And his theories of an innate language organ a la Chomsky providing a "human nature" that we all possess are also crap.
You're an anthropologist? I think I flunked out of an anthropology class once.
Yikes, Dawg, a couple of things:
1. It's "Steven," not "Stephen." (But that's irrelevant).
2. A linguist is a *relevant* expert in this case. Or, at least, his area of expertise is an area that is relevant to freedom of expression.
3. Pinker is a Canadian, is familiar with at least the Steyn case, and probably knows enough about the CHRC to denounce it.
4. He does *not* say that practices, per se, are off-limits. Notice that he says "This could outlaw any criticism of a practice that is statistically more common in some groups than others..." It's the *groups* part, not the practices part, that Pinker is drawing our attention to.
Jaws:
1) I knew that--spelled it right in the last para. Correction made, with thanks.
2)I don't see how linguistic expertise makes one an expert on public policy with respect to freedom of expression. The connection is tangential at best.
3)I know Pinker is Canadian, and he might know a bit about the case, which makes him about as qualified as some blogger to make pronouncements. His words--based, I suspect, on unfamiliarity with the case--should surely be given no additional weight because he's a professor at Harvard.
4)Criticism of a practice that happens to be more prevalent in one group than in another is still criticism of a practice. That doesn't translate into exposing a person or persons to hatred or contempt. And just look at his strawmen! Ritual murder, child abuse...
There has been a lively debate about polygamy in Canada in the last year or two, but I don't think any of it would qualify as exposing a protected group to hatred or contempt.
Dr Dawg: "I don't see how linguistic expertise makes one an expert on public policy..." A certain cunning linguist springs immediately to mind.
As for "cultural capital"...Strange that Justin's website has vanished.
Mark
Ottawa
Mark:
I read Chomsky on his merits, not because of his theory of universal gtammar.
But you've got cultural capital down--Justin Trudeau offers a classic example of it.
"Criticism of a practice that happens to be more prevalent in one group than in another is still criticism of a practice. That doesn't translate into exposing a person or persons to hatred or contempt."
So a criticism of the shortcomings of "sentencing circles," and a desire to see them abolished, wouldn't expose aboriginals to contempt, even if they're the main (or only) ones who use them? That is, the CHRC wouldn't even consider hearing a complaint based on that, so there's no possible chilling effect?
Because it sounds like that may be part of the complaint against Jim Pankiw....
Because it sounds like that may be part of the complaint against Jim Pankiw...
That link provides an opportunity for an interesting synergy here. Maybe Pinker can develop some new linguistic theory to explain what happens to language when it's processed in the mind of one Ezra Levant.
Pinker just started at square one, which I believe was decades ago. It's the same argument over and over again.
Anon,
Pankiw wasn't charged with "criticism". He was charged with providing a public service (the householder pamphlets) in a manner that discriminated against a sub-section of the public (aborigonals). He was also charged with publishing material that discrimated against a sub-section of the public (aborigonals).
Yeah, it's a real comfort that Levant and Steyn were allowed free speech after spending months (or years in Levant's case) and a pile of money on their defense. The bar remains high so long as you have the means to expose the HRC for the embarrassment it is.
So a criticism of the shortcomings of "sentencing circles," and a desire to see them abolished, wouldn't expose aboriginals to contempt
I don't see why it would, on its face. It's just a technique of restorative justice. Disagreeing with it isn't necessarily hateful.
Dawg: You really insult your intelligence...and ours btw, when you try to defend HRC's definition of "Human Rights" in practice.
It 'is' atrocious.
Matthew:
It's hardly a knock on the human rights tribunals that certain respondents dragged out the proceedings interminably, paid a lawyer in one case to sit around while the respondent spouted for hours and days on end, and in another case failed to make a preliminary motion that would likely have had the whole affair tossed.
In fact some commentators have been quite open about this strategy, and more than a few hoped, not for a victory, but for a loss.
Dawg has a good grasp of what the "speechers" agenda has been here. My gosh, Ezra Levant has created a new life's profession around single-mindedly targeting the Canadian Human Rights Commission as though absolutely nothing else is going on in this world. His obsessive preoccupation followed rather closely by his dedicated coterie of fanatic disciples looking for anything, even willing to make up stories to prove their point, is frankly pathetic.
And now this scholar who believes that a PHD somehow is an entitlement to opine on anything, even areas to which he has no expertise will be glommed on by the "speechers".
Thanks for exposing this to the light.
Anytime, Mordechai. Now--when are we going to have that discussion about the ME? : )
Pretty difficult to discuss the ME with blinders : -)
Take 'em off, then! : )
The "cultural capital" point is well worth making but I think you misapply it in the case of Pinker.
