A Subtle Moon
The headline recommendation of the Moon Report – the repeal of s. 13 is likely to dominate analysis for the next few days. It is a solid recommendation and one which Parliament could adopt with a one line Bill.
However, rather than stop there, Professor Moon goes on to consider what changes might be made to s.13 if it were not repealed. These suggestions will be, I suspect, the subject of the rearguard action contemplated by the process the CHRC has invented in its press release discussed below.
Moon recognizes that the current system is broken and makes a number of suggestions as to how to fix it. First he deals with the need to narrow the present scope of s. 13.
- Extreme Expression: The language of section 13 should be amended to strengthen its focus on extreme expression. The reference to “contempt” should be dropped from the section and the term “hatred” should be linked to the threat, justification or advocacy of violence against the members of an identifiable group.
- Intent: Section 13 should also be amended to include an intention requirement. A requirement that the communicator intended to threaten, advocate or justify violent action against the members of an identifiable group, or recognized that her or his communication would reasonably be understood by its audience as threatening, advocating or justifying violence, would reinforce the section’s focus on extreme expression.
- No Truth Defence: In my view, a truth defence is not required because hate speech is necessarily untrue. Hate speech makes the claim that the members of an identifiable group share a dangerous or undesirable trait – that they are by nature violent or corrupt or dishonest – and must be stopped by violent means if necessary.
These would seem to be sensible suggestions and in line with the current jurispudence surrounding speech and human rights. However, they would retain s. 13 and therefore would keep the Commission in the censorship business without imposing the protections of the Criminal Law. I expect that the censorship brigade will argue that the narrowing of scope is all that is needed. And, of course, that is precisely what the “consultations” leading to the “Special Report” are designed to facilitate.
The Trout and the CHRC are not about to let their jurisdiction over speech go without a fight…So we need to be prepared to give them one.
And the place to start that fight is with the decapitation strike: adopt Moon’s principle recommendation – the repeal of s. 13 – now!
(I’ll have more on the Moon report a bit later…work intrudes.)
November 24th, 2008 at 1:51 pm
Moon’s alternative recommendations involve making an arbitration body function LIKE a legitimate law court with all due process intact.
The logical thing to conclude is why have the redundancy in the first place? Why have a parallel law court system staffed with unprofessionals?
Frankly I think their function as an arbitration tribunal for labor and civil issues is redundant as well…most of this could go through small claims, civil courts and the labor board tribunals.
Now what do we do with all these new “human rights” these dyslexic fools have concocted….like the right to a transgender labiaplasty…..or the right of restaurant workers not to wash their hands…or the right to wear unsafe clothing on the job….the right to be a workplace hazard liability…or the right not to be offended by stand up comics…what now with this hard won “human rights”?
November 24th, 2008 at 2:33 pm
Repeal Sn.13. Congratulations, Jay! Victory!
...and replace that section of the CHRA and its enforcement with not one but two national regulatory agencies, with teeth; substantially amend the Criminal Code to make prosecution of hate speech easier; and set up provincial police hate squads to monitor the Internet.
I don’t know why, but the word “Pyrrhic” comes to mind for some reason.
November 24th, 2008 at 2:34 pm
It’s like this Report was written in a not quite parallel universe.
To cite just one example: throughout, Moon takes the HRCs at their word that they ALWAYS dismiss complaints that are “trivial, vexatious, made in bad faith.”
Huh? A stand up comic making a lesbian joke isn’t “trivial”? Syed’s personal vendetta against Ezra isn’t “vexatious”?
A dude who drives around in a car painted with anti-Catholic messages who then charges a Catholic magazine with uttering “hate speech” isn’t etc etc.
November 24th, 2008 at 3:02 pm
There has to be a truth defense. You can’t just define hate speech as “necessarily untrue.”
Because what if something about a definable group—-say some Jim Jones type cult—-IS true but says hateful things that this religion intends to kill its followers by forcing them to drink cyanide=laced Kool-aid.
Truth and intent have to be defenses.
Deborah
November 24th, 2008 at 3:23 pm
Jay – Don’t you think that the last recc’d is really problematic. I agree with Deborah – it may actually be true of some groups that they are inherently violent, or racist, or miosgynistic.
Methinks we still have a fight on our hands.
November 24th, 2008 at 3:33 pm
Be patient everyone. Truewest will show up soon and tell us what it all really means.
