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.