I do believe I suggested a long time ago that the HRC/T's just needed to work these cases through in order to develop a feel for what was more or less a novel set of claims which would probably continue to occur in the future. This is what any (quasi-)judicial body needs to do when faced with novel claims. I do believe events have proved my analysis to be true after all. Gladly.
Look on the bright side. Sales of Shaidle's latest vanity press pustule about the Evil Power of the HRC's will now be declining from the single digits to - well, the even smaller single digits.
No big surprise here. The BCHRT, like its sister HRTs "down east" has wisely decided to back away from a victim with the necessary balls and deep pockets to resist. (I hear that a grizzly will back down from a determined wolverine.)
Now the marsupials (pardon the mixed metaphor) can go about their normal business of stomping on powerless little preachers, bloggers and other schnooks who think that they live in a country that honours freedom of expression.
The world is unfolding as it should, eh Dawg?
Ah, the desperate "they blinked" ploy.
Reminds me of an old joke. Stop me if you've heard this one before (oh, wait, you can't):
A man goes into a psychiatrist's office, snapping his fingers. He just won't stop, and finally the shrink asks, "Why are you snapping your fingers all the time?" "To keep the elephants way," says the man. "But there aren't any elephants for a hundred miles," says the shrink. "Works pretty well, eh?" the man replies.
As if a few blogosphere hysterics and the odd columnist had any effect on the workings of an administrative tribunal. What self-important and self-deluded folks the speech warriors are, now trying to squeeze an each-way win out of a process that would have proceeded the same way if they hadn't existed.
Ah, Dawg, they didn't just blink; they rolled over on their backs and pissed. A wise manoeuvre under the circumstances.
Hi ho, time to go hunting for some poor bugger who can't resist or threaten his/her betters.
Nonsense. The system worked, as those of us not foaming at the mouth predicted months ago.
Dawg,
I know some people are exaggerating the amount of influence the right-wing blogosphere has on the human rights system in Canada.
At the same time, do you really believe the complaint would have been dismissed as readily if the subject of the complaint hadn't been Maclean's magazine?
Or, let me put it this way: you predicted it would go down this way. Suppose you'd been willing to lay some money on your prediction. Would you have been willing to wager just as much money on your prediction if some less well-known entity was under scrutiny, in more or less identical circumstances?
I'm not as confident as you or perhaps I'm just more cynical. We know the law always applies differently to wealthy, well-connected folks. Why not here as well?
Best,
Terrence
Terrence,
The answer to your question is Yes.
Upholding of complaints under the various sections of Human Rights Acts have been for truly vile, hateful material. Steyn's commentary simply didn't meet that test.
Administrative tribunals don't proceed on the basis of who can best fight back. To argue otherwise is essentially to accuse the tribunal members of a kind of corruption. Where's the evidence?
Well, there is the little point that what you say was obvious from the start took a year of public debate, lenghty hearings, months to decide and thousands of dollars in legal fees to resolve. What's your position on compensation for something so obvious ab initio?
Still, we agree this is a happy occasion, don't we Dr Dawg? I know you do, because your joy and relief just scream out from your post.
Peter:
Of course I'm happy with the outcome. It couldn't have happened to a nicer bunch of people. That things could have gone the other way was simply inconceivable to me. I've read loads of cases by now, and this didn't come close to meeting the bar.
The actual hearings weren't all that lengthy. And Tribunals always take some time to render a decision, even ones we all can safely predict in advance. I've suggested before that an effective initial screening process would be an improvement: perhaps cases like this one can make that bar a little more self-evident were such a process to be implemented.
Dawg,
"To argue otherwise is essentially to accuse the tribunal members of a kind of corruption."
A kind of corruption, maybe. But we KNOW money, ethnicity, and other irrelevant factors make a difference in court. Why not here? Why should tribunal members be immune to this kind of (perhaps unconscious) influence?
(You can call it corruption if you'd like; I say I'm just being realistic about the way people work.)
As for the evidence, that's tricky, as it often is when bias comes into play. In my WS blog post, I brought up two passages from the decision I find a little odd. There may be more, but I'm under the gun so I haven't been able to pursue the matter.
The tribunal seems to accept that the Maclean's piece may have made people more fearful of Muslims (in fact, I'll go on the record and agree with it.) The line between promoting fear of a religious group and exposing it to hatred seems a little blurry to me.
If the BCHRT (or even some other tribunal) has pressed a distinction like this, then fine. But it seemed ODD: clearly, fear and hatred go hand-in-hand in many cases. If the Steyn piece made people more afraid of Muslims, it's not a far step to think it might have also made it more likely they'd hate them, too.
Second, the Tribunal rightly gave little weight to evidence gleaned from blogs after the publication of the Steyn piece. It noted that most of the blog response was worse than the piece itself. But isn't the presence of a strong causal link between the publication of something and a hateful response exactly the kind of evidence normally used to show that the publication exposed a group to hatred/contempt?
So I have questions. I haven't thought through everything, of course (I will after today, once I'm no longer under the gun.) I'll read the Tribunal decision more carefully. But my natural cynicism inclines me to interpret these oddities -- if that's what they are -- in the worst light possible, i.e. as examples of instances in which the Tribunal went easier on Maclean's than it otherwise might have.
You and/or someone like Truewest will probably set me straight on this, of course. And I wouldn't mind that a bit.
Best,
Terrence
Terrence,
Wealth and connectedness might have their effects, but there's no evidence that they did in this case.
I'm more interested in the passages you reference.
The first one--fear, not hatred or contempt--is not quite the distinction without a difference that you imply. Steyn's book dealt with demographics. His comments might well inspire fear--they were meant to. But, nasty as his commentary was, he was not whipping up lynch mobs with his words, not calling for death and destruction, and besides, he was dealing with Europe--not BC.
I don't hate anyone, but I'm afraid of quite a few folks. : )
Secondly, I can hardly see that any author should be blamed for what bloggers write afterwards about him or her. While one could argue cause and effect in a very general way--ie, there would have been no blogger commentary if Steyn had not written what he did and Maclean's hadn't published it--it's a bit much to blame the contents of their words on Steyn.
Surely they themselves bear the responsibility for what they wrote. It's a stretch to compare that with, say, being incited. The bloggers' hatred and contempt, if present, arose from their own tortured souls.
Dawg,
"His comments might well inspire fear--they were meant to. But, nasty as his commentary was, he was not whipping up lynch mobs with his words, not calling for death and destruction, and besides, he was dealing with Europe--not BC."
Good point. He certainly couldn't be accused of _trying_ to whip up a lynch mob. But here I'm thinking of Stephen Boissoin's case (different jurisdiction, I know, but bear with me.)
Alberta's human rights act uses the words "likely to expose a person or a class of persons to hatred or contempt." B.C.'s human rights act uses exactly the same language.
Now, as I understand Boissoin's case, the Alberta panel was able to establish a causal link between his article and violent activity. Boissoin didn't whip up a lynch mob, but the panel found his rhetoric was likely to inspire one anyway.
Now I do think Boissoin's piece was meant to make people afraid of gay people. But the important factor the panel considered (as far as I recall) was the causal link between his words and the feelings and actions of others. That link is what the Alberta human rights act seems to require.
There surely is a causal link between what Maclean's published and the hateful blog response. But that wasn't enough for the BCHRT. Different jurisdiction, I know. But still: the language is identical, and both provisions seem to require only a causal link, not direct or intentional incitement.
(I should point out that this is one of the biggest problems some of us have with provisions like Section 13(1) and those contained in similar provincial human rights legislation.)
So why wasn't the link between publication and hatred enough in this case?
I still think that which makes people fearful of a protected group will also tend to make them hate it, so that's the causal link I see. And if I see it, I want to know why the Tribunal didn't see it.
Suppose, for example,a Maclean's reader had torched a mosque after reading Steyn's piece -- because it made him afraid of Muslims, say -- do you think that would have or should have made a difference to the BCHRT?
As I understand your argument, you would say it shouldn't make a difference. If bloggers should bear responsibility for their words, then others should certainly bear responsibility for their deeds. I agree completely with this. But that just doesn't seem to be the way human rights tribunals have worked in other cases.