It is tedious to see celebrity after celebrity quoted only because of their fame. Just because someone is a successful actor doesn't mean he is worth listening to on any given topic. However, it would be an ad hominem fallacy to dismiss what they say in blanket fashion, without considering the subject matter and above all, the actual argument.
It is possible for someone known for one thing to become knowledgeable about an unrelated subject. Whether they have acquired relevant knowledge will often be known (as in the case of, say, a celebrity with a long-term commitment to advocating research on a childhood disease), and such cases stand in sharp contrast to the typical pedestrian comments of celebrities on subjects of which they have no special knowledge.
However, one also must acknowledge the difference between commenting on esoteric and exoteric subjects.
In this case, Pinker's credentials would appear to be helpful (and having read some of his works, I would be far more confident of his opinion on a wide range of challenging subjects than I would of most random commentators). However, is a law about the limits of expression such an esoteric subject that a reasonably intelligent citizen couldn't plausibly comment on it?
Surely it doesn't take an expert to draw unfavorable comparisons between the CHRCs (and supporting legislation) and the normal due process of Canada's judicial system in defamation cases, to say nothing of comparison's of the CHRC regime to the United States' First Amendment protections.
If we don't distinguish between the esoteric and exoteric then—putting the issue of celebrity aside—one might ask why anyone could comment on anything without special credentials, in this forum as any other.
I don't see why it would, on its face. It's just a technique of restorative justice. Disagreeing with it isn't necessarily hateful.
I think this being used as an example probably reveals what is motivating most, if not all of the speechies. They can't in fact separate hate of "the Other" from what it is they'd like the rest of us to learn from their speechy diatribes, screeds and rants.
Anthony:
I didn't just dismiss Pinker's arguments in ad hominem fashion. I dealt with them, such as they were.
And my argument is the opposite of what you make it out to be. Anyone can learn about, and comment on, public policy issues. But those arguments should be addressed on their face. It's argumentum ad verecundiam at its worst to call Pinker a "renowned professor at Harvard," as though that added weight to his opinions.
I am rather new to this blogosphere and became interested following a lecture I heard on how rightwing bloggers have engaged in a virtual war against human rights law in Canada.
One fellow student pointed me to this blog and as a comparative Mr. Levant's blog.
I have spent some considerable time floating around as a result trying to get my bearings.
For me the telling result is not the argumentation "he said/she said" but more the absolute falsehoods being posted as absolute truths by the rightwing blogosphere.
Once lies are provable all else in my view becomes utterly suspect. Once those confronted with lies try to defend their mistruths one can see the desperation all too clearly.
There are a number of obvious examples I have found. Of all Mr. Levant is the master. From his misrepresentation of Richard Warman and Dean Stacey to his support of neo-Nazis like accepting Bernard Klatt as an expert or heralding Marc Lemire as a free speech iconic hero. From his absolute acceptance of the clear lie that the HRC stole a citizen's IP address to post anonymously to hate sites to suggesting that Bernie Farber of the Canadian Jewish Congress seems to support extremist’s Islamic terrorism. All examples of willing to do or post whatever is needed to win no matter its veracity or lack of real proof.
What really strikes me though is the paternalistic way in which these rightwing blog masters (and mistresses) treat their readership. They believe their followers don't read, don't think.
Take for example Mr. Levant's insistence that back in the 1960s the Canadian Jewish Congress helped fund and support the Canadian Nazi party. He then posted a very difficult to read MacLean’s magazine article from 1966 as proof of this bizarre story. As part of the thesis Im working on I went to the Toronto metro library and found the original article. There is absolutely nothing in the article to suggest the allegations by Levant.
This is a new and twisted technique used by Levant and many of his followers. Post any bizarre comment point to an obscure and lengthy article, pray that only your minions read your blog and just trust every word you write. And it has worked well.
It is only thanks to some more progressive bloggers like you Dr. Dawg and a few others that these tactics are exposed to the light of day.
In my studies I have reached the conclusion that while our anti-hate laws including our human rights regulations may need some ongoing work they are for the most part a pretty good balance between protection against those who would attempt to spread hatred in Canada and our right to free speech. My review of the cases won under Section 13 does show some of the vilest of internet postings. I have also had the opportunity to interview a number of leading human rights NGO officials some of whom told me that certain complaints they have laid under human rights law were not accepted in that they did not meet the test as proscribed under
Dr. Dawg,
I didn’t mean to say you were making an ad hominem argument against Pinker. I agree with the principle you raise with respect to appeals to authority.
However, while replying that anyone “can learn about, and comment on, public issues,” you do imply that special expertise is required to comment on the CHRA by deriding Pinker as setting himself up as an “instant expert.”
Is the Act so arcane that laypeople couldn’t read it? And anyway, is there anything wrong with mentioning a person’s credentials, when they could be taken to vouch, at the very least, for his status as a highly educated person commenting on public issues? Beyond that point, I would think that Pinker’s linguistic expertise might further commend him as an acute interpreter. It is also interesting that such a distinguished citizen would find common ground with people he likely disagrees with politically.
These qualifications are of course only a starting point before one takes on the arguments in question. However, they are not entirely irrelevant in deciding whether to give those arguments a hearing.
With regard to your attempt to refute Pinker, at best you catch him out on imprecise language that he happened to use in an e-mail. However, he doesn't say that practices per se are protected, disingenuously or otherwise. He only says that criticism of them could be outlawed. Perhaps he should have added "effectively" to be entirely accurate.
To characterize Pinker's brief statement as a "pot-pourri of ignorance" would be overwrought even if you were right. Your taking issue with "indignation" is amusing, given your own tone.
In any case, the "practices" point is mere caviling. The real issue is one of simple philosophical disagreement.
Pinker finds it “shocking that a supposedly democratic government has arrogated to itself the power to censor speech because some judge or bureaucrat thinks it may ‘expose a person to contempt.’” You apparently do not.
Bonnie: You should read libertarians on this subject.
Dawg: The CHRC is atrocious. They got Maclean's and Ezra's case "right," but why did it get it right? What's the standard? How do I know in advance whether or not I've violated the law?
It's capricious. Maclean's didn't even offer a defense. And they won. But who could have predicted it?
I know I've got some intuitions about what does and does not "expose a group to hatred or contempt," but I shouldn't have to rely on my intuitions.
Of course, in real legal cases we sometimes need to rely on our intuitions as well, but the CHRC is worse than a standard court.
Pinker is a free speech activist (more or less). He's appeared before FCC-related cases, and has written about FCC decisions frequently. Since he's a free speecher when it comes to cursing, I thought I'd ask him whether his free speechery extended to things that makes Canadian lefties (although, strangely, not American lefties) nervous.
American lefties are 1st amendment absolutists. They wouldn't stand for an AHRC ("A" for "American"). I admire them for that.
I'm constantly worried that the position of the left has less to do with principle and more to do with the coincidence of right-wingers being taken before the tribunals. If the big cases involved academics who hated Americans (there was one), then I suspect very many would not be so eager to side with the CHRC.
"They got Maclean's and Ezra's case "right," but why did it get it right? What's the standard? How do I know in advance whether or not I've violated the law?"
Why?? Read the 75 page ruling. Its pretty clear.
And Bonnie yes by all means read "libertarians" of which you will find precious few blogging. No they are mostly your Ezra-dino types. You may want to read Alan Borovoy whose position I disagree with but he has been consistant without being harassing and stupid as you find with the Ezraites.
That said you seem to have a pretty good understanding of the situation. If you haven't already seen this blog ( and my guess is you have)you may wish to give it a read. He has nailed Ezra on the 1966 McLeans story.
http://chapelviews.blogspot.com/...ogether-
at.html
Anthony:
Pinker finds it “shocking that a supposedly democratic government has arrogated to itself the power to censor speech because some judge or bureaucrat thinks it may ‘expose a person to contempt.’” You apparently do not.
This is precisely what I mean by a "pot-pourri of ignorance." If I sound intemperate, it's because we've been exposed to months and months of misleading and wrong-headed statements like this.
Hearing it from Pinker, who doesn't go even as deeply into the issue as your common-or-garden Speech Warrior, is just too much--especially given his credentials, which at least are supposed to speak to his ability to analyze, etc., if not to any particular expertise he possesses.
Supposedly democratic government.
Talk about over-wrought.
Arrogated to itself the power to censor speech
"Arrogated?" Every democratic government places restrictions on speech, even that bastion of free expression south of the border. And how are those restrictions operationalized? You guessed it. The courts.
because some judge or bureaucrat thinks it may ‘expose a person to contempt.’
"Thinks?" This suggests rather strongly that the process is completely capricious and a matter of opinion only. Yet there happen to be the wording of the laws themselves, procedural rules (in the relevant Arbitration Acts), a body of jurisprudence, and the safeguard of judicial review.
Pinker gives the impression that there is a kind of judicial anarchy going on here, where any old judge or "bureaucrat" can make binding decisions based simply upon anything he or she feels. If this is what he is suggesting, and it sure sounds like it, this is ignorant and foolish. The Tribunal system isn't a parallel system, but an integral part of the court system, subject to the aforementioned procedural rules and to judicial oversight.
