Saturday, July 5, 2008
Thursday, June 26, 2008
At Zesty's, eh? I've been to see comedy there. Not a bad room.
Wednesday, June 25, 2008
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?
Wednesday, June 4, 2008
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.
Saturday, May 17, 2008
Bonus ranting in the comments from yours truly!
Tuesday, May 13, 2008
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.
Sunday, May 11, 2008
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.
Saturday, May 10, 2008
That wasn't the way most of the students saw it, though. I remember one guy (from the States, no less - shouldn't an American understand this better than we do?) who took a look at the cartoon and essentially said, Of course this could expose people to detestation and vilification. Most of the others were the same way. In their minds, the Supreme Court's definition of hatred easily took in that cartoon, and the article by Mark Steyn, with room to spare. I say this just to make the point that society's definition of 'hateful', of 'offensive,' shifts very quickly. Most of us law students were still trading POGs at the time the Taylor decision came down, and our conception of the terms used therein is markedly different from what Chief Justice Dickson, for example, would have thought.
This brings me to an excerpt I have wanted to post for a long time. It is from the Saskatchewan Court of Appeal's decision in the Owens case. Regular readers of this blog will remember Owens as the fellow who sent in to the Star-Phoenix a drawing of two male stick figures holding hands with a big red line through them, together with some references to Bible verses. The message was plain: the Bible says homosexuality is wrong. Owens lost his case in front of the Human Rights Board and the Court of Queen's Bench (Saskatchewan's name for the Supreme Court) and took it to appeal. At that level, the Court reconsidered the nature of the publication and the meaning of the case law and decided to let Owens off the hook. Of course, since the damages ordered were only a few thousand dollars, Owens was far more interested in the principle of the thing than in avoiding payment, but that's a side issue.
What I really love about the reasons, authored by Mr. Justice Robert Richards, is the following excerpt. As a little introduction, the judge here has just been talking about the definition of hatred, and how it is meant to be extremely narrow, and catch only the worst of the worst kinds of writing. He goes on to say:
No other result, of course, could be justifiable. Much speech which is self-evidently constitutionally protected involves some measure of ridicule, belittlement or an affront to dignity grounded in characteristics like race, religion and so forth. I have in mind, by way of general illustration, the editorial cartoon which satirizes people from a particular country, the magazine piece which criticizes the social policy agenda of a religious group and so forth. Freedom of speech in a healthy and robust democracy must make space for that kind of discourse and the Code should not be read as being inconsistent with that imperative. Section 14(1)(b) is concerned only with speech which is genuinely extreme in the sense contemplated by the Taylor and Bell decisions.
Keep in mind that this was written in early 2006, before Maclean's ran Mark Steyn's article and before widespread media coverage of Ezra Levant's legal troubles with Syed Soharwardy. Seems pretty prescient, as well as wonderfully written. Thank you, Richards J.A. Reading that passage always makes my day better.
Oh, one more thing. The part of the excerpt that talks about cartoons? Keep that in mind when you're reading about this story out of Nova Scotia.
Wednesday, May 7, 2008
An awful lot of talk was about that quote. One of the students, Naseem Mithoowani, after acknowledging that the remarks were not out of the mouth of Steyn, but this Norwegian mullah, said that it was comparable to quoting Adolf Hitler as representative of all Christians. Khurrum Awan then said it would be like quoting Ernst Zundel as representative of white Canadian men. Of course, that would be very unfair. It would be bad writing, bad reasoning, and incredibly stupid. But would it be illegal? Should it be?
Saturday, May 3, 2008
Anyway, the CIC has a response sketched out, something they want to run in Maclean's as a response to Mark Steyn's piece from a couple of years ago, "The Future Belongs to Islam." Said Joseph, speaking about the rebuttal,
"We're not going to say how long it's going to be, but it has to be long enough, and give the opportunity to be able to properly give a reasoned, analytical approach to the 5,000 word article [by Mr. Steyn]," Mr. Joseph said.
Mr. Joseph then noted that one of the remedies available to the BCHRT, should it find in favour of the complainants, is to order Maclean's to run the rebuttal. Mark Steyn addresses such a scenario in fiery fashion:
As I always say, I can't speak for Maclean's, but, were I the publisher, I'd say: Go ahead, make my day. You'll order us to print the turgid drivel ordered up by Mr Joseph, and we'll say no. What then? You get the RCMP to kick Maclean's doors down. At that point, even the Dominion's somnolent media might wake up to the kind of Canada Elmo and his enablers are constructing. I wonder if Jack Layton, apparently auditioning for chief eunuch of the new caliphate, even read the dossier of Maclean's systemic Islamophobia before giving Elmo the tongue bath.
Reading about this, I remembered that the Tribunal has, in fact, used its power to order a publication to print certain things. The second Doug Collins case had such a remedy as part of its outcome, as well as the Boissoin case in Alberta and the Owens case in Saskatchewan. In Collins, which was the case of a holocaust denier disseminating his beliefs in a newspaper column, the Tribunal ordered the offending publication, North Shore News, to run a summary of the tribunal member's reasons. The tribunal member did not cite any specific subsection of the Human Rights Code in support of this remedy, stating only that"[t]he Code also provides the Tribunal with broad discretionary powers to remedy the effects of conduct that contravenes the Code."It's only too bad that the name of the publication was not called the "North Shore Free Press," because the irony of the Tribunal making an order that "the North Shore Free Press publish in one of its next three editions the summary that accompanies these reasons" would have been delicious.
Tuesday, April 29, 2008
It looks like a great deal of damage has already been done to the public's perception of the hate speech complaint process, and to the human rights commissions and tribunals as a whole. So even if this offer is accepted, there is probably no way the system will escape some serious reform.
But anyway, there is not much of a chance that Rogers Publishing will buy what the CIC is selling. It should be pretty telling that, at least as far as I can tell, Rogers never filed a preliminary application to dismiss on this matter. That should tell us that they want this to go to hearing. They want to take full advantage of the process, in all its grinding slowness.
Speaking of the respondents, why not take out a subscription to Maclean's, if you haven't done so already? Lawsuits aside, the magazine has made some huge leaps and bounds in the last few years, and is a very rewarding read. Hey - it's only twenty bucks. Treat yourself.
Friday, April 25, 2008
There is a lot in the book about samizdat, the Russian term for self-published materials. This was circulated underground, with tissue-thin pages made grimy by hundreds of eager hands. People would pay huge sums for a volume of Solzhenitsyn, or even of Turgenev. The message is clear; the government cannot kill an idea, no matter how repressive it is. That goes for bad ideas as much as it does for good ones.
