Dear Readers:
Great article in the National Post this morning ………., as usual!
If I could get all my news from the National Post and Quebecor, I would be a happy camper!
Although I usually try and inject my own thoughts into any article featured here, I think this one should stand on it’s own!
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Joseph Brean
On Wednesday, the Supreme Court upheld the hate speech provisions of human rights law. As the Senate debates a bill to repeal the federal law against hate speech on the internet, the National Post‘s Joseph Brean dissects the legal basis for Canada’s uniquely balanced approach to the darkest emotion:
Q: Has Canada’s legal definition of hate changed?
A: Yes, but only slightly. Defined by the Supreme Court in 1991 as “unusually strong and deep-felt emotions of detestation, calumny and vilification,” hate speech remains just that in the eyes of the law. The slight change was to remove the outdated word “calumny.” Even Mr. Justice Marshall Rothstein felt compelled to look it up, and found it means a “false and malicious misrepresentation of the words or actions of others, calculated to injure their reputation; libellous detraction, slander.” He decided it is unnecessary. “While hate speech often uses the device of inflammatory falsehoods and misrepresentations to persuade and galvanize its audience, the use of such tools is not necessary to a finding that the expression exposes its targeted group to hatred. Nor would false misrepresentations, alone, be sufficient to constitute hate speech,” he wrote.
Q: How can you punish someone for a subjective emotion such as hate?
A: You cannot. But now it is clear you can hold them civilly accountable for the effect of public hate messages, which “rises beyond causing emotional distress to individual group members. It can have a societal impact,” according to the Supreme Court. “Ultimately, it is the need to protect the societal standing of vulnerable groups that is the objective of legislation restricting hate speech.”
Related
A funny thing happened when the Whatcott case was argued in 2011. Mr. Justice Rothstein, who would go on to write for the unanimous court, asked a question that indicated he was at least momentarily unclear on the difference between “buggery” (a pejorative word for anal sex which, in an archaic legal context, can also mean sex with animals) and “bestiality” (a more technical term for sex with animals). The chief justice set him straight, to chuckles from the gallery. With further discussion from Mr. Whatcott’s legal team about such “repulsive” sexual practices as “rimming and water games,” it was clear the Supremes were in virgin territory, hearing about all the things that bother Mr. Whatcott.
But in their ruling, they strove to set the standard higher than his opinions and concentrate on the effects of his flyers, in which he called gays a pedophilic menace to children. Allowing someone to claim a sincerely held belief as an excuse, as Mr. Whatcott did, would “provide an absolute defence and would gut the prohibition of effectiveness,” they decided.
Q: Shouldn’t truth or benign intent be a valid defence?
A: Mr. Whatcott claims what he says is the medical truth and his intent is not to promote hatred, but to express his love of people who are engaged in immoral behaviour. Similarly, Ernst Zundel once tried to argue the truth of his Holocaust denial as defence against a similar complaint, which would have put his tribunal in an awkward spot, entertaining arguments designed to spread hate. This fear of a hijacked platform is a main reason human rights hate speech tribunals will not accept a defense of truth or benign intent, whereas a criminal court will. They are meant to be remedial and conciliatory, rather than punitive, and so offer fewer legal safeguards. (No one can be convicted criminally of wilful promotion of hatred, for example, if he can prove what he said was true, or the good faith expression of a religious belief, or was pointed out for the purpose of removal, or was “relevant to any subject of public interest, the discussion of which was for the public benefit.”)
The Supreme Court has now confirmed a further reason – truth can be used to spread hate, just as lies can. True statements can be marshalled to hateful, bogus arguments about the denial of the Holocaust, the inferiority of blacks, the perversion of Muslims, the slyness of Jews. “The vulnerable group is no less worthy of protection because the publisher has succeeded in turning true statements into a hateful message,” as Mr. Justice Rothstein put it. “Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.”
Q: What does this do to Section 13, the federal ban on internet hate speech?
A: In effect, Section 13 has risen from the dead. Ruled unconstitutional by a tribunal, reinstated by the Federal Court, and now placed on solid constitutional footing by the Whatcott decision, Section 13 is once again valid law.
Marc Lemire, the far-right webmaster whose case looked set to overturn it, has now effectively lost and is likely to be ordered by the Canadian Human Rights Tribunal to cease and desist from violating it, on pain of contempt, even though he was only found to have violated it once, briefly, many years ago.
“I don’t think there’s any question that the Lemire appeal is done,” said Richard Warman, whose hate speech complaints make up virtually all of the recent federal caseload and who is willing to consider new cases. “The entire legal foundation for his – what I describe as frivolous – appeal has been swept away. There’s no longer any question of the constitutionality of civil remedies for hate speech.”
Section 13′s legislative fate is a different matter, however, and the private member’s bill to repeal it remains before the Senate.
National Post jbrean@nationalpost.com
http://news.nationalpost.com/2013/03/01/the-power-of-hate-a-legal-primer-on-this-weeks-supreme-court-ruling-against-william-whatcott/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NP_Top_Stories+%28National+Post+-+Top+Stories%29&utm_content=My+Yahoo
Great article in the National Post this morning ………., as usual!
If I could get all my news from the National Post and Quebecor, I would be a happy camper!
Although I usually try and inject my own thoughts into any article featured here, I think this one should stand on it’s own!
———————————————-
Joseph Brean
On Wednesday, the Supreme Court upheld the hate speech provisions of human rights law. As the Senate debates a bill to repeal the federal law against hate speech on the internet, the National Post‘s Joseph Brean dissects the legal basis for Canada’s uniquely balanced approach to the darkest emotion:
Q: Has Canada’s legal definition of hate changed?
A: Yes, but only slightly. Defined by the Supreme Court in 1991 as “unusually strong and deep-felt emotions of detestation, calumny and vilification,” hate speech remains just that in the eyes of the law. The slight change was to remove the outdated word “calumny.” Even Mr. Justice Marshall Rothstein felt compelled to look it up, and found it means a “false and malicious misrepresentation of the words or actions of others, calculated to injure their reputation; libellous detraction, slander.” He decided it is unnecessary. “While hate speech often uses the device of inflammatory falsehoods and misrepresentations to persuade and galvanize its audience, the use of such tools is not necessary to a finding that the expression exposes its targeted group to hatred. Nor would false misrepresentations, alone, be sufficient to constitute hate speech,” he wrote.
Q: How can you punish someone for a subjective emotion such as hate?
A: You cannot. But now it is clear you can hold them civilly accountable for the effect of public hate messages, which “rises beyond causing emotional distress to individual group members. It can have a societal impact,” according to the Supreme Court. “Ultimately, it is the need to protect the societal standing of vulnerable groups that is the objective of legislation restricting hate speech.”
- Andrew Coyne: Supreme Court twists the Charter of Rights in its haste to limit free speech
- John Carpay: Taking the free-speech campaign to the legislatures
- Despite Supreme Court hate speech ruling, anti-gay activist plans to continue pamphleting
- Supreme Court upholds Canada’s hate speech laws in case involving anti-gay crusader
But in their ruling, they strove to set the standard higher than his opinions and concentrate on the effects of his flyers, in which he called gays a pedophilic menace to children. Allowing someone to claim a sincerely held belief as an excuse, as Mr. Whatcott did, would “provide an absolute defence and would gut the prohibition of effectiveness,” they decided.
Q: Shouldn’t truth or benign intent be a valid defence?
A: Mr. Whatcott claims what he says is the medical truth and his intent is not to promote hatred, but to express his love of people who are engaged in immoral behaviour. Similarly, Ernst Zundel once tried to argue the truth of his Holocaust denial as defence against a similar complaint, which would have put his tribunal in an awkward spot, entertaining arguments designed to spread hate. This fear of a hijacked platform is a main reason human rights hate speech tribunals will not accept a defense of truth or benign intent, whereas a criminal court will. They are meant to be remedial and conciliatory, rather than punitive, and so offer fewer legal safeguards. (No one can be convicted criminally of wilful promotion of hatred, for example, if he can prove what he said was true, or the good faith expression of a religious belief, or was pointed out for the purpose of removal, or was “relevant to any subject of public interest, the discussion of which was for the public benefit.”)
The Supreme Court has now confirmed a further reason – truth can be used to spread hate, just as lies can. True statements can be marshalled to hateful, bogus arguments about the denial of the Holocaust, the inferiority of blacks, the perversion of Muslims, the slyness of Jews. “The vulnerable group is no less worthy of protection because the publisher has succeeded in turning true statements into a hateful message,” as Mr. Justice Rothstein put it. “Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.”
Q: What does this do to Section 13, the federal ban on internet hate speech?
A: In effect, Section 13 has risen from the dead. Ruled unconstitutional by a tribunal, reinstated by the Federal Court, and now placed on solid constitutional footing by the Whatcott decision, Section 13 is once again valid law.
Marc Lemire, the far-right webmaster whose case looked set to overturn it, has now effectively lost and is likely to be ordered by the Canadian Human Rights Tribunal to cease and desist from violating it, on pain of contempt, even though he was only found to have violated it once, briefly, many years ago.
“I don’t think there’s any question that the Lemire appeal is done,” said Richard Warman, whose hate speech complaints make up virtually all of the recent federal caseload and who is willing to consider new cases. “The entire legal foundation for his – what I describe as frivolous – appeal has been swept away. There’s no longer any question of the constitutionality of civil remedies for hate speech.”
Section 13′s legislative fate is a different matter, however, and the private member’s bill to repeal it remains before the Senate.
National Post jbrean@nationalpost.com
http://news.nationalpost.com/2013/03/01/the-power-of-hate-a-legal-primer-on-this-weeks-supreme-court-ruling-against-william-whatcott/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+NP_Top_Stories+%28National+Post+-+Top+Stories%29&utm_content=My+Yahoo
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