Wolf, in the comments, sums up the lefty position on free speech:

"As has been known for decades, in our caring Universities ,the right of freedom of speech does not include the right to make people feel uncomfortable. This view and campus speech codes have been the spectacular achievements and contribution of the left, progressives and university administrators. Why do the neocons and extreme right wingers keep blathering about freedom of speech? Surely this outdated, prefeminist, patriarchal concept has had it's day. The people's human rights commissions of Canada are doing a great job for a new more progressive left wing and anti right wing world. Canadians should be proud of their commissions and tribunals that hunt down indvidualistic loony right wing thinking for the sake of the collective whole."

"Canadians have a right to Freedom of Expression. We have that right because the Trudeau Government negotiated and passed the Charter of Rights and Freedoms."

Gee, not as a basic Human right? Only because Pierre was munificent?

What tripe.

However, I do know enough about the law to understand that their cases will be tried according to constitutional and legal principles. If they have been wrongly accused, then they will be vindicated and they might even be compensated. That is a matter between them, their lawyers, the Canadian Human Rights Commission and the courts.

No they will not, they will be tried by the CHRC that follows no precedent in law and they will have no right to appeal constitutionally or legally

Maybe Dalhousie has a "Special Ed" law stream. Nothing else explains it.

I will go to Jason’s blog every once in a while just to see how neurotic the liberal brain trust is getting. I enjoy watching him have his ass handed to him on a regular basis. I wished more like minded liberals would try and defend his tripe, thereby exposing themselves as the wackjobs they really are.

Ah good old JC. Always on the wrong side of every argument.

JC sure is taking a sh*t-kicking, isn't he?

I did leave a short pointed comment there. The first and last.

I was headed for a shower anyway. = TG

I fear that all the arguments that are made will not help. The HRC's now have a life of their own. Still, that was a great read.

If an American Jew may be permitted to comment on this-

This reminds me of the France 2 & Enderlin vs Karsenty dust-up in which Richard Landes (my partner in Second Draft) and I have been so involved http://breathofthebeast.blogspot.com/2007/11/enderlins-ocean-of-blood-why-second.html . In the French case, Karsenty has been sued (under the same law that enabled the French Army to persecute Zola for his defense of Dreyfus) for having called Enderlin a fraud for presenting obviously faked footage of a non-event as a news item that, he claimed, showed Israeli troops murdering a twelve-year-old boy in cold blood. The French law that allowed the suit does not require that Enderlin and France 2 prove that Karsenty’s allegations were wrong; they merely need to convince the court that the allegations were reckless and done with the intent to damage the reputation of Enderlin and France 2. To exonerate himself, on the other hand, Karsenty is required to prove that his allegations were not just well founded and reasonable but “perfect and complete”. In the words of the court decision of the first trial (won by Enderlin and France 2):

“We note that in order to invoke the defense provided by article 35 of the law of July 29, 1881, the proof of the truth of the defamatory facts must be perfect, complete and correlative to the defamatory allegations both in their substance and their impact.”

So, Enderlin, employee of the French government news agency, is allowed to slander Israel and set off a violent wave of anti-Semitism with sloppy, absentee journalism and his critic can not even send out an email contradicting him for fear that causing a government employee and his employer (a French government agency) to loose face will make him the target of a lawsuit.

The government, through its news agency, has the right to defame other countries and their citizens with impunity. When anyone raises a voice in protests, they will be rewarded with civil action, court complicity, expense, inconvenience and punishment. France has no need of a gulag to repress individual citizens and prevent them from expressing what they think and say and citizens have no recourse to speak on their own behalf.

Sound familiar?

Clever this, Western Democracy is like a great snake whose tail has been grabbed by the Collectivist Progressives and Caliphatists. Together these odd allies have succeeded in taking the tail of the snake of and getting the snake to chomp down on it. Now all they have to do is stand back and see if it will swallow itself. We have to stop the madness!

If an American Jew may be permitted to comment on this-

This reminds me of the France 2 & Enderlin vs Karsenty dust-up in which Richard Landes (my partner in Second Draft) and I have been so involved http://breathofthebeast.blogspot.com/2007/11/enderlins-ocean-of-blood-why-second.html . In the French case, Karsenty has been sued (under the same law that enabled the French Army to persecute Zola for his defense of Dreyfus) for having called Enderlin a fraud for presenting obviously faked footage of a non-event as a news item that, he claimed, showed Israeli troops murdering a twelve-year-old boy in cold blood. The French law that allowed the suit does not require that Enderlin and France 2 prove that Karsenty’s allegations were wrong; they merely need to convince the court that the allegations were reckless and done with the intent to damage the reputation of Enderlin and France 2. To exonerate himself, on the other hand, Karsenty is required to prove that his allegations were not just well founded and reasonable but “perfect and complete”. In the words of the court decision of the first trial (won by Enderlin and France 2):

“We note that in order to invoke the defense provided by article 35 of the law of July 29, 1881, the proof of the truth of the defamatory facts must be perfect, complete and correlative to the defamatory allegations both in their substance and their impact.”

So, Enderlin, employee of the French government news agency, is allowed to slander Israel and set off a violent wave of anti-Semitism with sloppy, absentee journalism and his critic can not even send out an email contradicting him for fear that causing a government employee and his employer (a French government agency) to loose face will make him the target of a lawsuit.

The government, through its news agency, has the right to defame other countries and their citizens with impunity. When anyone raises a voice in protests, they will be rewarded with civil action, court complicity, expense, inconvenience and punishment. France has no need of a gulag to repress individual citizens and prevent them from expressing what they think and say and citizens have no recourse to speak on their own behalf.

Sound familiar?

Clever this, Western Democracy is like a great snake whose tail has been grabbed by the Collectivist Progressives and Caliphatists. Together these odd allies have succeeded in taking the tail of the snake of and getting the snake to chomp down on it. Now all they have to do is stand back and see if it will swallow itself. We have to stop the madness!

And Jason is an example of our education system? No wonder we are going to hell in a handbasket.Cripes.Can he grovel any lower?

At least give Jason credit for not dumping all of the comments into the bit-bucket.

Wow. Pundita really nailed it, Kate. That comment is worth a reprint at SDA.

http://jasoncherniak.blogspot.com/2008/02/there-is-no-freedom-to-message-hate.html#c5781032406060587942

I think he had no choice but to allow uncensored comments. If I remember correctly Cherniak used to pick and choose who got to post but got lambasted for the censorship, in his mind his credibility was being basically laughed at. After all he was attempting to compete with the likes of SDA where everyone gets their say.

Ironic that after he liberalizes his blog he gets his clock cleaned on the a subject such as free speech.

Is it any wonder the man is against free speech. Just look at the comments section. Those pedestrian common sense replies mop the floor with him. He looks like an imbecile. He needs speech regulated in that world he is a great thinker and writer because ultimately no opinion other than his would even be legal, so no more humiliation at the hands of lesser beings. Aaahhhh the inept. That would go for WK too.

Lord help me if I was running the LPC I would be trying to ship dumb and dumber to
siberia as fast as I can. How much distance can I put between me and them. The 2 of them are an embarrassement of Galactic proportions.

As a prof myself, let me assure you that Jason is not causing his former professors any despair. We’ve become too accustomed to the current state of the university. We know that the bottom 20% of those registered (they cannot be called students) are irredeemably unteachable. And this is being charitable!

Consider that a generation ago, when university attendance was far less than now, the professional programs regularly failed half of their incoming class. These days, anything over 20% gets us hauled before the university brass to “explain” ourselves.

Now, in our defence, we do TRY to weed out the Jasons of the world...

My word! The ability of people to delude themselves knows no bounds.

i hate stupid people. are they in danger ? should i be called before the stupid peole to explain why i hate them?

Jason is laughable. The left is delusional.

I read this quote over at the shotgun blog:

http://westernstandard.blogs.com/shotgun/2008/02/jason-cherniak.html

Commenter 'Fact Check' found this quote:

"... what can I say to people who never read John Stuart Mill, On Liberty? 'The beliefs which we have most warrant for have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded.' No man can demand freedom of speech if he finds it a matter of indifference that public debate and free confrontation should be brushed aside as a means of arriving at political truths; these ideas are indissoulubly linked."

This passage comes from the end of Pierre Elliott Trudeau's book "Federalism and the French Candians". He wrote this in the context of defending newspaper publications of articles on both sides of the issue of Quebec separatism, including pro-separatist ones that argue that violent means can be justified in that cause. This was no idle worry at the time, as it was only two years after Trudeau's book was published that the FLQ crisis happened.

From reading this I think even Trudeau would be against Jason on this issue.

For sure the best serving of Jason butt on a platter ever.
He suffers from the convolution syndrome prevalent in Liberal minds. This time he's caught in his own maze and doesn't even grasp it.
Doubt if there would be enough objectivity in the Liberal mind to know when the jig is up.

Liberal Lawyers, what a mix.

Tenebris, I have a big problem with your diploma mills. Cherniak isn't the exception to the rule...he IS the rule for the leftist non-thinkers that the universities are cranking out like sausages.

