Saturday, May 17, 2008

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!

Tuesday, May 13, 2008

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.

Sunday, May 11, 2008

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.

Saturday, May 10, 2008

Legislation Creep

I remember when I gave a presentation on hate speech laws to a human rights seminar at law school, I kept repeating the Supreme Court's definition of 'hatred and contempt' over and over like a mantra. I wanted people to have the wording in their heads, so that they could see, as I saw, that the cases now being heard under hate-speech laws were not at all what was intended in 1990 when the SCC heard the Taylor case. That definition, of course, is "unusually strong and deep-felt emotions of detestation, calumny and vilification." I would say that definition, write it up on the board, remind people of just how strong that wording is and how narrow the classification, and then show them something like the Muhammad cartoons as reprinted in the Western Standard, expecting that everyone would see that things have obviously gone too far and we've lost sight of the original meaning of the words in the statute.

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

Mark Steyn and Osgoode students on TVO

Mark Steyn defended himself and Maclean's against the accusations of the Canadian Islamic Congress and the Osgoode students. You can watch the debate here. The three got talking quite a lot about the remarks by someone called Mullah Krekar that Steyn put in the Maclean's article. Krekar said Muslims in Europe were breeding "like mosquitoes," and this has sometimes been attributed to Steyn himself.

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

Just what kind of order can the BC Human Rights Tribunal make against a publisher?

Mark Steyn quotes this report in the National Post about Faisal Joseph's press conference earlier this week. Joseph is, of course, counsel for Mohamed Elmasry and the Canadian Islamic Congress (CIC) in their legal fight with Rogers publishing and Maclean's magazine. He and the law students who helped initiate the many human rights complaints were offering the magazine a shot at a compromise. It was as good a time as any to try and strike a deal, one supposes, since time is getting short and the hearing is coming up. Here is the BCHRT's hearing schedule - just scroll down until you get to June 2, the Maclean's case is the one with "Habib, Elmasry on behalf of Muslim residents in the province of British Columbia" as the complainants (as a side note, the next case down on that list, Brar v. British Columbia Veterinary Medical Association, Osborne also seems to have something to do with s. 7, the hate-speech provision. When I went to one of the hearings in that case, though, there was nothing about that aspect of the complaint, and I couldn't find anything in subsequent research).

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.