A Case for Censorship
The Lying Jackal points to an article in today’s National Post written by Mark Freiman former honourary counsel for the CJC, CHRC counsel in the Ernst Zundel matter and a partner at McCarthy Tetrault.
Section13(1) is capable of being applied in a way that vindicates equality without compromising freedom of expression. But it does require restrained and cautious application. Once the test slips from the high threshold described in Taylor, constitutional principles of freedom of expression become compromised and Section 13(1) can be misused as a muzzle on unpopular views and a lever of repression. This was the outcome feared by the dissenting judges in the Taylor case and it is a danger that should not be ignored.Vigilance must be maintained both by the courts and the media so the standard is not allowed to slip. Indeed, the complaint under Section 13(1) against Mark Steyn may be precisely the sort of case that merits close media scrutiny to prevent such slippage. The complaints against Steyn and against Levant under provincial analogs to Section 13(1) likewise deserve close monitoring, especially since those provisions, which are different from Section 13(1) in important ways, have never had their constitutionality tested in the Supreme Court of Canada.
Moreover, the agencies administering and applying Section 13(1) must be staffed by people well suited by training and ability to carry out their sensitive work in a way that respects the rights of both respondents and complainants. As well, the protections already in place in the Canadian Human Rights Act against frivolous and vexatious claims may need to be strengthened or supplemented, as has been suggested by, among others, Canadian Jewish Congress. national post
It is a very intelligent and compelling argument and, I suspect, represents the political fallback position of the CHRC and its dwindling band of supporters. Freiman refers to “procedural lapses or errors” and suggest that these should not vitiate the powerful idea that the Canadian telecommunications system should not “be used as a vehicle for hate propaganda”.
Unfortunately, as the CHRC’s investigative methods and total lack of process, discretion and restraint are revealed in the Lemire case and in the Steyn matter, it becomes increasingly apparent the CHRC has long since abandoned any pretense of addressing the concerns the Supreme Court of Canada raised in Taylor. The highhanded conduct of the Member in Lemire, the fraudulent invocation of s. 37 of Canada Evidence Act by the Commission, the attempt on the part of Commission counsel to deny public access in that matter, the lying under oath of CHRC management employees, the arbitrary truncation of proceedings and cross examination based on no law whatsoever and a whole host of other gross violations of natural justice all suggest that the CHRC is not capable of properly and fairly administering s.13(1). In fact, the antics of the CHRC suggest is has become a greater ongoing evil than the de minimus evil it is seeking to suppress.
Now, Mr. Freiman suggests that s. 13(1) is capable of being applied “in a way that vindicates equality without compromising freedom of expression. But it does require restrained and cautious application.” Nothing we have seen in the recent conduct of the CHRC suggests that capacity exists. However, I would suggest the rot is very much deeper than the Staceys and Warmans and Goldbergs cowboy, “there are no rules when you hunt Nazis” outrages. The core of the rot is in the statute itself and in the attempt to graft what is and should be, criminal law onto an administrative tribunal structure.
Here is the problem: s.13 creates what are essentially criminal and quasi criminal consequences without balancing these with criminal standards of investigation, procedure, evidence and, indeed, mens rea. Worse, s. 13 does not actually, in a positive manner, define what the Commission must prove for a complaint to succeed, and, more importantly, what evidence, if any could cause a complaint to fail.
Mr. Freiman is too good a lawyer to believe that a statute is well drafted where there is, literally, no possible defense to a complaint brought under its provisions. A 100% conviction rate is, prima facie, evidence the statute has been too broadly drafted.
I suspect Mr. Freiman is honest enough to recognize that tinkering with the wording or hoping that some sort of administrative restraint or a staff training program will not fix a situation in which a respondent’s only real recourse is to challenge the constitutionality of the provisions he is to be convicted under.
s. 13 of the Canadian Human Rights Act is a near perfect example of the maxim that the path to Hell is paved with good intentions. The section’s immediate repeal would be a good first step toward redressing the injustices which have been the result of its incompetent, apparently dishonest and clearly abusive application. A judicial investigation of the investigative techniques, management and operations of this canchre on the administration of justice in Canada would complete that process.
