This is how the system is supposed to work

Comedian and Restaurant Face Human Rights Complaint

This is a pretty big story today. Read about it here. This is going to take a long time to get resolved. In the meantime, what do bar and restaurant owners do? Stop hosting comedy nights, or just tell their entertainers to pull back on the offensive material?

At Zesty's, eh? I've been to see comedy there. Not a bad room.

But who is doing the infringing exactly?

Reading Mohamed Elmasry's piece in the Kitchener-Waterloo Record about his hate-speech complaint made me think of something I read a few days ago by Colby Cosh. Cosh's column in the Post was about a recent Supreme Court decision, R. v. D.B. where the court ruled on the constitutionality of some provisions in the Youth Criminal Justice Act.

What especially caught Cosh's eye was the reasoning of Justice Rosalie Abella on mandatory publication bans. The judge weighed the s. 2(b) Charter right to freedom of the press against the s. 7 right to security of the person - as if those two rights were supposed to go into the scale in a situation like this. The problem with such logic is that the Charter is only supposed to be there to protect us against state actions, not actions from private individuals.

This is a pretty elementary part of Canadian constitutional law, but some people appear to still have real trouble with it. Which takes me back to Elmasry. Check out this part of his apologia:

The recent smearing of a Canadian institution like our human rights commissions by Islamophobes, who claim to be protecting "free speech," is a classic case of chopped logic.

They seem to have forgotten that reconciling two potentially conflicting legal rights that are also human rights -- the right to be free from hate propaganda, and the principle of freedom of expression -- is not a new challenge, nor is it an easy one.

So, what, does s. 15 confer positive rights just like s. 7 did in the D.B. case? If we are going to take that kind of approach, where does it end? Shall we balance the rights of the everyday citizen to be free from violence against the s. 10 rights to habeas corpus? And I'm not talking a War Measures Act here - I mean, should we enact enduring legislation that infringes other crucial rights and freedoms, as though we are in a permanent state of crisis?

Goodbye, Land of Trudeau

In honour of Mark Steyn's coming banishment from the Just Society by the BC Human Rights Tribunal (to the tune of "Goodbye Yellow Brick Road"):

When will the order come down?
When am I gonna be banned?
I should have stayed on my farm -
I could be listening to "Candy Man"!
You know there's no hope for us Ezra
We're David Ahenakew -
Or that's what Elmo and his friends keep hopin' -
These boys'll get hung just for bringin' the news

So goodbye, land of Trudeau
Where the gods of propriety scowl
They won't print me even in Penthouse
I'm going back to my crowd
Back to my howling at National Review
To Frum and Krauthammer I go
The Tribunal's decided my future lies
Beyond the land of Trudeau

What do you think they'll do, then?
I bet they'll shut down Maclean's
And take in a couple of talks on Ebonics
Then head out fightin' hate again
Or maybe Kinsella'd replace me
I'm guessing that he can be found
Locked in the men's room at Denny's
Snappin' graffiti 'bout Jews on the ground

Repeat chorus, wave lighters.

Read this

Anyone who wants to be reminded that Canada actually does have a legal tradition of free speech that - pace Jason Cherniak - predates 1982 should read Rick Hiebert's piece on the 1938 Alberta Press Reference.

Bonus ranting in the comments from yours truly!

Stare decisis

I agree with Jay Currie's points on the Attorney General's memo of law in the Lemire constitutional challenge of s. 13. The fact that Lemire's arguments are mostly a rehash of what has been tried before doesn't make the challenge an abuse of process. I mean, who is the "winning party" the AG is talking about on p. 46? The government, right? Should they not be "harassed" a little with creative challenges to their laws, as Currie says?

Of course, there could still be constitutional challenges to be made... but that wouldn't solve all the problems with hate speech laws in this country.

This is not about censorship!

I noticed from watching the debate between Mark Steyn and the three former Osgoode Hall students on TVO that the students are trying to re-frame the debate. They keep claiming they don't want to silence anyone - they merely want a right to respond to the hateful material Maclean's has been running. If you watch the clip, you will see Khurrum Awan claiming that the CIC plans to ask the BC Tribunal for a declaration that the Maclean's material contravened the Human Rights Code by exposing Muslims to hate and an order for Maclean's to print a rebuttal of adequate length from a mutually acceptable author. So, these are their demands in a nutshell: 1) the Tribunal's acknowledgment that the pieces were hateful and 2) to have their response run in Maclean's presumably around 5000 words and with accompanying cover art (although they may have dropped that part of the demand now). I understand there is some talk that Warren Kinsella might be the chosen author for this rebuttal. The possibility that Maclean's readers might then have a claim against the BCHRT under s. 12 of the Charter will have to be discussed another day. Just kidding.

These demands probably sound pretty unobjectionable to a lot of people. Indeed, with a position like this, the students can claim, as they have, that they don't intend to silence anyone, to muzzle anyone. They're not suing Mark Steyn, after all; they just want their right to a reasonable response (I have never heard the legal basis for this "right" - just as I have never seen the legal basis for their claim that Maclean's has a "duty" to be fair and balanced). So, is their position clear, then? We are not censors. We do not want to shut anyone up. We only want Muslim Canadians to have their voices heard in Canada's largest news magazine, to correct all the hateful misinformation the magazine has been disseminating. Mark Steyn can go on ranting and raving all he wants, and we won't try to stop him. This is not about freedom of speech.

When I heard them repeat this position on television, I have to say I was shocked. Genuinely shocked. I will tell you why. These three are law students, correct? They are currently articling, which means they must have passed all their final exams, and are about to be called to the bar. Presumably they have demonstrated all the skills and their brains have imbibed all the knowledge needed to get through law school and find jobs. How, then, could they have failed to actually read the Code under which they are bringing a complaint?! Take a look at s. 37(2) of the BC Human Rights Code, where it says:

(2)If the member or panel determines that the complaint is justified, the member or panel

(a)	must order the person that contravened this Code to cease the contravention and to refrain from committing the same or a similar contravention,

That is a mandatory injunction. An obligatory 'cease and desist' order. If the complainants win, the Tribunal has to order Maclean's to stop running 'Islamophobic' articles. Not just articles by Mark Steyn, mind you; they have to stop running those articles period. Goodbye Barbara Amiel. Now, you might respond that Steyn wouldn't be silenced, he would just have to pick his words more carefully. But think about it; the CIC is not just complaining about the excerpt from America Alone, but about a whole sheaf of Steyn's articles. It's pretty safe to assume that whatever Steyn has written about Islam in the last seven or so years would be considered offensive by the CIC. In the face of an injunction, then, he would either have to stop writing about Islam or stop obeying the dictates of his conscience as a writer.

The students may say they don't want to silence Mark Steyn or anyone else. Their complaint, if successful, will do just that. It can do no other. How could they not know this? I am asking that question honestly. How could they not have read the legislation? It's available free for anyone who wants to take a look. Are they so unconcerned with what they claim is an important legal and social issue? Honestly. Read the law, guys, and then go from there.