Guilty, the only way to plead
It's been more than 80 years since anyone in English Canada has been charged with blasphemy. Or at least it was until Jan. 11, 2008. That's when I was called before Alberta's Human Rights Commission to answer for publishing the Danish cartoons of Mohammed two years ago in the Western Standard magazine. The Alberta HRC isn't a criminal court, but the complaint against me is clearly the crime of blasphemy; my accuser, a Pakistani-born Muslim imam, told the HRC that I offended Islam and Mohammed himself, and cited passages from the Koran as legal proof. The HRC bought it, and for two years the secular government of Alberta has been enforcing a religious fatwa against me. Last month the imam said he's dropping his complaint because of the public backlash against him, but another Muslim group has filed an identical complaint, so the HRC is still prosecuting me. I'd call that a blasphemy case.
Like criminal blasphemy, the prosecution is handled by government lawyers paid for by the state; my accusers don't pay anything and are not liable for costs if they lose — or bail out like the imam did. The costs of my defense, even if I win, are paid for by me.
The officer investigating me has powers that exceed those of police officers. Under ss. 23 and 24 of the Alberta Human Rights Citizenship and Multiculturalism Act, she can enter my office without a search warrant, at any "reasonable" hour, to examine anything and take copies of any documents from my computer. She can enter my home to do so, but she needs a court order for that — though the law specifically permits ex parte applications.
The HRC has court-like powers when it comes to sentencing. The tribunal, which has no judges, can order me to pay five-figure -fines to both the government and the imam. It can order me- to "apologize," even if I don't believe I've done anything wrong. Some Canadian HRCs have gone further still, issuing lifetime publication and speech bans. Real judges throw out jailhouse confessions... HRCs demand them.
These procedural flaws have turned the process into a punishment in itself. But the real problem I have with the proceedings against me — and the reason I'm going to be convicted is that the statute I'm accused of breaking doesn't just inspect me. It measures other people's subjective feelings about me. The test of my guilt is not whether I’ve done anything or even intended to do anything. It's whether others — in this case, an imam who believes Canada should live under sharia law -- felt a certain way.
The Alberta statute, and it’s much the same across the country, bans any ‘publication’ or ‘statement’ or ‘symbol’ that “is likely a person or a class of persons to hatred or contempt.” That’s it. I don’t have to discriminate. No harm or damages need to be shown. The law doesn’t even require proof it exposes someone to contempt. I don’t have to cause such feelings. As long as such feelings are a “likely” result, then I’m guilty.
Any critical commentary, whether in the realm of art, religion, politics or comedy, causes feelings of admiration or contempt. It is absurd to propose to outlaw feelings or the causing of them. The outlawing of contempt in itself causing feelings of contempt, at least in me. Nowhere in our Charter of Rights or eight centuries of common law since the Magna Carta is there a right not to be offended or a right to be loved. But again, the HRC doesn’t seek only that utopia. In addition to banning thought crimes, they wish to ban thought pre-crimes.
Pre-crime is the phrase popularised in the blockbuster Minority report. Tom Cruise played a police officer in the near future who relied on psychics to predict crimes. He’s then arrest the people before they did anything report. There was no actus reus – just the say so of the psychics.
That’s what the statute’s working is. It’s not just the Orwellian crime of hurting feelings. It’s the sci-fi “pre-crime” of possibly hurting feeling in the future. For this, I stand accused. There is no honest way to plead, other than guilty.
Ezra Levant is a Calgary lawyer.