Sunday, April 20, 2008
No, I'm just struck by the wording of Hall's directive to the media:
In a wide-ranging interview this week about the upcoming changes to her commission's mandate, she stood firmly by her position that media have a responsibility to put their writings through a "human rights filter" before publication, and said the commission is keen to call out those who do not, jurisdiction be damned.
That phrase - "human rights filter" - really sounds unpleasant. I suppose she's really only arguing for what some would call reasonable caution and restraint. But to me, it sounds like she's talking about something more far-ranging. Media companies in Canada probably never spent time worrying about any "filters" other than accuracy and interest - that is, until the Maclean's case blew up. Now, all of a sudden, media are supposed to be subject to this new "filter," the nature of which seems to shift from one day to the next? How is anyone to publish anything controversial?
Friday, April 18, 2008
Not that I really have a position one way or the other on Muslim ritual slaughter practices. I'm not particularly interested in animal rights advocacy, I suppose. But Bardot is passionately interested. Should she not be allowed to speak her mind? Or is it just because she spoke up in an especially offensive way? I really don't know the answer.
Thursday, April 17, 2008
Wednesday, April 16, 2008
Tuesday, April 15, 2008
Well, as we know, in France that's enough to get the authorities' attention. After being charged and convicted of hatred more times than Jean-Marie Le Pen, Ms. Bardot obviously knows the drill. She will not be silenced, she says:
"I will never keep quiet" until animals are stunned before ritual slaughter, she added, saying she was "tired and weary".
But enough about the defendant. You must be wondering how the prosecutor is holding up under the strain. Well might you wonder:
One can't fault the prosecutor's logic here. Nominal fines are never going to be enough to silence people who have strong beliefs. Eventually, every censor realizes this. You either have to get serious and start locking people up for saying unpopular things, or you have to concede that government should not be in the business of policing political speech. You may not hear them speaking up these days (probably because of all the publicity from Ezra Levant and Maclean's), but there are many very intelligent people in Canada who would like to see our censorship regime cover a lot more ground than it does now. If you like the approach France is taking, you may agree.
"I too am tired and weary", said the prosecutor Anne de Fontette, pointing out that Miss Bardot had been convicted four times since 1997 on similar charges.
"She might as well write that Arabs should be thrown out of France", she said. "It is time to hand out heftier sentences".
Now, the strangest part of the whole Bill C-10 is that people who could care less about s.13 of the Human Rights Act are suddenly crying 'censorship' when it comes to funding movies. I have had people argue to me that the bill is actually worse than s. 13, because at least a respondent before the Human Rights Tribunal has a chance to appeal all the way to the Supreme Court, while the filmmaker denied his credit gets no such review. Someone actually quoted Madam Justice McLachlin's (as she then was) argument from the Keegstra case, that any drawing a line between acceptable and unacceptable speech catches not only the speech that crosses the line, but anything that would be close - because no one will want to take a chance. I would have no problem with people making these points if they would apply them equally to instances of real censorship - the kind involving government commissions investigating and charging citizens for the offence of sharing ideas.
This is not to make apologies for Bill C-10. The best the Heritage Ministry can say about it is that they would not enforce it very strictly, and so we shouldn't worry that the next Crash will lose its tax credit. If Canada is going to be in the business of funding movies, that doesn't mean it should be sitting in the MPAA chair, combing through our scripts looking for salaciousness, wielding their red pens. All I mean to say is: Some perspective, please. Let's get the state out of its increasingly comfortable position between the writer's pen and the page.
Monday, April 14, 2008
When I went to look in the newest edition at the library, I found that the section on speech was virtually unchanged from twenty years ago. Despite everything that had gone on with speech in the late 80s and beyond, the professor had left in all the old case law like the Reference re Alberta Statutes and the Padlock case (Switzman v. Elbling), but had not included Taylor or a provincial equivalent like the first Collins. This isn't to say that the new edition is falling down on the job at all; I mean, to someone like me, the free speech issue is huge, but in national terms it really doesn't amount to a lot of case law. There have only been about two dozen hearings in the federal Human Rights Commission dealing with s.13. As for the provincial cases in BC, Alberta, and Saskatchewan, I haven't counted them all, but surely they would be about the same in number, total, as the federal complaints. Professor Hogg has no shortage of subjects to deal with in his textbook, which is already about the size of a Toyota in its unabridged format.
The point is that according to Hogg, the provinces do have the power to regulate a great deal of expression, but they do not have jurisdiction over anything that could be called 'political.' Surely, there is nothing unconstitutional about the 'signs and notices' provisions that appear in pretty much every Human Rights code from here to Nova Scotia. Likewise, libel and slander actions get fought out in provincial court and some provinces have their own acts dealing with defamation. According to the older case law - meaning, older than the federal version of the Human Rights Act, only Ottawa is supposed to be able to regulate political speech. Note that this rule would apply to all kinds of political expression, whether you were talking about the mayoral election in your town or the situation over in China. It shouldn't matter what kind of politics you're talking, the rule is that only one government is allowed to regulate what you can and cannot say in that area. According to this rule, the federal Commission would be good and constitutional. The actions of the various federal commissions and tribunals, though - that might be another story.
For some tribunal law on this subject, one can look back at a case that was reviewed before on this site - Canadian Jewish Congress v. North Shore Publishing (or, as it's more commonly known, the first Collins complaint). In the reasons for this one (which are extremely long and very well reasoned, by the way), one of the intervenors brought up several jurisdictional arguments, one of which was the supposed federal power over speech. Tribunal Member Nitya Iyer (who, upon further research, turns out to have a Master's degree from Harvard, which would explain the degree of sophistication evident in the reasons) deals with the question in much more detail than I have time to do here. In short, she goes over the older cases, going as far back as the 1938 Alberta Statutes reference, and looking at everything up to Taylor and R. v. Keegstra. She goes over Professor Tarnopolsky's book on Human Rights, which argues for an exclusive federal jurisdiction for political expression, and briefly looks at a Saskatchewan case called Engineering Students Society which appears to support the notion. There is a lot of writing on fed-provincial jurisdiction questions, and it takes up an awful lot of ink.
The passage I most wanted to highlight is where Iyer discusses Chief Justice Dickson's reasons from Keegstra. She notes that the Chief Justice in that case did find that hate speech could be classified as 'political,' but then quotes his strong qualification:
"I recognize that hate propaganda is expression of a type which would generally be categorized as "political", thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of activity is thus wholly inimical to the democratic aspirations of the free expression guarantee."
So, the Chief Justice concluded that while hate speech may be political in nature, it has a distinctly anti-democratic tendency to it. Iyer then takes this to mean that hate speech, as a class of expression, is less deserving of constitutional protection, and should not be reserved exclusively to the federal jurisdiction. Now, so far, I am not questioning the tribunal member's reasoning. There is, indeed, pretty ironclad law passed down by the Supreme Court here, saying in pretty clear words that this one type of political speech - that is, hate propaganda - should not benefit from the same broad constitutional protection as other types of communication. Iyer is correct to draw from this the idea that hateful speech can be legally suppressed by the state.
The problem is, nothing in what the Chief Justice said in Keegstra can by any means take away from the principle that political speech is purely a federal matter. Dickson C.J. most explicitly did say that hate speech "would generally be classified as political." True, he does go on to say that it is anti-democratic, and therefore not worthy to be saved by s.1 of the Charter with its mention of a "free and democratic society." But this does not mean that hate speech is no longer political. It simply means that it can be infringed upon. Nothing in the reasons suggests that Dickson C.J. meant to overturn the decades-old principle of Parliamentary jurisdiction in this area. Iyer, then, comes to a faulty conclusion. She essentially assumes that only political speech that is democratic should fall under the federal power. This is in direct opposition to the Padlock case, for example, where the Court found that the suppression of Communist propaganda was an essentially federal matter, and was ultra vires the province of Quebec. Communism, it need hardly be explained, is an explicitly anti-democratic ideology. What Dickson C.J. said about hate propaganda undermining democracy could just as easily have been applied to Marxism. The principle is, and should be, that only Parliament can suppress political ideas. It is irrelevant whether these ideas are essentially democratic (e.g. 'throw the bums out') or anti-democratic (e.g. 'no votes for women').
In addition to Collins, there is a whole body of rather confusing case law on this matter from Saskatchewan. It doesn't resolve things to my satisfaction, any more than the BC jurisprudence does. It would be interesting to look at how Alberta has dealt with this question. More questions for another day.
Sunday, April 13, 2008
Well, that's true. I could probably never understand just what he feels when he looks at a drawing of Muhammad wearing a bomb instead of a turban. The closest I could get to that experience, I suppose, would be looking at something like what they've been showing over in Austria lately. Apparently, an exhibition by Alfred Hrdlicka has caused some major controversy, with some art depicting the Last Supper as a gay orgy. The most offensive of it has now been removed.
When you read this, you automatically think of the Danish cartoons, right? There have been lots of angry calls and letters from Christian groups (many from all the way over in the United States), and even a few threats of violence. Interestingly, the exhibition is being held in a church-owned building across the street from a cathedral. The brass there thought the art was acceptable, but apparently many others feel differently. No deaths have resulted from this controversy, at least.
A situation like this is a good head-check for the anti-censorship crowd. Denouncing prior restraint when the issue is denigration of someone else's religion is one thing; but can you look at something dreadfully offensive to your own creed and be unmoved? Are you willing to stand up for the right to speak of someone who is denouncing what you identify with most strongly?
Another question to ask yourself: Would you want the religious fundamentalists who are currently threatening this artist to be able to bring legal complaints against him for the offence of exposing Christians to hatred and contempt?
UPDATE: I noticed this question to readers on the USA Today site: READERS: So ... is it art or is it blasphemy? Where's the line?
- To answer that with another question: How are those two things mutually exclusive?
Saturday, April 12, 2008
Just click on that video to get to the YouTube site. I don't know why it's not appearing properly here.
An excellent talk - worth hearing all of it.
Friday, April 11, 2008
My prof was saying that back then, the progressive, civil libertarian critique of censorship was that the big fish like Harper Collins were having their books waved through customs with no trouble at all, while comparable material from small publishers - the stuff destined for the Little Sisters shop - was being stopped. So, it was wrong to have a censorship regime that let the big companies off the hook, while catching all the independent, limited-audience publishers.
Now, though, the perception is very different. As Sean points out, it took having one of their own compadres taken to the tribunal before big media took notice of the hate speech process. When it came to state censorship of hate speech back in the 80s and 90s, people either paid no mind, or were happy to see the fringe wackos and the newsletter writers being called to account for their words.
But the tribunals, it seems, don't operate the way customs officials do. Probably, the human rights people feel they have a broader mandate, and a more important duty. The border guards gave the major companies a pass because they didn't want a lot of attention - negative publicity, calls for reform, etc. But the tribunals, well, either they are not afraid of bad press, or they didn't foresee how much bad press they would get from this Maclean's case. Either way, they sure have the media's attention now.
Wednesday, April 9, 2008
A couple years ago, Warman sued the Canadian Association for Free Expression and Paul Fromm for certain postings about him that appeared on the website freedomsite.org and were distributed via e-mail to other sites. In the words of the Court, Warman alleged that these writings mischaracterized him "as an enemy of free speech, a member of the thought police, a high priest of censorship, and an employee who abused his position at the CHRC in order to limit freedom of expression and pursue his own ideological agenda." The Court used the proper legal test for determining whether the statements were defamatory, a test which was most recently stated in the Supreme Court case Botiuk v. Bardyn: would the material tend to lower the Plaintiff in the estimation of right thinking members of society, or expose that person to hatred, contempt, contempt or ridicule? Would a reasonable person think less of the subject of the writings after having read them?
This is the test the plaintiff has to meet. Once this burden is discharged, however, the case is not closed. The burden merely then shifts to the defendant, who must establish one or more of the several available accepted defences. A common one is the defence of truth: when a statement is found by the Court to lower the plaintiff in the eyes of reasonable people, it is assumed then that the statement is untrue. This is a rebuttable presumption, which the defendant can displace by proving the truth of his words, which can be done in any number of ways. Another defence is that of fair comment, which means that the impugned statements were made without malice, in good faith, on a matter of public interest. Where the plaintiff is a public figure, this defence is easier to establish.
The Court went through the postings one by one, applying the Botiuk test each time. All nine were then found to be defamatory. There is, of course, much room for disagreement here. While all the postings were about the plaintiff and all referred to him in negative language, they varied greatly in strength and vitriol. For example, the first post was probably the strongest; it included terms like "thought police," "enemy of free speech," accusations of fanatacism, etc. This kind of language was echoed at least four other postings. But there were others written with much different wording, such as the third posting which referred to Warman as the Canadian Human Rights Commission's "hatchetman." Another message called the plaintiff a "professional censor" carrying out an "ideological vendetta" against those with whom he disagrees. Taking all these messages to be defamatory, the judge then examined and dismissed the defendants' arguments on fair comment and truth.