You apparently do not.
Meaning, in your apparently binary construction, that I oppose democracy and free expression, and support subjective judgements based upon nothing but opinion.
Wrong.
Jaws:
Try reading some Tribunal cases. The standard is well-defined. Why do you imagine that we leftists were so sure of ourselves when we predicted the dismissal of the complaints?
The ACLU split on the matter of permitting Nazis to march through the suburb of Skokie, Illinois. There's no unanimity on these issues, even in the US.
Frankly I'm not going to weep any tears over the low-lifes who have had complaints against them upheld. The fact that they all happen to be right-wing should be a cause for some soul-searching on your part.
Bonnie:
Many thanks. I think you will find that a lot of Ezra's claims evaporate under closer inspection. His misreading of the "hand-washing" and other rulings are cases in point. He sees what he wants to see, and reads what he wants to read.
I don't consider myself a "right winger" Dawg. I'm a libertarian on social and economic issues. I consider myself a cosmopolitan libertarian. I sympathize more with the culture of the left on immigration, cosmopolitanism, gay marriage, and cultural issues in general.
I don't like Steyn's take on Muslims. I don't like Ezra's take on Muslims. I don't like the conservative culture of seeing Muslims as the new bogeyman, with dangerous Muslims under each of our beds and around every corner.
But I don't think they should be taken before a tribunal, or a court of law, or any organ of the state to explain themselves, or defend their views, whether vile, repugnant, distasteful etc.
Whether or not a news outlet chooses to publish Muhammad cartoons or excerpts from Steyn's book should not be grist for the government's mill. And while the outcome of the tribunal cases are interesting, they shouldn't have appeared before any tribunal at all.
And I still think Pinker is and was right in his quote.
American lefties are 1st amendment absolutists. They wouldn't stand for an AHRC ("A" for "American"). I admire them for that.
They have to be. As authoritarian as the American Right already is (and lets remember...liberals/lefties in the US get assassinated and are subject to never-ending witch hunting), with their tight control of the news media, with the government's willingness to co-opt that media to propagandise to the American people, with lavishly-funded think tanks to drown out the public institutions that represent any kind of dissent, free speech absolutism is all they have left.
But, as they say, if a tree falls in the forest, and no one's around to hear it, does it really make a sound?
Jaws:
The cartoon case didn't even make it to a Tribunal. It was dropped, but would have almost certainly been screened out. That was where the complaint was--at the screening stage. St. Ezra wasted everyone's time whining about even that, making YouTube videos about "kangaroos" and so on. Martyr complex. Crass silliness.
I don't accept the libertarian view on free speech. If you agree with libel and defamation protections, why should those not apply to a group as well as an individual? (On the other hand it's been a while--perhaps you oppose even those restrictions.)
You might agree with Pinker, but frankly he's at level one in this debate.
Dr. Dawg,
Is Pinker’s use of “supposedly democratic government” really overwrought? What the CHRCs do stands against a great body of legal tradition concerning the limits of government power.
"Arrogated?" Every democratic government places restrictions on speech, even that bastion of free expression south of the border. And how are those restrictions operationalized? You guessed it. The courts.
This completely misses the point. You might as well approve of detention without cause and argue that every government places restrictions on liberty, even that bastion of freedom south of the border, etc. The question is what courts should have power over and what they shouldn’t. You skate over that critical distinction through the equation of your “restrictions” with Pinker’s “censorship.”
Your discussion on “thinks” similarly misses the point. Pinker didn’t necessarily mean a judge or bureaucrat’s decision was “completely capricious,” but that’s not what matters. Even if the judge deliberates diligently and impartially, the objection to the CHRA and the CHRCs is that the government has the power to punish the expression contempt and even the possibility that someone might be “exposed to contempt,” which is more outrageous still.
It is all the more objectionable that “hate speech” controls should be used selectively, which they generally are. But even if that were not the case, the strictures that arise out of the CHRA still amount to a new kind of censorship. Also, it’s all very well to insist that “the Tribunal system isn’t…parallel…but an integral part of the court system,” but that’s an idle claim if it has different procedures. Do those accused of exposing others to contempt have all the rights, and do their accusers have all the risks, as each party would have in a defamation action?
Meaning, in your apparently binary construction, that I oppose democracy and free expression, and support subjective judgments based upon nothing but opinion.
I’m sure you’re very democratic, open-minded and even passionate about free expression within the limits you would impose. Nevertheless, you have expressed your comfort with giving the government power to censor opinion and punish people for expressing opinions over which it would formerly not have had authority.
I would be interested to hear more about what your position is and how you justify it, especially considering its novelty and its restrictive character. If a citizen finds something or someone contemptible how is his experssing that opinion the government’s business?
P.S. The sweeping claim that American lefties are First Amendment absolutists is false. Some on the left are passionate First Amendment types, but speech codes and “hate” legislation also comes from the left.
Anthony:
With respect, the overwroughtness appears to be spreading.
Human Rights Tribunals are a means by which ordinary citizens can seek redress against various forms of discrimination. To argue that this "stands against a great body of legal tradition concerning the limits of government power" is, frankly, uninformed. If you take a look at what is actually being "censored," it's vile stuff that no civilized community should tolerate--specifically, neo-Nazism and hatred directed against homosexuals. The "freedom" that the Right claims the government is "crushing" is the "freedom" to target gays, Blacks and others with public expressions of venomous hatred.
Please spare me any slippery slope argument you have up your sleeve. No such slope exists.
The government does not have the power to sanction "contempt" per se, so let's drop that strawman, shall we? It is specific public expressions directed against our own citizens, exposing them to hatred or contempt, than can be the subject of a complaint, and the bar is set very high. Please read the legislation: it applies to specific groups or members of such groups, e.g., racial, religious, etc.
How are these restrictions "used selectively?" Evidence, please.
There is, by the way, nothing "novel" about restrictions on public expressions of hatred in this country. Canada is a relatively civilized place.
PS: I made no sweeping claims about "American lefties." At least try to follow the thread.
PPS: You seem unfamiliar with the procedures of administrative tribunals. Are you American?
Dr. Dawg,
You can characterize it how you like, but dragging someone through a court for expressing their opinion, however objectionable one might find it, is not part of the Anglo legal tradition.
The government does not have the power to sanction "contempt" per se, so let's drop that strawman, shall we?
Am I insisting that the government has “the power to sanction contempt per se"? I don’t think so. The government can’t yet punish one for one’s thoughts, but it apparently can punish one for expressing them. Obviously, some forms of contempt are covered by these powers, some are not. As far as slippery slopes are concerned, I’ll just say that the CHRCs are at a lower elevation than their antecedents. Do the CHRCs augur worse? Maybe, maybe not but they certainly set precedents that invite all sorts of mischief.
I’ll admit that I’m not familiar with all the details of the CHRA and all of the procedures of the CHRCs. I’m quite happy for you to educate me on specifics that have not yet come to my attention, if you care to. For example, I’m not sure whether some groups are regarded as protected and some are not, as in the case of actions that would be taken up by the American EEOC. However, I don’t need to read all the documentation about the CHRCs to see that the they operate on a basic principle that limits freedom of expression, and nothing you have said argues otherwise.
I wrote that “hate speech” controls in general are used selectively, and indeed they are. I haven’t analyzed the full gamut of cases handled by the various CHRCs, but it seems clear the assumptions under which they operate and the notions that drive them will tend to result in selective censure of some views as opposed to others. Just as an example, if a person happens to think homosexuality wrong for reasons associated with the Christian religion, he can be hauled before the court and punished for the expression of his beliefs. My sense is that traditional and conservative beliefs are likely to be sanctioned, even where there is no malice but only disagreement. That’s the insidious nature of being able to hold someone to account because someone else might simply feel “exposed to contempt.” It seems likely also that, for example, Christians are more likely to be brought before the tribunals for their opposition to homosexuality than are Muslims. The fact is that once the government becomes the arbitrator of what opinions are or are not acceptable, it will assert a standard that will find some points of view more acceptable than others, so it is necessarily selective to some degree.
There is, by the way, nothing "novel" about restrictions on public expressions of hatred in this country. Canada is a relatively civilized place.
Again, you fail to observe crucial distinctions. There is nothing novel about citizens and institutions observing certain standards of decorum. However, there is something novel about the government’s hauli
continuation:
Again, you fail to observe crucial distinctions. There is nothing novel about citizens and institutions observing certain standards of decorum. However, there is something novel about the government’s hauling people before tribunals for expressing politically incorrect opinions. Forgive me if my concern about that development seems “overwrought” to you.
Canada would be a more civilized place if it didn’t punish citizens for expressing opinions not approved by the government, and moreover if it didn’t have special Tribunals for the purpose of doing so, wherein citizens didn’t enjoy the normal protections of due process.
About the sweeping claim about American lefties, I didn’t say you made it. Someone else did, and another person repeated it. I put that in the postscript to separate it from my dialogue with you. If that wasn’t clear, I apologize.
