BC Civil Liberties Association….Nazis!
According to the Lying Jackal if you support Marc Lemire you’re a Nazi. Party membership just increased as the BC Civil Liberties Association applied for intervenor status in the Marc Lemire Constitutional challenge. If granted status, the BCCLA will argue:
18. The BCCLA’s submissions will present its views of the proper interpretation and constitutional status of sections 13 and 54 of the Act. The BCCLA’s position is:• Section 13 of the Act unreasonably infringes on freedom of expression as guaranteed under s. 2(b) of the Charter.
• Sections 13 and 54(1)(c) create a criminal offence without providing the respondent with the defences common to analogous criminal offences or requiring proof beyond a reasonable doubt, proof of a culpable mental state (or mens rea), or a strict application of the rules of evidence and accordingly violate the respondent’s rights under ss.7 and I I(d) of the Charter of Rights and Freedoms.
• Section 13 creates an arbitrary distinction whereby an individual may be denied his/her rights under ss. 2(b) and 7 on the basis of using the internet or intranet as a medium of expression as opposed to other forms of media.
• The infringements of ss. 2(b), 7 and 11(d) are not saved by s. 1 of the Charter because the measures adopted are not rationally connected to the objective of the legislation and they fail to impair the abridged rights as minimally as possible.
20. Consequently, the BCCLA will submit that s. 13 of the Act is unconstitutional and inconsistent with the Charter in its capacity to restrict freedom of expression in a private context and s. 54(l)(c) of the Act is unconstitutional and inconsistent with the Charter in its capacity to criminalize certain communications broadcast by internet and intranet media. The BCCLA will submit that ss. 13 and 54(1)(c) of the Act should be struck on the basis that they are unconstitutional. BCCLA
Interestingly, the BCCLA’s position is that s. 13, because of the large monetary penalty possible under that section, is, in fact, a criminal statute without standard criminal protections. This is a new take and one which, so far as I am aware, has not been raised before.
Canada’s silly Department of Justice might want to look at his brief an take a few pointers on what a Conservative government should have submitted.
Update: four_horses points me to the decision of the CHRT in Richard Warman v. Eldon Warman 2005
[68] This explains some of the differences in the process in the two arenas. The burden in the criminal courts is beyond a reasonable doubt, as opposed to a balance of probabilities. It is apparent that a Tribunal could entertain some doubt as to the culpability of a respondent-I think culpability is the right word here-and still award the penalty under section 54(1)(c).There is nothing to prevent the Complainant or the Commission from seeking criminal charges, if they are warranted.[69] The constitutional issue is whether the Respondent’s freedom of expression can be restricted in this kind of way, without the kind of institutional and procedural safeguards that exist in the criminal process. This includes a higher standard of proof, proof of mens rea, and the strict application of the rules of evidence. It is one thing to punish an individual after a trial in a criminal court, with all the protections that the law extends to the accused. It is another thing to do so, in a process designed for other purposes. op. cit.
So the question of a penalty pushing the CHRA off into criminal law has, in fact, been raised and by a sitting member of of the Tribunal no less. Bravo to Dr. Paul Groarke, the Member, who raised this question in the absence of any submissions from the respondent (who had boycotted the hearing).
May 21st, 2008 at 4:35 am
I’d be interested to learn the devious arguments that led the BCCLA to imagine that Section 13 is criminal legislation. The ability to fine under this section isn’t enough, since fines are levied all the time under civil legislation—which the CHRA certainly is. Moreover, similar fines may be levied under other sections of the CHRA.
This simply shows how far the speech-warriors are having to reach these days to sustain the hate-rights of Nazis and homophobes. Good luck with that.
May 21st, 2008 at 4:55 am
oh go back to sleep you fascist nitwit….common sense and history were obviously never your metier…
ecce clown…ecce buffoon…ecce ideologue without the sense to know the resentment “Man’ feels about being made to lie in your Procrustean bed.(furious sounds of googling procrustean
!!)
silly twat busybody…made a success of enriching himself(hey!..great EARLY pension and other good stuff!) with a captive audience in the trade union field…then feels in his retirement that gee…mebbe i AM smart ?...mebbe i can spread the word even further afield ?
like i said go back to sleep..you’ve caused enough problems i have to fix.
May 21st, 2008 at 4:58 am
Groarke in Warman v Warman, goes on to opine:
[61] There is no hiding from the fact that a Tribunal exercising its authority under section 54(1)(c) is setting limits on the scope of our freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. The outstanding question is whether these limits can be justified under section 1 of the Charter. There are a number of points that could be made in this context.
[62] The first point is that there are different forms of speech, which may attract different degrees of protection under the constitution. Even before the Charter, there were many judicial suggestions that Canada has an implied bill of rights, which protects political speech. This is important because the dialogue that Mr. Warman has participated in, over the internet, is fundamentally political. It may be pernicious and divisive.
It is still a political dialogue.
[63] The second point is that the Supreme Court upheld the provisions of the Canadian Human Rights Act relating to hate messages in Taylor on the basis that the Act is remedial. At some point in the evolution of the law, I accordingly think that the Commission has an obligation to explain how section 54(1)(c) fits into the remedial scheme of the Act. The Tribunal has already recognized on a number of occasions that the penalty provision departs from the scheme of the Act.
[64] There is nothing incidental in this. The penalty contemplated by section 54(1)(c) is inherently punitive. It is intended to deter those individuals who would attack the essential equality on which the relations in society are based. The magnitude of the penalty should not be minimized. A fine of ten thousand dollars for expressing one’s views is no mean thing. It opens the Respondent to all the rigours of recovery and proceedings for contempt.
[65] The situation might be different if the financial penalty could be construed as a form of aggravated damages, or some other form of compensation. There would be less of a question if the penalty was used to alleviate the problems associated with hate messages. I have been informed, however, that the money is payable to the Receiver General and goes into general revenue. It does not go into education, a victim’s fund, or some other compensatory measure.
[66] The third point is related to the ordinary distribution of adjudicative duties in our system of justice. This usually leaves the punishment of individuals who commit moral wrongs in the hands of the criminal courts. There are reasons for this. There are institutional safeguards in the criminal process, which make it a better forum in which to pursue a penalty against an individual for impermissible comments.
[67] The proceedings before the Tribunal are in the nature of civil proceedings. The present complaint was filed by a private individual, against a private individual. The purpose of an inquiry under the Canadian Human Rights Act is not to measure the moral blame that attaches to a Respondent’ s actions. It is to rectify discrimination. The task of imposing a punishment and assessing a pecuniary penalty falls outside the normal ambit of the Tribunal’s responsibilities.
Dr. Paul Groarke
Department of Criminology
Assistant Professor
BA, LL.B. (Calgary),
MA (Dalhousie),
MA, PhD (Waterloo)
Now after Groarke left, who did you say was making all these recent decisions at the Tribunal?
.
May 21st, 2008 at 5:00 am
Dawg, that is a question you might better put to the BCCLA or Dr. Paul Groake who quite sometime ago raised these concerns in a Tribunal decision.
But even if that is not your impulse, given the inherent inequity of the HRC process, you might search your own soul for the answer. It, whatever be the decision, may still be found wanting.
May 21st, 2008 at 5:32 am
Welcome news. Rational reasoned argument…but I really have to wonder where the civil liberties assn. was when 13(1) was debated in committee before 3rd reading?
THAT was time to make arguments for the potential for this statute to violate civil rights.
It constantly amazes me how naive the media/parliament/academia are when they sense a certain law can be civilly disastrous if abused but they delude themselves into thinking abuse will never happen here.
That kind of thinking sits in denial of both our political history and world history. The common trend is for civilly restrictive laws made with good intentions to be abused. When we evaluate the worth of a law to solve a problem we have to weigh that against the potential costs of it being abused…if there is good potential for abuse err on the side of civil justice and don’t accept a law with such risk attached to it.
I’m going to download the Hansard from the 13(1) amendment bill debates to see what the opposition was thinking when they let this monster pass.
I wonder if they foresaw the mess we are dealing with now because of it.
May 21st, 2008 at 8:39 am
Only a relativist of Dawgs calibre could make so inane a statement.
May 21st, 2008 at 10:06 am
Having read Section 54(1)(c), there may be some argument against the levying of fines per se, but I hardly see that striking down this section invalidates the constitutionality of Section 13.
May 21st, 2008 at 11:39 am
This simply shows how far the speech-warriors are having to reach these days to sustain the hate-rights of Nazis and homophobes.
So, Dawg, your argument boils down to be identical to Kinsella’s: “if you disagree with me, you are a Nazi” (perhaps, in your case, a “speech-warrior” – no doubt voiced with the same sneer and disapproving tone – who supports Nazis). That argument plays well to the converted, I guess, but sooner or later, you have to notice that you are disparaging people who are really above your condescension – like Alan Borovoy, or various Civil Rights Associations, or PEN. It is tough to make the “they’re all Nazis” argument fly when applied to such interlocutors. At that point, it might help to consider your actual arguments, and try to present a principled case for your position, because the ad hominem just ain’t working.
May 21st, 2008 at 4:27 pm
[81] I make no comment on the political arguments that surface in the material before me. Eldon Warman lives in a free society and is entitled to his views, whatever I may think of them. I would not want to restrict the political discourse that is essential to the proper functioning of a free and democratic society.
[82] The Tribunal should also be careful not to enter into the discussion of religious texts. Freedom of religion includes the freedom to dissent. I would nevertheless add that the promulgation of views that promote a contemptuous attitude towards fundamental religious tracts is likely to subject the groups that hold these texts sacred to hatred or contempt.
[83] I have already issued an order to cease and desist. The Tribunal has been advised by the Commission that the material has been removed from the internet. The fundamental purposes of the Act have accordingly been met.
Now, I see why Dr. Groarke moved on. He seems to be an individual with character, morals, ethics, fairness, and understanding. It is evident that he would not be able to function properly under this this immoral, undemocratic, agenda-driven regime.
May 21st, 2008 at 9:01 pm
...and wisdom.
May 22nd, 2008 at 3:45 am
In the Nazi mudslinging going on isnt the question really who is acting like one as opposed to what you are being labelled?
May 22nd, 2008 at 4:06 am
Anyone read this? I shall have to reconsider subscribing to the NP. : )
My problem with the speech-warriors is that, too often, the principle that they go to the wall for in the case of extreme-right, Holocaust-denying, racist admirers of Adolf Hitler, fails to motivate them when it’s, say, a Toronto school board banning books about the Armenian genocide, or a right-wing student council shutting down a left-wing campus club at UWO, or Bill C-10, or SLAPP suits by the well-off against people who can’t afford to fight back, or the BC government trying to shut down progressive advocacy groups for five months preceding an election, or…well, you get the idea.
And Jay, I know you have taken a solid position on Gord Campbell. As I recall, though, when I have raised some of these matters before, it’s always, “But that’s different...”
May 22nd, 2008 at 4:17 am
So your demanding consistency but not exercising it?
There is a tendency to defend your favourites…but I dont think anyone here is defending what racists believe. The trigger has been that the state has overstepped its bounds in two ways
1) Methodology
2) Targets
If the state was speding its time prosecuting racists and nazis in a legitimate way consistent with laws and traditions that underpin our way of life then there would be many many fewer people upset over this, rightly or wrongly.
As someone else said, its a bad law that is badly applied. Regardless of intent it is a problem. You can name try and create epithests like speech warriors and free speechers but at the end of the day you are engaging in sophomoric partisanship.
You point to other situations and if you truely feel they are analogous then get onside with this one and others may see join you in your other fights.
But most of what you point to is minor, though not unimportant. None of them measure up to potential threat this represents. And I wouldnt worry about UWO, student politics is and as always been ridiculous, unfortuantley it apears to whet the authoritarian appetite of student politicians of all stripes.
May 22nd, 2008 at 4:30 am
what a goof you are hangdawg….did you ever think it might be because the ‘right’ is playing catch up ball with you lunatics ?
you’ve had the floor so long you think your ‘theories’ were written on tablets.
problem with freaks like you is that you’ve NEVER had to work for a living.
you’re nothing more than a third rate intellectual and trade unionist parasite…
get a fucking job you clown.
May 22nd, 2008 at 4:56 am
Maybe it’s different and maybe it isn’t, Dawg. Even under the most charitable reading, you’re still just making a tu quoque argument which fails (or point-blank refuses, I’m not sure which) to address the principle at stake.
Look: either free speech (short of libel, incitement, etc.) is to be protected or it isn’t, regardless of who champions what speech at what time. You repeatedly get hung up on your distaste for some of the personalities involved in this particular set of cases, and that leads you to make breathtakingly dumb and dishonest arguments accusing those who object to 13(1) of being Nazi sympathizers or fellow-travellers.
You wish to be taken seriously as an intellectual, judging from your posts around the ‘sphere, so start acting like one. If you stop assuming your opponents’ bad faith as your starting point, you might be surprised at who begins to listen to you.
For the record, though: I agree with you on all the cases you mention. Doesn’t matter which shoe is on which foot.
May 22nd, 2008 at 5:06 am
Well, Dawg’s shown the way for conservatives to crack down on crime in a way that won’t attract any opposition from progressive thinkers.
For narcotic use, for example, or urinating in the street, or doing any of those other things that annoy Kate McMillan, legislators need only (a) repeal all criminal penalties and (b) allow “civil damages”, in five- or six-figure sums, recoverable by any person who feels “threatened” by drug use or “offended” by public urination.
Since these wouldn’t be “criminal”, the Reality Based Community and other Critical Thinkers would raise no objection whatsoever… right Dawg?
May 22nd, 2008 at 5:12 am
And if they did object, it would only got to show how much Liberals, Greens and KneeDeeps REALLY DEEP DOWN APPROVE of heroin addiction and pissing on the streets.
You know, like the way civil-liberties lawyers actually approve of murder, rape and armed robbery because they always seem to be trying to stop people being punished for doing these crimes (they can’t possibly have any other reason).
May 22nd, 2008 at 6:37 am
that leads you to make breathtakingly dumb and dishonest arguments accusing those who object to 13(1) of being Nazi sympathizers or fellow-travellers.
Not really. Get a grip. I simply like consistency.
And on 13(1) I have supported a high bar for some time. In fact Ezra Levant, imagining that this was a recent change of view on my part, called me his “friend” not long ago. Tongue-in-cheek, to be sure, but there you go.
Jay is more consistent than most on the principled issue. Just for the record.
May 23rd, 2008 at 2:44 am
consistency ?
what an ass you are hangdawg….consistency is what you want in a racehorse mebbe…but will never get.
as the knowledge and the facts of life in society change then one’s viewpoint changes…slowly and subtly…corrections are made..and adjustments but the underlying truth never changes a jot.
i don’t suppose you were ever told about universals and constants at the NDP political science ‘camps’you attended during your formative years….
somewhere a village is missing an idiot …