Best,
Terrence
Boissoin's comments were simply vile and hateful. The Tribunal in that case took note of a savage gay-bashing that occurred in the small community of Red Deer shortly after the good pastor had had his letter published. Although they did not draw a direct connection, they noted the extreme nature of his words, suggesting (I am going by memory at this point) that those words could provoke such outrages.
Recall also that Red Deer is a small town. An authority figure like a local pastor, backed up by a newspaper editor, could create apprehension on the part of the gays and lesbians unfortunate enough to live there. In effect, the Tribunal put its foot down: it took a stand against against the division of the community that Boissoin was attempting to create.
He went much further than Steyn. Different case, different facts.
You are surely not arguing that words never give rise to direct consequences? It's just that not all words, however ill-advised, can be directly linked to events in the future, or can be seen in themselves to raise the apprehension of hatred and contempt.
The nutbar who recently called for the execution of gays, it seems to me, could give rise to such an apprehension. I simply don't think that Steyn's words conveyed an analogous kind of message.
I have a recollection that about 9 months ago the Canadian Jewish Congress predicted this exact outcome.
http://www.cjc.ca/template.php?a...on=oped&
Rec=222
Many others came on board afterwards but the CJC had to face down a barrage of vituperative bullshit from the knuckle-dragging crowd like thae catfur, Ezra lerant and many others.
http://ezralevant.com/2008/06/be...converts-
t.html
I wonder if we will now see honest and sincere apologies from same.
Lost in all of this is the simple fact that disputes over free speech ought to be deliberated upon in real courts.
Administrative tribunals are actually part of the "real court" system.
Sorry, Dawg, but real courts have strict rules of evidence. I'm sure that you don't intend to equate tribunals with courts, unless of course you'd be okay with rapists and murderers having their fates decided under the less stringent requirements of the former.
Dawg,
Fair enough. Yes, I agree that words can have consequences, and sometimes those consequences can justify even preemptive censorship.
But, in my view, the link or potential link between words and consequences has to be very narrow. If speech is to be censored or speakers punished, it has to be because the speech was going to produce "imminent lawless action."
Neither Steyn's speech nor Boissoin's passes that standard. Under the human rights system, the causal link between publication and hatred (not hateful action) need not be that strong.
My problem is that I think both Steyn's piece and Boissoin's did make some more likely to hate others by virtue of their membership in protected categories.
I get your point that the causal connection in Boissoin's case is more obvious; but if some whack-job had torched a mosque after reading Maclean's, would that have changed things?
Sorry, fergus, but you're demonstrating complete ignorance of the system.
To begin with, we aren't dealing here with criminal, but with civil, matters.
Secondly, the administrative tribunal system--and there are literally scores of such bodies around--effectively does the grunt work for the regular courts. Their decisions (unless there is what is known as a privative clause in the enabling legislation) are reviewable by the courts, which have broad criteria for review.
I've dealt with this before, but general rules of due process and natural justice do apply. Don't believe everything the speech warriors proclaim as fact.
Terrence:
These things are always matters of degree. At the risk of repeating myself, Steyn was careful in his choice of words. Boissoin, not so much. I want the bar set high, although not as high as you do--high enough to exempt Steyn, but low enough to allow some action against professional hatemongers like Boissoin.
You are being a tad coy with me, Dawg, for it was you who claimed that "(a)dministrative tribunals are actually part of the "real court" system", making no distinction at that time between criminal or civil courts, so it would seem that my point still stands. You may think that I am displaying ignorance of the system (you would be wrong) but you are merely avoiding the point I actually made: speech is too important to be dealt with in anything other than the most rigourous forum we have available.
Hardly "vulgar" Dawg...I leave vulgar to the Ti-Guys of this world.
I will be popping a tall can of Stella and reading the decision through at my leisure this evening. But on a cursory reading the BCHRT seems to have based its dismissal on a failure by the Mohammedan Legal Titan Faisal Joseph to lead expert evidence going to the actual promotion of hatred and contempt.
It is an intentionally narrow ruling based on a factual determination and not on a matter of law. As such it virtually eliminates the capacity of the complainants to appeal. But it is not helpful in setting the height of the bar; rather it tells the next complainants what evidence they need to bring.
