Wednesday, March 19, 2008

Daily hate speech case

As a bit of a departure from the Doug Collins case, here is one where the defendant was found not to have committed discrimination within the meaning of the BC legislation. The case is Khanna v. Common Ground Publishing Corp. [2005] and is a good illustration of the kinds of publications that can give rise to a complaint that will be taken seriously by the Tribunal (a link to the case is here; all the decisions are available free of charge on the Tribunal's website).

Common Ground magazine bills itself as the most popular monthly magazine in Western Canada devoted to "health, wellness, ecology, personal growth and spirituality." It may be available all over Western Canada, but I only remember seeing it when I moved to Vancouver. In any case, it is a free publication, and it would be stretching things to say that the magazine's is especially edgy or controversial, at least in the sense of something like the late Western Standard. Here is the magazine's website, and as you can see, it mostly features stories about green living and left-wing politics.

The hate speech complaint arose from the cover art on the June 24 issue, which was supposed to illustrate a piece on consumerism. They decided to go with some art involving the Hindu god Shiva, with some icons placed around him representing different facets of whatever the article was going to be discussing. Here is a look at the cover in question, although I don't know whether Common Ground changed the design slightly following the complaint (there was some talk in the case of the god standing on a 'marketing executive,' but that does not appear to be the case now).

Dr. Jitendra Khanna took offense at this depiction of what he called "a sacred symbol of my Hindu religion," and filed a human rights complaint against the magazine on the grounds that "the image was altered by adding other images to its periphery, thereby defacing the original image of Lord Shiva." Upon this wording, and upon some excerpts from his testimony, it would appear that the doctor would object in principle to any adding of images or other graphic manipulation of any representation of this sacred symbol. This is to say, it is not necessarily because the graphics were particularly offensive in themselves, but that to the complainant, the very act of adding graphics 'defaces' the 'original image.'

Before filing the complaint, the doctor expressed his concerns in an email to the magazine, wherein he claimed that the graphics would cause 'mental pollution' in the reader, making it impossible to appreciate what the god's image was supposed to represent. He asked that the magazine publish letters from some members of the Hindu community on the subject. The editors did not respond to this request, but published a brief explanation in a subsequent issue, which stopped short of an apology. Not satisfied, Dr. Khanna decided to file a human rights complaint.

At the hearing, the complainant summoned as witnesses two priests from local Hindu temples. One of the priests described the image as 'sacrilege' and 'desecration,' while the other testified that he was offended at first, but was mollified after a conversation with the publisher and author. The magazine's chief editor, apparently without the aid of legal counsel, simply argued that the publication was not discriminatory within the meaning s.7 of the Code.

In the end, the tribunal member, T. Beharrel, agreed with the respondents that a prima facie case of discrimination could not be made out on the facts. The image was not indicative of 'extreme ill-will' towards people of the Hindu religion, he writes. While 'provocative,' the member did not find the drawing to carry 'an inherently negative tone.' Common Ground applied for costs against the complainant, arguing that Dr. Khanna had attacked everything the magazine stood for, and claiming that the purpose of the complaint was to extract money. The test for awarding costs in human rights cases in BC, however, is 'improper conduct,' which apparently is rather difficult to meet (one professor of mine has said that the complainant would pretty much have to lie on the witness stand). No costs were awarded to the magazine.

On a positive note, it would seem that the case was handled relatively quickly. It does not say when the complaint was filed, but taking June of 2004 as a starting point and the date of the decision on Sept. 7, 2005 as the end, we can deduce that the complaint ate up just over a year of the respondent's life.