Sunday, May 11, 2008

What Is At Stake?

Behind all the recent battling over free speech vs. human rights lies Kieth Martin's private member's motion M-446:

M-446 — January 30, 2008 — Mr. Martin (Esquimalt—Juan de Fuca) — That, in the opinion of the House, subsection 13(1) of the Canadian Human Rights Act should be deleted from the Act.

Should this ever come to a vote then section 13(1) is deleted from the act, and the Nazis run free, right?

Incorrect! M-446 is not a private member's bill; it's a private member's motion. The HOC explains how these work as follows:

Private Members’ motions are used to introduce a wide range of issues and are framed either as orders or resolutions, depending on their intent. [58] Motions attempting to make a declaration of opinion or purpose, without ordering or requiring a particular course of action, are considered resolutions. [59] Hence, such motions which simply suggest that the government initiate a certain measure are generally phrased as follows: “That, in the opinion of this House, the government should consider …”. The government is not bound to adopt a specific policy or course of action as a result of the adoption of such a resolution since the House is only stating an opinion or making a declaration of purpose. [60]

Or, as Ezra himself puts it:

...as a motion (as opposed to a bill), it is what lawyers might call obiter dicta -- a non-binding statement of opinion, not a change in the law. Martin's motion is a call for a Parliamentary rebuke of the Canadian Human Rights Commission.

What M-446 will amount to should it pass, and this is all it will amount to should it pass, is a verbal spanking for the CHRC at the hands of Parliament.

Which puts the motion's abysmal level of support in a whole new light: a mere four MPs have indicated they will vote in favor of M-446 and, arguably, one of these is on the list because he was conned by a Nazi. Not only will Parliament not repeal Section 13(1), they are afraid to even say anything nasty about it.

Who's winning the debate, again?

19 comments:

Johnathon said...

"Who's winning the debate, again?

The politically correct left wing media and their communist followers.

Thats whose wining.

Now, when Harper gets his majority, ral Canadians will win.

Ti-Guy said...

I don't know how you can make it through an EzraPost (tm). His outrageous hyperbole, mischaracterisations, vilification, defamation, and most likely, outright lies (through ommission) are just too dreary and irritating to be exposed to for any length of time.

He obviously wasn't beaten up enough in high school.

Cherniak_WTF said...

Johnathon, if you represent ral(sic) Canadians, are you saying that the majority are illiterate fucks like yourself?

KC said...

My guess is s. 13(1) will fall in the courts rather than in Parliament when they inevitably revisit the narrow 4-3 Taylor decision and see just how far off the rails the commissions have gone. I think a "conviction" (if that is the word) of Steyn or Levant could be proof enough for the court that the restrictions are no longer a "reasonable limit" on the limitation on free expression.

You're probably right though that Parliament doesnt have the courage.

Ti-Guy said...

I think a "conviction" (if that is the word) of Steyn or Levant could be proof enough for the court that the restrictions are no longer a "reasonable limit" on the limitation on free expression.

I'd like to see Macleans lose the 3+ milllion dollars a year it gets from the Publications Assistance Programme (largest recipient) before we bring it to that.

bigcitylib said...

Thanks Ti-guy, that might be worth a post. You know a publication is ineligable under the programme if it publishes hateful or even offensive material.

Reality Bites said...

kc, you're going to have a LONG wait for that to happen. Levant's case was already withdrawn, and was under the Alberta act, not the federal one.

Steyn's case has already been dismissed in Ontario, and is unlikely to have a different result federally.

Despite all their blather, EVERYONE found liable to date under section 13 has been a genuine Nazi spreading genuine, unquestionable hate.

It doesn't suit Ezra's agenda to draw attention to that, of course. People might wonder why he's so downright eager to chum up to Nazis, what with him being Jewish and all.

Nbob said...

kc-

Although originally a 4-3 decision it was adopted by all 9 justices in the unanimous Ross v. NB School Board case and more recently cited in the Sharpe and Little Sisters cases- not something they're apt to do if they think it was wrongly decided.

johnathon-

Despite facing two of the weakest leaders in Liberal history Harper has never been able to attract slightly more than a third of voters

If I were you guys I wouldn't hold my breath

buckets said...

My guess is that there are several things to keep in mind. First, changing this legislation is politically dangerous for the Conservatives and they know to avoid it. What is the danger? That picture of Glen Bahr, and the lunatic postings found in FD. (I don't mean the everyday stuff at FD, but anyone with google can find regular posters talking about n*****rs and Walcott going well beyond what is seemly to denounce gays.) Second, Warman's defamation case is likely to turn into a proxy for the accusations against the CHRC as a whole. But given that Warman is sure to win--he can be proven innocent of the Cools post that he's sued about--there will not be a lot of credit for the commission critics.

KC said...

Nbob - I've read both those cases and neither is a ringing endorsement of the holding in Taylor. They support a lot of the ratio but in neither do they reapply each part of the Oakes test. In other words just because I think Taylor could be bad law that everything the court found on the way to making that decision was incorrect. After seeing the way the court has reversed itself in other cases (the Labour Trilogy and Ng come to mind)--that 4-3 decision in Taylor on such a hot button issue is possibly some of the most vulnerable SCC jurisprudence out there.