Over at my place truewest suggests that the respondents could have sent a junior down early in the process to make application for dismissal on the grounds no case was made by the Islamists. In fact, given the basis of today's ruling, such an application would likely have failed. The Tribunal nowhere states that the article was not hate speech; rather it relies on the failure of the CIC to adduce evidence of the effects of that speech.
The 'roos found a way to blink in the face of a serious, well-funded, respondent which, from a legal perspective, sets no precedent and raises no bar. Damned clever 'roos.
They have left the more interesting question of what constitutes "hate speech" to another day (with a less well armed respondent). These 'roos are boxing smart and trying very hard to avoid having the statute underwhich they exercise their power brought before the SCC. They skulked away this time. A bit bloodied but ready to fight another day.
With luck, those of us who do not want the government censoring speech, will press the attack in other venues.
Let me save you the trip over the Jay's blog and make the point I made there (and that he alludes to above).
At the beginning of their reasons, the tribunal take the unusual step of pointing out that Macleans could have brought a preliminary application to dismiss and didn't. At paras. 8-12, they point out that
1. Since changes to the Code in 2003, all complaints that involve more than conjecture or speculation are set down for hearing;
2. The HRT doesn’t initiate or investigate complaints and won’t dismiss a complaint without hearing from both parties, usually following an application by the respondent;
3. Respondents can apply to dismiss a complaint before hearing on grounds set out in s. 27, which grounds include that there is no reasonable prospect that the complaint will succeed; and
4. For some reason, Macleans made no such application. Instead, they filed a defence that sounds a lot like a defence in defamation action, citing fair comments, truth and qualified privilege.
Most lawyers familiar with BCHRT procedure would have brought the application as a matter of course - hell, even Guy Earle knew enough to bring one, even though it was poorly argued -- since it cost next to nothing and is frequently successful. But Macleans were represented by defamation lawyers Julian Porter and Roger McConchie, neither of whom is a regular customer of the tribunal or necessiarly familiar with its proceures. Still, these guys are first rate counsel; surely they could have figured out something as simple as an application to dismiss - or assigned the task to a junior. Unless, of course, Macleans instructed them to run the trial for reasons known only to Ken Whyte and Ted Rogers.
And just so, the mob of sadistic kangaroos at the BC Human Rights Tribunal have failed to deliver the sweet lash of tyranny. They refused to hop all over our basic rights and freedoms with their big hind feet
Great news! So are you going to call Doug Collins and let him know he can get back to writing newspaper columns about Spielburg movies, and should be getting his money refunded?
Will Guy Earle get to go on with telling lousy jokes and not have to attend any hearings?
(I confess I haven't gone through all the BCIRT decisions yet to find other speech-specific ones, as I'm engrossed in reading how false claims don't preclude getting a judgement in your favour in this sham of a "proceedings")
"Recall also that Red Deer is a small town." Spoken like a big city boy. I lived in a small town (hamlet if you want to get technical) with a population of about 100. I went to school in a town of about 500. Those were small towns. Red Deer has over 83,000; its a not a town, its a city.
Sorry, nitpicking I know, but it just jumped out at me.
LJB:
You have a point--mea culpa. But my main point was that harmful, hateful words reverberate more in relatively small spaces. Boissoin's frothings would be lost in a big metropolis, but count for something when reproduced in the local newspaper of a relatively small community.
Actually Dawg, if you're interested in my reaction to the Steyn decision as Kathy's co-author, you can just ask. I'm not an ogre, you know, even though I prefer hiding out in the rural vastness of Northern Ontario and Michigan's Upper Peninsula to big city life in the Toronto-Montreal corridor.
Having said that, if you don't mind me cutting-and-pasting comments I made elsewhere, here's my reaction to the Steyn decision:
*********
As much as I mistrust the commissions and tribunals after what I encountered while investigating them, I absolutely sympathize with Canada’s Muslim community. Once again, they were just doing what they saw everyone else doing; once again, they got screwed because the rules changed the moment they took their kick at the can.
A few months ago, my wife and I had the pleasure of hosting Syed Soharwardy for dinner as we celebrated his arrival to Northern Ontario (he was walking across Canada) and my little one’s birthday. For the most part we didn’t discuss the human rights tribunals - not because we were avoiding the topic, but because I was more interested in his walk, as well as making sure he was properly briefted about bears before going further North.
