September 18, 2008 9:48:47 PM CEST
drklaus (Sep 18 2008, 06:13 PM) said: > original post
Ruling reserved in case to strike down section of Human Rights Act
KIRK MAKIN
Globe and Mail Update
September 17, 2008 at 6:40 PM EDT
TORONTO — Behind every genocide and pogrom in history lies a trail of racially intolerant screeds that helped distort the way a minority group was viewed, a human rights tribunal hearing was told Wednesday.
“The road to Auschwitz was paved with hate propaganda, Mein Kampf and the Protocols of the Elders of Zion,” said Marvin Kutz – a lawyer for B'nai Brith Canada – on the final day of a hearing into alleged hate material posted on an Internet message board operated by defendant Marc Lemire.
Mr. Lemire and his supporters have asked tribunal commissioner Athansios Hadjis to strike down Section 13 of the Human Rights Act, which permits a complainant to launch a human rights proceeding against anyone has allegedly promoted contempt or hate towards an identifiable group.
They claim that the section infringes the Charter right to free speech, chilling open debate and leaving individuals vulnerable to harsh punishment simply for participating in heated discussion.
However, Mr. Kurz argued that Section 13 is a vital weapon in the Internet age, when minorities can be mocked, belittled and threatened instantaneously with a single key-stroke.
“It isn't a matter of scare-mongering to say that the Holocaust wasn't a unique event in history,” Mr. Kurz said. “Allowing the spread of hate is what permits the next level to occur. Society needs to deal with it in a civil context first, so that it doesn't get to a criminal context.”
Steven Skurka, a lawyer for the Simon Wiesenthal Centre for Holocaust Studies and the Canadian Jewish Congress, rejected the idea that Section 13 stifles honest debate: “Only the most virulent and poisoned kind of expression” gets caught by the section, Mr. Skurka said.
“We support the right to offend and the right to be offensive,” Mr. Skurka said. He said that Section 13 only comes into play after healthy debate has been manipulated into the active promotion of hatred toward a vulnerable group.
“Our ultimate submission is that hate propaganda does nothing to advance freedom of expression and is antithetical to the values of Canadian society,” Mr. Skurka said.
A lawyer for the federal Justice Department, Simon Fothergill, endorsed the notion that hate speech can have a tangibly negative effect on those who hear it.
“Hate speech does, indeed, cause crime – and crime of a very serious nature,” he said.
Mr. Fothergill said that it is absurd to suggest that it impossible to debate major historical events without running the risk of offending a particular religion or cultural group: “There's so much one could say without ever getting close to that line,” he said.
He also laughed off the notion that Internet messages boards will become impossible to operate if Section 13 complaints are allowed to continue. Webmasters or operators can place disclaimers on their site and apologize for offensive material that inadvertently gets on their site, he said.
“If you are operating a website that deals with [offensive] subject matter … you might want to take extra precautions,” he added.
Barbara Kulaszka, a lawyer for Mr. Lemire, told the tribunal that the mainstream media paid no attention to unfairness of Section 13 complaints until Macleans magazine columnist Mark Steyn was targeted by a Muslim group earlier this year.
“Every religion is going to start using it,” she warned. “Just look at the first Muslim complaint in 30 years. Everyone went nuts. The media woke up, and said: ‘It isn't just Ernst Zundel and his creepy right-wingers being attacked. They are going to come after us.'
“You're going to be caught in the cross-hairs,” she cautioned.
An intervenor who supports Mr. Lemire – Paul Fromm – told Mr. Hadjis that virtually all of those targeted in Section 13 complaints have been modestly educated, “lower-class” individuals who tended to phrase objections to immigrants or particular groups in crude, hyperbolic “bar talk.”
“Not everyone can speak like an Osgoode Hall-educated lawyer, with nuances and exceptions, and so on,” Mr. Fromm said.
He also denounced a CHRC lawyer for saying earlier this week that racial jokes ought to be fair game for Section 13 complaints: “My response is that to condemn jokes is going pretty far down the road to the old Soviet Union,” he said.
Mr. Fromm also criticized the fact that 100 per cent of the Section 13 complaints referred to tribunals by the Canadian Human Rights Commission have been successful. “A 100 per cent success rate?” he said. “That doesn't happen this side of North Korea.