Update: Sleepy Old Bear puts a claw in....well worth a read.
May 22nd, 2008 at 7:03 am
I have grown tired of pulling punches with the CJC. Their efforts to turn the CHRC into the CJC enforcement branch have reduced my country to the level of Banana Republic. I can no longer stomach a word of the sickening drivel their shameless apologists proffer.
May 22nd, 2008 at 7:49 am
Jay Currie said: “..a very intelligent and compelling argument ..”
I’m with the Cat on this. Psycho-babble. Fodder for those who would reply upon an op-ed by a vested party showing up in the MSM as damage control for public consumption. Freiman would have us believe his assertion:
“...the Supreme Court of Canada laid out a very high standard required for proving a complaint.”
Very high standard, Mr. Freiman? Do tell us about those standards!
For anyone who cares to do their own homework, I’d refer them to Hadjis’s various transcript comments to the effect of:
1. hearsay is permissible;
2. he’s not concerned with what an investigator investigated or how he investigated, – only concerned here with what is in front of him;
3. it’s inconsistent with their (CHRT) mandate on what evidence is disclosed to the defendant.
4. ... which of the two versions of evidence do you want to discuss.
I could go on ….
.
May 22nd, 2008 at 8:47 am
I wish I could express myself as well as you have regarding the rather preposterous apology for 13(1) and the CHRC written by the pathetic Mr. Frieman. My compliments. I am optimistic that the current leftist fascists will be defeated in this regard. As for the society of our children, I am not so sure! Kindest regards.
May 22nd, 2008 at 8:52 am
Blazingcatfur is sad for its disrespectful tone. Mark Freiman is one of Canada’s most eminent jurists. He was I think the lead counsel with the Air India Inquiry as well.
The article is superb. It explains the law most specifically the “defence of truth” issue. Blazing catfur has a child-like fit which is expected when a child does not know how to react. CJC remains one of this country’s most respected advocacy groups. I do not agree with some of its policies but thoughtful adults (and Jay Currie is amongst them, your response was mtuare and thoughtful) can agree to disagree. That the CJC was able to produce such a sterling piece speaks to the fact that many of today’s top thinkers are part of this organization.
When posters like the above attack CJC they do themselves ethical harm. It is the reason that Ezra Levant and some other right wing bloggers are still considered a bit of a joke.
Jay Currie, keep up your good work. That you constantly take the high road and criticize policies not people or respected organizations speaks well for your positions and smarts.
May 22nd, 2008 at 9:03 am
More “trained and expert” staff, more procedures, more oversight. I see a bureaucracy building exercise coming.
These will be the “solutions” offered by the HRCs’ if the heat gets to hot to bear. The politicians will love it, the bureaucrats will love it, the lawyers will love it and all the defenders of HRC drones will love it.
Problem is it won’t meet the standard of a free press and freedom of speech. Remember, its about allowing speech and comment you vehemently disagree with. Simple.
May 22nd, 2008 at 9:12 am
Couldn’t say it any better than Blazingcatfur. It will be difficult to change things, but hopefully not impossible, as long as well supported main stream organizations such as the CJC continue to be not just apologists for but active supporters of these kangaroo courts. And you can’t fix it by tweaking the “process” you have to uproot the cause which is all of Sec. 13.
May 22nd, 2008 at 10:04 am
having followed this wretched business since it began, I have reached the conclusion that no single person comes off looking worse than kinsella, not warman, not elmasry, not even alexander tsetsis, who seems to believe that free speech caused slavery AND the US Civil War.
rm
May 22nd, 2008 at 11:06 am
Susan, please forgive me, I actually read what you wrote and understood it for what it is. Next time I’ll smoke pot and skim over it so I think of you as profound and serious. I’m sad, Susan, as sad as you, that we live in such a cruel world as this. To make things somewhat brighter, may i suggest we sue each other? I’ll wear pink if you wear blue. We’ll hold hands afterward and sing some songs around the campfire. But till then, Susan, I remain,
Sad.
