‘Roos run - Pt. 1

Rod Blaine
#1. October 10th, 2008, at 9:10 PM.

Well, that’s interesting. For the past 12 months I’ve been reading in a left-wing blogs what a neo-Nazi, Islamophobic hatemonger this Steyn fellow is and why it is therefore fitting and just that he answer for his vilifications before a government-appointed tribunal. But now that said tribunal has acquitted him, I’m learning that our moral & intellectual betters have believed all along that he is not an Islamophobic hatemonger, that the Commission was right to let him go, and that their letting him go proves that The System Works.

truewest
#2. October 10th, 2008, at 9:36 PM.

Jay,
You don’t disappoint. Shaidle and Vere set the paranoid/stupid bar pretty high, but you’ve shown yourself unafraid of making the leap. You fall just short, but not for lack of trying.
I take it that you’re not a lawyer, but you like to pretend to play one on the internet. If you were a lawyer, however, you would have seen paras. 8-12 of the decision for what they are - the panel saying, this was a weak complaint, but we had to hear it because nobody brought a preliminary application to dismiss. So, please, spare me the dismisssive, “In fact, on the basis of this decision, such an application would have failed.”
Since you’ve been flogging the idea that this was going to be (and is) a political decision - election looming, well-funded respondent, saving their skins, yadda yadda - you’re forced to focus on a few paragraphs to give the impression that this was a near-run thing, something that failed simply because the complainants didn’t call the right experts. Bullshit.
The panel makes clear that this didn’t fall anywhere near the definition of hate that has been adopted by courts — including the SCC — and human rights tribunals alike. After pointing out the flaws of Steyn’s research (big surprise there, since, like his fangirl Shaidle, he’s not troubled by facts -or accuracy) they state at para. 150-51:
“[R]ead in its context, the Article is essentially an expression of opinion on political issues which, in light of recent historical events involving extremist Muslims and the problems facing the vast majority of the Muslim community that does not support extremism, are legitimate subjects for public discussion.
Read objectively, the tone and content of the Article was not nearly as offensive as some of the Internet blogs which post-dated it.”
As any good judge or arbitrator knows, the most challenging and important part of the job is explaining to the losers why they lost, and to assure them that their arguments have been heard. This decision does that, setting out in detail the evidence called by the complainants and then explaining why it doesn’t make advance their case. To latch on to that explanation shows either incredible naivete or utter dishonesty on your part.
The notion, alluded to here and elsewhere, that the BCHRT decided this the way they did because Macleans showed up with gold-plated counsel and pockets full of appeal money is laughable. As I’ve pointed out below, the comments at para. 12 have an almost incredulous tone, as if the panel can’t believe Julian Porter and Roger McConchie - two senior defamation counsel who together roll the meter over at more than $1000/hr — haven’t figured out that they’re not running a libel case here, since all their defences are from the defamation toolkit. Any competent employment lawyer, familiar with HRT procedure would could have dealt with this for a fraction of the cost. (But then perhaps Macleans instructed its counsel to take this to hearing.)
Equally laughable is this: “They have left the more interesting question of what constitutes “hate speech” to another day (with a less well armed respondent). ” Once again, bullshit.
The decision canvasses a wide array of decisions on the issue of hate speech, including decisions from superior courts. While that part of the decision seems to have escaped your attention, the panel devotes about 30 paragraphs to it. You might read them and ask if Steyn’s article even came close. Here’s a hint - it didn’t. Pity that Macleans and its counsel decided we had to go through five days of hearings and thousands of word of amateur and ill-informed legal analysis to figure that out.

truewest
#4. October 10th, 2008, at 10:37 PM.

Wrong.
Paragraphs 8-12 are NOT about the relatively low bar that a complainant must meet in the so-called screening process. The screening process only eliminates the complaints that are prima facie without merit - e.g. based on speculation or conjecture.
Since the Tribunal will not dismiss a complaint that passes screening without a hearing from both parties, it falls to the respondent to clear out those complaints that have no reasonable prospect of success by bringing an application claiming the complaint has no reasonable prospect of success (or some other ground under s. 27 ). The bar that the complaint must cross there is significantly higher:
“the assessment is not whether there is a mere chance that the complaint will succeed, which would be the lowest threshold a complainant would have to meet. Nor is it that there is a certainty that the complaint will succeed, which would be at the highest threshold a complainant would have to meet. Rather, the Tribunal is assessing whether there is a reasonable prospect the complaint will succeed based on all the information available to it.”
Go to the BCHRT website and look at the decisions listed in blue, which are preliminary decisions. Most of these are applications to dismiss. Many are successful.
The notion that Porter and McConchie preferred to run a five day hearing at their billing rate, rather than take a shot at knocking the complaint out on a preliminary motion boggles the mind of any responsible lawyer. From my reading of the decision, it boggled the minds of the lawyers on the panel as well.

As for this, “Imagine, if you will, counsel citing this decision as supporting the right to say what one wants.”
Imagine counsel citing any defamation judgment you care to think of for the same principle. He’d not only be a fool, but he’d be laughted at for suggesting that freedom of speech means “saying what one wants” free of legal consequence.
Freedom of expression is not absolute; there are all manner of legitimate limits and consequences, including limts on speech that maliciously attacks the reputation of individuals and groups.