PPS: You seem unfamiliar with the procedures of administrative tribunals. Are you American?
I’m not an American citizen but I live in the country. Just how many Canadians do you think are familiar with the procedures of administrative tribunals? Why make this snide ad hominem rather than point out relevant errors. I asked you a specific question about procedure that you didn’t answer:
Do those accused of exposing others to contempt have all the rights, and do their accusers have all the risks, as each party would have in a defamation action?
Well, do they?
Dr. Dawg:
He may indeed just be a know-it-all showman, but I suspect there is more of a sub-text here than your post indicates. Pinker is a fellow traveller of the merry band of modern angry Darwinists, a group that is beginning to take more than a passing, arms-length interest in this whole issue.
"Dr. Dawg,
You can characterize it how you like, but dragging someone through a court for expressing their opinion, however objectionable one might find it, is not part of the Anglo legal tradition."
Really? How then to explain that peculiar form of "dragging someone throuh the Court " for libel proceedings? Kinda the same as expressing an opinion about someone as opposed to a group.
Anthony:
To begin with, my question about your nationality was not meant to be ad hominem. It seemed to me that you were unfamiliar with our laws and procedures, and furthermore Americans have the First Amendment.
I would ask you, first of all, to have a look at the cases in which complaints were actually upheld by Canadian human rights tribunals. These were not mildly-expressed disagreements, but full-fledged public statements of hatred. In the Beaumont case, the respondent had stated that gays should be put to death. In the Boissoin case, a raving nutbar had a letter published in a local newspaper that, inter aloa, falsely equated homosexuality with pedophilia, and was, over-all, written in tremendously inflammatory language. Read the whole thing. This is not speech that should be protected, but a species of group libel.
Cont'd.
I’ll admit that I’m not familiar with all the details of the CHRA and all of the procedures of the CHRCs.
Well, there you go.
Too bad such statements are nonetheless buried in unusually lengthy comments.
Cont'd.
For your edification:
1) The prohibited grounds of discrimination outlined in the CHRA here (Section 3) define the groups/categories that are protected.
2) Here is an example of an Administrative Tribunals Act, in this case from British Columbia, the site of the last great non-martyrdom. Check out section 59 (5) on procedural fairness. Human Rights Tribunals have no privative clause, and their decisions with respect to common law rules of procedural fairness are reviewable.
Tribunals, do the grunt work of the court system. They are designed to be less formal and more accessible than courts, but they are part of the judicial system. There are dozens of administrative tribunals in operation across the country.
3) As noted, the bar is set high. We crap about homosexuals is regularly emitted from the pulpits of the land. But there are bounds to be observed in any society. A reading of Boissoin will demonstrate that his language was hateful, ill-informed, vicious--and dangerous. There was malice aplenty, and this wingnut got what he deserved, to the great displeasure of the homophobic Right.
I can assure you that such comments from a Muslim would meet the same fate. I think it is unwise, in the absence of evidence, to affirm the contrary as you do. If you have cases to cite, do so.
4) The government "hauls" (damn, I'm sick of that overheated metaphor) no one before Human Rights Tribunals. Aggrieved citizens do. The Tribunals adjudicate--they do not prosecute.
5) The hearing of a complaint before a human rights tribunal is not the same procedure as a defamation action. Complainants do not assume the same financial burden because the Tribunals are supposed to be more accessible. Respondents do face roughly equivalent risks.
I suggest that a mark of a civilized society is one that does not permit the active incitement of one group of people against another. Long may that continue.
Peter:
And Denyse O'Leary is in the front row defending his position. Wheels within wheels, eh?
PS: Thanks for putting me onto an article by Derbyshire. I owe you one, and you can take that any way you'd like. : )
Really? How then to explain that peculiar form of "dragging someone through the Court " for libel proceedings? Kinda the same as expressing an opinion about someone as opposed to a group.
Seriously? The explanation is that libel procedings don't drag people through the court for merely expressing their opinion.
And as you point out, those accused don't have the same traditional protections that they have in normal legal procedings. Those traditional protections are sacrificed for the objective of making the Tribunals more accessible. How nice that it's easier to force someone into a legal embroilment without consequences. So much for the established rights of the accused.
Doesn't that fact alone negate the claim that the bar is set high? Steyn, for example, still had to defend himself, did he not, even though the Tribunals didn't decide against him in the end?
I believe that a civilized nation will have laws that punish genuine incitement or conspiracy to commit crimes. I don't think a civilized country goes out of its way to punish cranks or people with politically incorrect opinions who don't in fact incite specific criminal acts and don't make false statements that cause tortious harm. Surely if they actually did these things, they could be taken to task within the regular legal system.