Syed politely listened. He may have thought I was exaggerating the bear threat in Northern Ontario - most non-Northerners do. But he was a polite guest, and went through the drills with me of what he should do if he encountered a bear on his walk. Good thing too. He later told me, and his communication’s director Linda confirmed in a news release, that he would experience five or six bear incidents during the Lake Superior stretch of his walk. Most of the incidents came to no harm, but on a least one occasion, it was obvious he had encountered a larger bear that was tracking him, and he knew from our conversation to get back to his RV until the bear went away.
Anyway, by the time we got around to discussing the human rights commissions and tribunals, he asked me, in all earnestness, what Muslims had done differently than any other faith or culture group that had filed complaints with the commissions. I could tell from his eyes and facial expressions, as well as the tone of his voice, that there was no bitterness or malice in asking the question - he was honestly confused by the ensuing backlash and how everything had played out.
And I couldn’t blame him, despite the fact I disagreed with his actions. He was right in two respects. First, Muslims were just doing what everyone else had done. Second, the rules changed the moment Muslims started playing.
What do I think happened? Given the decline in basement Nazis and actual hate incidents in Canada, the human rights industry needed to broaden the definition of “hate” in order to justify their continued existence and maintain their comfy lifestyle and government paychecks. So they attempted to do so on the backs of Canada’s Muslim community.
When this provoked an international backlash, which bec
[Continued from above]
When this provoked an international backlash, which became potentially a greater threat to their lavish lifestyle, they voted with their pocketbooks. The Muslim community was cut loose, and left to fend for themselves against the backlash.
The process is the punishment, as David Warren said. Not only to Steyn and Levant and others who never should have been put through it at the personal cost of thousands of dollars and hundreds of hours. But also to Canada’s Muslim community who, at the cost of their reputation, have learned a hard lesson: For the bureaucrats driving these commissions and tribunals, principles will always be segregated to the back of the bus if potential paychecks need accommodation.
Peter V.:
I don't recall ever mentioning you.
Let me just say that I find your attribution of malice against the Tribunals (not to mention ludicrous assertions of "lavish lifestyles" and such) to be unsupported by the evidence.
It's not as though the Tribunals have been beating the bushes to bring people before them. Those initiatives, as you well know or should know, are up to private citizens. And in the cases under discussion, the Tribunals dismissed all three.
As for the process being the punishment, as commenter truewest has explained at length here and over at Jay Currie's place, Macleans' high-priced help could have brought a sn.27 motion to dismiss the case at the outset. They didn't. No public glory and martyrdom in that.
Good luck with your book--published, I notice, by a creaky old "pro-life" outfit. A shame that real world events may cramp sales, but there you go. Thanks for dropping by.
Dawg,
Judging from the tin-foil hat reactions to this decision - i.e. the 'Roos blinked - the sales of Vere's and Shaidles book will survive both the non-martyrdom of Steyn and its own flaws.
As for the American reaction, it might be noted that in 1952, the US Supreme Court upheld a law that is similar in many ways to the impugned sections of the human rights statutes.
In Beauharnais v. Illinois, for example, the US Supreme Court upheld an Illinois statute making it illegal to publish or exhibit any writing or picture portraying the “depravity, criminality, unchasity, or lack of virtue of a class of citizens of any race, color, creed or religion” In so doing, the Court noted that the Illinois court had construed the statute as governing criminal libel and that, as such, truth was not a defence under Illinois law, unless the publication is also made “with good motives and for justifiable ends.”
Sound familiar?
Yes, the sadistic kangaroos at the BC Human Rights Tribunal refused to hop all over our basic rights and freedoms with their big hind feet. And yet hop all over our basic rights and freedoms is precisely what they are empowered to do. That every hate speech complaint brought to a commission, board, or tribunal in this country were dismissed would not change the fact that no government body ought have the power to suppress, censor, or punish the peaceful expression of opinion or emotion, no matter how vile that opinion or emotion.
