Canadian Hate-Speech Law Violates Charter of Rights 651
MrKevvy writes "The Canadian Human Rights Tribunal has found that federal hate-speech legislation violates the Canadian Charter of Rights and Freedoms, the equivalent of the US Constitution's Bill of Rights. This decision exonerates Marc Lemire, webmaster of FreedomSite.org, but may have farther-reaching consequences and serve as precedent for future complaints of hate-speech."
Worth noting (Score:1, Informative)
The Canadian Human Rights Tribunal is not a real court and the real courts (ie, Canadian Supreme Court) have previously ruled in favour of restrictions on publishing 'hateful' content being a justified restriction of speech in this country, probably on the very same legislation since "communicate telephonically or otherwise" referring to the internet doesn't sound like a recently changed passage.
Re:Worth noting (Score:5, Informative)
I'm not sure exactly what they're referring to in this decision, but the Supreme Court in R v. Keegstra and R v. Krymwoski that restrictions on hate speech were perfectly valid under S.1 of the Charter.
There are, however, a variety of differences between those cases and this; the primary one being that those were criminal complaints and this is not. That said, the Supreme Court and lower courts have long upheld the Human Rights Act and have often supported the decisions of the Human Rights Commission under that act, so I think the chances of this being overturned on appeal are slim. Any overturning would likely be procedural: the procedures do not provide sufficient safeguards, the Tribunal operated beyond its powers in this instance, etc.
I find it unlikely in the extreme that the Supreme Court would simply overturn the Act itself.
Re:Worth noting (Score:4, Informative)
No, what this finding is saying is that the HRC is going far above and beyond its scope and powers, and is violating Canadian Law. It is, quite frankly, the most important decision since the UK let us go in 1982.
The constitution is the overall ruling document in Canada, and NOTHING goes in front of it. The End. This finding means that, finally, the HRC agrees with the Constitution.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The HRC has been abusing its position for years, and this might be the end of the abuse. I have the right to say and write offensive things, and some would say it is my duty to offend at least one person a day AND be offended in turn.
There are criminal offences for dealing with inciting violence; the HRC was going after people for writing something down with no intention behind it except their own ignorance. We already have the lottery system for fining the stupid; we didn't need another one.
For the Americans:
We had a court-like thing called "The Human Rights Commission" that had a 100% success rate in convicting people of hate crimes. Basically, it was ignoring the equivalent of the 1st amendment and fining people any time you communicated in a way that offended anyone, anywhere.
They've just looked at themselves and said, "wait, what the fuck are we doing? We've been ignoring the constitution."
Re:Real issue is circumventing double jeopardy (Score:2, Informative)
The questionable part of the law being the last portion. The rationale for this decision is that it's fine to outlaw certain behavior, but not solely in the instances where it's brought about by motivations that we disapprove of. It's different from say, hate crimes, because hate crime laws penalize behaviors that were illegal to begin with. In the US this decision would certainly be applicable to hate speech legislation, if ALL speech including hate speech weren't already protected in all cases except where it can be shown to cause an imminent lawless action or certain cases dealing with state secrets. I am not aware of any relevant cases where, as you suggest, a "hate speech charge will crop up" due to some politician having his feathers ruffled. In theory this would be blatantly unconstitutional, but I can't dispute your facts as you didn't provide any specific instances.
Re:The tide is turning against lefties (Score:3, Informative)
His popularity was entirely due to our ability to google pics of his wife's vag.
Re:Eh? (Score:3, Informative)
It's amazing how many people haven't read the ruling isn't it?
First off, it's a Tribunal - it means nothing WRT the law. Second, the ruling is that section 13(1) if the law - where you are fined monetarily - is unconstitutional. So, you can still be convicted under the Hate Speech laws in the kangaroo court, you just can't be bankrupted in the process. Plus that Wharman dweeb does not collect $200 for his posting hate speech under assumed identities.
Re:Let's hope... (Score:3, Informative)
rigour mortis (Score:4, Informative)
CHRT has no teeth ... If [CHRT] was a real court ... [immune to] actual laws of the land ... pisses me off
Surprised you find the mechanism of the court so perfect in every way that no other judicial mechanism should even exist, even ones sanctioned by parliamentary legislation.
From About the CHRT [chrt-tcdp.gc.ca]
The Canadian Human Rights Tribunal (CHRT) was created in 1977 by an Act of Parliament.
_...
Parliament finally enshrined the Tribunal's independence in law and the Canadian Human Rights Act was amended to formalize the CHRT's independence.
_...
As an administrative tribunal, the CHRT has more flexibility than regular courts.
One of the reasons given for this is that the defendant does not need to follow rules of evidence in his/her defence. Following the rules of evidence is an expensive process, maybe more so than the fines if convicted.
From Legal Definition of Administrative Tribunal [duhaime.org]
Between routine government policy decision-making bodies and the traditional court forums lies a hybrid, sometimes called a "tribunal" or "administrative tribunal" and not necessarily presided by judges.
