Politically Corrected
When bureaucrats start telling MPs what they can and can't say, what does it mean for democracy?
Terry O'Neill - May 17, 2004
In all, a total of nine complaints have been filed against Pankiw. An observer not familiar with the working of human rights law in Canada could be forgiven for not picking up on the more than a little irony in the charges against Pankiw. The MP is looking at being tried as a bigot for pamphlets that ostensibly call for an end to discriminatory practices. The Human Rights Commission's own web site defines discrimination, in part, as "treating people differently." By that definition, everything from the Indian Act and the Aboriginal Fishing Strategy, to the reserve system and the Nisgaa Final Agreement qualifies as discriminatory.
"The reasoning that underpins the investigator's decision seems Kafkaesque," says Vancouver lawyer Roger McConchie, author of Canadian Libel and Slander Actions. "The gist of Mr. Pankiw's message is 'do not discriminate.' And yet, the section under which he may be charged says you shouldn't discriminate or publish something that promotes discrimination." He calls the investigator's finding "laughable." McConchie could recall no other complaints based on section 12 of the act proceeding to the tribunal stage.
A search of Human Rights Tribunal findings also failed to uncover a record of any actions under that section. The Commission's communications chief, Jean-Christofe Vlasiu, did not return calls about the precedent-setting nature of the action. But if this ends up being an exceptional case as McConchie suspects, then it would constitute another paradox. Traditionally, elected officials enjoy even greater freedoms than the average Canadian. Members enjoy parliamentary privilege, for instance, giving them immunity against lawsuits for anything they say in the House. Pankiw has been charged with the task of representing the views of the voters in his riding and to do work on their behalf and his politics were anything but secret to the people that re-elected him to his seat in 2000. Evidently, it is their choice that he continue to represent them in Ottawa. If they ever change their mind, and decide he's nuts, they can always elect someone else. (An April survey by JMCK Polling shows Pankiw remains the choice of Saskatoon-Humboldt, enjoying nearly twice the support of his closest rival.)
But all of that seems not to be enough to call off the CHRC. On April 14, 2004, Richard Warman, an Ottawa-based lawyer who is an investigator with the Commission, filed a landmark report recommending the Commission appoint a Human Rights Tribunal to inquire into the complaints. The next day, the CHRC's director of investigations, Sherri Helgason, gave Pankiw until May 7 to respond. The Commission will then decide whether to turn to matter over to a tribunal for adjudication (the Commission itself does not confirm or deny the existence of any case until it proceeds to the tribunal stage, a Commission staffer said).
If found guilty in what would be a precedent-setting decision, Pankiw could be fined up to $20,000. He would be able to appeal to the Federal Court of Canada, but a guilty verdict would likely be enough to cast a chill over Parliament Hill. No longer would MPs feel completely free to advocate--or criticize--controversial policies if they suspected that someone might be offended.
U.S. commentator John Leo suggests that the rush to gag unpopular thoughts like Pankiw's is typical. "I think the hierarchy of values has been changed," says Leo, a columnist and contributing editor at the U.S. News & World Report and author of Incorrect Thoughts: Notes on our Wayward Culture. "When I grew up, free speech was a high value for all people in politics, and now it's not. The politics of feeling has overtaken free speech, and you are not allowed to hurt anybody's feelings." And let's face it, in Canada, it's always easy to find someone who's offended about something.
No tribunal is required to prove that Pankiw's pamphlets offend a lot of people. "I can appreciate his free speech, but it borders on stuff that is unacceptable," says Indian activist Darlene Okemaysim of Saskatoon regarding Pankiw's literature. "It's humiliating. It doesn't dignify our people." Ultimately, she thinks Pankiw should be stopped from mailing out his householders. "He needs to be understanding of the diversity of our people and our rights in this country," Okemaysim says. "For him, he needs to be--I'm not going to say corralled--he needs to be disciplined in that way."
NDP candidate Nettie Wiebe, who will run against Pankiw in the upcoming federal election, agrees. "I looked at the pamphlets, and I guess I'm really chagrined by the sort of tone of disrespect that they have," she says. If Pankiw were disciplined, Wiebe doubts it would cause other MPs to censor themselves. "I don't think it would send any further chill than what is already in the provision at this time," she says. But then the New Democrats probably don't have much to worry about. The NDP, after all, has always placed itself on the vanguard of political correctness (this is the party with a Diversity Advocacy Team) and considers speech rights a relatively low priority. The party's spiritual leader Svend Robinson recently shepherded Bill C-250 into law, which will make it illegal to say anything that might construed as antipathetic to homosexuals. But as the saying goes, freedom of speech isn't about protecting the thoughts that we like, it's about protecting the thought we don't like. And Randal Marlin, a long-time Ottawa civil rights activist, is troubled that the Commission seems to want to silence Pankiw so readily. After examining the pamphlets in question, Marlin, who is an adjunct professor of philosophy at Carleton University and past president of the Civil Liberties Association of the National Capital Region said that "having looked at what I've seen, I don't think they should be outlawed."
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