During my university days I saw idiot leftwing professors that actively indoctrinated their students and punished those that disagreed with them. As a result, rather than learning how to think critically, learned how to 'go along to get along'.

The phrase I heard describes these people perfectly - they are quite literally 'educated beyond their intellect'.

Proof positive of the misnomer on the political banner worn by this crop of Fabian socialists. There is noting "Liberal" about neo liberalism.

It's a philosophy that has at its core statist control mechanisms to repress public liberty for the purposes of confining and conforming society into a mold these elitist Mensheviks have fabricated for us.

If there were truth in Political advertising, Cherniack and his flying monkeys would have their philosophy rebranded as "the Orwell party".

It can safely be said that Jason's arguments have been thoroughly shred to pieces by the commenters, and, further, that Jason's historical and political ignorance has been clearly exposed, making his views on anything pretty irrelevant.

And that is good enough for me.

Firstly, Jeff, I am currently working in Siberia and do not want the likes of JC or WK to converse with! LOL

Secondly, my experience with the education system at the higher levels indicated to me that free thought (those that questioned the provided answers) got you a quick pass to nowhere. Many of us were able to keep the divisions between fantasy and reality intact by challenging each other in study groups or debate teams. The rest just sat on the professors cheerleading squads spouting the routines they had learned and filling themselves with artificial feelings of smug satisfaction from the reward grades they were given. Later, when the private sector shunned these autobots, they found refuge in the public sector. Probably, the CHRC.

Thirdly, I am sure Jason is chewing off his lower lip as he fights the impulse to ban these dissenters from his blog. The irony of his situation is delicious and the image it creates is hilarious.

Jason's blog was a good read. He does deserve credit for standing there politely while the mob flung his own poo back at him.

Reading through it all (including the alphabet lawyer who clearly needs more sleep, and a mind of his own), one can come to the viewpoint that if the Liberals truly do believe and support what Cherny wrote, then the Liberals themselves are heinously guilty of being in violation of S13. A casual review of their writings and pronouncements illustrate clearly their guilt. A critical analysis would provide sufficient grounds for a complaint against them, under their own rules, before a HRC.

These libs always seem to want to add some "expert" to whatever the issue at hand is. Who does Cherniak suggest the expert be, to "determine whether the law has been broken"? Can I be one? I think I'm as qualified an expert on anything as many of the tax-salaried inquisitors on the hrc's. Or would a Quebec ad agency exec be a better choice? Or some other, generous liberal backer. As an aside, why is he , apparently, afraid to let me comment without registering.

I think Jason just exposed himself to a complaint to the CHRC. I really took offense to some of the hateful comments about "neocons" and "extreme right wingers". I feel it leaves me vulnerable to abuse. Jason regularly censors his comments, and because he allowed the hateful anti-conservative comments to be posted, I feel I should file a complaint to the CHRC. Wouldn't that be nice!

The comments against Section 13-1 on Jason's blog are very shrewd, especially those by pundita.

What puzzles me is why and how anyone can defend Section 13-1, when its vagueness, its focus on hearsay and subjective feelings, its indifference to actuality, its indifference to evidence of actual connective causality - move it outside of any objective legal standing.

Furthermore, the process of the HRCs, which operate outside of the normal legal process of presumption of innocence, right to counsel, right to appeal (there is no appeal process in the HRCs) and so on...also moves it outside of the legal system.

What is going on? How can anyone support the HRCs? This suggests to me that those who do, are doing so for its political function. That is, the HRCs, via Section 13-1, have moved into being a tool of a political process.

And I suggest that Kinsella/Cherniak - and others - are supporting this Section because it has been used as a useful tool by several groups, notably the CJC (Canadian Jewish Congress) under Richard Warman and Bernie Farber - and gay/lesbian groups. Nothing to do with freedom of speech, but with the repression of criticism against these groups.

The complainants don't even need to be considered by the full 'identity group' to represent them; they are defined as valid speakers of that identity group just by self-definition of their membership.

Therefore, a few Muslims have decided to do the same. File a complaint about 'feeling offended', in the name of their religion as an identity-group. The agenda is to silence discussion and critique of their group.

The Liberals, who support identity politics, are in a bind. If the support the CJC and other identity groups' use of the HRCs to silence anyone who criticizes them, then, they have to promote this for ALL groups. That means silencing Ezra and Steyn.

But, what about other publications? How can an HRC focus only on these two publications? What about other books that are critical of, eg, any identifiable group? Anti-feminist or anti-gay, or anti-Israel or anti-Islam or anti-religion or anti-whatever? To be fair, doesn't this 'exposure to feelings of hatred or contempt' mean that any whisper of questions or criticism of any identifiable group - must be stopped by the govt?

Meanwhile, Thomas Jefferson, not to mention, well, God, are all like,

"Hey, who is this Trudeau guy? And how the hell did we write that Constituion thingie without him??"

Liberal party support for section 13.1 shows exactly what kind of Canada they want. A divided Canada malleable to arbitrary dictatorial control. I hope Martin's bill is read and voted on prior to the next election. It could help define and expose the new Liberal totalitarian vision trampling classic Liberalism. This might further errode party support.

Protecting freedom of speech should be a cost of entry for any credible politician operating in a western democracy.

It seems to me the majority, even Liberals on Cherniak's blog, are against the imposition and anti-democratic workings of the HRC.

And yet the Liberals like to say they are the inheritors of the John Stuart Mill tradition...

I seem to recall a Trudeau as PM of this country. It can't be the same one who's getting all the accolades and statues etc from the stuck on stupid Liberal Left and their Minions in the MSM.

Our Trudeau gave us the Charter of Rights and Freedoms. Now the question is, who gave us the Commissions of Commissars to take them away?

The "special religion" has become the 500 pound gorilla in the collective Canadian living room. It seems like there is a vast overrepresentation of violence attached to the "special religion". It seems like there is a vast overrepresentation of misogyny attached to the "special religion ". It seems like there is a vast overrepresentation of family violence attached to the "special religion". It seems like there is a vast overrepresentation of terrorism attached to the "special religion". It seems like there is a vast and systemic overrepresentation of sexual harassment of women on the part of the “special religion”. And the list goes on, and on, and on.

If I was a member of the “special religion” and all of the preceding negative assumptions were wrong I would want to get everything out in the open and prove the “special religion” was not all of those bad things. If I knew that the “special religion” would not stand up to scrutiny with respect to how it treats women and homosexuals and others, I would fight tooth and nail to keep anyone from even talking about the ‘special religion”.

What does it seem like the “special religion” and its useful idiots are trying to do?

just a thought but can we use the HRC to go after the liebrals for the election ads trying to get people to fear the cons with troops in your streets and cities with guns
it sounds to me like the're promoting hatred of a group

Liz J, its in the subtext of the useless Charter, and a direct consequence of it.
Not commonly published, the full name of the Canadian Charter of Rights and Freedoms is "The Canadian Charter of Rights and Freedoms, being a Guideline for Special Rules for Special People (SRSP), as defined and embraced by the Natural Governors of Canada"

Wolf's comments relayed by Miss Matt say it all. His language is clear, left wing thinkng is good, and therefore protected, while right wing is bad, and therefore impermisible, and subject to legal sanctions. Wolf and his ilk should be aware that political correctness has not always resided on the left. An old political cartoon illustrates that point nicely, where at the entrance to the "Joseph McCarthy Ranch," there is a sign which says,"where you're free to say what we think."

This isn't even about removing the right to hate, it's about removing the right to say things some people disagree with. How Orwellian, where freedom is slavery and a lie is the truth.

Freedom of speech is about putting up with people saying very nasty things, such as cheering the killing of Canadian soldiers sent by their Jew masters, or David Ahenakew's bigoted nonsense. Levant and Steyn can't hold a candle to either view WRT intolerance.

Once we start to prosecute thought rather than action, we are indeed on the slippery slope to Orwell's nightmare. Once we decide that, as long as we agree with someone, then we will dane them the right to free speech but not others, we move into totalitarianism.

Why don't Cherniak and Wolf understand this?

I'm not 100% sure Wolf wasn't just twisting Jason's tail . The tone of his comment is very sarcastic in my opinion .

Shamrock,

I think, if you take another look, Wolf was being cleverly sarcastic.

The comments of Pundita (cited by DC at 5:09am) are more closely reasoned than most of the criticism of HRCs from the right, but they proceed from the same fundamentally flawed assumption; namely, that an HRC complaint is akin to a criminal prosecution. Nothing could be further from a truth. The human rights process is, at its heart, a dispute resolution process in which both complainant and respondent have the right to be represented by counsel. Unlike a criminal proceeding, where a complainant has no control over whether a case goes forward -- ie you can't withdraw charges -- a human rights complainant can agree to a settlement at any time and, indeed, HRCs are directed to encourage settlement, one reason why only a small fraction of complaints proceed to hearing.
Seen in this light, a HRC proceeding under 13(1) has less in common with a hate-crimes trial than with a civil defamation proceeding(albeit one with more modest damages and that is less costly to either party).
Of course, unlike folks like Ezra, Conrad Black and Warren Kinsella, identifiable groups can't sue for defamation -- as former Bomber Command folks discovered when their defamation class action was dismissed by the Ontario Court in Elliot v. CBC -- but I have yet to see anyone explain why attempts by wealthy individuals, corporations and others to squelch public criticism of them is somehow less of an infringement of freedom of speech than a complaint that a particular publication exposes a group to hatred or contempt.

