them by the Supreme Court.

which is obviously to prevent public airwaves from being used to disseminate hate against vulnerable members of our society.

Here I must correct the PM. Section 13 of the CHRA does not apply to “public airwaves”. In fact, subsection 2 of section 13 explicitly exempts the public airwaves from censorship, saying the law “does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.”

In other words, the CHRC doesn’t govern TV or radio stations – or anything that could be called “public”. Translation: it doesn’t go after big people or powerful people. It picks little people, harmless people – people on the Internet. In fact, many of the CHRC’s section 13 cases aren’t even for “offences” on Canadian websites – they target Canadians writing on U.S. websites like Stormfront and Vanguard News. What is a Canadian agency doing policing a U.S. website for mere words?

That’s a valid objective.

Is protecting “vulnerable members of our society” from the emotion called hate a valid objective? I suppose -- no-one wants to be hated, though I'm not sure how a government can cause people to turn off an emotion. Is stopping that emotion a greater objective than protecting the fundamental freedoms of Canadians like freedom of speech and freedom of religion? Of course not.

It’s probably the case that we haven’t got the balance right,

Just stop for a moment. The Prime Minister has said that the law as it stands isn’t right. I’m sorry, but I find it difficult to interpret that in any way other than the CHRC has been denormalized, the PM is open to reforms, but the unexpected political turmoil since the election (and the Tory policy convention) has distracted him from attending to those reforms.

If you’re the chief lawmaker in the land, you just don’t declare a law to be out of balance if you’re happy with it.

but I’m not sure the government today has any answer on what an appropriate balance would be.

Of course it doesn’t. It doesn’t have the answer “today”. Because “today” was in the thick of a crisis that unfolded just a week after the Tory policy convention voted to repeal section 13. I’d be surprised if Harper even had a chance to talk with the Justice Minister about the subject before the opposition putsch presented itself.

I say again, it would have been incredibly encouraging for the PM to have answered Whyte’s question in the affirmative. It would have even felt miraculous -- like Prof. Moon's completely unexpected recommendation to repeal section 13. But one cannot expect miracles to happen -- it's up to us to continue pressing, day by day, inch by inch. On careful review, I’m not sure if what the PM said was “no” so much as “not today”.

There are those on the losing side of this debate, Canada's petty censors, who will grasp at a few words in this interview as “proof” that the campaign to roll back censorship is lost. That is an exercise in denial. And there are those on the winning side of this debate who will look at this interview as “proof” that Harper is opposed to reform. That is an exercise in impatience.

I look at this interview and see a half dozen condemnations of the HRCs that ought to chill the blood of the HRCs, the CHRC in particular. I see a Prime Minister who has been – obviously – thinking about other things for the past six weeks, and who has no intention of taking his eye off the ball in the short term. And I see our campaign – denormalization in 2008, legislation in 2009 – as on track.

Call me an optimist if you will: I accept that. But look at how far we’ve come in 12 months and tell me I’ve been wrong in my optimism. Call me a dupe or a shill: I reject that. I’ve kept in touch as well as I could with the PMO these past three months, and it’s simply a fact that everything except the economy and the constitutional integrity of the government is off the table until the opposition putsch is resolved. My goal here is not simply to be a pundit, or a writer. It's to actually achieve legislative reform. That requires a dose of practicality, not just idealism.

Call me too patient: maybe. But bloggers are used to things happening in hours, not months or years. Frankly, every new month brings more embarrassing news from the wacky world of HRCs, and adds another layer of sediment to their new disreputation. Twelve months of denormalization is why the PM is so comfortable bad-mouthing Canada's HRCs are abusive and egregious.

I’ve seen this debate declared “over” so many times this past year by desperate censors hoping that the cause of freedom will be abandoned by activists. But those naysayers don’t get it. Freedom isn’t a fad that comes and goes in a season. It’s not a short-lived blip on the Internet. It’s a natural, indelible human instinct, and the blogosphere just happens to be a great medium for protecting and expanding freedom, and defending it against bullies.

Hell, how do you think Harper became “aware” of the HRCs’ “egregious” “powers” that “as we’ve seen” “ can be abused”, and “we haven’t got the balance right”?

The Internet – and a few fearless friends breaking the story into the mainstream media for us.

I stand by my prediction: legislative reform in 2009.

I think it's worth an e-mail to the PM to tell him that he can surely walk and chew gum at the same time -- there's no reason why he can't have his Justice Minister enact the simple reform of repealing section 13, while the PM and the Finance Minister handle the economy. Click here to send a note to the Prime Minister.