November 24th, 2008 at 3:39 pm
Craig, I agree. And I think we do have a fight on our hands. A fight to simply repeal s. 13 as Moon suggests, rather than trying to fix a law which has not worked well and which is redundant in the face of the Criminal Code.
KG, I wait, as ever, to be set straight by truewest. My theory being that you cannot go far wrong by finding out what tw thinks and then thinking precisely the opposite.
November 24th, 2008 at 3:58 pm
“Under the amended process, the CHRC would receive inquiries and information from individuals or community groups but would no longer investigate and assess formal complaints from private parties. Instead, the CHRC would have the exclusive right to initiate an investigation in section 13 cases”
And how and with what demonstrated independence and expertise would they do that?
I think that what is not said is more scary than a scrap of hope thrown our way. The CHRC initiating an investigation on it’s own is precisely that of the OHRC (Barbara Hall) and it is clear how objective she would be if she could trample anyone and everyone who got in her way.
While Moon suggests imposing some order on the press/media, he does not in anyway suggest that any due process and rules of a real court – including financial aid to defendants – is required. He also does not suggest any limits on intervenors – be they special interest groups or political lobbyists.
Just Smoke and dusty mirrors. Move on folks – nothing here of interest or value.
Fire them all.
Clearly a parliamentary and criminal investigation
November 24th, 2008 at 4:41 pm
Can’t resist commenting on Dawg’s comment.
He is actually rejoicing at the prospect of yet more regulation of speech.
What a sorry state the left is in these days, beholden to identity politics and bereft of any commitment to hard-won freedoms.
He even made the asinine suggestion on his blog a few weeks ago that WWII vets had fought for a world in which the HRCs could flourish.
Words fail me . . .
November 24th, 2008 at 6:01 pm
“KG, I wait, as ever, to be set straight by truewest. My theory being that you cannot go far wrong by finding out what tw thinks and then thinking precisely the opposite.”
That, I suppose, is why you persist in making such an ass of yourself, here and elsewhere, when discussing legal matters.
I see your pals share your ignorance. LS, for example,
seems to believe that defendants get financial aid in non-criminal cases.
”
November 24th, 2008 at 6:55 pm
Making my leisurely way through Prof. Moon’s report, I came across this brief aside at the bottom of p. 12:
“In preparing this report I repeatedly came across shocking misdescriptions of the CHRC’s process. These misdescriptions appeared not only on marginal websites but also and all too often in the mainstream media. This was a reminder that there are commentators who will say anything to support their larger agenda and have no particular interest in being accurate.”
Gee, I wonder who he might have been thinking of?
November 24th, 2008 at 7:34 pm
Actually, Truewest, legal aid is available in a number of non-criminal situations, primarily family and immigration matters. But in any event, I (and I suspect, LS) liken Human Rights Commission prosecutions (I know, you think the word “prosecution” is a misnomer but I don’t think it is) to a criminal proceeding more than a civil proceeding because the potential penalties can infringe on your freedoms much more than a civil judgment usually does or can.
November 24th, 2008 at 8:51 pm
If the good professor defines “hate speech” as being untrue speech describing a group as dangerous— by nature violent, corrupt, or dishonest; and who must be stopped by violent means if necessary—then of course the truth defense cannot apply. However, that’s because, by his definition, truth is never “hate speech”. What he seems to not understand is that whether any given public expression is “hate speech” is the bone of contention in many or most of these cases. Only after the “hatefulness” is determined can you proceed to the “and should we ignore, admonish, or punish” phase he is addressing in the prior sections. Cart, horse.
November 24th, 2008 at 9:51 pm
Truewest,
Are you really saying that there has been no abuse of process at the CHRC. At all.
What about the fact that little Richie Warman was allowed to lay complaints while he was an employee! And then when he wasn’t he was still allowed to come by and have a ‘chat’ with the investigators about how his cases were proceeding.
Please, be serious.
November 24th, 2008 at 9:53 pm
kg,
HRT hearings are nothing like criminal proceedings. And the remedies are more akin to those available in civil defamation proceedings—where both monetary damages and permanant injunctive relief are available—than in criminal proceedings. Absent contempt, nobody goes to jail as a result of HRT proceedings.
Legal aid is available in some extreme family and immigration cases. It is unlikely to be available – nor should it be – in a case in which one of the possible resolutions is a mediated settlement and an apology.