The judge's analysis of the truth defence is particularly problematic. Responding to the defendant's contention that the statements were true, the Court said that there was much falsehood in some of them, including descriptions of Tomas Winnicki as an 'anti-Israel critic', and of Richard Kyburz as a 'tax critic.' Winnicki and Kyburz were, in fact, people whom the Canadian Human Rights Commission had previously found guilty of disseminating hate propaganda, and so the Court here finds that the descriptions of them as innocent critics are so misleading as to be outright false. This should not, however, preclude the defence of truth in every case, I think. It would be important to consider whether the words written about Warman himself had any truth to them - the ones about him being a censor, for example. On the other hand, it could be argued that the characterizations of Winnicki and Kyburz were integral to the allegations about thought policing, and so a falsehood about them was also a falsehood about the plaintiff.
A good argument in Warman's favour, I suppose, would be an analogy to others in the legal community who often take up controversial fights. A defence lawyer known for defending sex criminals, for example, would probably have a cause of action if some website posted comments referring to him as an 'enemy of public decency' or a 'friend of rapists'. In this light, the judge's offer of the Winnicki and Kyburz convictions as evidence that Warman was engaged in a righteous fight is understandable, if somewhat simplistic. I would hope that such protection would extend to those who defend terrorists in court, or Neo-Nazis. There is no reason to tar a lawyer just because he brings cases that are politically unpopular.
Having said that, though, it is usually accepted that mere insults are not, by themselves, actionable in most cases. According to Allen Linden and Bruce Feldthusen's Canadian Tort Law,
some insults would be enough to meet the test, but the examples they give are far beyond what was written about Warman on freedomsite. Some actionable insults they give include:
"[T]o accuse someone of being a homosexual, of wife-swapping, of molesting a minor, of having a venereal disease...To call someone a drunk, or "hideously ugly," or a traitor is defamatory. To impute an unpopular political belief, such as implying that a person is a Communist, or behaves like a Nazi secret service agent, may be defamatory.
"To speak disparagingly of a person's professional capacity can amount to defamation, such as calling a doctor a "quack" or a lawyer a "shyster" or a "thief."... Where a professional gambler was accused of cheating, the court awarded damages because the accusation was injurious to his professional reputation and would disrupt his source of income."
It would seem that the comments about Warman could be construed as being injurious to his reputation as a lawyer - calling him a member of the thought police, or a professional censor, might do this. But calling him a censor is not really the same thing as calling a doctor a quack, or a gambler a cheat, is it? I mean, the impugned comments did not say that Warman does what he does badly, the way calling a lawyer a "shyster" would imply. Rather, they assert that Warman's very occupation - bringing hate-speech complaints to the CHRC - is not a legitimate one. It would be similar to calling a pornographer a "purveyor of filth," or a cigarette manufacturer a "merchant of death." The distinction is subtle, but key. In the first instance (doctor = quack), the accuser implies that the person is incompetent, dishonest, etc. In the second instance (plaintiff before CHRC = thought police) the accuser implies that the person is involved in something undesirable, that the very business in which the person is mixed up is a bad one. Now, keeping this in mind and using the textbook's definition, the comments on Fromm's site were probably not defamatory. Of course, the textbook could be wrong, or I could be misreading it.
As for the new lawsuit against Ezra Levant, Small Dead Animals, Five Feet of Fury and the rest, the defence of truth will probably be central, even more so than it was in Warman v. Fromm. I understand that the main point of contention is some posting that Warman is alleged to have written in the course of his hate-speech investigations. York v. Okanagan Broadcasters stands for the proposition that where a criminal offence is alleged, the accuser need only establish the truth of the allegation on a balance of probabilities. This post, if one reads it carefully, probably could disclose a criminal offence under s. 319 of our Code. Or, it might not - it's hard to tell with these hate messages. The upshot of this is that the defendants would only have to prove on a balance of probabilities that the message was, in fact, written by the plaintiff. Whether this could be done is an open question.
Tuesday, April 8, 2008
The Act under which Whitney was charged contained a prohibition against engaging in "criminal syndicalism," which was defined in the Act as the aiding and abetting of crime, sabotage, acts of force, terrorism, with a view to bringing about a change in industrial ownership or poltical change. One can tell by reading the section of the Act that is was really designed with the red menace in mind, much the way Austria's hate speech laws are made to deal with Nazi expressions and ideas. A subsection of the Act made it a felony to assist in the organizing of any group that would engage in violent revolutionary tactics or advocate same.
Whitney argued that the Act was unconstitutional, because it violated rights of due process and equal treatment under the law. Her third ground of appeal, that the law was repugnant to the first amendment, was also rejected by the majority, the opinion of which was written by Justice Sanford. Of the right to freedom of expression, Justice Sanford wrote, "the freedom of speech which is secured by the Constitution does not confer an absolute right to speak." It is not, he held, an "unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom." Using the "clear and present danger" test formulated by Justice Holmes in the Gitlow case, the majority ruled that it was obvious the danger posed by Marxist incitement to revolution and violence was a sufficiently proximate risk to justify the curbing of free speech rights.
Two judges, Justices Brandeis and Holmes, wrote a separate opinion. Concurring in the result because they found the Supreme Court's limited power of review did not extend far enough to overturn the conviction, they nonetheless provided a far more vigorous defence of the first amendment than did the majority. The dissent, written by Justice Brandeis, is still regarded as perhaps the definitive encapsulation of the meaning and importance of freedom of speech.
Justice Brandeis gave his assessment of the first amendment's origins in the birth of America as an independent nation. The founders, he wrote, understood the dangers of political violence and the often precarious nature of representative, democratic government. However, they also understood that the best protection for free peoples was not the suppression of thought and imagination - because such intervention would breed fear, resentment, and would in the end lead to greater violence and instablility. Instead, the judge wrote, "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." (This is the true public safety argument when it comes to free speech, by the way). Addressing the issue of public order, Brandeis wrote some brilliant lines:
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one.
He continues, on the same theme:
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society.
This case should be required reading for anyone who thinks that the Boissoin case is anything like good law.
Monday, April 7, 2008
According to this brochure on anti-racism in that country, Austria's hate speech laws are geared towards suppressing Nazi speech specifically - which is not surprising. There are provisions in their Code allowing for easier prosecution of Nazi expression than any other kind. Vienna is a signatory to international treaties which oblige it to ban the NSDAP and combat any manifestations of its ideology. There are other statutes covering incitement to violence against a church, or against a particular religion. Section 188, which seems to be one of the sections under which Winter is charged, is the one that covers doctrines.
She is also in trouble for warning of a "tsunami of Muslim immigration" about to sweep over Europe if current immigration trends continue. Her party, the FPO, is stridently anti-immigration, and has even put up propaganda posters saying that "Vienna must not become Istanbul." Two things are interesting about this, from the Canadian point of view. The first is that we would never have a viable political party whose main cause is stopping immigration. The second is that, even under our rather loose hate speech laws, no one would get into legal trouble for having said what she did. Our Code section about incitement is rarely used. Those laws seem to get a lot more exercise over in Europe.