May 22nd, 2008 at 11:34 am
Sorry Susan but the CJC deserves to be called on their manipulation of the CHRC, I’ve seen the disclosure documents. What they have done may not be criminal, it certainlly isn’t moral however. The only childish behavior I see here is evidenced by your naivete.
May 22nd, 2008 at 12:58 pm
The CJC seem like a dinosaur with their professional victim mentality. To chase a vanishing neo-nazi residue that no reasonable person can construe as a threat, they have paved the way for the much greater anti-semitic threat they have studiously ignored. Muslims will certainly follow the CJC’s well-worn path to the HRC’s to claim that pro-Jewish speech offends them and holds them up to contempt. May the best victim win.
May 22nd, 2008 at 3:01 pm
Jay,
Nice to see that you have gone from pretending to know something about the law to putting words into the mouths of people who do.
Mark Freiman is an accomplished and knowledgeable lawyer, unlike you or your posters. And before you mention Ezra, let me add that towers above that fraud, whose submissions on this subject are either ill-informed or deliberately deceptive and whose sophomoric name-calling and self-aggrandizing bullshit is a poor substitute for legal argument.
One can take a different view of s.13 and its provincial equivalents than Freiman – there are valid arguments against hate speech laws, in both their criminal and administrative – but you serve him ill by saying on, one hand, that his Post piece contained a very intelligent and compelling argument and then adding, on the other hand, that he could not really believe what he wrote because, according to you and the knuckledraggers, the CHRT and CHRT are rogue elephants of some kind (based on the allegations of some nice neo-Nazis that remain both unproven and likely to remain that way) and need to be shut down.
Unlike you, the knuckledraggers and Ezra, Freiman is familiar with procedure before administrative tribunals, the operation of human rights commissions, the rules of evidence, constitutional law and free speech jurisprudence. Unlike you, his perspective is informed by experience, education and, clearly, a subtle intelligence. It recognizes that there may be flaws in the process, but also that certain kinds of speech have consequences, legal and otherwise.
Of course, as the jabberings of clowns like Four Horses make clear, it is all pearls before swine.
May 22nd, 2008 at 3:36 pm
truewest, I rather doubt that Mr. Freiman is aware of the abuses which are being revealed in the Lemire case. Not allegations of abuse – real live lying under oath by management, suppression of evidence, refusal to answer questions on cross examination, illegitimate redaction and so on. (And I don’t need to rely on anything but the transcripts and the evidence for actual proof of those matters.)
If he was, I suspect Mr. Freiman would, as any honest person would, agree that the system was rather more broken than he had imagined when he suggested a bit of restraint and proper staff training as a reasonable solution.
The solution is the repeal of the lousy piece of legislation under which this farce operates.
May 22nd, 2008 at 6:40 pm
Spoken like a true lefty Truewest, completely ignorant of the facts. But it felt good didn’t it?
May 22nd, 2008 at 8:47 pm
“...fraud … ill-informed … deliberately deceptive … sophomoric name-calling … self-aggrandizing bullshit … knuckledraggers … neo-Nazis … jabberings of clowns …”
We would miss the eloquence of the book-burners if it was their books that were being burnt. I respect their rights. I wish they would respect mine, because they are identical.
May 22nd, 2008 at 9:20 pm
I’m offended by truewest’s characterization of Ezra Levant,and other proponent of free speech (knuckledraggers). Grounds for a human right’s complaint perhaps?
May 22nd, 2008 at 9:39 pm
Jay,
You “rather doubt” that Freiman is aware of how the human rights process operates?
Well I can see how you might think that; he’s only been a lawyer for 23 years, lists human rights as one of his areas of practice, is recognized as a leading practitioner in public law and actually spends time (unlike you, the knuckledraggers and Ezra) inside a courtroom or a hearing room from time to time. How could he possibly know as much about what’s been happening at the various human rights tribunal as a bunch of right-wing bloggers and neo-nazis who have worked themselves into a frenzy poring over transcripts in search of smoking guns and a lawyer/journalist/failed publisher/shameless-self-promoter who claims to practice defamation law but whose only appearance in CANLII is as a litigant. Compared to this collection of eminent legal scholars, the man has been living under a rock.