November 24th, 2008 at 10:03 pm
Craig, the really fun part of the Warman dropping by thing is the reception the Fourniers got when they dropped by the CHRC. Of course the Fourniers have not actually counseled the commission of assault which is apparently what gets you behind the bullet proof glass.
November 24th, 2008 at 10:50 pm
Craig,
Which complaints did Warman file while employed by the CHRC? And if he did file complaints, was doing so contrary to the Act?
As for complainants talking to investigators, well we clearly can’t have that.
November 24th, 2008 at 10:55 pm
I agree, Jay. You could not make this stuff up.
I just posted over at the Shotgun about Moon giving the CHRC a pass on all its violations of due process and then blaming bloggers and the MSM for misrepresenting the commission’s doings (see page 12).
As I said earlier, we have lots of work still to do.
November 24th, 2008 at 10:59 pm
Truewest, this came out in the Lemire hearing.
I can’t cite chapter and verse right now but Ezra has a link to the transcript somewhere on his site.
The bigger point here is that if you want to defend the commission you should really look closely into the way it has conducted itself recently.
November 25th, 2008 at 4:35 am
Actually, Craig, the bigger point is that if you’re going to make accusations, you should be able to cite chapter and verse. And you should have a more credible source than Ezra Levant who has trafficked in, to borrow Prof. Moon’s overly delicate phrase, “misdescriptions” of the process since he first launched his jihad against human rights law generally.
November 25th, 2008 at 8:21 am
...This was a reminder that there are commentators who will say anything to support their larger agenda and have no particular interest in being accurate.”
Gee, I wonder who he might have been thinking of?
Warren Kinsella?
November 25th, 2008 at 3:53 pm
Truewest, I am not relying on Ezra. I am referring to the transcripts of the Lemire show trial where Warman’s misdeeds came to light.
Which part of “transcript” do you fail to understand.
Maybe you should do some research before you blindly defend the CHRC.
November 25th, 2008 at 8:16 pm
Craig,
Since you’re the one who made the accusations of misdeeds, maybe you should point me to the transcripts and specify the misdeeds. In other words, do a little research. I don’t need chapter and verse. Page numbers and links will be perfectly satisfactory.
BTW, I’m not defending the CHRC. I’m attacking you for being sloppy. And Ezra for being a bloviator, a propagandist and a putz. Just to be clear.
November 25th, 2008 at 8:32 pm
Hey, tw, here’s one you can have some fun with: perjury!
Goldberg testifies
November 25th, 2008 at 9:08 pm
Nice try, Jay.
While it is good of you to provide not only quotes but legal authorities (unlike that slackass Craig), you seem to have overlooked the key phrase in the Criminal Code provision: “with intent to mislead”.
If you’d like to try to prove intent on the basis of a single email witness sent more than a year prior to the impugned testimony, well, fill your boots, but most lawyers would see it as grasping at straws.
BTW, it’s generally a bad idea to follow Ezra’s lead on legal matters.
November 25th, 2008 at 9:33 pm
More than sufficient to lay an information tw. And, oddly enough, mens rea is simply an element of the offence which must be proven at trial. In the instant case the argument is open that there has been a pattern of deception and that the Commission and its minions have resisted, improperly, the disclosure required in this matter.
It is also an error to assume I take my legal lead from Ezra.
November 25th, 2008 at 9:37 pm
Once again, Jay, you’re talking out of your ass. Wouldn’t make it past charge approval in a million years. And mens rea simply an element? Well, it’s kind of the key element. Absent that, you’re in the land of negligence.
And if you don’t take your lead from Ezra, why do you parrot his bullshit so consistently?
November 25th, 2008 at 9:53 pm
I agree, tw, it is a key element and there is a good deal of evidence which suggests that Goldberg did, indeed, intend to mislead.
November 25th, 2008 at 10:16 pm
Jay,
If you want to be a lawyer, instead of playing one on the internet, why don’t you hang up whatever you’re doing (which can’t be that interesting if you’re spending all this time scheming of ways to foil the CPC if they dont’ bend to your will), tell the kids they’re going to have to enjoy Kraft Dinner more than they already do and trot off to law school? There’s a decent one in your town.
After you do that, tell me you’d run a perjury trial on that thin shit and I may take you seriously.
November 25th, 2008 at 10:33 pm
I’ll take that advice under advisement tw.