In a related note, I would point out to Yaacov Ben Moshe that, while I'm not familiar with the French law of which he speaks, the same burden of proof exists in the common law of defamation. That is, a plaintiff in a defamation action does not have to prove the impugned words are false; at law, they are presumed to be both false and published maliciously. As a result, it falls to the defendant to prove that the statement was substantially true on a balance of probabilities. It is not an easy task, which is why most defamation defendants don't rely solely on the defence of truth.

pundita has his own blog and posts an excellent description plus analysis of the whole Maclean's affair. I strongly urge everyone to read it.

Go to http colon double slash and then, pundita.blogspot.com

He says that Andrea Neat's outline is almost verbatim from the 'Osgoode 4's outline' (I wonder if she is them (gr)?)
He also says that it's Elmasry who is the Complainant.

I quote from the site:

"The complaint was clearly filed with the intention of having the Steyn article removed from the Maclean's website. And with preventing Maclean's from later publishing anything that could be considered exposing Muslims to the likelihood of hatred and contempt.

Of course that would include even a discussion by a Muslim scholar or terrorism expert about the threat of Islamist terrorism and issues relating to Islam. It could even preclude Maclean's from publishing news reports on Islamist terror plots and attacks."

"And of course, if the tribunal associated with the CHRC found against the respondents, this would send a message to every media organization in Canada that they self-censor, or face what happened to Maclean's.

So the Osgoode 4 are dissembling when they claim that they do not want censorship. The CHRC mandate with regard to hate speech posted on the Internet is all about censorship, and this is patently obvious on their website."

Really very good.

"There is no freedom to message hate."

When did message become a verb? I say there should be no freedom to gratuitously verbify nouns.

truewest-

Actually It was the superior court what said groups couldn't sue for defamation. The COA agreed that the statement of claim should be struck - but not because group libel was unknown to law but rather because: "I cannot see how this can be construed as defamatory of the aircrew who did their herculean share in the Allied War effort. Far from harming their reputations, the film brings to light their remarkable heroism in doing valiantly what the war effort and their leadership required them to do."

As for group libel the court said -

I would not, however, want to be seen as accepting his view that there cannot be a libel of so large a group as that represented by the appellants. That issue does not have to be decided for purposes of this appeal, and I would therefore leave it open for resolution at a future time

We'd probably have that resolution by now if it weren't for the fact that HRCs have exclusive jurisdiction to deal with wrongs against "identifiable groups"

As you have pointed out - that's a good thing for the respondents because the worst they face losing before the HRC is a $4,000 compensation order. It would be at least 10 times as much losing in a court.

Obviously that means there is less "libel chill" under the current system than if these matters brought before a regular court.

ET-

>Furthermore, the process of the HRCs, which operate outside of the normal legal process of presumption of innocence, right to counsel, right to appeal (there is no appeal process in the HRCs)

Wrong, Wrong and Wrong - The process starts with the presumption , there is a right to counsel and there is a right of appeal.

>What is going on? How can anyone support the HRCs?

Here's what the Supreme Court said 17 years ago in upholding the legislation

Section 13(1) of the Act, which is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter, constitutes a reasonable limit upon freedom of expression. First, Parliament's objective of promoting equal opportunity unhindered by discriminatory practices, and thus of preventing the harm caused by hate propaganda, is of sufficient importance to warrant overriding a constitutional freedom. Hate propaganda presents a serious threat to society. It undermines the dignity and self‑worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open‑mindedness that must flourish in a multicultural society which is committed to the idea of equality. The international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism enshrined in ss. 15 and 27 of the Charter magnify the weightiness of Parliament's objective in enacting s. 13(1).

Finally for all you who think JC is wrong - check your history.
While freedom of speech has been a constitutional right in the US for over 200 years It wasn't even recognized in Canada until Diefenbacker brought in the Bill 'o Rights in the 50's.

Even then it was just a bit of legislation equal to any other bit of legislation. As in England, New Zealand and Australia today - back then the most a court could do is make a declaration that the state had violated the Bill o' Rights. There was nothing they could do to stop the violation.

Now, with the Charter, freedom of expression has been raised to the level of a constitutional right and courts can actually step in an prevent the state from violating them rather than just make a declaration.

Nbob,
I may have stated the principle too broadly. The correct statement, as cited by the Ontario CA in Elliott is: "Where alleged defamatory remarks are directed at a group or class, individuals must be able to show that the defamatory words are about them in particular," Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116 at 118.
I would note, however, that it is unlikely that one could maintain an action for defamation against someone who defamed, Jews, Jehovah's Witnesses or Toronto Maple Leaf fans. See, Bai v. Sing Tao Daily Ltd, where the Ontario CA affirmed the dismissal of a libel claim brought by Falun Gong followers following the publication of an article headlined "Radical Religious Groups Advocate Destroying the World" (The claims of three followers who appeared in a picture accompanying the story were allowed to proceed.)

That point aside, I commend you for your efforts both here and in your comments to Cherniak's original post to address the great flood of misinformation about HRCs and the laws governing them. While I fear those efforts are futile -- these folks seems to believe that Ronald Reagan meant it when he said "Facts are stupid things" -- someone has to counter the BS promulgated by Levant (who should know better, being a lawyer) and his followers (who apparently don't know squat, but don't let that slow them down)

I know now what barbequed Cherniak smell like. LOL

http://jasoncherniak.blogspot.com/2008/02/there-is-no-freedom-to-message-hate.html

nbob - disagree with quite a few of your points.

'The right to counsel' isn't equal; the complainant pays nothing; the defendant must pay his own expenses.

'the worse they face losing is a $4,000 compensation order' - you must be kidding; what about loss of money for their counsel, the publicity, the time and so on?

By the way, sections 53-54 refer to fines of 10,000 and 20,000 with regard to 'hate'.

You cannot appeal the HRC; there's no body of appeal.

There is no presumption of innocence, because no actual event of 'being hated or viewed with contempt' as a direct result of That Speech, is required.

'libel chill' less than if brought before a regular court? I disagree, because a regular court requires evidence and proof. These HRCs don't require any proof of actual 'hatred or contempt' - just the allegation that such and such speech 'is likely' to lead to that result.

The Supreme Court may have said that Section 13.1 is 'sufficiently precise' but such a statement defies both the descriptive capacities of speech and the logic of causality.

Section 13.1's wording that it refers to "any matter that is likely to expose a person or persons to hatred or contempt" is the height of ambiguity. Why? Because its evidential base is focused on a non-actuality, on an imagined future event - imagined within the mind of the complainant.

The medieval period used the same imagined processes of causality -
If you accused someone of being a heretic, the accusation itself was 'the proof'.

Equally, the Supreme Court may have alleged that promulgation of 'hate' is sufficient to override fundamental rights, but when the criterion of 'hate' is located within the subjective opinion of a complainant, then I feel that the Supreme Court's logical and legal foundation for that decision is completely invalid.

Equally, Sections 15 and 27 of the Charter, which focus on multiculturalism, clearly show the contradictory nature of the Charter, where group 'rights' demolish individual freedoms.

Because a Supreme Court makes a decision (McLaughlin?) doesn't mean it is a just decision.

How can you, in the same post, provide us with a Supreme Court statement that rejects freedom as a fundamental right - and then inform us that it's a constitutional right???

When I first read Wolf's comments, I thought they were parody. Like, how could somebody be so boldly and unequivocably THAT stupid? 'Had to be tongue in cheek--didn't it?

That Wolf MEANT what s/he said, just confirms my thoughts (whoops, can I be taken before a HRC tribunal for them?) that lib-lefties are stuck on stupid. For damned sure.

Pundita's comment said it all. Something that has always bothered me about individuals' being dragged before a HRC tribunal with no representation--knowing they have to pay the bill because someone is offended by what they've said--or not said, but only thought (how the Hell would they know?)--is that they're being presumed guilty.

Our laws have always protected one's innocence UNTIL PROVEN GUILTY--that is, until Trudeau's Charter of Rights and Freedoms (sic) and its offshoots, the HRC tribunals.

Far from Cherniak being right about how Trudeau somehow liberated poor, enslaved Canada, he's dead wrong. Trudeau and his Librano$ have been responsible for Draconian measures against their political opponents, and it's high time (thank you, Ezra Levant and Maclean's) that these measures are challenged and done away with in a democratic society.

In the case of hate speech, a person might claim that all Muslims believe in terrorism. The person might claim that this is an inherent problem with the Muslim religion and that all Muslims should be discounted when they argue otherwise. Ultimately, that person would be attempting to remove the right of Muslims to be Muslim. That person would be using free expression to remove the right to freedom of religion.

I found the above logic astonishing. How does my criticism, justified or not, actually remove the right of a Muslim to be a Muslim?

This reminds me of a bitter argument I had once with the wife of a former friend (they're dropping like flies!) -- a rookie novelist with a Canada Council grant -- about: Voice Expropriation. An example of "voice expropriation" would be me, a white guy, writing a novel containing Indian characters -- that I wouldn't be capable of doing this, not being a Indian; that there is a finite amount of human expression in the world and if I take up some of that, which should belong to the Indian, I diminish his expression opportunities.

If you think about it, it's kinda like a second cousin of a leftist economic fallacy: zero sumism: my gain = your loss: +1-1 = 0. Whereas of course in win-win free exchange 1+1 = say 1.3.

Prediction: Martin's initiatve will fail. We're way way past understanding what free speech is. It's a quaint vestige of a distant past.

Theory: Is it possible that JC is not stupid after all; that he is acting merely as a sophist -- a scribe -- for the power. The Liberals, like all the Euro socialist parties, have been engaged in wholesale 3rd-world vote importation (they vote overwhelmingly left-socialist for benefits). The real purpose of the HRC is enforcement -- a kind of Secret Police (most Canadians have no clue!). We are giving away our heritage; the Liberals recognize the potential danger if the public wakes up to this massive betrayal. If awake, you speak up. The HRC is designed to squelch your expressions of concern.

Maybe not stupid at all; maybe exceptionally clever.

While freedom of speech has been a constitutional right in the US for over 200 years It wasn't even recognized in Canada until Diefenbacker brought in the Bill 'o Rights in the 50's.

Hey, Nbob, granted I'm not a Canadian and don't know all of the details of Canada's law and history, but it would seem to me that Canada from its inception was graced with free speech as an absolute just by sharing English Common Law with the rest of the English speaking world. Our free speech clause in the Bill of Rights was based on English Common Law. It only affirmed the obvious. It seems to me that the CHRC with its 100% conviction rate for what is basically Orwellian though control is an abomination on Canada's history. If you want to defend those Stalinist tactics and similar statistics(the KGB had 100% convictions!) which have never been a feature of English speaking democracies feel free to make an ass out of yourself.

Oh, and, please show me where Canadian courts ruled systematically against free speech until it was "recognized" in 1950's?

Here's guessing that you can't even wrap your mind around the question and it's implications. Basically, you need to check your history.

Okay halftime so...

truewest -

I need to stop with these friendly chastisements of you 'cause I'm always the one who winds up looking like nBOOB. Don't know how I missed the Bai case.

ET-

>The right to counsel' isn't equal; the complainant pays nothing; the defendant must pay his own expenses.

The complainant pays nothing in a criminal case and the defendant must pay his own expenses. Does that mean there's no right to counsel in criminal courts?

More to the point - the HRCs are like small claims courts. In all but the rarest of cases you'ld be a fool to retain counsel. The maximum awards may be up to 10 and/or 20k but the going rate at the federal tribunals these days is 4k. Spending upwards of 20k to save 4k is just stupid. The procedures and rules of evidence are simplified so there's no need to use counsel. Most respondents, when they bother to show up for the hearing, don't use lawyers.

>You cannot appeal the HRC; there's no body of appeal.

The right of appeal is found in sections 18 and 18.1 of the Federal Courts Act. How do you think the Taylor case made it to the Supreme Court?

>There is no presumption of innocence, because no actual event of 'being hated or viewed with contempt' as a direct result of That Speech, is required.

Keep in mind human rights act are intended to prevent discrimination through hateful speech NOT to punish the wrongdoer. ( CNR v Canada ) . If you wait for the damage to be done you haven't done a very good job of prevention have you?

The harm is that one has increased the risk beyond a balance of probabilities that a target group will be hated. The aim of all preventative measures is to reduce risk.

> How can you, in the same post, provide us with a Supreme Court statement that rejects freedom as a fundamental right - and then inform us that it's a constitutional right???

If the various rights in the Charter never came into conflict we wouldn't need courts to balance them in individual cases.

nbob - absolutely astonishing. Your arguments are not merely diversionary red herrings but illogical.

The comparison cannot be between a criminal case where the Crown is the prosecutor, but a civil case, where both sides must pay their legal expenses.
In the case of the HRC, even though the issue is not criminal, but civil, the complainant pays no expenses.

The fact that YOU consider that someone would be a 'fool to retain counsel' doesn't mean that it IS foolish to retain counsel. According to the Charter, everyone has the right to counsel. Therefore, the FACT that the HRC defendant must pay for their own counsel while the complainant's case uses the taxpayer's counsel, is unfair.

The amount of the 'fine' is not relevant as to whether one ought to have legal advice. Warman, for instance, has received far more than $4,000 in his various cases. And even if it were $400 or $40 - the defendant should still have the right to legal advice. Otherwise, the court is discriminating against the defendant.

The HRC are not like small claims court, because the HRC operates without evidence. Small claims courts require actual, documented evidence. Hearsay and subjective opinions, which form the basis of the HRC, are unacceptable in small claims courts.

You aren't reading what I said; the HRC process itself is not open to appeal. In that sense, as a process, it is unaccountable to itself.

Where does it say that the Human Rights Act is to prevent discrimination through hateful speech? The act says: "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. "

Read that carefully. It is not seeking to prevent ACTS of discrimination. It is specifically seeking to prevent the 'likelihood' of someone being exposed to 'hatred or contempt', as a member of a specific group.

No ACTS of discrimination. This Section is talking about EMOTIONS. The emotions are: hatred and contempt.

Now, please tell me - what are the criteria by which you can define that you are 'hated' or 'viewed with contempt'? Are there objective criteria? Or are they subjective and differ from person to person?

Second, explain the direct connection between speech that is 'hateful' and discrimination. This is important, for it establishes that a direct link can be made between an expression and an action.

Third, please explain how a decision can be made that X-speech will have such-and-such effect in the future. This is important, for it suggests that the HRC has the ability to foretell the future.
Can the HRC ascertain that a particular expression 'is likely to' 'expose' a person to hatred or contempt?

Let's say that Mr. Joe Blow feels hated. Can he validly claim that this hatred that he feels is due to him and his arrogance; or to the fact that he's a member of a 'discriminated group'; or to the fact that he is double-parked; or....

By the way, where does the HRC obtain their data base about 'probabilities' that connect expressions directly with specific results? That would be quite the psychological study!

Linking X and Y, (expression and action) and attempting to reduce the effects of X on Y can only be done if they actually CAN BE LINKED!
In all cases of the expression of opinion, which are the cases that come before the HRC, it simply can't be done.

The only time you can link them, is as outlined in Sections 319 of the Criminal Code on hate crimes - where your speech specifically refers to a specific action to be carried out (eg, Richard Warman's suggestion about 'pie-creaming' of Icke, where he provided the specific action, the time, the place, the person).

Therefore, your rather sanctimonious suggestion that stopping free expression of opinions will reduce the risk of 'discriminatory actions' is invalid.

Your answer to my concern that the Supreme Court rejected freedom of speech as a fundamental right, when the Charter informs us that it IS a fundamental right - is not merely empty; it's unnerving. You assert that such a basic judicial rejection of our constitutional rights is OK; it provides fodder for the courts to argue about. WHAT?

There shouldn't be any debate about fundamental freedoms! That's why they are 'fundamental'; they are not open to negotiation or debate by whatever ideological activist sits on the bench with regard to their 'fundamental nature'. Sheesh.

Again, if a court rejects a fundamental right, then, it isn't a fundamental right. Get it? And moving it to a 'contextualized right' means that it has moved from being applicable to all, to being applicable to only some, and only some of the time.

In conclusion, your entire argument is empty.

"The harm is that one has increased the risk beyond a balance of probabilities that a target group will be hated."

What nonsense. Can you supply me with the tables and the formulas that HRCs use to assess these probabilities and risks?

Ezra Levant has stated that he will not apologise - what happens to the risk and probabilities now? ... or does cash mitigate the risk?

Thanks, but no thanks, I think I'll stick with the push for free speech.

Further - the HRTribunal judge, Michael Doucet, in his judgment against Tremaine, Feb/07 wrote:

“Nor is it necessary to show that anyone was so victimized. Unlike the other sections in the Act dealing with discrimination, s. 13(1) provides for liability where there is no proven or provable discriminatory impact.” [para. 110

Got that? NO NEED to show that anyone was 'hated or exposed to contempt'. None. NO NEED to show evidence of discrimination. NONE.

So, how on earth, lacking reality, lacking actual factual evidence of 'being hated' or 'being viewed with contempt'...how can a judgment be made? Could the Red Queen do it?

Furthermore, Doucet states that 'freedom of expression' can't stand in the way of the promotion of equality' (par 97). Think about that for a minute.

This tribunal has added a mandate to its roster. The promotion of equality. What does this mean? The Charter already has such a right, and it INCLUDES 'freedom of expression' in its affirmation of equality..of freedom of expression.

Doucet feels that the HRC must remove This Particular Equality, in favour of..what..equality of individuals? No, he's removing that. Equality of what? He's removing the action of evaluation. You are not allowed to evaluate one ideology, one belief system, one religion - versus another. All are equal...which means..that all are equally without meaning, for one cannot differentiate between them.

Astonishing. How can anyone, with the capacity of reason, promote these HRCs?

Funny I was about #6 to post and mine never showed up,

again
-------------------------------------------

The so called law will never stick up for Christians whites and lets not forget how many hours the CBC has spent promoting hate against Americans.

