Friday, August 14, 2009

Stephen Boissoin Appeal Document - Part 5

Moon and Chumir Say Ixnay to Hate Speech Laws at HRCs

In dealing with the constitutional aspect of the Boissoin Appeal, Mr. Chipeur felt it appropriate to look at what leading thinkers, including the one hired (but buried, though not nearly deep enough) by Jennifer Lynch have to say about the Hate Speech laws of Canada, Section 13 of the Charter specifically, since the Alberta law mimics it generally.

The Moon Report which is available on the Canadian HRC site here is surprising in that it exists at all. If Jennifer Lynch could have made it disappear, I suspect she would have. It does not read anything like what she has to say. Folks like Ezra Levant have had much to say about it previously, but let me wax philosophic of my own volition here. It seems that Professor Moon has been an ardent fan of censored speech, but has had an awakening, if what I have heard is correct. If so, there is no more ardent free speacher than one who has come to from the other side.

Mr. Chipeur quotes a few pieces from his report to Ms. Lynch, the whole of which is available here, and is good reading.

Mr. Chipeur starts with this section, of which I will only quote the zinger of a first sentence:
Faith in human reason underlies most accounts of freedom of expression and cannot simply be cut out and discarded from the analysis.
Mr. Chipeur seems to agree with Professor Moon that human beings are capable of rational thought on their own and do not need a government nanny to do their thinking for them and to protect their dainty and sensitive ears from something that might be sensitive. Both of these intelligent individuals know what the Censors in chief from CASHRA member states forget. We all have remotes, and we're not afraid to use them.

In order to attempt to make his Brief . . . well, brief, Mr. Chipeur chose not to include the immediately preceding section, though I personally think it well worth mentioning here as follows:
If some individuals are persuaded of certain views, which they then act on, we might
say that the expression has “caused” the action. However, under most accounts of freedom of expression, the state is not justified in restricting expression simply because it causes harm in this way, by persuading its audience. The listener and not the speaker is responsible for the judgments she/he makes and the actions she/he takes. The familiar freedom of expression position is that ideas cannot be censored simply because we fear that members of the community may find them persuasive or that an individual’s self-understanding or self esteem may be negatively affected. It is often said that we should respond to racist claims not with censorship, but by offering competing views that make the case for equal respect or by creating more avenues for marginalized groups to express themselves.
Frankly, Mr. Chipeur could have quoted the entire document as supportive of his cause and rife with meaningful material, particularly in light of the fact that Jennifer Lynch cannot practically bury it for all eternity, never to see the light of day.

On Page 28 of his report and quoted by Mr. Chipeur in Stephen Boissoin's Defence is this telling sentence that should all be in big bold CAPITAL letters:
The goal of ending prejudice in the community cannot be accomplished through censorship.
No kidding, Sherlock. This is a cornerstone statement, and I marvel at how hard it is for people to get it, and why they fight so hard against it. It reminds me of a slogan from the Vietnam war days: "Fighting for peace is like F?cking for virginity." Add to that censoring for prejudice.

But here on Page 30 of Professor Moon's report as presented by Mr. Chipeur also is the final nail to the censorship coffin, his recommendation. Read it carefully (my bold), please, as it is unequivocal:
The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law. A narrowly drawn ban on hate speech that focuses on expression that is tied to violence does not fit easily or simply into a human rights law that takes an expansive view of discrimination and seeks to advance the goal of social equality through education and conciliation.
After selecting some choice bits from this document, Mr. Chipeur moved on to the local document prepared by the Chumir Foundation, "Toward Equal Opportunity for all Albertans: Recommendations for Improvement of the Alberta Human Rights Commission". It is available for your edification here.

Frankly, the document which was about the whole working of the commission strikes me as a bit soft, but these people have to live there. As it relates to the case at hand, they recommended not repeal of the offending Section 3, but return to an earlier day, when they wrote the following on Page 37:
Many of the most virulent criticisms leveled at human rights commissions over the
last few years concern provisions that seek to make statements of opinion illegal. Some of the high profile cases have concerned opinions on the part of the Christian right about the evil (in their eyes) of homosexuality and cartoons and articles perceived by some Muslims to be offensive or even, according to their faith, blasphemous. We do not endorse the sometimes offensive views expressed by the people and organizations who have come under attack pursuant to legal provisions such as section 3 of HRCMA. But we do have grave misgivings about the threats to free expression inherent in such provisions.
There recommendation is for a rewrite of Section 3 to go back to pre-1996 days of the legislation.

Here is the current phrasing:
3(1) No person shall publish, issue or display or cause to be published, issued or
displayed before the public any statement, publication, notice, sign, symbol,
emblem or other representation that

(a) indicates discrimination or an intention to discriminate against a person or a
class of persons, or

(b) is likely to expose a person or a class of persons to hatred or contempt because of the race, religious beliefs, colour, gender, physical disability,
mental disability, age, ancestry, place of origin, marital status, source of
income or family status of that person or class of persons.
They recommend removal of all the bolded words, which were added for 1997, as follows, so it would look like what was then numbered as Section 2:
2(1) No person shall publish or display before the public or cause to be published
or displayed before the public any notice, sign, symbol, emblem or other
representation indicating discrimination or an intention to discriminate against
any person or class of persons for any purpose because of the race, religious
beliefs, colour, gender, physical disability, mental disability, age, ancestry or place
of origin of that person or class of persons.
It's a thought. It's a start. It's soft.

Soon, I will look at the experience of a few other countries with this nonsense, as reported by Mr. Chipeur in his brief for Stephen

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