These operate as a government policy-making body at times but also exercise a licensing, certifying, approval or other adjudication authority which is "quasi-judicial" because it directly affects the legal rights of a person.
This authority does not amount to hard biting surfaces?
From About the CHRT - The Vice-Chairperson [chrt-tcdp.gc.ca]
Mr. Hadjis received his Bachelor Degree in Civil Law together with his Bachelor Degree in Common Law from McGill University in Montreal, in 1986. He was called to the Quebec Bar in 1987.
That's as much training as most judges prior to their appointment. How many lawyers have equal training in both of Canada's legal traditions?
When I was eight years old I rode my bike on my way to school across the corner of someones lawn which in my small town was rather indistinct from the gravel boulevard which surrounded it. An elementary school classmate witnessed this and and yelled at me "get off my lawn or my dad will sue you".
That has ever since been my psychological template for people who regard human rights as a "shout off my lawn" free card.
I believe in absolute protection against unpopularity. In my eyes "abortion should be permitted until halfway through the third trimester" is protected speech. "Jews are verminous scum and should be gassed by the millions" is not.
Somehow we need to define a line between these speech acts. It's not going to be an easy task, we'll make many mistakes, and there will be much wailing and outrage.
Nevertheless, suck it up: it must be done. The only question is how to do it better rather than worse. The courts surely aren't perfect, and neither are tribunals. A tribunal leaves more scope for fine tuning than the formal court system.
If a person is cursing the scope for fine tuning the system (the flexibility of the tribunal) in my experience it's likely because the person doesn't wish to see the job done right in the first place. It's a bit of a straw man tactic. Once you lock this up with the inflexibility of the courts under the rubric of fairness, it becomes a simple matter to advance the case that the courts in their rigidness can't ever get this right. And that would likely be true in a generational time frame.
The fallacy of the slippery slope is the presumption that objects only ever slide down hill. If nothing ever went up the hill, we'd have no traditions worth respecting whatsoever.
If anything is important enough to push uphill, for as long as it takes, this would be it.
Re:What is hate-speech? (Score:1, Informative)
None of those things are going to make me run crying to the police for protection from you.
'Cept if it is done in such a way that it's grounds for a slander suit, which predates (by at least a half-century) the Bill of Right's "protections" for freedom of speech.
Consider the First Amendment to the United States Constitution. We're told that "Congress shall make no law...abridging the freedom of speech." Consider, though, the other protection toward the end of that amendment. "Congress shall make no law...abridging the freedom to petition the government for a redress of grievances."
In short, if someone (in front of an audience) accuses me of being a "fag" and while implying that homosexuality is a "foul or loathsome disease," that is actionable in court. I could sue the clothes right off their back. Not because it is hate speech, but because it interferes with my ability to conduct myself and my business in society.
These anti-defamation laws are the protections ordinary citizens have against hate speech, valid in most common-law countries. I just wish our courts were forward-thinking enough that people could utilize anti-defamation laws powerfully, rather than having to resort to freedom-of-speech-hindering anti-hate-speech legislature.
Re:"Hate" speech is Free Speech (Score:1, Informative)
Oops, you repeated yourself again.
Well, technically since fascism in Germany evolved from socialism, and socialism can lead to communism (like in Soviet Union), he just keeps repeating himself...
Re:In a perfect world, this happens: (Score:3, Informative)
Def Lepard, nice...
To stay on the topic of both the article and the post I'm replying to, "Words are weapons, sharper than knives."
Re:The tide is turning against lefties (Score:3, Informative)
Women don't have "teabags" [urbandictionary.com]".
There's 66 different definitions in all, most having to do with men's "package" or "nutsack".
So you have this urge to tell us you enjoy sucking on "women's teabags"? Please don't share any pics, and we'll pretend it didn't happen.
Re:Surprised? (Score:3, Informative)
The law itself was not really found to violate the 'free speech' right.
In a previous ruling the Supreme Court of Canada (I think) upheld said law.
This ruling found "the law was originally intended to be âoeremedial, preventative and conciliatory in nature,â rather than a means to hand out penalties."
It was really the punishment called for by the law that was found to be inequitable. Because of this problem no action will be taken though the defendant was found to be guilty of 'hate speech'.
Re:Worth noting (Score:3, Informative)
We had a court-like thing called "The Human Rights Commission" that had a 100% success rate in convicting people of hate crimes. Basically, it was ignoring the equivalent of the 1st amendment and fining people any time you communicated in a way that offended anyone, anywhere.
They've just looked at themselves and said, "wait, what the fuck are we doing? We've been ignoring the constitution."
Not only that, but a former member of the CHRC (or CHRT - I forget which), one Richard Warman, the complainant in this case, has been responsible for something like half of all "hate speech" cases filed at the tribunal over the last several years. Anything this little snake finds on the internet that he decides is hateful, he files the complaint and looks to cash in. Ezra Levant has been doing a lot of legwork on exposing this corrupt little cesspool for what it is over the past couple of years, ever since he got hauled before them to defend his publishing of the Mohammed cartoons when he ran the Western Standard magazine.
