Thursday, September 10, 2009

Likely is a Dangerous Word Out of Context

The Most Dangerous Word in S.13 Canada HRC and Alberta S.3(1) HRCM Act

There is no doubt that the Lemire case is an important Decision in human rights law here in Canada, but I side with the recent Law Times editorial here. It ain't over till the fat lady sings.

But, I think that there is another approach to this thing that might make a lot of sense, at least to me. I got to thinking more about how the word "likely" in "likely to expose a person or persons to hatred or contempt" is thrown about in the cases against Marc Lemire and Stephen Boissoin and others over the years.

Likely is a term of measurement. In other words there is a likelihood of something happening. So let's take likelihood or likeliness from the Collins dictionary. It is defined as:
1) noun, the condition of being likely or probable; probability
2) noun, something that is probable
3) noun, statistics the probability of a given sample being randomly drawn regarded as a function of the parameters of the population. The likelihood ratio is the ratio of this to the maximized likelihood.
All right, now we are talking. Probability of something happening. I studied statistics in college, and have used it regularly in my past business life, so part of what has stunk to me about this whole "likely to expose" nonsense is the question of who is measuring it. The answer is that nobody is even paying lip service to measuring it or caring about it, just blowing it off as a given.

I found one instance in one case in British Columbia where their Section 7 has similar wording. In that case the Tribunal at least tried to find some kind of test of "likely to expose".
Canadian Jewish Congress v. North Shore Free Press Ltd. (No. 7) (1997), 30 C.H.R.R. D/5 (B.C.Trib.) [Eng. 46 pp.]

"Looking at the words "likely to expose" the Tribunal finds that human rights legislation is concerned with preventing discriminatory actions against vulnerable groups. Consequently the Tribunal finds that the s.7(1)(b) inquiry should be into whether the impugned communication is likely to increase the risk of manifestation of hateful or contemptuous behaviour. Does the message make it more acceptable and therefore more likely for recipients to express or act upon their feelings of hatred or contempt for members of the target group?

The Tribunal concludes that the assessment of an expression under s. 7(1)(b) requires the application of a two part test:

Does the communication itself express hatred or contempt of a person or group on the basis of one or more of the listed grounds, and would a reasonable person understand this message as expressing hatred or contempt?

Assessed in its context, is the likely effect of the communication to make it more acceptable for others to manifest hatred or contempt against the person or group, and would a reasonable person consider it likely to increase the risk of exposure?

Section 7(1)(b) would be too chilling of fair commentary on sensitive and controversial issues if a message that was not hateful or contemptuous in itself could be caught by this prohibition."

In all the cases I looked at, including the Lemire and Boissoin case, this is the only one that even attempted to find a way to test "likely to expose". I find that it is woefully inadequate. It is a good test of something, but not of "likely to expose".

What does "likely to expose to hatred or contempt" really mean? Were the Complainant(s) targets of hatred prior to the publication of the alleged offending material? Does it mean that at least one new schmoe, who never hated the Complainants is likely to hate them because of the offending publication? Or maybe it means that one or more existing hating schmoes is likely to hate them more.

How do you know somebody has been exposed to hatred and contempt? What are the signs of that exposition? Hatred can be measured in brain waves, by the way. How do you measure it? Do you measure the haters or the hatees? If you can’t or didn’t in the particular case, answer those questions, then you can’t convict somebody of exposing a group to hatred or contempt, in my opinion.

In both Lemire and Boissoin, the HRCs took so long that they could have seen actually if the alleged decadent published materials had in fact had an impact on exposing targeted groups to hatred and contempt, or if in fact, as one would suspect it was same old, same old.

You know what the test was for "likely to expose to hatred or contempt"? Did the judge or Member of the Tribunal think that the material was NICE? At least that was the case until Lemire. Maybe now, more people will look deeper, and see that this is all part of a bigger, politically correct, whitewash.

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