Thursday, February 28, 2013

Warman On Whatcott

More through the links below.  I've discussed the Warman/Lemire case, referenced in point six, here and here:

2. This unanimous 6-judge decision upholds the 20+ year old majority decision from the Supreme Court in Canadian Human Rights Commission v. Taylor that Canadian human rights laws on hate propaganda are constitutional. The unanimous Whatcott decision now includes Chief Justice McLachlin who had previously led the minority 4 judge dissent in Taylor arguing the parallel federal human rights restriction on hate propaganda was unconstitutional. This is a tectonic judicial shift.

3. The Supreme Court’s decision confirms that existing hate speech case law has been following the earlier guidance from then Chief Justice Dickson in the Taylor case to deal only with the most extreme examples of hate speech. The SCC’s decision cites 4 of my cases with a particular emphasis on the ‘Hallmarks of Hate’ from the crackerjack Canadian Human Rights Tribunal Member Karen Jensen in the Warman v. Kouba decision which brought together a cogent analysis of the indicia that will demarcate legal expression from illegal hate speech.

An interesting point, here.  Now both the SCC and Richard Moon have exonerated the behavior of HRC employees.  That is to say, they have not pursued frivolous cases, only the worst examples.

4. The Supreme Court has affirmed the social destruction caused by hate speech & emphasizes “the added impact of the Internet”.

5. The decision largely cements the legal test in the Taylor case as the governing law for the indefinite future and I believe confirms the current de facto state of the law.

6. Warman & CHRC v. Lemire – Justice Mosley of the Federal Court ruled in October of 2012 that he was obliged to follow the Supreme Court’s guidance in Taylor and uphold the constitutionality of s. 13 (the federal human rights act provision prohibiting Internet hate speech in Canada). Marc Lemire’s frivolous appeal of that decision is done.

Marc Lemire: obscurity is calling you.  Time to return to it.

PS.  Bernie Farber has weighed-in.


Marky Mark said...

In light of this decision (and I note Bernie farber's opinion piece) I think there is now a credible argument that demonization of Israel online and at Israeli Apartheid Week reasonably has the effect of causing hatred of Jewish Canadians. I wonder how you and others would react to that position being taken and to those "accused" being tied up in expensive proceedings as a commission and ultimately a court decides such a question. I'm tempted...

bigcitylib said...

Not under the Ont. code as there is no similar provision. Under fed code, maybe, but probably not near extreme enough.

Marky Mark said...

Probably not, in terms of the ultimate result, but it seems like a credible argument-and there would be those who would provide supportive evidence. It wouldn't be dismissed out of hand and I have a strong feeling that those very happy about the SCC decision would be complaining about lawfare and about being silenced as well as the incredible cost in terms of time and money fighting back.

Holly Stick said...

Why would calling something "Israeli Apartheid Week" affect Jewish Canadians? Are Jewish Canadians Israelis? Does IAW identify Jewish Canadians as evil or advocate harm against them in any way? (Here's a hint: disagreeing with people on issues is not defined as promoting hatred)

I think the judge would call you an idiot if you tried to bring such a case, and the SCC would confirm that.

Marky Mark said...

Because the test has changed. Intent and truth aren't what is at issue but rather the facts concerning the effects of the speech. If it can be shown that Jewish Canadians are likely to experience an increase in hatred as a result of IAW, the test should be met. Whether that can be shown is another story, but there was something recently at Carleton that actually looked precisely at the facts concerning how Jewish students feel as a result of the clear demonization of Israel as a Jewish state. Whether you think that SHOULD happen as a consequence isn't relevant. You also added "harm" to the test and that isn't there. And yes if you disagree with people on an issue in a way that can be demonstrated to promote hatred the test could be met, as is clear from the decision.

Careful what you wish for.

Harry Abrams said...

Nice to see Marky Mark weigh in here on the apartheid Israel matter, which has been on my mind too. Certainly the shenanigans and by now boiler-plate propaganda of this apartheid Israel machine are intended to encourage discrimination and delegitimization of not just Israel, but Zionism and Zionists. There's ample evidence that this crosses over seamlessly into the better understood classic Jew hatred. Perhaps the best case could yet be made if we had people with dual Israel Canada citizenship, or we get some guidance if, finally, our human rights statutes would apply to a "country" rather than simply a traditionally "protected" group. Of course there's the small problem that this hate-the-existence-of-Israel trip has substantially infected left wing politics, academia & Canada's labour unions, and a battle royale over it as organized hate, even terrorist with be divisive and difficult. Oh well, one step at a time. We still want to put paid to the Lemire matter.

Marky Mark said...

Will be interesting to see where THIS one goes, as per the above comments: