Friday, October 2, 2009

S. 13 Up for Judicial Review

What's the Surprise?

OK. S. 13 of the Canadian Human Rights Act is lousy law. So are its ugly fraternal sisters in Alberta (S. 3(1) Alberta HRCM Act) and other provinces. Who in their right mind thought this thing was just going to go away?

Anyway Jay Currie has words of wisdom for starters.

I clearly get the logic of using the Taylor decision against the actions of the CHRC and their manipulation of the law over the years, especially considering the very valid dissenting opinion penned by the now Chief Justice of the Supremes. That dissenting opinion was a nice piece in the Boissoin Appeal, which I wrote about a while back.

What I don't understand is why nobody has attacked the subjective "likely to expose to hatred or contempt" phrase. In all the cases I have seen, I have never found any reference to an objective test of "likely to expose to hatred or contempt", which means that the phrase is whimsical. There is no test, because there can be no test. If you can't test it you can't prove it. To paraphrase Johnny Cochrane, "If the test don't fit, you must acquit."

Follow that up with testimony that we have all heard and read that the truth is not a valid defence in Section 13 cases, and I have to shake my head in amazement.

I hear the death rattle, but it is still very faint.

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