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.

Hossain Won't Be Charged

...but hate crime complaints will be expedited in Ontario.

Somehow I missed this one (from early in the month), but Ontario AG Chris Bentley has reconsidered and confirmed that he will not press charges against Salman Hossain, a Bangladeshi-Canadian who claimed to enjoy watching "blood flow from the western troops" and suggested that Jews be deported.

On the other hand, he has proposed several changes in protocol that would hasten the processing of hate crime complaints within Ontario. For one thing, any requests for charges under the hate propaganda sections of the Criminal Code will quickly be brought to the attention of the Attorney General [rather than being pre-screened by the local crown attorney], and that decisions on formal requests for charges will be made within 60 days. Indeed, Mr. Hossain's case languished for months before it reached the AG's desk, and this might have had something to do with its eventual dismissal.

For another thing, the Minister has appointed:

Leibovitch, Deputy Director of the Crown Law Office – Criminal, as a liaison for police, the public or other interested parties in hate crimes cases.

Interesting developments. Human Rights activists like Warman and (I believe) Abrams have long complained about the difficulty in getting charges laid under the criminal code, and argued that the HRC/HRT apparatus plays an important role of catching stuff that probably meets the cc requirement but which, for whatever reason, the police/AG combination have chosen not to pursue. These procedural changes may make the criminal code a more useful instrument under such circumstances.

Also, The Standing Committee On Justice and Human Rights will be meeting this afternoon, with University of Law Professor Richard Moon (author of the semi-famous Moon Report) being among the witnesses. Moon, though an opponent of Section 13, gave a stem winder of a lecture recently, reproduced here in the NP, in which he accused CHRC opponents (Ezra Levant primarily) of dishonesty. Hopefully he will tell the subcommittee the same thing.

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?

Human Rights Bits And Bites

Re. yesterday's legislative hearing on the Ontario Human Rights Commission:

A friend who is a Legislative assistant sat in on the Hearings in the afternoon. Apparently Richard Moon testified via telephone and took huge chunks out of Ezra Levant and his fellow travellers. Called him (and you [BCF] by extension) a liar...

An assessment confirmed by today's National Post article by Joseph Brean:

Richard Moon, the University of Windsor law professor who last fall became a darling of right-wing free speech advocates when he recommended scrapping the federal human rights hate speech law, yesterday lashed out at his admirers.

[...]

Prof. Moon targeted Ezra Levant in particular, whose blog is a clearinghouse for skepticism of human rights law, and who claimed the day before Prof. Moon's report was released that it had been "redacted by Jennifer Lynch," the chief commissioner of the Canadian Human Rights Commission.

"The claim was false," Prof. Moon told the all-party panel. "I was given complete independence, and when my report was released the following day and recommended the repeal of Section 13 of the Canadian Human Rights Act, the falsity of Levant's claim was obvious. He had just made it up. He thought he knew what I would say and he sought to discredit the report in advance by attacking me and the commission rather than the arguments I might make."

He accused them of launching a "smear campaign" against human rights commissions and "baseless personal attacks" against their staff.

Meanwhile, at the same hearing Mark "The Steynosaur" wanked it both handed. Read the transcript if you need a fleet enema.

Meanwhile, I am a bit unclear as to what happened at the Justice and Human Rights Committee, where a "review" of section 13 was supposedly up for discussion. From Kady's description:

Real Menard puts forward his brilliant notion of combining the review of Section 13 of the Canadian Human Rights Act with his motion to look at including social condition as a protected form of discrimination, and Storseth … … Drum roll … … … says that he’s actually not ready to bring *his* motion forward at this point, so he’ll be happy to discuss this with Menard in future.

Brian Storseth is the Tory MP who wanted to ask the committee to review section 13, and he is "not ready" to make this request--to discuss the possibility of discussing section 13, as it were. Given this, we can probably assume that nothing relevant happened at the committee. As Kady notes: Wow, that was anticlimactic.

Update: Buckets has more, and WK has partial transcripts of Moon's testimony.

Your Daily Nazi: The Nazis Don't Like It!

The Moon Report gets a pan on Stormfront, and for obvious reasons. Hand over regulating this kind of material to the police, and you will wind up with more police on your ass, if you're a Nazi or other form of bigot.

Jonathon Kay: The Moon Report Is A Smorgasbord, And We May Pick And Choose Among Its Recommendations As We Please

The other day I predicted that, once the Speechys got past the news release of The Moon Report, their enthusiasm for it would began to wane. Well, it looks like a few of them have found their way into the body of the document and, indeed, they don't like what they're seeing.

Jonathon's Kay's response has been typical. Lets, he suggests, just reject all those aspects of the report we don't like:

Final upshot: Moon's basic idea to get rid of Section 13 is admirable. But one wishes that he had stopped there, instead of adding in all sorts of unfortunate ands, buts and howevers.

Presumably Mr. Kay would have The Moon Report land in Parliament 95% redacted.

But this will not fly as a political solution. For while the report advocates a repeal of Section 13, these "ands, buts, and howevers" have been added so that there would, theoretically at least, be no net increase in extreme hateful speech because of that repeal. In other words, they were added so that the groups that might be targeted even more extensively by bigots and hatemongers in the wake of a straight repeal, would not be so targeted.

Of course the Speechys don't give a crap about that but the government of the day which, as Kinsella notes, needs at least some support among the targeted groups to craft its coveted majority, has to at least pretend to.