You should qualify it Jason, hate in Canada is bad only if directed at the liberals special groups.

But if whites ever cause 10 times as many crimes as others then Jim Pankiw will be able to bring it up.

With the tribunals the process is the punishment, so Hugh Owens who quoted the bible gets off after thousands of dollars in fees for a crime that wasn’t you think thats ok? When Scott Brockie is charged for doing what a Muslim in BC had as a resolution it shows their bias.

Mark steyn charged for quoting an Imam. By someone who wants to kill everyone older than 18 but hating jews is ok right Jason?

Jim Pankiw charged for quoting government crime stats.

Bill Whatcott charged for quoting a homosexual magazine,

Hugh Owens for Quoting the bible in this nation that recognizes the supremacy of the lord.

Never mind free speech we need free quoting,…

Ezra Levant charged for thinking that fundamental charter rights should apply to him, the fool this is Canada there is no pretense at equality.

So when the province of Manitoba calls Christianity poison thats ok it’s just Christians.

Feel free to ridicule this white male not one Canadian law will stop you because the liberals who passed them are racist.

In fact I’ve even lost jobs on the colour of my skin and Liberals will brag that it’s a great thing to do.

Then bring in more immigrants on the theory we need them to increase CO2 production or something.

Penny-

Your right I do need to check my history - the Bill of Rights wasn't introduced until 1960.

The first time Canada recognized an " implied Bill of Right" based on the English tradition was in 1938 in a case called re: Alberta Statutes. The Privy Counsel struck down statutes that curtailed freedom of the press:

The Court said:

The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means . . . "freedom governed by law."

The reasoning in a nut shell went like this -

Since there's an implied Bill of Rights - where freedom is governed by law - one has to ask which jurisdiction has the power to make the law that governs the freedom. They then determined that it was the federal government that had the power under their exclusive right to legislate in the area of peace, order and good government and/or the criminal law.
Since these were provincial laws they were unconstitutional.

It's not that the courts always ruled against free speech but the way they struck down those laws that is the point here. It was not done on the bases of a violation of a person's rights but always on division of power grounds - either the province or the feds didn't have authority to make the law based on the powers granted them in the BNA Act ( our constitution up to 1982).

As late as 1978 in Canada v. City of Montreal, [1978] 2. SCR 770 the law with respect to the implied Bill of Rights was that " none of the freedoms is so enshrined in the Constitution as to be above the reach of competent legislation"

Of course by then we had a written Bill o' Rights but even then it was not "super legislation" that trumped a regular law ( as your Bill o Rights is ) As Joesph Magnet puts it in " Constitutional Law of Canada" :

>Whereas, in constitutional law, conflicts between the Constitution and an ordinary statute render the ordinary statute void to the extent of the inconsistency, such is not the case where two ordinary statutes conflict with each other. The rules of statutory interpretation govern conflicts between ordinary statutes. By its terms, the Canadian Bill of Rights provides for special rules of statutory interpretation to govern conflicts between itself and ordinary statutes. The Bill of Rights provides that the ordinary statute shall not be "construed or applied" so as to create conflict with the Canadian Bill of Rights. The construction rule is clear: if the statute can be construed in two ways, one of which does not conflict with the Canadian Bill of Rights, the Canadian Bill of Rights directs the courts to adopt that construction.

In the rare cases where the courts could not construe an act to conform to the BoR the most they could do is declare that, by implication, the law had been repealed. Only moral suasion stopped the government from continuing to act.

That btw is how things work in England today. Example - the law lords recently struck down a law that allowed the admission of evidence gained through torture. " not part of our unwritten constitution or legal heritage" said they.

They do not have the power to " strike down" the law and the government's response to the ruling was " yeah we'll think about amending the law"

Anyway, Back to Canada. When the Charter was introduced in 1982 we went from a system of parliamentary supremacy ( like England) to a system of constitutional supremacy ( like the USA).
( actually we're sort of a mix but for simplicity we're closer to constitutional than parliamentary) Bottom line being our courts can now strike down a law just like yours.

As for the 100% "conviction rate" - if you actually read the cases you'll discover that in the majority of cases the respondent never shows up and when they do they don't address the complaint but launch collateral attacks on the law ( i.e. challenge constitutionality when the law has already been ruled constitutional) rather than address the complaint.

If nobody showed up to defend themselves in a criminal or civil case or didn't address the charge or claim the success rate for the state/plaintiff would also be 100%.

oops a few too many brews during the game. I should have been more precise than to say the law lords stuck down but have no power to "strike down". Better way to say it is the law lords ruled it unconstitutional but have no power to strike down.

ET-

They're commissions - not criminal, not civil. Someone makes a complaint about the CBC and the CRTC holds a hearing. The commission lawyer carries the case. The defendant has a right to counsel but must pay for it. Someone makes a complaint about a shady stock deal - the securities commission holds a hearing -the commission lawyer carries the case. The defendant has a right to counsel but must pay for it. Someone complains about me to the law society. The society counsel conducts the case. I have a right to counsel but must pay out of my own pocket. In none of those cases has it been held that a right to counsel doesn't exist.

The SCC sez the HR Acts are preventative so the tribunals are bound carry out their mandate with that in mind.

You don't need to prove any damage has actually happened in a regular libel case only that it is more probable than not that your reputation has been damaged.

The way that probability is determined is the same as it has been for centuries under British Common law - " The reasonable person test" - Would a reasonable person, aware of all the facts and context think it more likely than not that "X" will happen. In other words through common sense and permissible inferences.

Nbob, I'm going to say to you what I said said to Jason C.

What the hell are you going to do when the Conservatives finally win a majority and pack those commissions with a bunch of redneck, socialist hunting Christians? Any socialist who ever posted anything on the web could be bankrupted by one guy with a mean streak. Kinda like Richard Warman but not on your side, know what I mean?

Just because you Liberal idiots built the machine it doesn't mean you are always going to be driving it. You could get run over just like Levant, no problem.

Wouldn't it be nicer if you didn't have to look over your shoulder? That'd be my thinking.

ET,
Your errors are too numerous to deal with in detail, but here are a few high points.
- both complainant and respondent may be represented by counsel before any human rights tribunals. In most cases that are contested, both complainant and respondent choose to retain counsel. The commission doesn't act for the complainant and commission counsel doesn't take instruction from the complainant.

- your complaint that the law is invalid because it deals with behaviour that is "likely" to cause harm shows a profound ignorance of law generally. the law isn't required to wait until risk ripens into harm and, indeed, many statutes prohibit behaviour that is likely to result in harm. In the case of hate speech, there is ample historical evidence to suppor the position that publications that attack identifiable groups results in harm, both to members of the group and to society at large.
- the Charter recognition of groups doesn't "demolish" individual rights; it recognizes that that various rights must be weighed and balanced against one another.

- both the findings and the process of the human rights tribunal are subject to appeal by judicial review. And the courts reviewing those decision tend to give less deference to the decision of HRT than they would to more technikcally-inclinced tribunals (such as security commissions) for the very simple reason that judges feel they have as much expertise in human rights.
- you completely misapprehend libel law. It is entirely incorrect to suggest that a successful libel claim requires the plaintiff to present proof and evidence. If I write something defamatory about you -- say, that you torture kittens for fun -- and you sue me, you are not required to prove that you DON'T torture kittens or only do it when necessary and not for fun. the law presume that if my statement is prima facie defamatory, it is false and published with malice. Even if you have suffered no demonstrable damages, a court will assume that I have injured your good name and order me to pay you at least a nominal amount (which is typically about the size of the average human rights tribunal award). If you can show actual harm, the damages will be higher
- your understanding of constitutional law, the concept of fundamental freedoms and reasonable limits on those freedoms is, as always, completely cock-eyed. You're an academic, aren't you? So why don't you try studying a little law before you spout off?

truewest

Once again you say it so much better, succinctly and accurately than me. Sadly, how does the saying go, there are none so blind as those who will not see - or in this case none so stupid as those who won't study.

So, truewest and nbob: Just deal with two facts about these HRC tribunals:

1) The complainant gets all of their legal fees paid by the taxpayer (whether or not they have proven their point--and there has never been a case tried by the HRCs in Canada where the complainant has not won), whereas the person who is, supposedly, the "offender" has to foot their whole bill by themselves throughout a process that can last years;

2) In this Mickey Mouse set-up, the "offender" is, in effect, guilty until proven innocent--which, I remind you, has never happened at a HRC tribunal. Guilty until proven innocent has never been the legal scenario in Canada until these HRCs came into effect. One of the democratic freedoms in our country is that a defendant is innocent until proven guilty--that is, before the Librano$ set up these HRC Kangaroo Courts.

the Bill of Rights wasn't introduced until 1960

Nbob - are you dense or what, I'm refering to the US Bill of Rights, my point is that free speech as an absolute is implied or codified via the heritage of English Common Law in all English speaking countries - add India too.

You've implied like JC that free speech was granted just decades ago by Liberals in Canada. That you can't get the Stalinist nature of the HRC tribunals speaks volumes about you.

I don't think that either nbob or truewest understand the Charter or the Law.

