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Canadian Hate-Speech Law Violates Charter of Rights
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."
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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance
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."
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ECHELON is a government program to find words like bomb, jihad, plutonium, assassinate, and anarchy.
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
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
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
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.
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.
"It is possible to commit no errors and still lose. That is not a weakness. That is life." -Peak Performance