Blazingcatfur
#6. October 11th, 2008, at 4:21 AM.

“Pity that Macleans and its counsel decided we had to go through five days of hearings and thousands of word of amateur and ill-informed legal analysis to figure that out.”

What and miss your inane bloviations Truewest?

Dr.Dawg
#7. October 11th, 2008, at 5:15 AM.

“For the past 12 months I’ve been reading in a left-wing blogs what a neo-Nazi, Islamophobic hatemonger this Steyn fellow is and why it is therefore fitting and just that he answer for his vilifications before a government-appointed tribunal.”

Where?

truewest
#8. October 11th, 2008, at 6:16 AM.

Jay,
If you want to play a lawyer on the internet, you’re going to have a study harder. Otherwise, you’ll continue to make yourself look silly by saying ridiculous things.
You may be amused by those (like me) who see a link between the law of defamation and that governing hate speech, but Macleans’ lawyers are apparently of a different view, since they pleaded concepts borrowed from defamation law in this case. And the link is obvious, if only because both provision serve as a limit on freedom of speech.
Moreover, your assertion that your example is only defamatory if X is an “identifiable group of one” is simply wrong. While it is clear that I defame you if I say “Jay Currie supports genocide and is despicable”, I also face liability if I replace X with “The Curries of Victoria, BC” or the “Currie clan ” or “Jay Currie and every girl he ever dated”. At common law, group defamation is possible if the group is small enough that it is possible to identify each member. And since the common law of libel can be modified by statute — as has been done, for example, to make radio broadcasts actionable as libel rather tha slander — it is quite conceivable that the legislature could expand that limit to allow larger groups to maintain an action in libel. Once that door was opened, it would be possible to maintain a class action in libel, as was attempted by Bomber Command veterans unhappy about the Valour and the Horror.
To date, legislatures have chosen a different route. By defining certain extreme speech targetting group as discriminatory, they have provided groups attacked by the most hateful bigots some modest remedy under human rights law. These provisions don’t offer plaintiffs the same benefits as libel law — where defamatory words are presumed to be false and spoken maliciously — and the awards are puny compared to libel damages, but they do address the same harm as libel law does.
These statutes, by the way, are not unique to Canada. In Beauharnais v. Illinois, for example, the US Supreme Court upheld an Illinois statute making it illegal to publish or exhibit any writing or picture portraying the “depravity, criminality, unchasity, or lack of virtue of a class of citizens of any race, color, creed or religion” In so doing, the Court noted that the Illinois court had construed the statute as governing criminal libel and that, as such, truth was not a defence under Illinois law, unless the publication is also made “with good motives and for justifiable ends.”

BTW, I’m not suggesting that Porter or McConchie are incompetent. They are, as I said, first rate defamation counsel. I’m wondering, as did the panel, why the hell they didn’t take the obvious and simple step of bringing a preliminary application to dismiss. Their failure to do so is all the more puzzling because they didn’t call any witnesses. As for Steyn, his musings on law are as hollow and ill-informed as his musing on race.

voltair’s bastard
#9. October 11th, 2008, at 6:25 AM.

These ad hoc pontifs of social cleansing narrowly escaped judicial scrutiny by throwing their clients to Ted Rogers’ well paid legal lions. That is obvious. To suggest otherwise is venal partisan delusion.

We all know from the established pattern of these ideocrats that had the respndent in this case been one “Joseph W. Blow of doubtful financial resources, the outcome would be distinctly different.

It may be specious to suggest the decision timing was similarly diabolical but it has the effect of burying this as a news item and that also favours the BCHR agenda to escape scrutiny.

richard flohill
#10. October 11th, 2008, at 9:03 AM.

“I take it that you’re not a lawyer, but you like to pretend to play one on the internet.”

Are you? Seriously, I’d like to know. And what is your area of practice?

truewest
#11. October 11th, 2008, at 2:31 PM.

Richard,
In answer to your questions:
Yes. civil litigation.

truewest
#13. October 11th, 2008, at 3:03 PM.

Jay,
I’m aware what the section says. I’m also aware that the BCHRT, like an ordinary court, embraces the adversarial system, whereby each party has control and conduct of its own case. And that like an ordinary court, it has rules of practice and procedure. The procedure for making an application to dismiss under s. 27 is set out in Rule 27 (I suppose because it reduces confusion among self-represented parties, but apparently not among bloggers)

Nice try, but you really should try to figure out the whole legislative scheme before you post nonsense like that.

Blazingcatfur
#15. October 11th, 2008, at 3:28 PM.

Why would Macleans have wanted to dismiss the case? No reason that I can see. It was in both their own and the publics interest that the case be heard.

So the BCHRT is peeved at Macleans for not applying for a dismissal, Aww Boo Hoo. This is simply petulance on their part, they were subjected to the bright lights of public scrutiny thanks to the public service performed by Macleans.

truewest
#16. October 11th, 2008, at 4:34 PM.