You’ve said some goofy things on this matter – the suggestion that Harvey Goldberg should be charged with perjury because he gave evidence inconsistent with an email he once received being your most recent howler – but the assertion that you know more about human rights law, practice and procedure than someone who actually does it for a living may be the goofiest.
May 22nd, 2008 at 10:12 pm
A few thoughts.
1. Truewest seems to be very much on point. Those here that comdemn Mr. Freiman do so out of ignorance of the law. Allegations, suppositions accusations are no substitute for fact.
2. Speaking of fact, Jay your above post are still “allegations”. Yup believe it or not you are not the police, the Crown and certainly not a Judge. There has been no finding of fact to the “allegations” made no matter how you try to spin it. Unless and until your allegations are proven they remain such and spurious at that. Please refer to a legal dictionary if you require more assistance.
3. As for those dumping on the CJC, I refer you to today’s editorial in the National Post http://www.nationalpost.com/opinion/story.html?id=530424. While the Post editors respectfully disagree with some of Mr. Freiman’s conclusions they have indeed found some areas of mutuality. They recognize both his expertise and ideas. So too the NP’s position on the CJC. While it disagrees with its position it recognizes the organization’s importance even meeting with it to discuss this matter. For those here that like to wallow in mudslinging all I can say is you will need to take lots of baths. Accusing the Jewish Congress of manipulating the law etc is downright ridiculous and without proof legally stupid. But then again stupid is as stupid does.
May 22nd, 2008 at 10:31 pm
Shorter Truewest:
– You’re not a lawyer but neither am I but I am smarter then youse. – Ezra levant is an idiot namecaller, cant be taken seriously – You are a bunch of knuckledraggers and clowns. – Facts be damned I dont want to talk about that. – You’re not invited to my birthday party.
Another wonderful example of the particular brand if idiocy known as ‘truewest’.
May 22nd, 2008 at 11:16 pm
An interesting point was raised as to whether the BC statute, by virtue of the potential penalty, is in fact criminal legislation. The argument then diverted, as all post 1982 arguments seem to, into the issue as to whether the procedures of the Human Rights Commission violate the Charetr protections of the accused.
Fine. But there is another equally interesting point to be raised against provincial human rights commissions having these provisions, penalties and procedures. If they amount to “criminal” sanctions, they may well be unconstitutional because they infringe on the federal government’s exclusive jurisdiction over criminal matters.
May 22nd, 2008 at 11:46 pm
No doubt Mr. Freiman is a most learned and esteemed jurist and far be it from me as one of the great unwashed to question such a man, however I do marvel at this.
Vigilance must be maintained both by the courts and the media so the standard is not allowed to slip. Indeed, the complaint under Section 13(1) against Mark Steyn may be precisely the sort of case that merits close media scrutiny to prevent such slippage.
This is all well and good, except of course if one happens to be Mark Steyn, Ezra Levant, Maclean’s or Catholic Insight i.e. the guy stuck defending himself against a slippery slope section 13(1) complaint.
There is nothing that compels either the media or the courts to ‘remain vigilant’, yet the fair application of this act is now dependent on some compulsion that doesn’t exist. I’m not sure that Joe Blow of the town weekly will be very relieved to know that he can now write controversial opinion on any number of issues without fear of 13(1) based on the above exhortation for vigilance. I’m not at all certain that the same Joe Blow will even want to remain watchful as criticism of the various HRC’s and their operatives seems to come with its own price tag. At least, Joe Blow could henceforth be red-flagged by the literati as a common knuckle dragger.
Moreover, it comes a bit late as the standard has been lowered right under our vigilant robes and pens as Mark Steyn and Maclean’s are poised to become a slip accident of an HRC, or two. As far as I can tell the media and the courts are, at this point, powerless to obstruct this banana peel.
The opinions of those three dissenting judges should have been heeded. Had they been, perhaps this section of the act could have been appropriately amended and thus salvageable. Now it requires radical legislative surgery.
May 23rd, 2008 at 12:10 am
Mordechai,
Just read the NP article. The only area of “mutuality” seemed to be that the staff at the CHRC has behaved badly. Freiman wants to reform the CHRC’s handling of s.13, the NP wants it abolished. Not much mutuality there I am afraid.