The comparison with the CBC and the CRTC holding a hearing is not valid; the CRTC doesn't hold a hearing if someone writes in and says that one of its CBC employees is coaching the Liberals what to ask in a Ethics Hearing. The comparison with a complaint to Section 13.1 is invalid.

The comparison with libel law is invalid. You cannot libel a group. Section 13.1 is about groups.
Furthermore, defamation isn't about speculated and general, inflammatory remarks; it must be a direct attack on an actual reputation, not an alleged reputation.
Section 13.1, on the other hand, is speculative, general and refers only to 'feelings of being hated or viewed with contempt'. Not actual actions that can be attributed to such emotions.

The Charter most certainly privileges group rights, specifically asserting that the group right supercedes that of the individual. See where 15.2 'trumps' 15.1 and 27 trumps all individual rights.

Again, what both of you choose to ignore or reject is that 13.1 refers to results that have not yet happened, that may not happen and that, in specific, cannot be linked to the assumed cause. There is no law in Canada that operates within only the imagined world.

section 13.1 refers to emotions not actions and as such, the criteria of definition of 'what is an emotion' are entirely subjective.

You two may think that such interactions are 'reasonable' and 'logical'. I think such assumptions say far more about your own 'thought processes' than about the nature of truth, justice and reality.

ET,
The reason you don't think we understand the Charter or the law is because you don't have a clue about either. Instead, like the Queen of Heart in Alice in Wonderland at play at croquet, you pronounce the rules are what you say they are, jurisprudence to the contrary be damned.

At common law, a group can't sue for libel unless the defamatory words identify its members. That doesn't mean that attacks on a group's reputation don't have a sting and damages similar to that experienced by an individual who is defamed. The speech provision of human rights codes provide a modest remedy in the most extreme examples. Perhaps you belief there is some justice in a legal system where Ezra Levant has a powerful remedy if someone calls him a bad boss, an incompetent lawyer or a disaster as political hack, but a Jew or a Muslim is left to pound sand if someone calls a group of which he or she is a member "evil" or a "disease on our society" or calls for them to be interned or deported or shunned.
(Incidentally, please explain the difference between an alleged reputation and an actual reputation, oh wise and knowing Queen.)

Your suggestion that ss. 15(2) and s.27 somehow "trump" the rest of the Charter is in a word, idiotic, and entirely unsupported by the jurisprudence. s.15(2) provides that the guarantee of equality doesn't preclude affirmative action programs, while s. 27, which recognizes multiculturalism, has been interpreted as barring the government from favouring on religion of culture over another by requiring all stores to close on Sunday.
BTW, when we put things between quotation marks, its generally an indication that we are making a direct and accurate quote. You have purported to quote s.13(1) as saying something about "feelings of being hated or viewed with contempt". It says no such thing. It governs communication of "any matter that is matter that is likely to expose a person or persons to hatred or contempt..", which is something else entirely. You've twisted the language of the statute to support the claim that this is all about hurt feelings. It's not, anymore than libel law is about hurt feelings. Properly understood, this prohibition deals with communication which poisons the public atmosphere in which the member of a group must live.
BTW, for the record, I dont' think either the Levant or Steyn complaints should be allowed to proceed to hearing. However, the fact that someone makes a invalid complaint doesn't invalidate the law. Nor do your weak and sloppy arguments.

truewest - that's not how to win an argument, by beginning your post with your usual smug self-assertion of superiority. Won't work.

You aren't addressing my points, and diversion, though a 'tactic', is a fallacious tactic.

Defamatory law refers to individuals, not groups, therefore, your comments that comments against groups 'have a sting' is irrelevant. Equally, your conclusion that remarks against a group have similar effects to that of an individual, is unprovable. There cannot be 'actual damage' to a group. You don't seem to understand that a group is a concept not an actuality. Ah well.

If someone calls Ezra Levant "a bad boss, an incompetent lawyer or a disaster as political hack" he can't, as you assert, take them to court for defamation. These are OPINIONS and there is a difference, which you seem unaware of, between facts and opinion. Statements of pure opinion aren't actionable. Try again, truewest.

Plus, there is no law that vitigates against 'being offended'. You are offended by what someone says about your group identity? So what. A state can't control by legislation what people feel about each other. Lots of people say nasty things about lawyers. About politicians.

Section 13.1 is, according to you, a 'modest remedy'. Heh. So, that's modest to you? A legal process that is based on pure speculation, that requires no evidence of any acts of 'hatred or contempt'; no proof of any direct connection between the speech and any action. Whew; sounds like a medieval claim of heresy to me; their criteria were exactly the same!

Your rebuttal that my claim that 15.2 and 27 trump individual rights is 'idiotic' is simply your opinion. Try reading some cases of the HRC which privilege group rights over charter rights, eg. Lori Andreachuk and Michael Doucet's official pronouncements.
Your attempt to divert and reduce these clauses to irrelevance (Sunday store openings)doesn't stand up in the face of real judgments.

BTW, when one uses single rather than double 'quotation marks', it specifically doesn't refer to actual quotations but to key terminology. Try again, truewest.

I haven't twisted any words; Section 13.1 is clearly and only about EMOTIONS. Why can I say that? Because its actual content refers to EMOTIONS. Only to emotions. Heh. The emotions of 'hatred' or 'contempt'. Not to actions.

Who said that libel law is about emotions? Defamatory law (libel and slander) has nothing to do with anything subjective like EMOTIONS. It requires a direct connection between the speech and a specific result. Nothing general or personal, no feelings. So, truewest, why are you attempting to correlate Libel Laws and the HRC? The two have nothing in common.

An 'alleged reputation' is completely different from an 'actual reputation' and is a legally recognized differentiation. The difference lies in the proof. You, truewest, may allege that you know everything about law and defamation and libel and lots, and lots of other things. A judge would have to check out the evidence to see if there is evidential proof of such knowledge by your actions in the community.

'Poisoning the atmosphere' is a fascinating metaphor, but what does it mean? Do you mean that the speech/publication is raising questions about the ideology of a particular group? What if the ideology requires debate? Not allowed according to you - because it makes people feel uncomfortable? Well, that would end all debates.

Are you also asserting that people have no capacity to think and reason about what is said and what they read, and require an Uber-Mensche Set, who take it upon themselves to make such decisions for them? Hmm. Reminds me of a few past and decayed totalitarian states.

Slurp, slurp, truewest. Your sloppy comments are....

From the 'what ever happened to' files

Cherniak's Lamentation

From the 'what ever happened to' files

Cherniak's Lamentation

And here is Cherniak's latest:

"My thesis was that while we all have freedom of expression, we do not have a right to use our free expression to attempt to remove the freedom of expression from others on the basis of discriminatory grounds like skin colour or religion."

Heh, heh, haw...Incredible. Think about what he's saying.
He claims that 'we all have freedom of expression'.
Then, he constrains it by stating that we don't have the right to 'attempt to remove such freedom of expression from others'..on the basis of discriminatory grounds like 'skin colour or religion'.

But Jason, my dear, no-one in their right or wrong mind is arguing that Section 13.1 of the HRAct says anthing even remotely close to your claim.

Section 13.1 states, again, that it refers to "any matter that is likely to expose a person or persons to hatred or contempt".

That is, it is all about the 'hurt feelings' of complaints who state, without a shred of proof, that someone's free expression might, just might, induce someone else to feel 'hatred or contempt' to someone else.

What the heck does that have to do with anyone attempting to shut someone up on the basis of their skin colour or religion?

As pundita points out, such a view "would include even a discussion by a Muslim scholar or terrorism expert about the threat of Islamist terrorism and issues relating to Islam. It could even preclude Maclean's from publishing news reports on Islamist terror plots and attacks."

Heh. Unbelievable. According to Jason Cherniak, a lawyer, the HRAct Section 13 is just about 'removing the freedom of expression from people who are members of 'discriminated groups'. Geez - where, where, and how, did he come to this conclusion?

Interesting, but he says NOT ONE WORD about the actual clause 13.1 and its statement that its mandate refers to "any matter that is likely to expose a person or persons to hatred or contempt". Not a word about 'feeling hated or viewed with contempt'. Not a word.

So, this is how Jason Cherniak, a lawyer, defines the HRCs. Hmmm. He's a lawyer?

ET: "[Cherniak's] a lawyer?"

Yeah. He's a Liberal-Left Lawyer.

'Seems to me that's three strikes and he's out.

>If someone calls Ezra Levant "a bad boss, an incompetent lawyer or a disaster as political hack" he can't, as you assert, take them to court for defamation. These are OPINIONS

Sorry to beat you to the punch truewest - after all the fine work you did with the set up- but I just can't wait -

HEY ET - Better get on the horn to Levant and tell him it is your considered legal opinion that the recent claim he's filed for defamation against one of his ex-employees is sure to be stuck out for disclosing no cause of action. His ex-employee's published comments about his qualities as a boss are OPINIONS.

You know ET from time to time I give guest lectures on criminal law and the constitution to Law 10 students ( that's grade 10 high school ). The most clued out stoner sitting in the back of the room knows 1,000 times more than you do about the law.
At least he's found time between rounds of guitar hero 3 to crack open a text book and read the introduction.