BCF,
Let’s see, why would Macleans want to bring an application to dismiss? Hmmmm. Its counsel are billing something north of $1000/hr, let’s say $1300 for two senior counsel and a junior. $1300/hr X minimum 10 hours per hearing day X 5 days. Toss in another 5 days of prep (again a conservative estimate) and another 5 for the preliminary motions. Exclusive of hotels, per diem, etc, I imagine we’re loooking at close to $200,000.
So I can see why you might be outraged by the suggestion that Macleans, which called no witnesses or evidence, might have done well to send a junior — hell, let’s splurge, send a senior partner — to argue one-day application to dismiss on the grounds the complaint has not reasonably prospect of success.

Idiot.

Jay,
If you think any adjudicative body is going to boot a claim on its own motion, without hearing either argument or evidence, your understanding of the legal system is even more confused than I thought. And what, pray tell, would the reaction of you and the rest of the free speechers be if the BCHRT - a direct access tribunal, remember — dismissed the claim. Let me guess — oh, yeah ‘Roos blink.

truewest
#18. October 11th, 2008, at 8:06 PM.

Jay,

The OHRC and the BCHRT do completely different jobs.
The OHRC screens complaints and a determine which ones should be heard by the Tribunal.
The BCHRT, after a preliminary screening, sets hearings for all complaints that fall within its jurisidiction and have some basis in fact. It relies on the adversarial system to further screen the complaints - by allowing respondent to bring preliminary applications to dismiss on a number of grounds.
While Section 27 gives the tribunal the power to dismiss complaints, to suggest that its intent is that the Tribunal will do so on its own motion, without evidence or argument, is ridiculous. That reading is inconsistent with the adversarial system, which allows parties to control their own cases. It also makes the initial screening process redundant.
The other thing to remember is that BC and Ontario have different statutory language. BC’s Code governs signs and publications. Ontario’s governs only sign. The OHRC screened out the complaint because the OHRT doesn’t have jurisdiction over Macleans under the Act. B.C. tribunal does have jurisdiction under its statute.

Blazingcatfur
#20. October 12th, 2008, at 5:28 AM.

Truwest I believe Macleans was sincere in wanting this case to run it’s course as a public service, not everyones’ motives are as base as your own.

Kathy Shaidle
#21. October 12th, 2008, at 5:32 AM.

The Nazi’s “system” of concentration camps “worked”, too…

truewest
#22. October 12th, 2008, at 8:02 AM.

Jay,
If you’re so convinced that the Tribunal can and should dismiss this complaint on its own motion, perhaps you can search the BCHRT website and find me a decision in which the Tribunal tosses a case post-screening on its own motion. I’d love to see it, but I’m not wasting my time doing your research.
As has been pointed out to you over at Dawg’s by Peter (a fellow conservative and, I believe, a lawyer) and by me (repeatedly) here, the notion that the Tribunal should give the complainants the bum’s rush without hearing argument from both sides is entirely inconsistent with the adversarial system. Indeed, if the Tribunal did so, I expect the complainants would seek judicial review of the decision and would succeed in having the decision quashed on the grounds that it was a breach of procedural fairness.
All of which, of course, avoids the real question: why didn’t Macleans bring an application to dismiss. Were their counsel so immersed and obsessed with defamation law that they couldn’t send a junior off the library to figure out the cheapest way to deal with this? Did they think that the complaint had a reasonable prospect of success? Or did Macleans instruct them not to - to take a dive, as it were?
Given the reactions of Steyn and Coyne and the fact that Macleans pleaded a defence that it never supported with evidence, the latter seems increasingly plausible. Which makes all the bleating about the “process being the punishment “– “sure, we won, but it cost us a ________ dollars” — seem somewhat disingenuous, don’t you think?

dcardno
#23. October 12th, 2008, at 10:05 AM.

I’m also aware that the BCHRT, like an ordinary court, embraces the adversarial system…
If you think any adjudicative body is going to boot a claim on its own motion, without hearing either argument or evidence, your understanding of the legal system is even more confused than I thought.

Okay - so why is there clear language in the statute that would allow them to do exactly that?

dcardno
#25. October 12th, 2008, at 12:47 PM.

…the notion that the Tribunal should give the complainants the bum’s rush without hearing argument from both sides is entirely inconsistent with the adversarial system…

But it seems to me that what you are arguing for, tw, is that Macleans should have presented an early motion to dismiss which the tribunal would (or should have) have accepted. That is, they would ask the Tribunal to give the Socks, et al, the bum’s rush after only hearing a request from Macleans that they do so. To me, that seems a distinction without a difference - could you explain how that is consistent with the adversarial system, particularly if telling the Socks that the case was without merit on their own hook is not?

truewest
#26. October 12th, 2008, at 5:59 PM.

Jay,
Roger McConchie does not appear in front of the BCHRT with any regularity and has made exactly one application to dismiss (while appearing on behalf of the BC Press counsel.) It was successful. Perhaps you are mistaking him with John McConchie, a Vancouer labour lawyer.
As to why we have administrative tribunals such as the HRT…well, we could discuss this for days. Briefly, though, because they are more efficient, economical and accessible to members of the public than courts. And because the legislature has determined the more formal procedural and evidentiary rules stand in the way of justice in some areas of law, including human rights law.

dcardno,
Apparently, my posts confused you. Let me try to clarify.
First, I’m not sure there is language in the statute that allows them to dismiss claims on their own motion, at least on the grounds that there is no reasonable prospect of success . In reading a statute, you can’t simply cherry-pick sections and read them in isolation, as Jay has done. You also to bear in mind the established practice of the tribunal and the interpretation of the statute by courts, particularly on judicial review.