Sunday, April 6, 2008
Here is my favourite part of the interview. They are discussing the Maclean's piece:
Q: For a moment, let's agree that the piece is not only inflammatory, but, you know, fundamentally fascistic. Let's start with that as a premise.admission against interest
Q: Before you filed the petition, did you consider that you would be seen as intolerant of other views - and worse than that, by using the tools of Canada's liberal democracy to stifle dissent, that you were in fact realizing his very predictions, which is that Islam is, you know, is going to use the very tools of our society to take control over us all?
A: I actually, that possibility never crossed my mind...
n. an admission of the truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests. Another party can quote in court an admission against interest even though it is only hearsay.
(Yes, I know, she is not a party to any complaint, and I also know the Human Rights Tribunals don't operate according to the same laws of evidence as the courts. I just thought it was an interesting statement.)
Saturday, April 5, 2008
At issue in Ramsingh were some pornographic movies the Winnipeg Vice Squad had gotten their hands on by way of an elaborate sting investigation (an undercover cop approached Mr. Ramsingh at his newsstand and asked for some "good stuff"). The Crown presented seven movies in total as evidence. Counsel for the defence submitted another three films that had been previously examined by the Court and found to be acceptable, for the sake of comparison.The task of the trial judge, Ferg J., was to determine whether the content of the films contravened s. 163 by coming within the Code's definition of obscenity.
Ferg J. gave a generally unfavourable appraisal of the films' artistic merit.
The plots in most are thin in the extreme, the acting is third grade, if not totally amateurish. There is no character development, no artistic merit, no redeeming qualities (except in two video cassettes which I will cover later) in any of the films. The scenes are disjointed, difficult to follow at times, and the dialogue is, for the most part, insipid, mundane and simple-minded in the extreme. The quality of the filming, the colour, and camera work for the cassettes, at least, is generally good.
The two films that most resonated with the judge (or, that possessed "redeeming qualities") were 'Bordello' and 'Deep Throat.' But for those of you keeping score at home, that is a pan for 'Swedish Erotica,' 'Caught in the Act,' and 'California Gigolo.' Well, at least the lighting technicians can still hold their heads up high. At any rate, the judge found that some of the videos could be described as 'obscene,' while others could not. It mattered little to the Defendant, who was convicted on all counts: possession, circulation, and possession for the purpose of circulation (had the defence lawyer never heard of Kienapple?).
What really struck me about this case was not the legal reasoning. The BCCA criticized his reasons in R. v. Pereira Vasquez, while the Supreme Court obviously approved - he was quoted in both the majority and the dissent in Butler. No, what I found really interesting about the case was this: there were seven movies placed in evidence by the Crown, and three from the defence. Without knowing how long they all are, I would have to guess that is at least nine or ten hours of film. Does anyone else find it just a little absurd that we paid a highly trained legal mind to sit in the courtroom for ten hours and watch pornography? Include lunch and cigarette breaks, and that would take up the better part of two working days. Is that really what we want our judges occupied with?
While we're at it, I think there might be more useful ways for those Vice Squad cops to spend their time, too.
Friday, April 4, 2008
Wednesday, April 2, 2008
So the only ones out of that whole sordid business to be prosecuted for libel were Zola and his publisher. Dreyfus' accusers - people like Edouard Drumont - faced no such lawsuits.
And yes, it seems Zola was a very controversial figure, and had been long before he got mixed up in the Dreyfus affair. His writings were frequently vulgar and offensive, he criticized the authorities at every turn, and he was the second most caricatured public figure of his time, after the actress Sarah Bernhardt. In short, another very interesting individual. More proof that the interesting people are the ones who have the most to worry about when censorship gets out of hand.
Tuesday, April 1, 2008
Sunday, March 30, 2008
I see in this discussion here that David Lawton called the writer's ordeal a blasphemy trial. That aspect of the story reminds me quite a bit of the Ezra Levant case, where the real issue is not that his accusers object to the bomb on Muhammad's head - they object to the fact that someone published a drawing of their prophet contrary to Muslim law.
But the article about Houellebecq's personality, that reminds me more of Theo Van Gogh. Having just read Infidel by Ayaan Hirsi Ali, I immediately thought of the late Dutch filmmaker, who was also kind of a wild and crazy guy who would say just about anything that popped into his head. These loose cannons are the ones in Europe who seem to be in the most danger.
Friday, March 28, 2008
For over twenty years in this country, we have been using restrictions on free speech to cut an ever-widening road through law to get at the devils of racism. If you know the rest of the exchange from the play, you will know what comes next. But let us leave that aside for a moment, and talk about Aryeh Neier. Neier was born in Berlin in 1937 to a Jewish family. His parents managed to get out at the last possible moment before the persecution of Jews turned into real genocide. He lost many family members to the holocaust, and would later come to know survivors of the concentration camps. This is a man who understands what can happen when a society rallies to prejudice and anti-semitism, and knows what is possible when people begin to dehumanize people with hate speech.
Yet, when Neier got a law degree and started work for the American Civil Liberties Union, he became famous (and extremely controversial) for defending the free speech rights of the American Nazi party in several high-profile cases. How could Neier justify doing this, knowing that the Nazis wanted nothing more than to see him and his people wiped off the face of the earth? The answer, as detailed in Neier's book, Defending my Enemy, is power. He explains that power is the opposite of freedom, the alternative to an open society. Given enough power, he says, the state might be able to harass, frustrate and prosecute American Nazis so as to silence them completely, denying them a voice in the national conversation. But he could never be sure that once given the power to silence groups, the state would not turn that power on the Jewish community someday, silencing it in just the same way.
Those for hate-speech laws and censorship argue that these tools are necessary to protect the most vulnerable groups in society from hate-motivated violence. But according to Neier's argument, it is precisely because these groups are at risk that they need access to the full benefits of freedom of speech, and must correspondingly defend those rights for others with a special passion. "Because we Jews are uniquely vulnerable," he writes, "I believe we can win only brief respite from persecution in a society in which encounters are settled by power." It is a good principle to remember for anyone who would have the state overstep its legal powers for some reason generally thought to be in service of the greater good: If you would give the state extraordinary and extra-legal powers to get after your enemy more effectively, can you be sure that sometime in future those powers will not be turned against you, either by the state or by your erstwhile prey? "If I am in danger," writes Neier, "I want to cry out to my fellow Jews and to all those I may be able to enlist as my allies... I want restraints which prohibit those in power from interfering with my right to speak, my right to publish, or my right to gather with others who also feel threatened."