Perjury is an interesting offence. Simply saying something under oath which is not true is not taken as perjury; as you point out, there must be an intent to mislead. If you bother to read the transcript and the accounts of the material surrounding Goldberg’s statement, it is remarkably clear that the CHRC was attempting to deny that it had had anything to do with creating relationships with police forces. They fought to keep the documentary evidence to the contrary out of the Lemire hearing. But look at the dates.
Ooopsie.
November 26th, 2008 at 6:02 pm
Truewest,
If you are so interested in flacking for the CHRC, you should already be familiar with the Lemire case, where the commission’s procedural antics have been appalling.
If I can find the time, I will post links.
I see that the TorStar has come out against Section 13. Guess it’s just you and your buddy the Lyin’ Jackal left defending the indefensible. You’ll have to double-up on the number of sycophantic posts you leave on his blog to assuage your loneliness.
BTW, why don’t you post under your own name. I do, both here and at the Shotgun. Do you have something to hide?
November 27th, 2008 at 5:37 am
Craig,
I’m not flacking for the CHR. I’m not even certain s. 13 is a hill to die for. And I certainly don’t have the trainspotters obsession with the Lemire case that you and Jay appear to.
However, like Prof. Moon, I am appalled at the sheer volume of “misdescription”, misinformation and outright lies that have been circulated by critics of the CHRC in the course of this debate, which I have followed since the complaint was first filed against the Western Standard. Levant, who claims to be a lawyer, has at every step chosen libel over logic in advancing his cause (and then whines like a baby when he’s sued) and his followers have gleefully followed suit. In so doing, they’ve joined a campaign led by the neo-Nazis like Fromm and Lemire and the former counsel for Jim Keegstra and Ernst Zundel.
Nice friends you’ve decided to toss your lot in with.
The various ridiculous and unfounded claims promulgated by this dubious bunch – the CHRC hijacked someone’s Wifi! – there is no defendce to s. 13! – Mark Lemire is just a nice boy who only hung around Stormfront because he was lonely and was tricked into posting hateful shit by CHRC investigators! – have been swallowed whole by folks who should know better. Including, apparently, you.
As I understand it, you pass yourself off as an academic. Which is interesting, because I always thought academics placed considerable weight on citing the source of their information—you know, chapter and verse—rather than making wild accusations off the cuff. It would seem all the more important when you’re venturing outside your area of expertise into something like adminstrative law and civil procedure. But perhaps I’m mistaken.
As for my anonymity, I posted as Truewest long before this kerfuffle erupted and will continue to do so afterwards. I have nothing to hide, but like many sensible people, I choose not to drag my real life reputation into a medium where defamation is the rule and not the exception. Libel suits are fun, but only if you’re the lawyer.
BTW, you guys make too much of the editorial endorsements of the various newspapers, including the Star. For obvious reasons, they oppose most limits on speech, including the current libel laws.
November 27th, 2008 at 10:24 am
tw, not to put too fine a point on it however the Wi-Fi issue arose when a Bell employee testified as to the IP from which certain postings were made. And those posting have been established as having been made by employees of the CHRC.
And it is getting tedious to have to repeat the fact that supporting free speech does not mean that you support all, or even some, of the positions of those who speak freely.
November 27th, 2008 at 5:41 pm
Jay,
Give it up. This argument has been thoroughly discredited. And yet you trot it out again and again. That and your attempt to gloss over the awkward question of who will really benefit from the repeal of s. 13 is what is truly tedious.
November 27th, 2008 at 7:57 pm
No, tw, we have buckets’ less than expert views as to the hacking of WiFi accounts. However, we have testimony from Bell as to the originating IP for the posts in question and we have the testimony of the CHRC cowboys as to having made the posts. Nothing has been remotely “discredited”. The RCMP was simply too lazy to seek evidence in the US.
The people who will benefit from the repeal of s. 13 are writers, publishers, bloggers and preachers who want to speak without having to worry that some thin skinned individual might take offence and file a complaint. That is a broad group whose speech will no longer be chilled.
November 27th, 2008 at 9:45 pm
Actually, on one side we have Buckets thorough and his persuasive analysis of why the account wasn’t actually hacked. And on the other, we have you, Ezra and some equally dishonest and delusional Nazis insisting that 2+2=5.
Section 13 has been on the books for 30 years. For most of that time, most people who put words on paper didn’t give it, or its provincial versions, a moment’s thought, for the simple reason that most writers aren’t racist bullies, hatemongers or bigots.