Seond, there’s a huge difference between a complaint dismissed on application by the respondent and one dismissed on the tribunal own motion.
If Macleans brought an application to dismiss, the complainants would oppose that application. The parties would then appear before a single tribunal member and present their best arguments as to whether there was a reasonable prospect of success (assuming that was the ground advanced by Macleans).

truewest
#27. October 12th, 2008, at 6:16 PM.

BTW,
It is interesting Shaidle - who claims to have written a “book” on the subject of the human rights process in Canada — is reduced to playing the Nazi card on this issue.

Must be a fascinating book. Are crayons included?

Blazingcatfur
#28. October 13th, 2008, at 5:15 AM.

Jay Truewest is spinning out of control, he argues minor points of law because he knows he has no defense for the real matter at hand, that the tribunals are kangaroo courts that should be stripped of their power to rob citizens of their right to free speech.

Why waste your time?

dcardno
#29. October 13th, 2008, at 10:16 AM.

First, I’m not sure there is language in the statute that allows them to dismiss claims on their own motion, at least on the grounds that there is no reasonable prospect of success
Well, let’s see…

“27 (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:…
“(c) there is no reasonable prospect that the complaint will succeed;…” (my emphasis)
That seems clear to me - but perhaps not.

You also [have] to bear in mind the established practice of the tribunal…
When Sec 27 was written, there was no ‘established practice’ of the Tribunal, since it did not yet exist - their practice is was a tabula rasa. The Legislature had the intent that a complainant could simply be told to go away. Perhaps that is due to BC not having the separate Tribunal / Commission arrangement that other jurisdictions have implemented, or perhaps it betrays a dash of common-sense in the Legislature, although that would be surprising, given the origin of the Code early in the Clark administration. In any event, the Tribunal did not exercise their discretion to do so in this instance.

Earlier in the thread, you commented that you doubted that Jay could find any instances where the Tribunal had acted unilaterally under Sec 27 - you take this as evidence of the proper functioning of the Tribunal; I see it as overreaching - a dereliction of their duty to ensure that British Columbians (or, in this case, Ontarians) are protected from empty, frivolous, vexatious complaints operating as state-supported harassment, in favour of an (improper) expansion of their role.

As for the advantage of the Tribunal acting after a motion from Macleans, it would have simply substituted the dog-and-pony show in front of three members to one in front of a single member. The Socks (and the Titan) would have led their same line of non-evidence and incoherent babbling, except instead of deciding on the merits, the Tribunal member would have been forced to decide on the far more ambiguous grounds of ‘prospect of success’ - which by definition has to be a lower bar than actual success. While the process may have been shortened, there was an equal probability that it would simply be doubled when that member determined that the issue should go to a full hearing after all. This was a tribunal that -even in its most august three-person incarnation allowed counsel for the complainant to appear as a witness, and allowed hearsay evidence about statements made by a person who was present in the room at the time the evidence was given. Reliance on the legal acuity of a panel member to dismiss early in the process would seem unwise, and I see no advantage to Macleans in doing so.

truewest
#30. October 13th, 2008, at 11:20 AM.

dcardno,
If you think I’m going to get into a discussion of statutory interpretation and legislative intent with someone who has read one section of the Code, doesn’t understand the Tribunal’s procedures, and appears to know diddlysquat about admininstrative law, you’ve got another thing coming. Go do some research.
Put simply, applications are summary procedures, not mini-trials. If Macleans had applied to dismiss, a member of the tribunal would have heard argument, possibly supported by affidait evidence, from both sides. It Macleans made out the case that Steyn’s drivel did not rise to the standard set by Taylor, the complaint would have been dismissed.

BCF,
There is a legitimate debate as to whether human rights codes should include provisions governing hate speech; indeed, there are persuasive arguments against their inclusion there and in the Criminal Code.
However, too many on your side of that are either incompetent — simply incapable of engaging such a debate — or are so dishonest you simply prefer to spew invective about “kangaroo courts” while distorting the record of human rights tribunals on any number of subjects.

Given the lack of substance in your posts here and elsewhere, I suspect you fall to both categories.

dcardno
#32. October 13th, 2008, at 12:10 PM.

If you think I’m going to get into a discussion of statutory interpretation and legislative intent…
Shorter tw: I’m right, you’re wrong, and I don’t want to defend conclusion.

If Macleans had applied to dismiss, a member of the tribunal would have heard argument, possibly supported by affidait evidence, from both sides
Exactly - which you have asserted would have been a far shorter, easier, and less-costly solution for Macleans. Given the conduct of the full hearing, I don’t see any basis for that assertion. The Socks would have made the same arguments - which would’ve taken just as long, and the basis for the decision would’ve been on ‘reasonable prospect of success’ rather than directly on the merits. The process would then have returned to the course it eventually followed, with an overall doubling (or better) of time and cost.

truepeers
#33. October 13th, 2008, at 12:12 PM.

truewest,

as per that last comment to BCF it doesn’t make sense: our claim (at least mine, though I don’t think that I’m alone) is that the “legitimate debate as to whether human rights codes should include provisions governing hate speech” is largely premised on the argument that no court, however august and learned, can but make a fool of itself when it sets about, by whatever carefully articulated method - and the care with which the Taylor decision is articulated only shows the underlying problem of what can’t quite be grasped - to draw a line between speech that is likely to encourage hate or contempt and speech which is not. That kind of law necessarily politicizes a court because hatred or contempt (or as I would prefer, resentment) are universal human qualities.

