Monday, June 22, 2009

Brean On The CHRC

Not a bad piece by Joseph Brean in this morning's National Post. A few minor complaints. For example, contra Brean, the CHRC report does in fact address forum shopping, though not via suggested changes in the legislation:

Section 27(c) of the CHRA already provides that the Commission:

… shall maintain close liaison with similar bodies or authorities in the provinces in order to foster common policies and practices and to avoid conflicts respecting the handling of complaints in cases of overlapping jurisdiction;

Pursuant to this mandate, the Commission has initiated discussions with our counterpart provincial and territorial agencies through our collective organization, the Canadian Association of Statutory Human Rights Agencies. The purpose of this initiative is to work toward avoiding duplication of proceedings in the future

...and I am afraid I would not call any of the criticisms levelled against the agency by Canada's editorial board's as "sober". Witness this piece of shit from the Calgary Herald.

Richard Moon's comments from later in the story are especially interesting:

"This is my larger concern," he said. "That they [the CHRC] continue to call for what they describe as a dual approach to the regulation of hate speech, that is to say the criminal code and the human rights act. And of course, in order to kind of justify that, they have to define a distinct sphere, and a distinct role for the human rights act and the commission and the tribunal. It's unclear what that is. The only thing that really gets emphasized is that the criminal code prohibitions are about wrongful behaviour and intent is a necessary element, whereas the human rights act is not about whether there was wrongful intent or motive, it's simply about the effects or the impact of this expression on members of the community."

The problem is that, as a matter of actual practice, intent already is a requirement. The hate speech cases that have actually been pursued are "all so extreme in character that it is impossible to imagine that there is not wrongful or hateful intent," Prof. Moon said.


This is an emerging irony of Canada's messy hate speech debate. As Prof. Moon describes it, the more the CHRC emphasizes the seriousness of the hate speech it fights, "the more it looks like that should already be dealt with by criminal law, and not through the kind of process that's designed to deal with human rights complaints."

A couple of points here:

1) Moon essentially (and for about the 2nd or 3rd time) validates the CHRC's judgement in those cases it has forwarded to the CHRT (the Tribunal). In particular, he implies that the Warman cases would have, for the most part, met the CC requirement.

2) The response to the Moon report by the profoundly non-sober MSM has been to highlight his recommendation to repeal Section 13 and forget everything else. In fact, Moon suggests there (as here) that the powers now possessed by the CHRC/CHRT get redistributed to other agencies, particularly to police forces with beefed-up hate-crime squads(1). So, as I wrote earlier, while nowadays an Ezra Levant or a Marc Lemire

... might get a letter from a government bureaucrat, under the [proposed] regime they would most likely get a call from a nice policeman, and this would occur just as their websites (via section 320.1 of the CC) disappeared until said policeman could decide whether its contents met the standard .

And in so doing, Moon was anticipating Jessica Lynch's complaint from earlier in the piece that:

...when we look at the statistics, we find that there aren't a lot of specialized [police] hate teams across the country," Ms. Lynch said. "To cede, to remove our jurisdiction, would leave a gap that might persist for years or a lifetime because it would require numerous jurisdictions to step into a gap, and they may or may not be willing to resource that, etcetera, etcetera.

(1) And lets not forget his recommendation to establish a mandatory national press council.

All of which I've written a zillion times before. Is there any new news out there?


Ti-Guy said...

Bourrie is insisting that Brean's article is nothing but Jennifer Lynch blaming Ezra Levant. He has another post highlighting how right he was about the death of newspapers/journalism (I'm not sure he actually distinguishes between the two).

They all should have been institutionalised long ago. If only to be forced to take courses in remedial reading.

Robert G. Harvie, Q.C. said...

So, you are not opposed to changes as per the Moon report, provided it's taken in totality?

I can deal with that.

bigcitylib said...

Having talked to a bunch of people who know more than I on this, the problems with the Moon report are practical in nature. As things are now, for example, its hard to get the police to act. So, if those problems could be solved, then I wouldn't be that against it.

Mind you this wouldn't help the Speechies. There will always be cases where the speech in question is on the penumbra of legal/illegal, and it will probably be pretty much where the CHRC/CHRT has drawn it. So Ezra et al get a call from police instead of the Commission.

And then you also have beefed up Hate Crimes units.

And a national press council. Ezra/Mark Steyn just about crapped when they read that.


Ti-Guy said...

So, Rob you are not opposed to nun-raping?

Gerrard787 said...

"So Ezra et al get a call from police instead of the Commission."- BCL

Only if Ezra has outstanding parking tickets.

"There will always be cases where the speech in question is on the penumbra of legal/illegal, and it will probably be pretty much where the CHRC/CHRT has drawn it." - BCL

Pure fantasy BCL. The Commissions were a country mile from meeting any true legal standard for hate speech.

"Its hard to get police to act" solely because frivolous complaints motivated by base political motives aren't part of their job description.