Ti-Guy/BCL - I see no problem with that. The federal government has no obligation to give money to MacLeans--whether it is promoting hatred or not.

Reality Bites - Only one of two complaints against Levant have been withdrawn; and I dont think its necessarily true that the federal HRT wont rule against MacLeans. I guess we'll have to wait and see. Thats kind of the test I guess. Obviously Ti-Guy, and BCL will disagree but I think the courts will see something is fundamentally wrong with the institutions if such ridiculous complaints are actually successful. In the meantime I reserve the right to refuse to obey the religious edicts of any religion (as Levant has refused to do by publishing the cartoons) and the right to opine on the role that religion and the religious play in shaping the political culture of a society (in the case of Steyn). I suspect that if Steyn's book had instead been about a wave of immigration by American evangelicals and the implications of that for a society BCL and Ti-Guy would be first to defend him.

Nbob said...

kc

Ng was overturned ? It was cited as proper balancing in Burns (2001) - what's the name of the case?

KC said...

Nbob - Burns overturned Kindler and Ng in much the same way as I expect some future case will overturn Taylor--by reaffirming the proper test to be followed but finding that the application of that test produces different outcomes. I dont expect the court to throw out the Oakes test (just as the court didn't throw out the "shocks the conscience" test in Burns); just expect that they will see the balance differently.

Paul S said...

"You know a publication is ineligable under the programme if it publishes hateful or even offensive material." - BCL

Give it up BCL. The HRCs have lost on this issue. Attempting to punish Macleans simply 'cause you don't like their opinion isn't going happen.

This whole thing has been a disaster for HRC's. The quicker they retreat the better it is for them.

Raging Ranter said...

I suspect that if Steyn's book had instead been about a wave of immigration by American evangelicals and the implications of that for a society BCL and Ti-Guy would be first to defend him.

Defend him? Christ, they would be serenading him and offering him sexual favours, so great would be their appreciation. The thing is, the progressives who sit on the HRCs no longer care about human rights in the traditional sense. They've expanded their definition of human rights so much that they now consider the equalizing of social outcomes to be a legitimate rights issue. Of course right wing Christians, long identified as the oppressors, would not qualify for any sort of defense.

There was a commenter on this blog awhile back (I think it was Holly Stick but I'm not sure) who explained that "some people have more power in society than others, and therefore human rights commissions need to act to balance that power." (That's not an exact quote but a paraphrase.) That to me demonstrates exactly what is so wrong with the thinking of progressives and their HRC friends. They've graduated from defending certain inalienable rights to attempting to equalize social outcomes by neutralizing the opinions of the "powerful" on behalf of the powerless. They really do see themselves as the vanguards of egalitarianism.

Somehow, I doubt the human rights commissions could ever half gotten off the ground if they had been sold to the voters as arbiters of public opinion. The whole concept is just too repugnantly Marxist, even for the 1970s when the commissions were first created.

Nbob said...

kc-

I stand corrected - you're right that while they didn't specifically overturn Ng they effectively did (at least where the death penalty is a factor).

However I don't see any change of circumstances wrt hate speech that would cause any reconsideration as was the case in Burns.

Indeed, if you were to apply some of the same considerations in Burns to s.13 any change of circumstances would favour the legislation ( e.g. Canadian jurisdictions have added more hate speech laws - not eliminated them like the last statute with a death penalty / The law is even more consistent with international norms - EU constitution and most of member states now have similar provisions, various declarations from the UN , etc- as opposed to the un-consistent death penalty)

As well, recent pronouncements wrt the state having a valid objective in preventing discriminatory acts ( Trinity Western ( 2001) Chamerlain v. Surrey School District (2002) as well as protecting vulnerable groups ( Malmo-Levine (2003) ) would make it very difficult for them to now say it no longer is a pressing/substantial concern or rationally connected to its objective.

The only slight hope you might have is that it wouldn't pass the minimal impairment test because it doesn't provide an explicit defense like Alberta's s.11 ( no contravention if the publication is shown to be reasonable and justified in the circumstances)

Ti-Guy said...

I suspect that if Steyn's book had instead been about a wave of immigration by American evangelicals and the implications of that for a society BCL and Ti-Guy would be first to defend him.

KC: how is this discussion helped by you inventing reality?

KC said...

Nbob - It is the minimal impairment stage that I see the current, overbroad legislation being struck down.

Ti-Guy - I think you and BCL have confounded this as a race issue when its not... it is about religion. Like it or not the religious makeup of a society shapes it politically. Dont believe me? Look at the bible belt. Given those implications I think it is a legitimate topic of political discussion.

Ti-Guy said...

Ti-Guy - I think you and BCL have confounded this as a race issue when its not...

When I did I do that?

Ti-Guy said...

I guess I censored KC. Oh dear.