A court may well judge violent acts when violence has been committed, but any hypothesis that your resentment is less dangerous than mine gets us relying on the pc code of the day. Further, it seems that a law that has specialized in going after a few lonely basement “nazis”, and then only with the engagement of certain professional busy bodies, is a law that relies on scapegoats for its justification and has no desire or ability to go after the kind of large scale political or religious movements that may well reasonably be argued to be a serious threat to someone else. Can we have legal solutions to big political problems? And if we can have legal solutions only to our need for “marginalizable” scapegoats to confirm the health of our “multicultural” society, does this not corrupt the law?

I spent one day at the BCHRT Maclean’s trial along with a lot of other people who weren’t lawyers and didn’t have a deep love for administrative law: our inability to argue legal niceties was not necessary to be sure that the high readings on our bulltooty meters were not entirely off. Maclean’s counsel would stand to make one of their many objections in point of law and the panel would turn their backs and after ten second of whispering give their thumbs up and down, in ways that looked pretty arbitrary and political to everyone in the room. That was a first impression and there is good reason to trust first impressions. If they were with those thumbs revealing a great knowledge of procedural law, it’s not comforting to think this can be reduced to instinctual panel group think. This is because any great reliance on method, however carefully evolved, is Utopian: method cannot be safely hardened against all new realities; especially, it cannot make careful consideration of legal procedures appropriate to questions of evolving and properly political questions (e.g. is Islam in Europe a good thing), a matter of established instinct.

This is not an argument against respect for due procedure in law, something we cannot do without, only a claim that any method has limits and will be shown all too readily in cases like this. The law makes a fool of itself when it take on the definition of what distinguishes “hate” speech from some more universal human resentment.

truewest
#34. October 13th, 2008, at 1:54 PM.

dcardno
Real shorter tw: You don’t have a clue what you’re talking about. And I haven’t got the time or patience to educate you, if you don’t have the time or patience to educate yourself.
As for your second point, see above. The bulk of the hearing was taken up by witnesses giving evidence and much of the argument referrred to that evidence. An application to dismiss, properly conducted, would have turned on the issue of whether Steyn’s piece could reasonably be shown to cross the line drawn in Taylor. It might have taken a day - tops.

Truepeers,
Nice word salad.
If what you’re trying to say is that courts shouldn’t be allowed to determine whether particular expression is hate speech or not, perhaps you should make that argument to the legislature.
In the meantime, both courts and some human rights tribunals are charged with that task, however perilous it might be.
As for the first impressions, forgive me if i don’t give much weight to the impressions of a bunch of people who wouldn’t know hearsay if they heard it. There are good reasons for allowing more flexible rules of evidence in administrative hearings — not no rules, mind you, despite the braying claims of some — chief among them is that those very folks in the gallery with their first impression would be at sea (and easy prey for lawyers) if they were limited by those rule when representing themselves before the tribunal.

truepeers
#35. October 13th, 2008, at 3:07 PM.

tw,

sure, this law needs to be put to the legislature; that, however, doesn’t explain why it hasn’t been rejected by the courts as unconstitutional or incoherent, or simply refused by people who refuse to do arbitrary “justice” in the name of “following orders”. It would seem to me we first have a larger task of revealing the wider cultural assumptions that supposed such a law could work in the first place. And there may be no better way to do that than to be critical of how such a law is working itself out in practice.

To that end it is worth pointing out that our “human rights” law has attracted professionals dedicated not simply to disinterested justice but to “flexibility” in the name of the supposed victims of our society and its more powerful members. Where does this lead? Hell, we even now have the HRT dictating how the state spend its limited budget, e.g. mandating school programs for the disabled. (Of all the possible groups in need of state assistance, the disabled are at the top; but still the HRT way of making this point is no way to operate a free and democratic society…)

You seem to think it is a good thing that unrepresented people before the HRT not be made easy prey for lawyers, by allowing, ahem, “flexibility” in procedures. Now, on first glance, there might be some basis here for agreement, given my “word salad” arguing that worship of method is ultimately Utopian (and how would one make this argument to a methodical Utopian in what wouldn’t appear to him a “word salad”…?)

The fear of course is that allowing for cheap and easy justice cheapens justice, that there is no free lunch however much we want to believe real justice can be provided on the cheap. Given that we have no right to hope that any group of learned people, not least the kind attracted to “human rights” law, are not, from time to time, going to mess up when left with all kinds of “flexibility”, i.e. that they are not going to be manipulated by their political and victimary (or anti-victimary) pre-dispositions (we have no right to hope that any group will be immune to the usual human frailties), it is natural to assume that any law such as this will cause scandals that will in turn pressure legislatures and courts to toughen procedures, e.g. paying for lawyers when defendants can’t or won’t.