Until you do the same it's pointless to continue this conversation. ( I suggest books by P.W. Hogg or J.E. Magnet,both called " Constitutional law in Canada " )

You know, nbob, from time to time I give lectures on critical thinking and logic - and my students know 1,000 times more than you..and etc.

Now, that we've got the tit for tat out of the way, nbob, the FACT remains, that the statement

"a bad boss, an incompetent lawyer or a disaster as political hack" can't, as you assert, take be taken to court as defamation. These are OPINIONS and they are personal opinions. The standard criterion is 'a right-thinking person' and the above, as ambiguous, don't fit that criterion.

Defamation must be a direct attack on an actual reputation'. None of the above three statements constitute a direct attack. Try again, nbob.

>I give lectures on critical thinking and logic - and my students know 1,000 times more than you.

Yes I'm sure that's very true - but then again I haven't said boo here about intersubjective dialogue and what Walton & Krabbe may or may not have said about it.

However, if I were to hold forth on that subject I'd be sure to check out a book or two to find out just what the heck intersubjective dialogue is and, sure a shootin', I'd actually read Walton & Krabbe to see if they even mention it before I spouted off.

penny

>my point is that free speech as an absolute is implied or codified via the heritage of English Common Law in all English speaking countries

Free speech as an absolute has never been nor is it now part of the heritage of English common law. Up to 1694 one needed prior permission to publish anything - say something nasty and you might find yourself before the star chamber - the last of the Test Acts wasn't repealed until the mid 1800's.

William Blackstone - the prominent English jurist and writer- described freedom of speech/press in his 1769 edition of "Commentaries on the Laws of England as consisting of "laying no previous restraints upon publication and NOT in freedom from censure once published"

The idea that freedom of speech was "inaliable" comes not from English common law but rather was first proclaimed in France in the revolutionary manifesto "Declaration of the Rights of Man and of the Citizen " and later attached to the new constitution following the revolution in 1789

In 1792 - in your own country - a mere 7 years AFTER the the 1st amendment was passed - Congress passed the Sedition Act. The Act made it illegal for anyone to say something bad about congress. It was upheld on the bases that it conformed with English common law because it did not place a prior restraint on speech.

The 1st Amendment was enacted not as a guarantee of freedom of speech but as a means to placate the "anti-federalists" who wanted to make sure the power to legislate concerning speech/religion was left in the hands of the individual states.
( Note it sez "Congress shall make no ...)

It was not until the 1920's that the Supreme Court found a
"right" to free speech and limit state's legislative power over it. That was found in the 14th not the 1st Amendment.

The idea of an " absolute" freedom of speech was also unknown to law until the early 1900's when only two Supreme Court Justices ( Hugo Black and William O. Douglas) found the freedom to be so ( and they did so in dissent ).

So far from being a part of some long standing heritage of English common law the concept of absolute freedom of speech is less than a century old.

Nbob,
No need to apologize. You're doing a fine job and I thank you.
I would, however, like to address ET's curious suggestion that calling someone a "bad boss" or an "incompetent lawyer" is not actionable because it's an OPINION. Well, no, it's not. Not at law at least.
Now, I appreciate that defamation law isn't as tricky or impenetrable or as jargon-laden as semiotics, (ET's particular academic specialty) but it does have its subtleties. One of these regards opinion - or as it known at law, fair comment.
As Raymond Brown, author of the leading Canadian defamation text observes, "The division between statements of fact and expression of opinion is difficult to draw." Here, though, are few points to keep in mind:
A bald statement that some lawyer is dishonest or some academic is a fraud is, at law, taken to be a statement of fact and is, accordingly, actionable.
Opinions have to be based on clearly disclosed facts, or facts that are known to the audience either because they have been previously published to that audience or are common knowledge. And the person expressing the opinion must get the facts right; an opinion based on falsehood will not be protected by a fair comment defence.

As well, the opinion expressed must be honestly held and expressed in good faith. On that note, let me say that I have read ET's thoughts on the law and based on both her demonstrated ignorance of basic principles of defamation and contitutional law and her willful misrepresentation of the content of statutes, she is, in my honest opinion, not only unfit to comment on the law, but not to be trusted when she insists on doing so anyways.

By the way, ET, if you're going to parade your ignorance about the law, you might at least try to cite it correctly. The section of the Canadian Human Rights Act that you either don't understand or wilfully misrepresent is s.13(1), not s.13.1. As an academic, I'm sure you'd like to at least get your citations right, even if you get everything else wrong.

If I study real hard will I believe that I'm not a free man? How much do I have to study so I don't mouth the words you want to hear and actually believe them? BTW: I don't want to study so hard that I'm not pissed off at the libs for making me go through compulsory registration to avoid being made a criminal.

Another BTW - stoned adolescents seem to be your target market ... don't stray to much.

Oops ... don't stray too much.

Nbob - my friend,

i have read the to and fro with great interest and your lawyerly confidence is impressive - a bit - that is to say - up until a point.

i think that what you have failed to take into account (from the outset) is the genuine and justified outrage shared by many concerning the perceived injustices wrought by the continued presence of human rights commissions and their findings re section 13.

your tone is correct and studied - and i admire that, but in the same breath, find it altogether condescending. my grandfather graduated from mcgill law in '21 but never practised - a conflict with devout catholicism got in the way. what i got from the story was this: the law and justice can be two different things. i probably don't need to remind you of that (pardon the assumption) because you have given me the impression that you are a practitioner.

my post is to remind you and those that would argue in favour of the commissions that in the lexicon such a thing exists as 'bad law'. in due course there will be resolution to this most important debate. you still have time to re-think your position, but i'm not holding my breath.

ural

Knowing a bit about the law and how the constitution works doesn't automatically mean you drink the libs kool aid.

What it does do is give you the tools to mount a valid fight and know the proper forum to wage that fight.

Blah Blah Blah -ET goes on about "emotions" and "hurt feelings" and group rights over individual rights and goes through all sorts of bizarre contortions to argue s. 13 of the Act is unjust.

Well if she bothered to learn the vary basics of constitutional interpretation her argument is simple -

1. hateful speech conveys meaning even if that meaning offends some people

2. expression that conveys meaning is protected by s.2(b) of the constitution

3. Parliament intended to control attempts to convey a meaning by restricting the content of expression through s 13

4. Therefore s. 13 infringes s. 2(b) of the Charter

5. The infringement is not saved by s. 1 of the Charter because it is not proportional in that :

a) it lacks a rational connection with its objectives
b) it does not interfere as little as possible with freedom of expression
c) the benefits fall short of outweighing the seriousness of the infringement

ergo it's unconstitutional.

That wasn't so hard was it?

Now as for gun control -

1. The Bill of Rights is still in force in Canada

2. s. 1(a) of the Bill sez there exists in Canada -the right of the individual to life, liberty, security of the person and ENJOYMENT OF PROPERTY and the right not to be deprived thereof except by due process of law

3. a gun qualifies as one's property the registration of which curtails enjoyment of said property

4. Legislation requiring registration can not be interpreted in a manner that is consistent with the Bill o Rights and so must, by implication, be deemed repealed.

I think you might have some problems with the "not to be deprived thereof except by due process of law" but it's a start.

Try looking at how that clause has been treated by the courts under s. 7 of the Charter and you might be able to complete the argument.

Good luck

4.

Nbob,

so that's it?
that simple?
1, 2, 3, 4, and 5abc?
bing bang boom?
if that's the recipe; then where's the kitchen?

are you having fun yet?

Why should I need to have "tools to mount a valid fight" against me? Or is the state, in Canada, more than it's citizens?

And yes, I do have a problem with the government du jour ( as a knee jerk reaction ) making me a criminal, if I don't march by their ( at a nut groups) rules. If you don't see a problem with this, maybe you studied to long.

I also find it interesting in one of your posts that you mentioned common sense. Trust me in this one, of all of the attributes that Canadian citizens can assign to judges, SCC, lawyers, HRCs, parole boards, etc. - common sense is not one of them.

johnnyonline

Was that a quick enough rethink of my position ?

Seriously though - I understand that some people have genuine concerns ...my condescending attitude is directed at those who are being deceitful.

I do not think they are so much concerned with freedom of speech as they are about damaging equality and multiculturalism. Most, but not all, the people who attack HRC's are the same who are against things like SSM and immigration.
Little wonder then that they ( hereinafter "those people" ) should want to see the end of one of the vehicles that protects those things.

Now the majority of Canadians support the idea of equality and multiculturalism and would not want to see them weakened so "those people" contrive some ancient sacred right that, in reality, has never existed until recently and then only in the thinking of two US justices writing in dissent.

"Those people" then whip people into a frenzied outrage -"Look at what's being done to your sacred ancient rights!" "Magna Carta" "Kafka" "Orwell" they scream. People get so enraged they forget about protecting equality and multiculturalism.

" Those people" would never get legislation passed that significantly weakens equality and multiculturalism because the majority think they're important so "those people" are trying to achieve the same through collateral means.

I do not think HRCs are perfect. I think the legislation could be better written and should include a " reasonable and justifiable" clause like s. 11 of Alberta's Act. I don't like any of the commissions in Canada where investigator, prosecutor and judge are all in house.