Looking at the Boisson document you link, the case seemed extremely forced and tenuous. There was no specific incitement to violence, only to action. These things are by no means equivalent. That this man, even if he has an opinion that can be found objectional on various grounds by many people, should be persecuted for having written a letter to the editor is grotesque..
Anthony,
If you actually think that "libel procedings don't drag people through the court for merely expressing their opinion" then you clearly don't know much about libel law.
First, it is not always easy to distinguish opinion from fact. Indeed, this a often a contentious point in cases where the defendant seeks to raise the defence of fair comment, which protects opinion.
By way of illustration, perhaps you'd like to tell me if you think the following statement offers opinion or fact: "My former employer was a difficult guy to work for and some people left to work elsewhere. On top of that, he likes to poke Muslims in the eye, which is why he printed what he did. Despite all of that, maybe the business would have succeeded if he spent more time at are office and less time galavanting around and promoting himself"
Second, even if you succeed in arguing that the libel was an expression of opinion, you still must show that the opinion was based on true facts. All of which requires considerable time in court and consequent legal expenses.
'By way of illustration, perhaps you'd like to tell me if you think the following statement offers opinion or fact: "My former employer was a difficult guy to work for and some people left to work elsewhere. On top of that, he likes to poke Muslims in the eye, which is why he printed what he did. Despite all of that, maybe the business would have succeeded if he spent more time at are office and less time galavanting around and promoting himself"'
Oh, truewest... you are quite cunning. : -)
Isn't he, though?
Truewest,
You have a point that some kinds of opinions can get one in defamation trouble, namely malicious statements that are objectively damaging, as opposed to opinions that are based in truth, merely adverse or don't cause objective damage. However, taken all in all, your post actually underscores what I’ve been saying.
As you note, defendants have “the defence of fair comment, which protects opinion”; and defamation courts pay a great deal of attention to “true facts” the establishing of which “requires considerable time in court and consequent legal expenses.”
This cuts both ways in defamation cases but not in CRHC actions. People risk defamation judgments if they’re not careful in their public allegations, but plaintiffs risk heavy costs in making allegations of defamation. Plaintiffs face no such risks in CHRC actions.
Your example contains mostly opinion, some of which I’m sure is “fair comment” (“my former employer was a difficult guy to work with”). I don’t know about “the business would have succeeded…” but the passage seems thin gruel without the factual claim about the boss being an eye-poker of Muslims.
In a defamation claim, even if it is damaging to the employer that he be publicly described as an eye-poker of Muslims, the truth of the statement is an adequate defense. However, in a CHRC case, one could make true claims that were nevertheless held to expose some party to contempt, and the defendant would lose.
Of course the defendant in a CHRC action loses even if he wins, since he’s at least out of pocket for legal fees.
How I wish the Shotgun had informative comment sections like this one...
Just a few short points:
One: Usually, the expression is "so-and-so was hauled before the tribunal." That is ambiguous between the tribunal doing the hauling, and someone else.
Two: There are tribunal cases and cases. A professor was penalized for saying nasty things about Americans (as I recall, please correct me if I'm wrong, I realize that I could be). Also, Guy Earle is at least at the first stage of this process, for his anti-gay remarks in response to hecklers at a comedy club. I've met Earle, and I'm completely confident that he's no anti-gay bigot...
Three: If it's group libel, why not work within the libel law, and append it, rather than create a whole new set of tribunal procedures? Especially weird procedures where they get to decide, more-or-less arbitrarily, what evidence is and isn't relevant, where you can try different jurisdictions regardless of whether or not the offense happened in that jurisdiction or not, and so on.
Four: I agree, we shouldn't tolerate anti-gay bigotry, or white nationalism. But should we really take them before some government body for their ridiculous views? Really?
Five: The standard is terribly ambiguous at the moment. Just what is likely to create hatred or contempt in the minds of others? To be sure, over time, that standard may become more perspicuous. Libel laws, for example, are also somewhat ambiguous. Who knows what will actually ruin someone's reputation, or is likely to? Libel laws are also targeted at thoughts in the minds of others, and libel laws are something I struggle with, philosophically, also. I'm not sure how I feel about them, although, at the moment, I tentatively and somewhat weakly support them.
I'll leave it there for now.
Anthony,
You wrote, "taken all in all, your post actually underscores what I’ve been saying."
Sorry, I disgree. Given the choice between defending a human rights complaint or defamation action, I'd take the human rights complaint every time.
First, the standard for liability in human rights complaints -- hatred or contempt -- is much higher than that in defamation law.
