A Theory of the Case
Ezra and Mark laid down a barrage of artillery aimed squarely at the heart of s.13 and the CHRC. While this may have shaken some of the MPs on the Commons Committee on Justice and Human Rights out of their torpor, there is a great deal left to be done. Right now the Committee’s questions indicate they are looking at tinkering rather than repeal. We need to fight smart and recognize only repeal will protect Canadians’s Charter Rights.
Some points:
- Taylor found s. 13 to violate Canadians’ s. 2 right to freedom of expression
- Taylor was silent on whether s. 13 also violated Canadians’ s. 2 “freedom of the press and other media of communication”
- Taylor saved s. 13 from constitutional extinction by way of s. 1 finding that s. 13, while in itself a violation of s. 2, was a “reasonable limit” per s. 1
- The basis for this finding was that s. 13 minimally impaired Canadians’ rights because the Act’s overriding objective was remediation and conciliation.
Now, entertaining as it is to enumerate the Commission’s many lapses, to be effective we have to demonstrate how those lapses have entirely destroyed the Commission’s mediation and conciliation function and have therefore put it outside the ambit of Mr. Justice Dickson’s reasons in Taylor.
And, in fact, we have to do more. We have to demonstrate that no amount of tinkering can alter the fact s. 13 can and has been used by individuals with a political agenda to silence Canadians and deprive them of their rights to free expression and freedom of the press.
The behaviour of the Commission, its counsel, its employees and its complainant in chief have put it well outside the role imagined by Dickson in Taylor. That opens the door. The use of the Commission, and other human rights commissions at the provincial level, for purely political operations by people like the Islamic sockpuppets illustrates the potential scope for abuse. The Moon Report provides ample justification for the elimination of the CHRC’s alleged jurisdiction over speech in Canada.
Critically, any version of s. 13 which purports to strip Canadians of their s. 2 rights without the full protections of the common law, the rules of evidence, and a knowable standard against which speech can be measured (and “likely” has no business in such a standard) is open to the sorts of abuses we have seen with HRC’s regulation of speech at both the federal and provincial levels.
It seems to me our argument must be that bitter experience has shown Charter Rights should never be abridged through informal administrative processes. Even the Tribunal itself has recognized that in two decisions.
If we are to take our Charter Rights seriously then we must take their protection seriously as well. And that means putting them outside the jurisdiction of agencies best suited for dealing with constitutionally non-controversial issues.
What we now have to do is make all of this clear to the Committee and make it crystal clear that tinkering will not change the unconstitutionality of the threat to free speech the Commission represents.
October 7th, 2009 at 2:30 am
I agree with your analysis but would add the Charter rights issue is not the only route. If hate speech is a crime (and the Criminal Code says so), then prosecuting hate speech under provincial codes may be ultra vires the provincial legislatures, like the Padlock Act and Alberta Press Act were.
October 7th, 2009 at 7:19 am
Currie: [” ...there is a great deal left to be done. Right now the Committee’s questions indicate they are looking at tinkering rather than repeal. We need to fight smart and recognize only repeal will protect Canadians’s Charter Rights.”]
Amen!
October 7th, 2009 at 7:40 am
You can remove the clause, unlikely outcome, or you can attach an amendment that makes government pay for the defense if there are penalties involved, also unlikely. What we are seeing is the total befuddlement of our political classes in the face of their sworn duty to protect OUR rights because of their obvious desire to protect THEIR income stream. I can’t quit stating the obvious (to me at least!) that when government has the ability to spray money out of a fire hose to groups and organizations in order to enhance their election prospects…it will NEVER stop! Income reporting via IRS Form 1099-GOV for welfare, foodstamps, afdc and others as well as adherence to Freedom of Information Act statutes for any entity that receives tax dollars would do more to straighten out these bent governments that anything I’ve heard.
October 7th, 2009 at 11:03 am
Dead silence from the left – very telling.
October 7th, 2009 at 11:47 pm
There’s a great deal at stake here.
For the first time since Pierre Trudeau came onstage and uttered that ‘the state has no business in the bedrooms of the nation’, Canadians driven to their bedrooms to utter what they want have a real chance of ‘coming out of the bedroom’...
October 8th, 2009 at 3:06 am
These are the relevant questions if you are planning a court challenge of section 13. But that would be long an ultimately would leave the rest of the repugnant HRC and their corrupt team free to carry on quashing human rights in Canada.
A better outcome is to launch a parliamentary commitee or auditor-general investigation into the practices and ethics of Canadian and provincial HRC’s, then follow up with appropriate actions. (like disbanding the kangaroo courts and removing protection from lawsuits against anyone found too hve operated beyond the law.)
October 8th, 2009 at 7:43 am
Mobs rule!
October 10th, 2009 at 9:14 pm
Re: “s. 13 minimally impaired Canadians’ rights because the Act’s overriding objective was remediation and conciliation”.
This is presumably the state of the law, but it’s not justice. Anything that incurs legal penalties—imprisonment, fines, etc.—should be dealt with in a real court with real judges under proper objective rules, not in a kangaroo court where malcontent activists make things up on the fly. This “remedial” nonsense amounts to an end run around justice. No surprise that it came from the Trudeau years. “Remedial” in this context is an anti-concept, a phrase that is rationally unusable. Recall also that “human rights” law is supposed to have quasi-constitutional status—another end run, given the amateur status of its formulators at the HRCs. This gem originated, if I’m not mistaken, from the very flaky Antonio Lamer.
The 2000 Blencoe decision from the Supreme Court further reveals the disgraceful state of the law re “human rights” commissions.
The Charter s.1 clause regarding “reasonable limits” has already been used to justify all manner of trivial and frivolous violations of free expression, right down to advertising aimed at children (the Irwin Toy ruling). Brian Dickson was a shallow mind who was badly out of his depth on the Supreme Court, let alone as chief justice.