[IbnMardhiyah]

British Columbia's Human Rights Tribunal has dismissed the complaints. However there are some other provinces in which the complaint is going forward still.

Selected excerpts:

II: DECISION

[6] The panel has concluded that the complaints must be dismissed. The complainants have not met their burden of demonstrating that, read in its context, the Article breaches s. 7(1)(b) of the Code. That is because the complainants have not shown that the Article rises to the level of hatred and contempt, as those terms have been defined by the Supreme Court of Canada, to breach s. 7(1)(b) of the Code.

III: THE IMPORTANCE OF THE ISSUES IN THIS CASE

[7] This case raises issues of importance to all Canadians, including Muslim Canadians, and to Canada’s print journalists and publishers. The issues require us to look at two important values of our democracy, the Code and constitutionally protected right to live in a society that is free from discrimination, and the constitutionally protected right to freedom of speech. The Tribunal is therefore engaged in balancing two important and potentially competing rights. Not surprisingly, the balance that must be struck between those two rights is controversial and is the subject of legitimate and healthy debate within Canada. Cases such as this allow Canadians to explore that debate in a contextual and fact-specific way. The debate, however, is not new. The freedoms it engages have been the subject of a number of comments by the Supreme Court of Canada, some of which will be considered in this decision.

V: THE THEMES OF THE ARTICLE WHICH GAVE RISE TO THESE COMPLAINTS

[15] As noted above, the Article is appended to this decision. For ease of reference, we summarize its five primary themes. The first is based on demographic concerns because, in the author’s words:
it is the most basic root of all. A people that won’t multiply can’t go forth or go anywhere. Those who do will shape the age we live in. Demographic decline and the unsustainability of the social democratic state are closely related.

[16] The essence of the author’s argument, as it relates to Muslims, is that the Muslim population of Europe, through higher birthrates, is expanding at a much faster rate than domestic European populations. Muslim populations are, as a result, younger.

[17] Second, Europe’s reliance on social democracy has made European populations weak and vulnerable. As the author puts it: “Islam has youth and will, Europe has age and welfare.” The essence of this theme is that the rise of social democratic states has led to a complacency which will allow Muslims to influence European laws and culture.

[18] Third, the author claims that “Islam has serious global ambitions and [Islam] forms the primal, core identity of most of its adherents.” The essence of this theme is that at its core, Islam seeks world religious domination and that to its adherents Islam is more important than national identity and loyalty.

[19] Fourth, the author argues that “[t]he modern multicultural state is too watery a concept to bind huge numbers of immigrants to the land of their nominal citizenship. So they look elsewhere and find the jihad.” The essence of this theme is that Muslim immigrants do not identify with their European countries of residence and that violence or armed struggle is more likely to bind them.

[20] Finally, “[o]n the continent the successor population is already in place and the only question is how bloody the transfer of real estate will be. … Native populations are aging and fading and being supplanted remorselessly by a young Muslim demographic.” In some ways, this theme is the culmination of the effect predicted by the author of the other four.

VI: THE STATUTORY BASIS FOR THE COMPLAINTS

[21] These complaints are brought under s. 7(1)(b) of the Code, which provides:
A person must not publish, issue or display, or cause to be published, issued or displayed, any statement publication, notice, sign, symbol, emblem or other representation that
…
(b) is likely to expose a person or a group or class of persons to hatred or contempt.

[22] The “hatred or contempt” wording in s. 7(1)(b) is not new to the Code. It first appeared, in identical words, in a human rights statute in British Columbia in 1993 when a predecessor section in the then Human Rights Act, S.B.C. 1984, c. 22 was repealed and the statute amended to include s. 2(1)(b).

[23] There have only been a few cases decided under s. 7(1)(b) or the earlier s. 2(1)(b). However, the application of the section, like similar sections in the federal and other provincial human rights statutes, and a somewhat similar provision in the Criminal Code, has been controversial. The concern is that such a section will unjustifiably limit the right to freedom of expression, which is constitutionally guaranteed in s. 2 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B5 to the Canada Act, 1982 (U.K.), 1982, c. 11 (the “Charter”). Section 2(b) provides as follows:

2. Everyone has the following fundamental freedoms:
…
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

[24] Section 1 of the Charter imposes a permissible limit on all of the rights and freedoms in the Charter, including s. 2. It provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[25] Maclean’s, while saying that it questioned the constitutional validity of s. 7(1), did not bring a constitutional challenge before the British Columbia courts. Nor did they do so before the Tribunal because of s. 45(1) of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”), which is made applicable to the Tribunal by virtue of s. 32 of the Code. Section 45(1) of the ATA provides:

The [Human Rights T]ribunal does not have jurisdiction over constitutional questions relating to the Canadian Charter of Rights and Freedoms.

[26] Instead, as discussed above, Maclean’s chose to defend against the complaints on the basis that the Article did not breach s. 7(1)(b) of the Code.

[27] The BC Civil Liberties Association, the Canadian Association of Journalists, and the Canadian Civil Liberties Association also questioned the constitutional validity of s. 7(1), but did not argue that matter before the Tribunal.

Full text is available here.