In other words, “flexibility” will lead, given the nature of our law, to more formalized understandings about procedure. These in turn will cause their own scandals. That’s life, best approached with a little humility about what we can and cannot achieve in the name of justice. Whatever we imagine is the right balance today will not seem so tomorrow. We need to know when not to try to legislate against unavoidable problems with the human condition.

Having said all that, I must say it strikes me queer, your suggestion, that we could imagine anyone charged with “hate speech”, under any conditions, ever going before the BCHRT and just trusting them to do the right thing, without getting too formal and lawyerly, especially when they can sanction with life-long orders against, e.g., preaching the Bible’s take on homosexuality. Let’s not confuse the need for encouraging various decentralized forms of arbitration and negotiation of differences with bad laws. It is one thing if both sides have the freedom to choose the more flexible procedures, quite another when I have no choice and can be so punished by a “flexible” politico with or without the assistance of the other side’s legal sharks. What I find most shocking is the apparent assumption, among some in the system, that a lifelong ban on making certain kinds of public statements is no big deal! No court should ever have that power, let alone a less formal one. How did we ever get to the point where we could assume otherwise: legislatures fell for sanctimonious arguments about the need for less formal forms of arbitration on matters completely inappropriate for such arguments.

truewest
#36. October 13th, 2008, at 6:44 PM.

dcardno,
The law has not been found unconstitutional because certain extreme form of speech are not protected by constitutional guarantees. This is true in both Canada and the U.S. Indeed, the US Supreme Court has upheld criminal libel provisions that attach penalties to speech or publications that attack a group or race: Beauharnais v. Illinois (1952).
As for your suggestion that courts should simply refuse to enforce laws they disagree with, I suggest you take that up with your fellow conservatives, who tend to scream about judicial activism when courts do far less than that.
As for the rest of your post, I don’t have time to wade through your stream of consciousness musings about procedures etc. I can only say that if you think a five day human rights hearing a limit on freedom of speech, try sitting through a 50-day libel trial.

truewest
#37. October 13th, 2008, at 6:56 PM.

Jay,
If by invoking “stratagy” you’re suggesting that Macleans took a dive at the HRT to set up a run to the SCC, either you or they haven’t thought this thing through.
It takes two willing parties to play at that game. And while Ken Whyte might persuade Ted Rogers to finance a $1 million run to the SCC –through judicial review, appeal and leave to appeal applications — keeping the show running would, I suspect, eventually require the CIC deciding to appeal. I don’t think their pockets are that deep or their committment to holding Steyn’s feet to the fire that fierce. And as Marky and Andy have discovered, you can’t appeal when you win.

Your point that the HRT dismissed this on the narrowest of grounds may stand. I still think it’s wrong.

As for whether the HRT is the right place to hear complaints about what is, essentially, group libel, I suppose that’s an interesting question. You want to try these things in “real courts”, here are a couple of suggestions:
1) Get the feds to add something like the Illinois “group libel” statute to the criminal code.
2) Get the provinces to amend their libel acts to recognize group defamation. Then, instead of trundling off the HRT, we can file class action defation suits against bigots like Boission.
Oh the fun we’ll have.

dcardno
#38. October 13th, 2008, at 7:25 PM.

An application to dismiss, properly conducted, would have turned on the issue of whether Steyn’s piece could reasonably be shown to cross the line drawn in Taylor.

As would the whole the whole hearing. Of course, it took longer. quelle surprise

truewest
#39. October 13th, 2008, at 7:57 PM.

dcardno,
Nothing quite like the glib smugness of the ignorant. Unless it’s the rambling and pointless verbosity of the ignorant.
Since you don’t understand how the legal process works and you’re too lazy to inform yourself, I don’t see much point in continuing this. Go piss in someone else’s ear.

dcardno
#40. October 13th, 2008, at 8:04 PM.

dcardno,
The law has not been found unconstitutional…
So who said anything about unconstitutional? Bad law can still be constitutional.

As for your suggestion that courts should simply refuse to enforce laws they disagree with…
Where did I make that suggestion? I said that the Tribunal should dismiss outlandish garbage on their own hook - as does, for example, the SCoC.

I can only say that if you think a five day human rights hearing a limit on freedom of speech, try sitting through a 50-day libel trial.
In which the other side has to show damages, and actually pay for their own lawyer? Yeah - that’s pretty comparable.

truewest
#41. October 13th, 2008, at 8:35 PM.

dcardno,
Not shy about parading your ignorance, are you? In reverse order.
- complainants in human rights cases pay their own lawyers.
- libel is actionable per se, which means that defamatory publications are presumed to cause damage.
- the SCC gets to pick and choose which cases in it hears through leave applications. The BCHRT doesn’t have that luxury. The comparison is laughable.
- Bad law that is constitutional is still the law. Courts have to enforce until the legislature changes it.

Congratulations - you went 0 for 5. Got any more bright ideas you’d like to share?

truewest
#43. October 13th, 2008, at 9:38 PM.

Jay,
Given your record on this issue, I don’t think you have much business grading anyone.
- First, this thread concerns BC. Second, in all jurisdictions, complainants who want to be represented by counsel pay them. Commission counsel do not take instruction from complainants.

- you don’t have to prove damages for libel. And even nominal libel damages exceed the typical award in a human rights case.