However, Mr. Kurz said that Mr. Fromm's “scurrilous attack on the tribunals' integrity” was misplaced. Rather, the CHRC success rate shows that it only targets material that contains “incredibly awful” elements of hatred, Mr. Kurz said.
Mr. Kurz also argued that a recent complaint by Muslim groups against was dismissed by the Commission not because it had been cowed by a public and media backlash, but because it was without merit.
Mr. Hadjis has reserved his ruling.
WHY does free speech matter?The Marc Lemire Case - Why It Matters
Posted 9/17/2008 7:00:00 PM
The adjudicator has reserved his decision in the case of Marc Lemire's constitutional challenge of Section 13 (more at this post). Lemire was the subject of a human rights complaint filed under Section 13 - a complaint that was filed some five years ago. We spoke with Marc Lemire Tuesday night about his case - you can listen to that conversation via the player on the right.
Whatever one might think of Marc Lemire, he has suffered an injustice under the thumb of this complaint and the ongoing ordeal. Frankly, we never should have ever heard of Marc Lemire in the first place. Would anything really been accomplished by shutting down his websites and censoring him?
As you hear in the interview, Lemire rejects any suggestion that he's a bigot - and to be fair, the complain against him seems to stem from the words and postings of others. That said, his associations and his involvement on websites like Stormfront and Vanguard News Network are revealing (not to mention the creepy "white rights" banner included in a photo on his own website).
In any event, it shouldn't matter. Even if one finds Lemire offensive or the content on his website offensive, he's entitled to his freedom of speech - or at least should be.
This case, however, isn't just about Marc Lemire. As I've argued here, here, and here the implications of cases like this are far reaching indeed.
Take this, for instance:
Every Internet message board in the country will have to shut down if an Ontario man - Marc Lemire - is found liable for vile comments that were posted on his website, a Canadian Human Rights Tribunal was told yesterday.
"It's preposterous," said Douglas Christie, a lawyer representing far-right groups who advocate free speech. "It is the same as the chairman of a meeting being held liable for someone who shouts something out."
He warned that an adverse decision would prove destructive not just to a sprinkling of characters on the "lunatic fringe," but to mainstream newspapers, magazines and other institutions that have launched online message boards and chat rooms.
Mr. Christie said a single paragraph on a newspaper website, left on an Internet message board for just a minute or two, could generate a complaint that would spawn three years of human-rights litigation.
And the lawyer for the Canadian Human Rights Commission seemed to confirm the point:
Mr. Hadjis questioned whether it is fair, in general, to hold Web site owners accountable for what others may write in their comment sections, possibly without their knowledge, consent or endorsement.
He used the example of the CBC, which operates several chat forums for readers to discuss news stories, and asked what would happen if a hateful message somehow got past automatic filters and live editors.
Without commenting on the CBC directly, Ms. Blight said there is no "free pass" for anyone.
"No free pass for anyone" - there it is. That's why we all have a vested interest in this case.
Keep in mind that under Section 13, intent doesn't matter. So if I wrote a post about racist bigots, and someone posted a racist, bigoted comment, perhaps I would leave it there as an example of the sort of bigotry I was talking about. But since "no one gets a free pass", I could be held liable.
Or let's say that bigoted comment wasn't really from a bigot at all, but someone trying to get me in trouble. It's very easy to use an anonymous pseudonym and write whatever you want to write. It follows, then, that it would be very easy to post numerous racist comments on a blog or forum or chatroom and then turn around and declare that blog or forum or chatroom to be racist.
And what counts as offensive or bigoted? That, too, could be subjective since Section 13 speaks of content that is "likely to expose a person or persons to hatred or contempt" - as we've seen in the cases of Maclean's magazine and the Western Standard, there are those who take that definition pretty far.
Mr. Christie makes an interesting point:
...(Christie) cited various historical issues that, if discussed truthfully, could conceivably expose certain groups to hatred: the Crusades, the Inquisition, the Protestant Reformation, the battles of Waterloo and Tours, the Charge of the Light Brigade and the War of the Roses.
The Criminal Code restrictions on speech are sufficient - scrap Section 13.