Second, it is far easier to dispose of a human rights complaint on a preliminary motion than it is a defamation complaint. Indeed, in most cases, a human rights commission will save you the trouble by screening out the complaint. (Which is what the AHRC was attempting to do when it interviewed -- sorry, "interrogated" Ezra Levant about the Danish Mohammed cartoon.)
Third, both the cost of defending and the potential liability are much lower in human rights complaints than in defamation claims. And by much lower, I mean anywhere from tens of thousands to hundreds of thouands of dollars lower.
While it is possible to dispose of a human rights complaint for a few thousand dollars in legal fees, mounting a successful defence of a defamation claim in enormously expensive. For example, while question of whether a particular statement is opinion or fact is one of law, settling that question typically involves expensive legal help.
If the statement is found to be a statement of fact, proving the truth of that statement on a balance of probabilities typically requires examinations for discovery, document discovery and trial time, all requiring further expensive legal help.
The question of malice, special damages, etc are all also questions of fact and establshing them requires, you guessed it, expensive legal help.
Assuming you succeed in defending the defamation claim, you are entitled to recover some of your costs from the unsuccessful plaintiff. How much? Unless there's clear misconduct, somewhere between 40-50%.
BTW, the statement I offered for your analysis is a paraphrase of a letter sent by a former employee of the Western Standard to an Edmonton weekly newspaper following the magazine's demise. Ezra Levant, who is among the most shrill critics of human rights tribunals) sued both the writer and the paper. The paper settled the claim, but last I heard, Levant is still seeking substantial damages from the former employee.
"There has been a lively debate about polygamy in Canada in the last year or two, but I don't think any of it would qualify as exposing a protected group to hatred or contempt."
Possibly because the focus of the debate has been the renegade Mormons in Bountiful.
Mormons are a protected group within the meaning of the CHRA. Are you suggesting a pro-Muslim bias on the part of the Tribunals? If so, do you have evidence?
Surely being an "eye-poker of Muslims" is less serious than altogether ridiculing people who believe in God -- i.e. are religious. And there is currently no shortage of atheist polemics -- some even best-sellers, I've heard. I'd even say that there's quite a bit of contempt for "believers" across our tolerant country. Are newspapers or letter-to-the-editor writers who quote Dawkins or Hitchens rightly subject to HRC/T sanctions for discriminating against folks based on their religious beliefs?
If our HRC/T's don't take action soon against those who appear to despise religious people, the time may come when the adjective "god-fearing" may come to be an epithet -- as in god-fearing Conservative.
Truewest,
I take your point, but just because CHRC actions aren't as expensive as defamation actions doesn't make them cost free, and it doesn't make them right.
Again, at least in the case of regular defamation cases the accused has the right to confront the accuser, and the accuser also undertakes risks in bringing the action. That's as it should be, and as it isn't in the case of the CRHC actions.
Anthony,
You have no idea what you're talking about.
First,
It is entirely possible to resolve complaints made to human rights commissions without cost to the respondent. Commissions screen out claims without merits, as was done by the OHRC and the CHRC in the Macleans case. This will likely also be the result in the complaint to the AHRC about the Western Standard (If you believe Levant's claim that he spend $100,000 on lawyers and the commission spent $500,000 investigate, I've got some US mortgage derivatives I can sell you at a premium.)
In most provinces, if the complaint goes to hearing, the complainant bears the cost of retaining counsel, making its own case, etc. And of course the respondent gets to face the complainant; although nothing compels the complainant to give evidence in his own case, that is the usual practice (By the same token, nothing compels a defamation plaintiff to give evidence -- or even attend - the trial of the complaint. And I'm aware of at least one case in which the plaintiff was a no-show and still won.)
Peter,
Regarding your idea of amending the common law of defamation to allow claims of group defamation, I suggest it would make things worse, not better. As I noted above, the standard for proving a defamation claim is much lower than that for establishing discrimination by publication under the various HR codes. As well, defamation law includes legal presumptions that favour the plaintiff - any defamatory statement is presumed to be false and maliciously made - and complex defences that are difficult and expensive to establish. As well, allowing group defamation would logically open the door to defamation class actions, which adds a whole new wrinkle to the process.
Hate speech laws may have their flaws, but if you agree that groups should have some remedy to extreme attacks on them -- and I understand not everyone does agree -- then the remedies offered by the criminal code and human rights statutes are the least bad option.
"...dragging someone through a court for expressing their opinion, however objectionable one might find it is not part of the Anglo legal tradition."
You might care to ask David Irving about that!
http://www.guardian.co.uk/irving/
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