Harry Abrams Strikes Back! More Notes On The Moon Report

In the late 1990s, Harry Abrams launched a human rights complaints against well-known B.C. journalist Doug Collins over columns written by Mr. Collins for Vancouver's North Shore News, in which Mr. Collins, among other things,

...questioned the Holocaust and denounced "Schindler's List" as propaganda.

Earlier this week I was able to contact Mr. Abrams, and he commented as follows on The Moon Report (I have made a few minor stylistic edits to the following):

...if Dr. Moon's recommendations were taken at face value, that would make it open season on the re-publishing of the Protocols of [the Elders of] Zion and more which doesn't specifically call for violence, but has nevertheless been widely recognized as a warrant for genocide.

Similarly, the Nazi era newspaper Der Sturmer, the most infamous newspaper in history did not specifically call for violence, but contained grotesquely hateful material, ALL OF WHICH would according to Dr. Moon be untouchable if his suggestions were to be accepted at face value, because were merely offensive ..

[...]

"..the paper had been filled with charges that Jews were about nefarious deeds everywhere in Germany, posing an immediate threat to each reader..."

Dr. Moon's suggestions also make it fair game for wide distribution of The Turner Diaries and The Hunter, Pierce's novels of violent race war that [influenced white supremacist] Timothy McVeigh, the Oklahoma City bomber. I doubt these books specifically said, after you've read this book, go out and kill black people!" But that's what Pierce intended them for. And that's how they were used.

These books deserve to be studied, and understood, like Hitler's Mein Kampf and other classics of hate literature, but the distribution should be controlled in some way, or at least they should be labelled as classics of hate literature.

Harry

A Last Word On The Moon Report

Because I think, given the government's reaction to it, we are headed for years of further reports and submissions and committees and, in the end, nothing much will change.

Moon essentially endorses the CHRC's choices in selecting and pursuing section 13 cases. In fact, he suggests tweaking criminal code provisions such that all of the cases successfully prosecuted under section 13 would also be captured under the new regime that he has proposed. So while you can argue that using the CC for such work is inefficient, and you can argue that the odds of provincial police forces actually setting up "hate teams" is Nil, nothing in Moon's proposals would, in theory, let anyone who has already had a run-in with the CHRC off the hook.

What would happen is that complaints dealing with the kind of material now handled by the CHRC under section 13 would go to the various police hate crimes units (whose workload, Moon suggests, would almost certainly increase). So, while nowadays Connie and Mark, or Mr. Boisson, might get a letter from a government bureaucrat, under the new 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. Since Freedominion occasionally hosts calls for Muslim genocide in its forums, it is almost certain that they would be getting such phone-calls, and might wind up looking at jail-time rather than a fine and rebuke.

How that is supposed to be an improvement, I do not know.

Justice Minister: Moon Report A Formula For Inaction

From the Montreal Gazzete:

Justice Minister Rob Nicholson told Canwest News Service he has no plans to introduce legislation to strip the human rights commission of its online mandate, but he described the report as a "step in the right direction" for a House of Commons review.

From Deb Gyapong's blog:

[Darren] Eke said the Justice Minister had indicated he wanted to have the justice committee look at Section 13 and was hoping that Conservative MP Rick Dyskstra would again make a motion to that effect.

Perhaps the justice committee could also review the Moon report, he said.

Except, Deb discovers:

Well, I just scrummed Dystra on his way into Question Period. He said he's not even sure he's going to be on the Justice Committee as he is now the Parliamentary Secretary to the Citizenship and Immigration Minister.

By far the best coverage of developments at Ms. Gyapong's site. As the day progressed, it is as though you could actually hear her spirit being crushed.

Will The National Post Do The Right Thing And Join A National Press Council?

Jonathon Kay writes:

Will the government now do the right thing and get the CHRC out of the censorship business?

Richard Moon's report recommends repealing or, if not repealing, amending section 13 of the CHRA. It also recommends , in the case of repeal, revitalized press councils to deal with remarks appearing in the MSM which are "unfair or discriminatory" while not reaching the level of hate-speech. It would grant these press councils special powers:

To advance this end, all major print publications should belong to a provincial or regional press council that has the authority to receive a complaint that the publication has depicted an identifiable group in an unfair or discriminatory manner and, if it decides that the complaint is well-founded, to order the publication to print its decision.89 A decision by the council that its code of conduct has been breached results not in censorship but in "more speech" – the publication of a statement that the newspaper breached the code and, more particularly in this context, that it published material that unfairly represented the members of an identifiable group.

If the major publications in the country are not all willing to join a press council, then the establishment of a national press council with statutory authority and compulsory membership should once again be given serious consideration. A newspaper is not simply a private participant in public discourse; it is an important part of the public sphere where discussion about the affairs of the community takes place. As such, it carries a responsibility not to defame or stereotype identifiable groups within the Canadian community.90

Note that in, for example, the Macleans case, had Dr. Moon's recommendations been law Macleans may well have been ordered to print a decision finding Mark Steyn's article to be discriminatory. But this is exactly the point--editorial control-- over which Maclean's claims to have fought the HRC complaint against them. In other words, where they "won" their HRT case, they might well have "lost" a press council case and been forced to forgo editorial control anyway.

So the report does not just call for the repeal of section 13. As far as I can tell, it calls for a redistribution of some of the penalties the CHRC is allowed to impose in section 13 cases to other bodies, which would then be able to dole out punishment in situations where, were a complaint brought under section 13, that case would have been dismissed.

Once the Speechies get passed the news release, some of their enthusiasm will wane.

More on this later, obviously. Fascinating stuff.

Update: the waning process has already begun.