I do support them in general however for the same reason I support libel laws.

Way way back in the day there were many things you didn't have the freedom to say ( i.e. The king is a fink , the Pope rulez okay, etc ) but you could defame the guy who lived next door to your hearts content.

Problem was that freedom was a bit of an illusion. You could say it alright but then the guy next door would " demand satisfaction" and you had a 50-50 chance of winding up dead in a duel.

So the common law evolved (and was later codified into defamation statues) to provide for a civilized way for the guy next door to get satisfaction.

I think the one of the reasons Canada has been able to absorb more immigrants than any other country in the world, why we no longer have race riots and religious skirmishes is that HRCs provide a civilized way for people to get satisfaction when they feel they've been discriminated against.

Somebody publishes a cartoon that hurts you - option a: do nothing and let the hurt fester ; option b: throw a molotov - option c; file a complaint. I think option c is the the most healthy way for all parties concerned.

Sure- your complaint may be tossed out for being meritless but at least you have an independent body telling you there was no real hurt and sure- some innocent people will be put to some bother answering that complaint but, trust me, I see that almost on a daily bases in criminal court. That's the price we sometimes have to pay to make sure the "king's peace" prevails on our streets.

Nbob
quick enough? yes too quick by half and the other half by yours truly. mea culpa.
the least of three evils as opposed to patrick o'brian's lesser of two weevils? ok....but -
do i understand that you are volunteering collaboration in writing the canadian tire best guide to hrc tune-ups?

"those people" (and i count myself among them) seek relief from real, imagined and/or likely transgressions. i'm part of the mosaic too.

Nbob,

How about option D: Take it as a man (or woman), as there is no right not to be upset or offended.

Jeez, I am offended on a daily basis by the moronic and insulting comments I hear, read and watch. And I will defend these idiots' right to offend me to the death (to paraphrase Voltaire). The concept is simple - it's called the fundamental individual right to free speech. And this right is not graciously given to me by someone or some authority, it is my right by definition, and can only be taken from me by brute force.

Re: the Toyota Prius (in one of Kate's previous posts) - do you think Toyota should change the design or should they market this as a feature?

Nbob,

Name a period in Canadian history when race riots were epidemic.

Then show us how the HRC's saved us from this fate.

Bill

You've got me on that one - if you take my words too literally- because we've been fortunate - The Christie Pits in 1933 was the last full blown " race riot ". There was another around Parliament Hill in the 80's when neo-nazi's and some concerned citizens started throwing fists and other things at each other.

However if you were around Calgary in the 80's to mid 90's - when Terry Long and the Aryan Nations, Final Solution, etc. were in their hay day- and in particular, if you were hung around the punk scene smaller skirmishes broke out on a regular bases.

Typically some skins would show up and start spewing their hate in the parking lot of some community hall gig. A few offend "kikes" "faggots" " pakis" etc. would shout back. Words led to blows. The police would come and shut down the whole party.

Once hate laws came into effect and were used or threatened against the nazis they and the odious hand bills they plastered around the city declined substantially.

More to my point - HRC's provide a non violent outlet for offended people to "seek satisfaction"

A hypothetical ( wink wink ):

Lets say a dozen years ago, before HRC hate speech provisions, one might seek satisfaction by counseling , with out really counseling, an assault on a bigot by, say, throwing a pie in his face. Now, all that person would have to do to seek satisfaction is file some paperwork.

When someone publishes something offensive against a minority and they complain to the press or organize a protest but the majority sez to the minority " boo hoo hoo -suck it up cry baby - you've only been offended not victimized" ... well to the minority that just feels like more discrimination from the majority and adds to their hurt.

On the other hand if there's an official impartial body to complain to the complaint itself provides a measure of satisfaction. And if the tribunal comes back and eventually sez "yes we can see how you've been offended but you haven't been victimized"... well the minority might not like the outcome but they can accept it because it is not the majority piling on it's a legal decision.

Nbob

just so it's clear.
as i understand it - you say this: canadian hrc's in their present form provide innovative legal remedy because they most likely preclude unwanted alternatives such as lingering resentment and or violence.

i like it. it looks good on paper. i think most people looking at it on the surface would have no reason not to like it. good canadian law and order. it's warm and fuzzy. peace and quiet - and best of all - nobody gets hurt.

i think you might agree that the reality is altogether different. appearances are deceptive and i am convinced this is true in this circumstance here and now with hrc's (in particular section 13). canadians are being deceived with nothing less than the pointy end of a stick that belongs to a failed concept driven there by none other than the ever-famous and politically popular zealots also known as the coming-to-a-town-near-you "flying bungling bureaucrat brothers". popularity comes and goes and while it's too late to nip this one in the bud - it is probably better late than never. left unchecked and unhindered, the result is tyranny - history informs me.

was that sentiment alarmist? do i hear bells ringing or do i just have bats in my belfry?

they say the wheels of justice turn slowly - can you hazard a guess on what the costs might be in dollars and the amount of time that might be required to fix this in the courts? do you think a bill in parliament could fix it? and last but not least - would you defend me if i was accused of being hateful? not in a court of law - but in a place where it seems that an accusation is synonomous with verdict? i'm not rich - i'm poor.

Nbob,

But the point is, neither you nor anyone else have the right not to be offended. Hence, no HRC is needed (at least to handle such kind of cases).

Nbob,

Thanks for that. But I wasnt bowled over by your explaination for the HRC's being am appropriate response to a stimulus. Maybe we can go through all the HRC judgments, especially that of Scott Brockie, and take it from there. But his ordeal was'nt a minor embugerrance, and neither was that of many others.

Bill -

So which is it ? Is there a right not to be offended or not?

In Brockie the HRC said - to paraphrase - it may have offended him to print the stationary supplies but, since he was engaged in a commercial rather than religious enterprise, it did not impair his freedom of religion to any significant degree.

On the other hand, in the B.C. KoC case the HRC said- to paraphrase- even though renting out a hall is a commercial enterprise the KoC is so connected to the church that renting the hall for a SSM reception violated their religious freedom.

I agree with both.

From the get go it has always been held that there is no hierarchy of rights and freedom contained in the Charter. Where, for example, freedom of religion clashes with equality the proper balancing must be done case by case. That is why we have HRCs and courts.

Had Brockie been asked to print " a guide to gay sex" or had his business been limited to printing religious material the balance would have been different.

johnnyonline-

I've defended a lot worse than you ;-)
Cash is no problem. I'm sure you have a trade or skill - perhaps a nice watch- that you could barter. Wouldn't be the first time I've defended someone in exchange for fixing my car or resurfacing the driveway.

However, I think the chances of you requiring my services are remote. You strike me as possessing a great deal of intelligence. As such I'm sure that any argument you choose to make will be designed to appeal to reason and your opponents mind. Hate, on the other hand, bypasses mind and reason and appeals to the knee ( as in knee jerk). That's why it has no place in the market place of " ideas" - it is a false commodity.

I don't like your chances of change through the courts. The SCC has already upheld s. 13 and, in my opinion, it is the weakest of the various hate statutes.

Legislative change would seem far more likely and less costly. Already there's a private members bill before the house and all that took was an over the top rant and a few editorials.

I just wish people would be a little more upfront about what they are trying to accomplish - a hierarchy of rights where individual rights always trump equality, multicultural, etc. rights.

Be careful what you wish for however. If Steyn is right - and we're doomed to be a minority soon y'all be agitating to change the law back.

Nbob,

no, you can't have my watch - i'll be needing it in case i'm summoned. :)

but flattery will get you everywhere.

how about approaching the usefulness or need of these commissions not from where they are today but from where they started? mr. borovoy's recent comments provide a nice little truncheon to get everyone back on the sidewalk. gracious george jonas (with firsthand experience in state sanctioned malfeasance and that's putting it mildly) is trying his best not to come across as mr. i-told-you-so smartypants.

how about our elected representatives in this great democracy limit the state's reach when it comes to adjudicating rights? the government has made mistakes before and i would forgive them re hrc's. leave these matters to the police and courts.

i'll take your word on the non-hierarchal nature of rights. ok they're all equal and we're all equal. except maybe say people whose first names begin with N or j and oh why not put k in too.

but seriously, we could keep de-fanged commissions under a new name on a shorter leash (insert orwellian term here). simple mandate of social peace - individuals with differences could avail themselves of this fabulous non-compulsory non-binding little service. it could be promoted as some kind of civic duty - if one was called upon.

if none of our rights enjoy primacy, then it seems to me it would be impossible to rule in favour of one over the other - why not just call it a draw? the commissioners (we could call them social engineers for better pay scales and btw i could use a really good government pension if this gets off the ground) would be left to explain to one or both parties that they are are equally right and entitled to disagree. shake hands and everyone could go home and watch some really good tv.

do you think that could fly? i ask because the current method of deciding who gets to be hurt is a doomed and ridiculous balancing act. did you say that already? i think canadians can do a lot better than what we've got. and i also think you should help.

actually, now that i think about it - you have helped. i can't resist this tho' - have you sent a letter to your member of parliament asking they support dr. keith martin?