sigh,
truewest, apparently you are prepared to play at lawyering without reading the section you cite...Here it is:
"Dismissal of a complaint
27 (1) A member or panel may, at any time after a complaint is filed and with or without a hearing, dismiss all or part of the complaint if that member or panel determines that any of the following apply:
(a) the complaint or that part of the complaint is not within the jurisdiction of the tribunal;
(b) the acts or omissions alleged in the complaint or that part of the complaint do not contravene this Code;
(c) there is no reasonable prospect that the complaint will succeed;
(d) proceeding with the complaint or that part of the complaint would not
(i) benefit the person, group or class alleged to have been discriminated against, or
(ii) further the purposes of this Code;
(e) the complaint or that part of the complaint was filed for improper motives or made in bad faith;
(f) the substance of the complaint or that part of the complaint has been appropriately dealt with in another proceeding;
(g) the contravention alleged in the complaint or that part of the complaint occurred more than 6 months before the complaint was filed unless the complaint or that part of the complaint was accepted under section 22 (3).
(2) If a member or panel dismisses a complaint or part of a complaint under subsection (1), that member or panel must inform the following persons of the decision in writing and give reasons for the decision:
(a) the complainant;
(b) the person against whom the complaint was made, if that person had been given notice of the complaint;
(c) any other party;
(d) an intervenor.
-------
There is no requirement (or indeed, provision) for an application by the respondent. s.27 dismissal is at the discretion of the member or panel. A discretion which the BCHRT declined to exercise in the Macleans matter.
Currie..you're needed in the thread above. I think they're talking about WMD's and Syria.
Jay:
Someone is playing at lawyering here, but I don't think it's truewest. A motion can be made by a respondent at any time: what you cite is what the BCHRT person or panel chooses to do about it.
And the BCHRT on its own motion as is contemplated in the section tw is relying upon, could have tossed this piece of crap at the get go.
Which it should have on 27(1)(c) grounds if nothing else. (Though there is a dandy argument that the BCHRT lacked jurisdiction as well.)
tw would have us believe that the BCHRT cannot dismiss on s. 27 without a motion from a party or intervenor. I see no reason to read the Code so narrowly.
Remember that in BC there is no Commission to pre-screen complaints, the BCHRT is Tribunal and Commission both and, frankly, that gives it a greater responsibility to dismiss frivolous claims such as this one without putting the parties to the expense of litigating it.
(Dawg, you are of course quite right that the respondent may make a motion to dismiss at anytime - my point is that when confronted with this steaming pile the respondent should not have to.)
Jay, while not unheard of, it is extremely rare for a court to strike pleadings, dismiss a case, etc. on its own initiative without being asked to do so by one of the parties. That's part and parcel of what the adversary system is about (as opposed to the European inquisitorial system). I think your argument would be stronger if B.C. still had a Commission.
Peter, I agree with you as to a "Court" however, as our statist friends have reminded us throughout the Steyn matter, Tribunals are not bound by the same procedural formality as Courts (apparently this is a feature not a bug).
We saw this informality in action in the Steyn hearing when all manner of unqualified and hearsay evidence was allowed in.
tw is arguing that this could all have been avoided if Macleans had sent a junior down to file a R26 application for a S. 27 dismissal - an alternative I am quite certain Mr. McConchie was aware of as he has several times obtained just such a dismissal in other matters.
Macleans, for whatever reason, so far as I can see, did not file for S. 27 dismissal. My point is that notwithstanding this the BCHRT could have, by the statute, dismissed at any time.
(btw, tw over at my place suggests that if they did they would be overturned on judicial review. He may have a point; but in that case we really should dispense with the pretense that Tribunals are somehow procedurally less formal than Courts. And, if we do that I have to ask why we have these Tribunals in the first place - why not just take the complaints directly to Court.)
Jay,
1) Roger McConchie rarely appears before the HRT - he's a defamation lawyer after all - and he's obtained a single dismissal under r. 27.
2) You seem to be suggesting that judicial review involves a rehearing of the case heard by the tribunal. It doesn't. But a reviewing court will ask whether the tribunal provided the level of procedural fairness anticipated by the legislation. I would suggest that a HR tribunal dismissing a complain on its own motion, after not hearing a peep from either side, does not meet that standard.
Well Dawg
Nothing annoys wannabe martyrs like the system working. I mean how are they going to feel oh.. I dunno ... so self important if nobody nails them to a chunk of wood because their viscous hatred isn't found to be cause for action.