As for “allegations”: here is the distinction – at the moment the RCMP is investigating the “allegation” of theft of communications services, the evidence is not clear – on the matters I list the evidence is very clear indeed Goldberg lied under oath, the redactions were made without colour of right, Stacey did refuse to answer a question put in cross examination, the Commission did supress evidence and continues to do so. Facts, not allegations. Now, as to the legal consequences thereof, it will depend on whether charges are laid for perjury (as I believe should happen) and what an appeal Court makes of the Commission’s antics.
truewest, I am not for a second doubting Mr. Freiman’s credentials or his knowledge of proper process. Which is why I suspect he is appalled or would be appalled at the dreadful abuse of that process we are witnessing in the Lemire matter. (You might work on those reading skills truewest.)
May 23rd, 2008 at 12:19 am
Jan, a longer quote from Mr. Freiman’s article makes me wonder if he is having second thoughts about being associated with the book-burners. In fact, when he says “... may be precisely the sort of case that merits close media scrutiny,” I think he is telling us to keep doing what we are doing if we want to protect our freedoms from the book-burners.
“Once the test slips from the high threshold described in Taylor, constitutional principles of freedom of expression become compromised and Section 13(1) can be misused as a muzzle on unpopular views and a lever of repression. This was the outcome feared by the dissenting judges in the Taylor case and it is a danger that should not be ignored.
“Vigilance must be maintained both by the courts and the media so the standard is not allowed to slip. Indeed, the complaint under Section 13(1) against Mark Steyn may be precisely the sort of case that merits close media scrutiny to prevent such slippage.”
May 23rd, 2008 at 1:17 am
Mordechai & Truewest some of us have had the benefit of seeing documents released by the CHRC under disclosure, neither of you have. Until such time as you do you are simply talking through your hats on this matter.
May 23rd, 2008 at 1:27 am
Indeed, I agree. I think that is exactly what he is saying, however, it is of slim consolation to those people already caught in the slip. It is also of slim consolation to those who may be caught in any subsequent oopsie.
Moreover, I fail to see how media vigilance can make a law written so badly that it has given rise to a renegade bureaucracy, into something good. Even if it could, can we always count on that watchfulness being sustained? Joe Blow is almost certainly less interesting and newsworthy than Mark Steyn.
Court vigilance may perform that function but, of course, that will be after the fact.
In the meantime, real harm is being done to individual people and what will be lost in any, even if honourable, pursuit of making a silk purse out of a sows ear is the recognition of the harm that has come to those very real people as a result of this slippage.
May 23rd, 2008 at 1:48 am
Jay, while I think you are verging on Yahooism, I will grant you this:
“Which is why I suspect he is appalled or would be appalled at the dreadful abuse of that process we are witnessing in the Lemire matter.”
If this is all about abuse of process, then s. 13 is no different from all the other potential abuses of process that folk you admire have not found themselves in. None of the arguments you raise speak to why hate speech can’t be handled through an administrative tribunal nor has any of the surrounding chicken-littlism.
I think it important for you to restate why s. 13 is particular in all the legal forms of restriction on liberty as the most grievous and worthy of abolishment. I suspect for many that find the prospect attractive, advocating the abolishment of any law would be as easily met with the same glee of the pitchforked pack. Consider the meaning of abuse of power, the conditions required for an investigatory tribunal to not maintain expected standards as well as the role (and accompanying benefits) being played by the popularization of this castigation. Consider the reasons you are wrong (as any good lawyer does.) Until you contextualize some of this, repeated calls for repeal is not any more compelling than the kangaroo defenses others are rolling out.
And it would also help reassert that this is about asserting freedom rather than boo-hoo-ist victimhood. If the provision is unconstitutional it should be a privilege in a free country to prove it as such.
May 23rd, 2008 at 1:56 am
Alan, in the post rather than the comments I think I did consider most of the points you raise.
What I am arguing is that the abuse of process is not a surprise because the statute itself is so poorly drafted and conflates criminal and civil/administrative concepts. I don’t think that can be fixed because the conceptual foundation of the statute is deeply flawed when it comes to expression. Thus, to use your lovely word, abolishment would appear to be the only option.