For a long time, arguments like this have gotten short shrift in this country, with its weaker constitutional guarantees for free speech. Our hate speech laws have mostly been used against the types of people Neier would defend - Neo-Nazis and the like. Do Neier's warnings have any relevance to today's Canada? Might Canadian Jews see their free speech rights violated using the very legal precedents many of them have cheered? Well, consider the case of Ezra Levant and the complaint against him at the Alberta Human Rights Tribunal. Mr. Levant is Jewish, and he does see his community as under threat. One of the major themes of his political writing is the danger posed to liberal values and tolerance by some radical elements of the Muslim community. Part of his oeuvre includes the now-defunct Western Standard magazine where he republished the infamous Danish caricatures of the prophet Muhammad. Mr. Levant, incidentally, was never for censorship, and never supported the use of hate speech laws. He ran the cartoons partly for their news value, and partly (I have no doubt) to make a statement in favour of the free exchange of ideas. Now he has been caught in the trap used so often before to get Neo-Nazis and other haters, and has spent over one hundred thousand dollars in legal fees which he will never recover even if he wins his case.
I realize that Mr. Levant very probably does not speak for the majority of the Jewish community when he says that radical Islam is a bigger threat to racial harmony in Canada than white nationalism. Many Canadian Jews agree with nary a word the man says, and I daresay a few consider him too loud, too aggressive, and wish that he would soften his rhetoric or just shut his mouth. Even among those who are willing to concede the proposition that some fringe elements of the Muslim community might pose a danger in certain ways, many disapprove of the provocative manner in which he communicates his message. My purpose here is not to endorse Mr. Levant's views or denounce them, but merely to make the point that here we have a member of the Jewish community who perceives a threat to himself and his people, and yet is being prosecuted under laws that are ostensibly meant to protect people like him (meaning, people from traditionally vulnerable groups). Furthermore, while he may be in the minority politically, I can think of a few Jewish writers who both agree that there is a threat from one particular corner and want to sound the alarm along with him. Should they be silenced, just because not all in their community agree with them? And are we certain that, if we allow for censorship now, it will be possible to raise the alarm at some future date if need be? Note that this is not to suggest that only Jews are deserving of protection; one can easily imagine a gay man like Michael Lucas or Bruce Bawer, or a woman like Ayaan Hirsi Ali running afoul of our laws by saying many of the same things as Levant.
It must be said that major Jewish organizations like the Canadian Jewish Congress and B'nai Brith do not support the complaint against Mr. Levant. However, the CJC denounces only this specific application of the hate speech legislation, arguing at the same time that such laws are still necessary. The CJC supports some instances of censorship - the cases it has brought to the federal Commission itself, for example - but thinks the Levant case is an overreaction. David Matas, senior counsel for B'nai Brith, has argued for even stricter hate speech laws, and would like to see more zealous application of what we already have on the books. These groups may support Mr. Levant in some minimal sense, but by backing this legislation they are behind a system that has allowed for him to be brought before a tribunal on what any reasonable person must conclude are completely frivolous grounds, and to have his time and his savings eaten away in a process that could take years to resolve itself.
But let us leave aside the case against Mr. Levant for one moment. Let us assume that he is wrong in his world view, and start from the proposition that the Neo-Nazi movement is the most serious threat to Canada at the moment and we need hate speech laws to combat it. When Thomas More's friend pledges he would cut down every law to get at the devil, More then responds, "Oh? And when the last law was down and the devil turned around on you - where would you hide, Roper, the laws all being flat?... D'you really think you could stand upright in the wind that would blow then? Yes, I'd give the devil benefit of law for my own safety's sake." Now, free speech absolutists love to quote this passage. But is this the point in the dialogue where the argument becomes merely rhetorical? Those who support censorship will say that these laws are exactly what we need to ensure the devil will never be able to turn around on us. As long as we are vigilant, and keep after him day and night, we will keep the devil at bay. If we use these hate speech laws to keep them disorganized and their organizations remain small in scale, the Nazis will never be able to gain the kind of power they have in times past.
In any case, they say, if all our efforts should fail, and the Nazis gain power, and this country sinks into "the abyss of a new dark age" as Churchill said, our laws will not be used against us. They will simply be disregarded or thrown out en masse, the constitution torn up, all rights suspended, just as you would expect. There are no absolutes in life, and we cannot be one- hundred-percent sure that the fascists will never rise again. But by pursuing this course of censorship, we are engaging in what we honestly believe is the best strategy to guard against such an eventuality. It is silly to suggest, though, that if the Nazis ever are elected democratically - as Hitler was, let us not forget - they will use these hate speech laws against the citizenry. If such a terrible thing as a fascist takeover were ever to come to pass, hate speech laws would be the least of our worries. To answer More's question to Roper, if the devil is ever in a position to turn around on me, I will not be able to take refuge in even the most liberal and inviolate constitution. At that point the game will be lost, and there will be nothing in the lawbooks that can protect any of us. Best to keep the devil on the run, while making sure that the path we cut through law is as narrow as possible.
When a group of white supremacists marched in Calgary last weekend, censorship supporters took it as proof of the continued need for hate speech laws. Warren Kinsella predicted we will see more of the same types of demonstrations in coming years, writing, "As Western economies continue to slide, we will be seeing more and more of these expressions of hatred...It is what has happened throughout history, over and over." As the economic picture gets more bleak, Kinsella says, hate speech laws will become ever more necessary to guard against the rise of fascism, which has always thrived in climates of poverty, despair, humiliation, and bitterness. The kind of free speech advocated by writers such as Mark Steyn, Jonathan Kay and Ezra Levant is a grave danger, because "Neo-Nazi rallies in broad daylight are its inevitable consequence." [emphasis in the original] Leave aside the fact that somehow Kinsella seems oblivious to the fact that Canada has been enforcing hate speech laws at both the provincial and federal levels (and in the case of the federal, with a flawless success rate) for years; by his logic, it is this system, if anything, of which Nazis rallies are an "inevitable consequence." If his words are to have any meaning at all, we must conclude he is suggesting that these rallies would be more frequent and better attended if not for our censorship practices. He may even be suggesting that we should become more zealous in our prosecutions and draft stricter laws.
It is worth considering what would happen if Kinsella's predictions are accurate. What if this economic downturn in which we presently find ourselves were to turn into a protracted worldwide depression, with catastrophic unemployment rates and corresponding social upheaval? As he suggests, it is probably unavoidable that Neo-Nazi organizations would try to capitalize on the populace's misery and fear, and it is also unavoidable that many would want to join up. It this happens, he argues, then we would need our Human Rights Commissions more than ever, to obstruct the fascists in their quest to disseminate hate literature over the internet, to stop them spreading their message using flyers, or posters, or the telephone. It would be necessary, nay, crucial, to take away the platforms used to spread hate. There would be no Nazi rallies allowed in the streets, no party members would be allowed on radio or television, and we would certainly keep their recruiters out of our universities and away from the unemployment lines.