Actually folks you hate because you are small minded bigots and you know what? You still have the freedom to show this. Oh how that must burn.
Harebell:
If I grant you a tendency to hyperbolic martyrdom from our side (and I'll even throw in everybody baying in unison: "real courts use evidence"), will you folks stop chanting "this proves the system works". Geez, if the cops wrongly charge someone who has to spend a year and tens of thousands of dollars to secure a not guilty verdict the court says was obvious from the start, we don't all pat ourselves on the back about what a great system we have.
The Tribunal arrived at the right result, but the way they did it backs the free-speecher misgivings that this gig is all about making up the law as you go along. In a libel trial based on an article in a newspaper, the judge doesn't usually need evidence to say whether it is defamatory or not (exceptions reflect linguistic and in some cases, like the Internet, technological evolution). He/she will hear argument, but not usually evidence, except perhaps to determine the meaning and intent of ambiguous words. Say what you will about Steyn, no one ever accused him of ambiguity. Otherwise, the publication speaks for itself on the face of it. Once the defamation has been established, (usually quite early and often conceded) the trial moves on to defences and damages. But the court doesn't hear expert evidence as to whether calling someone a liar and a thief is libelous, and certainly not evidence that most people are likely to see it as such. That is clear on the face of it, and I am unaware of any case that ever tried to link the objective definition of defamation with geo-political or socio-economic developments. But in this case, I was left with the impression that if the complainants had called a gaggle of "experts" to show that the article had been given to ten thousand rednecks and that 64% of them said they hated Muslims even more as a result, making 37% of Muslims more fearful, the result might have been different.
And that is the problem underlying all of this. The definition of S 13 type offences is far, far too subjective, and if you want evidence of that, I would like to file Barbara Hall as Exhibit A. We don't charge people for "being nasty" or "behaving unjustly" or "scaring people" because we recognize that to do so is merely to invite the judge to apply how he/she personally feels about the accused's behaviour. We try to define behaviour and words as specifically and objectively as we can, admittedly an imperfect process. But this case and a lot of other HRT ones seem to think each new case is about defining the limits of what the law encompasses, and the Commissions/Tribunals often seem to be searching for grounds to justify expanding, never contracting, the original intent. It's one thing for the U.S. Supreme Court to muse about a "living constitution", quite another for some low-level political appointee (of course, "with a long background in human rights") to think he/she is custodian of a "living human rights code". The Tri
(Cont'd)...The Tribunal should have ruled early and objectively that these words are not likley to promote hatred as the statute intended to define it, not that there was no evidence submitted that they do.
The administrative level is no place to decide whether geo-political criticisms of a religion or country is an offence that gives rise to a cause of action for it's members. If it were, watch out, a lot of our American friends might start taking aim at Canadian leftist blogs.
Peter,
I agree that the Tribunal should have dealt with the threshold issue - is the content of the story such that is could expose a group to hatred or contempt? - early on in the proceedings. However, as you explained to Jay, it could only do so at the behest of one of the parties. And since Macleans never brought an application, the complaint proceeded to hearing.
In the adversarial system, the proper functioning of the system depends in large part on the adversaries. In this case, Macleans's lawyers dropped the ball. The only question is whether they did so out of ignorance (seems unlikely) or on instruction from their clients.
Peter:
You yourself noted that the adversarial system requires that someone make a motion to dismiss. Had that been done right at the start instead of (I suspect) drawing out the proceedings for effect, the results might have been even more anti-climactic.
As for Barbara Hall, what she said, effectively in obiter, should detract from the fact that she dismissed the case outright.
[Editorial addition: What truewest said. We both responded, it seems, at almost the same time.]
Well, Kate and Shaidle are still being tried for libel. You know, in a real, live, actual courtroom.
Maybe the speech warriors can support THAT particular approach.
Uhhhh...how much did that non-verdict cost the defendent? And, how much didn't it cost the complaintant?
Ahhhhh....sweet victory!!!!
NEXT!!!!!
JR,
The complainants paid their own lawyers, just as Macleans did. And, as has been pointed out above, Macleans probably didn't need to pay its lawyers nearly as much as it did.
But thanks for dropping by to display your ignorance.
Commenting by HaloScan