(Which could well come about when the SCC revisits the Taylor decision as will almost certainly happen as the result of one of the cases currently before it.)
May 23rd, 2008 at 6:57 am
The abuse of process argument is more likely to create a tighter test, tough, which is fine as that is really the problem. Have any of the defendants brought an pre-hearing motion on the constitutionality of s.13? If they were intent on safeguarding liberties rather than grandstanding that would make some sense.
To be fair to me, as I always am, you have only stated that this is terminal, not proven it. Just because you may have some bad staffing, the law is not bad. And even if you have bad staff, where is that Charter argument to sweep them away into irrelevance?
May 23rd, 2008 at 7:54 am
Mark Freiman’s May 21 National Post article is, literally, a ‘Cole’s Notes’ version of a CHRC information page from June of 2006:
http://www.media-awareness.ca/english/resources/articles/online_hate/tribunal_decision_98.cfm
The truncated version penned for the NP is absent the chummy anecdotes, stories and gossipy glimpses of Zundel’s love life Freiman included in the CHRC original, but the ‘meat’ of the Post article is lifted verbatim from that page.
May 23rd, 2008 at 9:42 am
Jay,
I can read just fine. What I find laughable is your suggestion that someone who practices human rights law at the level Freiman does would be oblivious to the allegations that have been bandied about by you, the knuckledraggers and the neo-Nazis. It’s almost as laughable as BCF’s suggestion that only the privileged few who have scoured the Holy Transcripts and the Divine Disclosed Documents can possibly understand the seriousness of the situation and comment on it.
What you and BCF share is a profound misunderstanding of legal process, constitutional principles and the law of perjury. Here’s a few pointers. – There’s more to proving perjury than simply pointing out that the witness received an email from someone else that contradicts his testimony. If he’d written the email, you might have a first step towards a perjury charge, but you’d still have to prove an intent to mislead, which you likely can’t pull off. – Even if you could prove your allegations—and you can’t—there is a vast difference between a law that is contrary the charter and government enforcement that breaches the charter. By your reasoning, sections of the criminal code would come crashing down daily, declared to be of no force and effect because some cop cut a corner on a wiretap affidavit or roughed up a suspect. – there’s nothing particularly wrong with the drafting of the statute, despite the bleating of non-lawyers like yourself and ET; lawmakers use the term “likely” in prohibitions all the time. Moreover in this case, the SCC has set the “hatred or contempt” bar very high, so high, in fact, that even Steyn’s bigoted musing are unlikely to come anywhere near crossing the line.
The only plausible argument against s.13 you’ve referenced comes from the BCCLA. They’ve identified a change that has occured since Taylor that may persuade a court that the provision is now more like criminal law, but without the protection criminal law provides.
May 23rd, 2008 at 6:31 pm
Jay, I’m not sure why you characterize his argument as compelling and intelligent. I think it is disingenuous in the extreme and more in the nature of an oily self-defence by a bureaucracy jealous of its perogatives No one reading this would understand there is a Commission and a Tribunal that play different roles and are supposed to be legally independant and subject to the rule of law and the rules of natural justice. If he thinks Section 13 can be defended, he should be trying to define the limits of the Commission’s discretion in concrete, legally enforceable terms, not setting the staff up for weekend seminar training. What he is essentially saying with all his talk about frivolous complaints is that the Commsision staff should be politically savvy enough not to take on a power like MacLean’s. All I see here is a call for smarter staff in the Commission. Whatever the problem is with Steacy, Goldberg, etc., it ain’t stupidity.
This is a legal hack’s desperate defence of the indefensible on behalf of a powerful client. If this is the best the Commission can do in response to all the criticism, it has just reinforced the sense of pervasive rot and out-of-control discretion, and shown that tinkering is no answer.
May 24th, 2008 at 2:23 am
“...an oily self-defence by a bureaucracy jealous of its perogatives…”
See, that is what I mean. If you don’t develop this better you are stuck being associated with the layers of what need to be layered on someone to come up with this sort of back story.