- The SCC only accepts cases that raise important points of law and are of national significance. The Tribunal, on the other hand, screens cases in which the complaint does not contain facts, which if true, would amount to a breach of the code. The comparison is, as I said, laughable. As for your idiotic, “thus….” I presume you’d like the tribunal to toss cases without hearing argument because….well, just because. Hey, why don’t we apply that logic to the whole process. Really, who needs to hear from the respondents?

dcardno
#44. October 13th, 2008, at 10:05 PM.

tw:
complainants in human rights cases pay their own lawyers.
depending on jurisdiction, as Jay noted.

the SCC gets to pick and choose which cases in it hears through leave applications.
And the BCHRT does the same - through exercise of Sec 27, which you have defended them not using.

Bad law that is constitutional is still the law. Courts have to enforce until the legislature changes it.
And I repeat my question - when did I suggest not enforcing the law? What I would like to see (next to getting rid of the operation altogether) is a Tribunal that understood and acted on their authority to dismiss complaints, as expressly established by the legislation that created the Tribunal.

Rod Blaine
#46. October 13th, 2008, at 10:51 PM.

> Indeed, the US Supreme Court has upheld criminal libel provisions that attach penalties to speech or publications that attack a group or race: Beauharnais v Illinois (1952).”

Truewest, Beauharnais is a one-off that the US Supremes have consistently refused to follow as a precedent. It’s the Korematsu v US of First Amendment cases.

Blazingcatfur
#47. October 14th, 2008, at 5:27 AM.

“However, too many on your side of that are either incompetent — simply incapable of engaging such a debate — or are so dishonest you simply prefer to spew invective about “kangaroo courts” while distorting the record of human rights tribunals on any number of subjects.”

Nonsense Truwest. Why debate a matter already settled by common sense. I look to your parsing of minor points of law as a desperate exercise on your part to score points in a debate you have already lost.

truewest
#48. October 14th, 2008, at 7:01 AM.

Rod,
I’m aware of the history of Beauharnais. I refer to it only to make the point that Canada’s hate speech laws aren’t exactly off the radar, even in a country with robust free speech protections.
Jay,
Warman did show up to argue the complaints he made. He did not show up when the conduct of the Commission was challenged. Why would he?
As for screening, the tribunal’s description of the process states that it screens to the standard I described. They didn’t toss it, because screening to that standard does not involve conductig a detailed legal analysis of the impugned publication - i.e. a decisision that goes to the merits.
As for the rest of the verbiage, give it up.

Rod Blaine
#49. October 14th, 2008, at 12:41 PM.

truewest, so why not cite Gitlow v NY from 90 years ago to prove that Canadians really shouldn’t worry if the Harper Junta starts locking people up for opposing the Iraq War?

Dr.Dawg
#50. October 14th, 2008, at 2:10 PM.

Why debate a matter already settled by common sense.

“Common sense is the collection of prejudices acquired by age eighteen.” –Albert Einstein

Give it up, BCF, you’re way out of your league here.

Rod: I’m waiting for your list of left sites that have argued in favour of the BCHRT complaint. Surely that wasn’t too much to ask?

Jay: tw had already made you swallow hard. I suggest that you’ll need something fresh to buttress your continual silliness about “‘roos” and so on. You keep forgetting what you’ve been continually reminded of:

1) The Tribunal doesn’t seek out cases, but deals with cases initiated by private citizens;
2) It cannot simply dismiss cases on its own hook, without attracting, in most cases, obvious anxiety about fairness and dur process;
3) The proceedings being relatively informal, much will be said that is hearsay, etc., but the Tribunal will not base its decision on those irrelevancies.
4) The Tribunal’s decisions are reviewable by a court. Under the Administrative Tribunals Act, tribunals must act appropriately with respect to due process and procedural fairness. I quoted chapter and verse of this stuff over at my place some time ago.

It’s like we’re all spinning our wheels, Jay. You keep flailing away, but you know you’ve lost this one. If I were you, I’d stick to the notion that somehow the antics of a few blogospherians and National Post columnists made the Tribunal members all change their minds, despite the fact that they hold fixed-term appointments and have nothing to fear from findings either way, and despite the glaringly obvious fact that there was no case in the first place, as so many of us tried to tell you.

I do detect a split in the speech-warrior’ ranks, however. One faction says that “the process is the punishment,” so that the respondents really lost. The other faction (represented by the unbright BCF) admits that the case might well have been nipped in the bud by a S.27 application, but that it served the public interest to go through the whole megillah–so that the respondents really lost.

Come on. Enjoy your victory. Thank your God for small mercies, given what’s about to happen tonight.

Blazingcatfur
#52. October 14th, 2008, at 3:16 PM.

“Give it up, BCF, you’re way out of your league here.”

Dawg thats hilarious coming from someone who clings to marxism. What a fool you are.

Blazingcatfur
#53. October 14th, 2008, at 3:51 PM.

My final words on this silly and pointless argument.

Macleans filing for a dismissal would have lent a tacit legitimacy to the process. Allowing the case to run its course amply demonstrated how ,in Julian Porter’s description “illegitimate” the process in fact is.

I have gotten a kick out of Truewest second guessing Julian Porters handling of the case.