Its chilling effect on non-hateful speech was negligible, if not nil. In fact, the chill resulting from vexatious libel suits filed by folks like Levant and Conrad Black is an order of magnitude greater than anything that might result from even the most aggressive enforcement of hate speech provisions in human rights codes.
If you want to make a principled argument against hate speech provisions – which essentially what Richard Moon has done – you would deserve some respect. But you choose to offer instead tinfoil hat conspiracy theories, unfounded claims of chilled speech and juvenile nicknames for people who take a different point of view.
November 27th, 2008 at 10:27 pm
I’ve read Buckets’ analysis and it is interesting; but it fails to account for the two critical facts which are beyond speculation. The testimony of the Bell guy and the posting by the CHRC cowboys. If you can square those up I am quite happy to believe that the doorknobs at the Commission were both out of range and incapable of cracking the security.
It is impossible to know what the chilling effect was; but the DOJ lawyer, Simon Fothergill was happy to acknowledge such effect.
“A little bit of chilling … is tolerable,” he said. national post
November 27th, 2008 at 11:48 pm
Jay,
A bit of chilling is not only tolerable, but necessary to protect people from speech that’s used to unfairly attack their reputations.
That chilling effect has been recognized as a proper consequence of defamation law for years.
As for your vague “Bell Guy” and “Cowboy ramblings”, please be more specific. What the hell are you talking about?
As I understand Buckets, the Bell Guy said the alleged hackee had a particular IP address on Dec. 8. Crazy Nazi Guy said that Dean Stacey used the same IP address, but didn’t mention that that was three months earlier. It is generally accepted that the IP addresses in questionare not permanant. So where’s the smoking gun?
BTW, Lemire and the guy who runs Stormfront may have some credibility issues, doncha think?
November 28th, 2008 at 12:08 am
tw, it has become something of a trope for the dwindling band of s.13 supporters to do a vigorous arm wave and point at defamation law or child porn as if they have a thing to do with the issue at hand. You will, I trust, note that I am more than willing to accept Professor Moon’s suggestion that the Criminal Code provisions remain in place. Just on the off chance that some addled imam, following Lucy’s lead, calls for the murder of Jews and Crusaders.
You have read this blog long enough to know who the Bell Guy is and who the Cowboys are.
The permanence and impermanence of IPs is a rather contested issue. At the moment we have the admitted CHRC postings, the use of the Jadewar account to make them and an associated IP. The matter could be, I suspect, resolved with a look at the CHRC server records as well as the home server records for the various cowboys involved.
As to credibility, to date the assorted respondents and agents for respondents have not suffered from oath induced amnesia nor have they been caught out just making stuff up. Their accusers, on the other hand, seem incapable of keeping the details of their investigations or their relationships with the police straight. Credibility cuts two ways.
November 28th, 2008 at 1:16 am
Actually, Jay, the permanance of the IPs in question is not a contested issue. Except for those grasping at straws. Like you.
November 28th, 2008 at 1:23 am
Unlike the “90sareover” matter where Rogers apparently does not have the records, there is every possibility that Bell does have the records going to the mappings of IPs over the relevant period. The question remains open.
November 28th, 2008 at 6:18 am
And yet the investigation is closed.
Tell me, did they park the car on a grassy knoll? Was there a single laptop or three?
November 29th, 2008 at 4:14 pm
Hey tw,
I’ve been away for a few days. I see that in the meantime your vitriol has not abated. Why Jay tolerates you is a mystery to me. I assume it’s because unlike you he believes in free speech.
Here’s a clip of the Government’s lawyer criticizing the Lynch mob’s conduct in the Lemire complaint. Note that he is intervening on behalf of section 13 (and thus against Lemire) but feels compelled to distance the government from the multiple abuses of due process in the case (I love the sarcasm in his voice as he points out that little Richie Warman didn’t even bother to show up!). He even argues that Lemire had more grounds for complaint against the commission than he used (in the federal court). And urges the tribunal to think about admin law remedies for Lemire (but to leave section 13 untouched).
http://ezralevant.com/Attorney%20Generals%20Comments%20on%20Abuse%20of%20Process%20in%20Lemire%20case.mp3
Oh, and why only a clip? Because the CHRT doesn’t make transcripts available (even to Lemire). Your tax dollars at work.
But you don’t care about any of this right? Much better to call defenders of free speech Nazis, all the while hiding behind the mask of anonymity.