Unfortunately, this ruling does not strike down the law. That's beyond the CHRT's power. The adjudicator's only remedy was to refuse to apply the law and dismiss the case. The law is still on the books and the ruling does not have the power of precedent unless appealed to a real court and upheld. So while this is a big step in the right direction, the fight's not over yet.
Re:The tide is turning against lefties (Score:3, Informative)
He is absolutely despised and hated in Québec, which he continuously belittled and paternalized. His repatriation of the constitution without Québec's assent was the biggest affront to Québec, and the charter of rights was directly aimed against Québec's language laws.
Re:Surprised? (Score:1, Informative)
I mean, either a person is free to say what they want or not.
Common misconception. Free speech is not a license to say what you want, whenever you want.
For one, you aren't allowed to put people in danger through speech. I'm pretty sure that talking some deranged lunatic into killing someone you don't like is going to be illegal, for example. Likewise, deceiving people is often illegal. Impersonating an officer of the law is pretty obviously wrong. So is convincing a room full of little old ladies to give you their money because you "have a terminal illness". Or inciting panic by telling people there's an emergency (which let's say results in a small stampede, some minor injuries, and the fire department being called).
These are all examples of places where your ability to speak is not protected by law, and rightly so. 'Free speech' is obviously not an absolute license to say whatever you want, whenever you want. Obviously there are lines you are not allowed to cross.
Perhaps not as obvious is what side of the line "hate speech" is supposed to be on.
Re:Worth noting (Score:5, Informative)
Your comment is extremely misleading.
Firstly, the Constitution is the overall ruling document in Canada, but that does not mean nothing goes before it. In fact, public policy concerns often override Charter rights. This is entrenched in the Charter as S.1, and was elaborated on at great length in R v. Oakes and the subsequent follow-on cases.
The rights enumerated in S.2, specifically, 2(b), are not beyond constraint. They are constrained by S.1, which states, ultimately, that there are public policy rationales powerful enough to override individual rights, and the determination of whether or not they are sufficiently powerful is determined by the Oakes test.
Secondly, the HRT is not a court-like thing. It is a quasi-judicial tribunal, whose decisions are reviewable by the Federal Court and the FCA, etc.
Thirdly, the HRC's 100% conviction rate is incredibly misleading in and of itself. There is no way to be acquitted by a HRT. Complaints are either upheld or dismissed. Someone the subject of a complaint cannot be found innocent. That is not how the system works. In criminal justice terms, this would be vaguely akin to having a system where you were either convicted or had the charges dropped. Actually, of the complaints brought before the Human Rights Commission, 13.5% are referred to the HRT, and 86.5% are dropped. 60% of those complaints referred to the HRT are settled prior to the Tribunal issuing a decision. In total, all of approximately 8.1% of complaints are decided by the HRT, and the HRT has the legal authority, also, to dismiss complaints at that stage if it feels doing so is appropriate (but I haven't found statistics on that).
In short, you're either terribly misinformed or intentionally lying to significantly distort the facts of the case.
Re:You Cannot Give Offense (Score:1, Informative)
Spend enough time on /b/ and nothing will bother you any more.
Re:Hate speech serves no purpose (Score:3, Informative)
Please define "hate speech" in a way that is objective and clear and does not require knowing what is going on inside the mind of the person using it.
How about the definition in UK law:
A person who uses threatening, abusive or insulting words or behaviour, or displays any written material which is threatening, abusive or insulting, is guilty of an offence if-
(a) he intends thereby to stir up racial hatred, or
(b) having regard to all the circumstances racial hatred is likely to be stirred up thereby.
This uses standard, clear and objective legal terminology such as "intend" and "likely" (note that just because these terms require judgement in their application does not mean they are not clear or objective - all criminal prosecutions require a determination of intent, the mens rea. This, of course, is not determined by spookily looking inside someone's head, but by applying reasonably human judgement to their observable actions).
The idea that hate speech is somehow subjective or requires knowledge of inaccessible mental states simply marks you as ignorant of the meaning of the term.
Re:Some characteristics of the Human Rights Tribun (Score:3, Informative)
You forgot one point that is perhaps even more important than the rest:
- Truth is not a defense.
Yes, it doesn't matter whether what you say is true or not. So long as your speech "is likely to expose a person or persons to hatred or contempt", you're screwed. This means that, for example, any scientific research, even if perfectly flawless and objective, that would expose differences between groups separated by racial, ethnic, cultural or religious criteria in areas where it is controversial (e.g. intellect), could be ruled to be hate speech by the Tribunal.
Re:Let's hope... (Score:3, Informative)
Re:aha (Score:3, Informative)
No, you are wrong. A significant number of hate crime convictions are for crimes against white people. From the FBI:
Of the 9,528 victims of hate crimes in 2004, 9,514 were associated with an incident involving a single bias. More than half of that number (53.8 percent) were victims of racial prejudice. Of those, 67.9 percent were victimized because of anti-black attitudes, and 20.1 percent were targets of anti-white sentiments.