I guess if Mr. Porter were as successful a lawyer as Truewest then he too could spend his otherwise billable hours in pointless blog debates.

truepeers
#54. October 14th, 2008, at 5:45 PM.

Hmm, hilarious or expected? The belief that one is playing in a quite different league is essential to maintaining the Marxist (or similar “true”) faith in one’s system. The mysterious thing is that some Marxists maintain their faith even when they are all too uncomfortably aware of their religious dependence on this need to dismiss, and when they know the questions they must forbid, lest the reality-capturing supremacy of their system be called into question. Living with uncertainty is not at all the way to the big leagues, in their game…

One wonders however when the great battleships go a blowing smoke whether it’s largely to impress those of us with a perverse passion for a divine humility, not only for ourselves (no one’s perfect), of our targeting limits, by barraging us with certain technical pieties, or whether the good captain is not also fooling himself, forgetting what he once knew he had to forget. In any case, the dismissal of those not yet initiated into the Royal, nor even one of the lesser, great systems, i.e. those with their pesky little questions that come from a clinging, in the words our time’s greatest magician, to guns and religion, not to mention other uncomfortable bits and pieces of reality, is but a way of prefiguring what became, in the heyday of Marxism, the murder of all those pushy and uninformed “kulaks” with less than major league credentials, sort of the equivalent of those who keep trying to “discriminate” among greater and lesser religious truths in the age of the HRC.

Let us not uncharitably forget however the more holy murder, more or less, that Marxist major leaguers must learn to play on each other. Good luck, Dawg, in the new Commonwealth of Jack, seriously.

truewest
#55. October 14th, 2008, at 7:25 PM.

Nice to see blazing cat turd has maintained its usual standard of intellectual discourse. We are flatterd to know that it can take time out from the village idiot gig to its share its deep thoughts with us.
Julian Porter is a fine defamation lawyer who apparently knows sweet f.a. about administrative law and HRT procedure. He’s also a man of a certain age who thinks it appropriate to use the word “scaredy-cat” to describe a complainant who declines to take the stand. Not that there’s anything wrong with that. But I digress.
BTW. Before you bloggers lionize Porter, you might bear in mind that, in story that ran shortly after the hearing, he offered the following comment:
“A more insidious threat [than the HRTs] is the Internet, Mr. Porter argues. Anonymous websites and blogs are havens of defamation, slander and libel because their owners and authors are difficult to trace or hold accountable…..
In traditional print and broadcast media, publishing and entertainment companies publish corrections or pay damages when courts find they have wrongfully damaged reputations. In what Mr. Porter calls the legal netherworld, websites, blogs and a variety of digital voices operate with virtual impunity. Many of the voices are difficult to trace. When they are revealed, most have slim financial resources to compensate defamed parties.

“The slander is out there on the Web and you can’t put it back in a box,” he said. “You don’t know where the line is now. You don’t have access to someone with money who cares or is responsible about what they say… There just isn’t anyone around who is accountable for the words,” he said.

In short, Porter views turd-flinging monkeys like our friend bcf as a far greater threat than HRTs.

truewest
#56. October 14th, 2008, at 7:48 PM.

truepeers,
did you go to some special school to write that badly or does it come naturally?

truewest
#58. October 14th, 2008, at 8:38 PM.

Jay,
I stand corrected. There is, of course, a vast difference between the two insults. I offer my humblest apologies to Mr. Porter for misquoting him. He is a man of great dignity - indeed, almost the equal of blazing cat turds — and the suggestion that he could use a juvenile terms such as “scaredy-cat” rather than the far more dignified epithet “scaredy-pants” is the grossest libel one could imagine.
On a related point, nice to see you opining on the law over at Dawg’s. Although where you go the idea that a court could tell a defamation plaintiff to “get stuffed” is a mystery to me, since even a defamation novice such as I understands that you can maintain a defamation action as long as the impugned words are capable of bearing a defamatory meaning. Toss the claim? In your dreams.
But then, what of it? After all, everyone knows the real threat to freedom of speech lies with HRTs and not with litigious prime ministers.

Blazingcatfur
#59. October 15th, 2008, at 1:36 PM.

What cracker jack box did you get your LLB from Truewest?

ebt
#60. October 15th, 2008, at 1:51 PM.

Trollwaste doesn’t have a law degree or any legal education. He is not competent to form a legal opinion, and knows nothing about law or the practice of law. Please don’t be so foolish as to believe a word he says.

The HRC was under a clear duty to reject this claim out of hand. You’ll note that the dismissal is based on the mere text of the article itself. They were just as capable of reading it before they wasted a million dollars of Ted Rogers’ money as after.

truewest
#61. October 15th, 2008, at 9:16 PM.

ebt,
How’s my favourite lying psychopath? You never call, never write - its been ages since you’ve threatened to kill me. Soooo…guess the new meds are working their magic.

Nice of you to drop by to share your legal knowledge. Next to you, Jay looks like a candidate for the SCC.

Dr.Dawg
#62. October 16th, 2008, at 1:04 PM.

Imagine the, uh, synergy if ebt and BCF were co-bloggers…

Blazingcatfur
#63. October 22nd, 2008, at 8:46 AM.

Imagine if Dawg actually possessed wit;)