But would our censorship tools be enough to cope with the problem? Consider that before the Great Depression hit Germany, the Nazi party was still relatively small, having only pulled in 2.6% of the vote in 1928 elections. Then, when the depression hit and unemployment shot up, membership suddenly exploded. The party's popularity skyrocketed, and within a couple of years the Nazis were the second largest party in the Reichstag. In a space of about two years, then, the fascists went from just another fringe party to a major force in German politics.
Bearing that in mind, consider how long it takes to carry out a successful s. 13 complaint in the federal system. In Citron v. Zundel, to take just one example, the complaint was brought to the Commission in July 1996 with regard to communications that began in October 1995. After the preliminary investigation, referral to the Tribunal, first hearing, numerous applications for intervener status, six witnesses for the Commission, eight witnesses for the Respondent, several applications to the Federal Court Trial Division including a formal constitutional challenge, one appeal to the Federal Court of Appeal, written submissions, oral arguments for both sides, all adding up to a total of 55 days of hearing including eight motions for stays and adjournments, the complainants finally succeeded in obtaining a cease and desist order against Zundel to stop him denying the holocaust in January 2002. This was five and a half years after the complaint was brought, and over six years after the discriminatory publications started appearing.
Now, it may be unfair to single out the Zundel case as representative of the speed with which these complaints typically get handled. Let us take one of the more recent cases, since a lot of the bugs in the system must have been ironed out by now. Look at Warman v. Winnicki, for example, where only a little over three years elapsed from the filing of the complaint to the Tribunal's cease and desist order. In Warman v. Wilkinson, the Respondents did not even bother to show up, which should have expedited matters. That case only took four years from the first appearance of discriminatory writing to decision. In Warman v. Lemire, the complaint was laid in November 2003, and hearings are still ongoing. The point is that Canadian justice is a slow process, even at the best of times. The Tribunal cannot issue injunctions until the hearing has been completed, meaning that the respondent is theoretically free to continue propagandizing until that time (although that would probably only lead to an amended complaint, and therefore a stronger decision against him in the end). If we were to face a tidal wave from the fascist ranks comparable to what Germany saw in the years after the Depression, would our Commissions be able make any headway at all, given the painfully slow turn of justice's wheels?
Reasonably, then, one has to expect to wait at least three or four years before the Tribunal can make any meaningful order. And this does not even take into account the possibility that such prosecutions might even help the cause of those on trial, by giving them publicity and lending credence to what they say. Remember the words of Madam Justice McLachlin in R. v. Keegstra, warning that suppressing conspiracy theories can actually make such theories more appealing. One would have to hope that prosecuting these fascists during a time of depression and social chaos would not result in a repetition of what happened with Nazi Julius Streicher, for example, who was convicted of libeling the Jewish religion in 1929. Streicher and an accomplice were leaving the courthouse when "they were greeted by a great throng of tearful sympathizers shouting 'Heil,' and singing racist songs so passionately that observers could only wonder whether the trial had not won new converts to the Nazi cause." Trying to suppress something as vital as free speech can have unintended consequences, it seems.
So what if, despite our best efforts, the fascists go from the twenty five who marched in Calgary last week to twenty-five thousand in every city, and have the numbers and the confidence to start staging unsanctioned demonstrations, torching government buildings, and running intimidation campaigns against certain politicians and writers? And then suppose that, all of a sudden, the quotations from J.S. Mill disappear from their websites, and they decide they are not for unrestricted free speech after all. Suppose that, like the low, slithering things they are, they prove themselves adept at manoeuvering in the nooks and crannies of the law, and discover that two can play at this hate speech game. When they start bringing their complaints, will it be at all relevant that they might be backed by a number of people who agree with them and like to smash and burn things when upset? Can we honestly say that such considerations did not factor in to the Levant case in any way, shape or form?
Imagine that all this should come to pass, and that you are a member of one of Canada's vulnerable groups. Now that the devil has turned around on you in spite of everything, it still may not be too late to try and beat him down in the court of public opinion. So what if the devil tries to silence you, to prevent that debate using the very laws you so lately supported? Surely, you say, those laws could not be used by fascists against anti-fascists. After all, Nazism is an ideology, and our hate speech laws are not there to prevent criticism of an ideology. They exist to prevent hateful messages about certain identifiable groups, none of which has any uniform political identity in and of itself. What legal basis would there be for these supposed complaints? Our denunciations of the fascists would be legitimate political speech, not hate speech. The legislation governing these matters is sufficiently narrowly worded; the Supreme Court even said so in Taylor. The legal test for defining prohibited speech is very precise, so the Court tells us. If the fascists try to ensnare us in our own nets, they will not get very far, since our speech is perfectly legal and theirs is not. If anything, they would have to beware us filing counter-complaints against them.
At that point, you might take a look at the jurisprudence, and discover that the legislation is not so narrowly worded as you might think, and the legal test is not really as precise as you would like. One's conception of 'hatred and contempt' or the Supreme Court's definition thereof - "unusually strong and deep-felt emotions of detestation, calumny and vilification" - could apply to a whole range of works. People who have been caught in these snares include not just Levant and Mark Steyn, but a magazine that put a picture of the god Shiva on its cover, or someone who drew a cartoon of two male stick figures holding hands to discourage homosexuality. You would discover from reading the case law that it really doesn't take much to get caught by the definitions the courts have worked out. Furthermore, you would find that truth is no defence to a complaint and intent is irrelevant, that anyone in the country has standing to complain, and there is little or no procedural justice. You would have no right to an attorney except whatever you could pay for yourself, your accusers would be able to free-ride, and even if you were to win the case you would get back nothing of what you spend.
Having taken this chilling look into the workings of the least attractive parts of our justice system, you might console yourself with the thought that surely the Commissions (as well as the general public) will notice the sheer absurdity of Nazis bringing hate speech complaints and not allow it. You will be able to defend yourself, to impugn the motives of your accusers, to bring their background to light. Extremists have tried filing complaints in the past, and the Commission has dismissed them without much hassle. Andrew Guille, for example, filed against an anti-racism website for reprinting hateful material, and the Commission was shrewd enough to notice that his sister had been previously charged under s. 13, and that he was known to spend time with white supremacists, and therefore declined to follow up on the charges. Guille's complaint was denied for the very reason that the Commission suspected him of racist tendencies.
As Aryeh Neier points out, however, fascists have always been very good at manipulating the optics of a situation, at exploiting public perception to help their cause. What if, in this climate of economic chaos and general bitterness, they were able to persuade some patsies to bring the complaints for them, people from groups that are designated as protected by the Canadian Human Rights Act? Is it really so far-fetched to think that the fascists could work in conjunction with some members of a visible minority? After all, every community has its fringe elements, and even the Klu Klux Klan counted at least one Jewish person in its ranks at one time. If these patsies come forward to accuse you, and you cry 'fascist!' at an African-Canadian, or an Iranian-Canadian, or even a Jewish Canadian, then just listen to how quickly and how loudly they cry "retaliation!" and file another complaint against you, thereby doubling your liability.
Imagine, then, what you will do when the complaints start rolling in. You there, professor, with your book about the Russian empire's pogroms of last century? Why, that's nothing but a transparent attempt to stir up hatred and contempt against the good, peace-loving members of our Ukrainian-Canadian community. This article, sir, about savagery in the Gaza strip? Outright criminal, if you ask me, for trying to expose Palestinian-Canadians to calumny and vilification! And this report about the fraught relationship between Jews and the black population in Toronto? You must be joking, you anti-Jamaican racists, you. Off to the tribunal with you, and remember - it matters not a whit that every word you wrote is true, or that your intentions were good and you meant no one any offense. To a tribunal, go, and we will see you five years and several hundred thousand dollars down the road. And just try and keep up your activism while you are dealing with this costly and draining legal battle.
The late Doug Collins, found liable of publishing hate literature by the BC Human Rights Tribunal in 1999, never considered himself a holocaust denier. He had no doubt, he would write, that "hundreds of thousands" of Jews perished in German camps. This is, of course, holocaust denial in the most obvious sense, but one has only to read his articles to see how easily the tables could be turned. What about the millions of Germans slaughtered by the invading Red Army, he would write, and what about the millions of their women who were raped? Do we not care about them at all? The official accounts of the holocaust, according to Collins, are nothing more than a campaign to defame the German community. Using this line of argument, why could someone not bring a complaint against the publisher of a book like Hitler's Willing Executioners, which details the complicity of ordinary Germans in the holocaust? Would this be so different from the Maclean's case, where the magazine has been called to account for publishing an excerpt of Mark Steyn's book America Alone? That excerpt did not deal with Canadian Muslims any more than a book about the holocaust deals with German-Canadians, and yet the complaint has been accepted in both the BC and federal Tribunals.
When journalists are targeted for addressing controversial issues, when outlets of the national news media are brought before these commissions, is there any telling where it will stop? Why not include comedians, whose work by its very nature often involves treading the line between what is obscene and what is socially acceptable? What about novelists who include outspokenly bigoted characters in their books? What about children's television programs, with their direct appeal to impressionable young minds? Intent is not relevant, remember, and anything that comes out of a fictional character's mouth could be just as wounding as something one reads in the newspaper. The complaints themselves do not require much in the way of manpower or investment, since, as recent history has shown, one person can bring charge after charge, getting the wheels in motion, and then move on to the next case. All that is really required is a sympathetic member at the Commission, a good deal of public complacency and a large and dedicated organization working behind the scenes.
In this hypothetical situation, I have made two assertions that may seem contradictory. First, that in the event of a crisis, hate speech complaints would not be effective at combating a growing and confident fascist movement because of the legal process' lethargic pace and emphasis on formalities. Second, that a campaign of complaints against journalists and academics could be successful despite these procedural drawbacks. The reason the strategy would be less effective against fascists than against legitimate commentators is because the former operate in shadows while the latter have high public profile and fixed addresses. Internet posters can take advantage of anonymity, post under pseudonyms, use public computers. Anyone who has read about the anti-terrorism efforts of law enforcement knows just how difficult it can be to monitor the internet. The majority of s.13 hearings have dealt with fringe websites and their operators, both of which can be somewhat nebulous. But even if a website is shut down, there is really nothing to stop someone from setting up another on a different domain in a matter of hours. With large newspapers, magazines and television stations, however, one judgment can have a chilling effect over the entire industry. Editors can become wary of exposure to legal action and refuse to print anything controversial, and writers will soon learn the drill.
Richard Warman, the lawyer who previously worked for the federal Commission but now is the most frequent complainant before it, honestly believes he is doing the best he can to further the cause of anti-racism. He calls his strategy "maximum disruption" - he tries to obstruct, combat, and punish racists using the tools the government has given him. But the rub of this whole business is that those tools could be picked up by anyone, and employed against the very people they are meant to protect. If those who warn of a Neo-Nazi resurgence are right, and the fascists manage to grow more numerous and sure of themselves, is there any reason to expect they will not eventually learn how to use these very tools? If people who think like Ernst Zundel and James Keegstra are able to bring actions against writers and politicians with impunity, that will be a real campaign of "maximum disruption." When the fascists are making lists of those they want to harass, will activists stand up to face them, or will they tone down what they say and write to avoid catching anyone's eye?
Those who make 'slippery slope' arguments are often derided as reactionary and alarmist. But to study the progress of these hate speech laws and their application over the last twenty years is to encounter a textbook definition of a slippery slope. Remorselessly and predictably, the Commissions have moved from extremist websites, to small newsletters and private papers, to major dailies and political magazines, and finally to one of the largest and most mainstream of the country's media companies. In 1987, the Commission investigated John Ross Taylor, a man who had set up an automatic telephone propaganda system, with a toll-free number that gave people anti-Jewish conspiracy theories. In 2006, the Alberta Commission accepted a complaint about a cartoon. If we have gone from obvious Nazi propaganda to cartoons in only nineteen years, where will we be in another nineteen?
"D'you really think you could stand upright in the winds that would blow then?" asked Thomas More. My hypothetical scenario is just that, and I do not consider it a very likely one. But supporters of free speech are not the ones who most often bring up the spectre of Nazism; usually that subject is brought up by pro-censorship groups to silence our arguments. If we are to toss around the idea of a fascist resurgence in this country, it is just as well to consider how our laws would respond to such an event. Those who support hate speech laws are neglecting Aryeh Neier's warnings that the vulnerable groups in society are the ones most in need of untrammeled free speech. If you disagree with Ezra Levant, for example, that the Jewish community is presently in danger from elements of radical Islam, ask yourself this: By silencing him and those like him now, am I eroding everyone's right to speak out? Am I certain that, should I ever perceive a clear and present danger to my community, I will be able to ring the alarm when the time comes? Knowing what you know about how hate speech laws work, and just how broad their application can be, would you be willing to bet a hundred thousand dollars that you will have the freedom to speak out in future? How about a million dollars? How about the future of a people in this country - for, if we are honest with ourselves, we must realize that this is what will really be on the table. Would you make that bet? Having seen what happens to those who want to raise an alarm in this country, I would not like the odds, and I hope that makes you, reader, as nervous as it makes me.