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Sunday, May 04, 2008

Saying the right things...

As Matthew Johnson notes in the post below, Jason Kenney went into the lion's den and asked the CRRF members to avoid actions that could be viewed as assaults on freedom of speech and expression.

I, however, would have been more impressed had he gone on to say, "As  my government believes that there can be a possible threat to freedom of speech, in the name of human rights, we will be introducing amendments to the legislation that governs the Canadian Human Rights Commission, to take away its power to rule on 'freedom of speech' questions. These questions should be reserved for the courts, where legal safeguards protect the rights of both sides."

Asking activists --"pretty please, with sugar on top "--to respect the freedom of speech of those who annoy them will probably fail. Just ask Mark Steyn, Kathy Shaidle and  Ezra  Levant.

Posted by Rick Hiebert on May 4, 2008 | Permalink


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All this talk about"leadership" and "accountability" from this so-called "new conservative" government is really BALONEY. Real leadership would show courage and take the lead in restoring FREE SPEECH to Canadians. Instead they are in bed with the Canadian Human Rights Commission and others in Supporting "Section 13 arguing that it is a reasonable restriction on free speech." Who do they think they are kidding? Free speech is either free or it is NOT free speech. Quite frankly these "conservatives" are liberals in drag.

Posted by: Stephen J. Gray | 2008-05-04 8:07:50 PM

our "Conservatives" might be laying low with these "controversies" until they get their majority.

but when there are almost as many leftists in support of free speech as conservatives and libertarians, and the Feds still downplay the issue, i smell a contemptible grasping worry about power loss.

at any rate, my upper lip is curling.

Posted by: shel | 2008-05-04 9:00:18 PM

Mark Steyn, Kathy Shaidle and Ezra Levant

AKA the three stooges...

Also, haven't you clowns realized yet? - it's all about keeping their Ottawa paychecks now for the HarperCONartists.

Posted by: joe bleau | 2008-05-04 9:07:06 PM

Lets have them introduce an end to so called "defamation law" and prohibit SLAPP law suits. Canada is one of the few western nations that still holds to old defamation law based on outdated principles. Mr. Levant has on many occasions stated he is in favour of defamation law and oppossed to HRC's. I for one see that as hypocritical and agree with Stephen Gray

Why do plaintiffs outside Canada bring libel suits against non-Canadian defendants such as the New York Post and the Washington Post in our courts? The answer is that they likely have good legal advisers who correctly tell them that Canadian libel laws favour plaintiffs. For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.

Libel law developed in an ancient era which we would today consider backward, tyrannical and repressive. It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established. In Law of Defamation in Canada, Professor Brown notes that the common law of defamation has been described by scholars and judges as “artificial and archaic” and characterized by “absurdities”, “irrationality”, and “minute and barren distinctions” (p. 1-3).

While social values and legal concepts have evolved dramatically of the past 200 years, the common law of libel in Canada remains startlingly unchanged.

The Americans inherited the same common law of libel from England that Canada did, but American courts concluded that the law had to be reformed to protect free speech. In cases involving matters of public interest, the plaintiffs now bear the onus of proving falsehood, fault and damage, and statements of opinion are immune from liability. (See Gertz v. Welch, 418 U.S. 323, Milkovich v. Lorain Journal Co., 497 U.S. 1, New York Times v. Sullivan, 376 U.S. 254.)

For those who prefer British and Commonwealth role models, it is noteworthy that in the past dozen years or so, the highest courts in England, Australia and New Zealand have all recognized that the traditional law of libel fails to adequately protect free speech, and they have all issued decisions which begin to right the balance. Every one, that is, except Canada.

The trend began in Australia, with the landmark cases of Theophanous v. The Herald and Weekly Times Ltd. (1994), 124 Aust. L.R. 1 (H.C.) and Lange v. Australian Broadcasting (1997) 145 A.L.R. 96 (H.C.A.). In Theophanous, the court declared that under traditional common law “the balance is tilted too far against free communication.” (p. 20). The cases established a new privilege for political discussion. The privilege developed in those cases has made its way into a new 2006 uniform Defamation Act in Australia. Among other things, the new Act refreshingly declares that one of its objects is to ensure free speech is not unduly hindered.

The English House of Lords took up the challenge in Reynolds v. Times Newspaper, [2001] 2 A.C. 127 where the Law Lords chose to recognize a new test for a case-by-case privilege for publications which, though otherwise actionable, dealt with a matter of public concern in a manner which was reasonable and balanced in all the circumstances. Even as this article was being written, the House of Lords released its decision in Jameel v. Wall Street Journal [2006] UKHL 44 emphasizing that the new defence is to be applied flexibly to protect and encourage important journalism (see Randy Pepper and Lawren Murray’s article on page 14).

In New Zealand, defamation law has been modernized by a series of statutory reforms to their Defamation Act, and by the landmark decision of Lange v. Atkinson [2000] 3 NZLR 385, establishing a qualified privilege for non-reckless statements about political figures.

However, in Hill v. Church of Scientology of Toronto [1995] S.C.J. No. 64, Justice Peter Cory, for the Supreme Court of Canada, stated, “I simply cannot see that the law of defamation is unduly restrictive or inhibiting”. Against the common law and statutory reforms which have occurred elsewhere, that sentiment seems out of step. Given that many of the Commonwealth developments occurred after Hill, it is interesting to ponder whether the Supreme Court would reach the same conclusion today.

Why should we care if Canada has more restrictive libel laws than elsewhere? One reason is that libel law, by attaching punitive consequences to expression, plainly infringes the Charter guarantee of free expression, and it becomes difficult to justify under s. 1 when other “free and democratic societies” have concluded that the traditional common law requires reform. A more pragmatic reason is that Internet publication by media outlets opens the door wide to forum shopping, raising concerns that Canada will become a haven for libel plaintiffs who likely would not succeed in their more natural forum.

Mostly, we should be concerned about the state of our libel laws because freedom of speech – including the pain it sometimes causes – is the means by which we discuss, debate and grow as a society. The clash of ideas is at the heart of our adversarial justice system and our democracy. As the poet John Milton put it, “...there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making.” Areopagitica (1644).

Dan Burnett of Owen Bird Law Corporation in Vancouver practises primarily media and defamation

Posted by: Merle | 2008-05-04 9:11:11 PM

Freedom of speech has been eroding here for some time. It's been a gradual process, a creep. We have our broadcast outlets policed by the CRTC and the various jurisdictions of HRC's across the land. They remove our right to free speech as set down in the Charter using intimidation, the accused PAY the price. It's something we'd expect in a Communist regime.

It is an issue the government has to deal with. Given the recent high profile cases before the Commie Commissions they have a window of opportunity to act, shut them down and get wide support.

Posted by: Liz J | 2008-05-05 5:56:15 AM

Good article By Ezra Levant. SJG


Jews for free speech
By Ezra Levant on May 4, 2008 11:06 PM | Permalink | Comments (17) | Trackback
I didn't know it until I read paragraph 4 this legal brief, but apparently I, Ezra Levant, have been relying on section 13 of the Canadian Human Rights Act -- the thought crimes provision -- for my "psychological security".
That's what the Canadian Jewish Congress, the Simon Wiesenthal Centre and, to Frank Dimant's shame, the B'nai Brith say. In paragraph 4 of their joint brief, they claim they're "representatives of the Canadian Jewish community" and that Canadian Jews "rely heavily on anti hate-speech legislation, such as section 13 of the Canadian Human Rights Act, for their physical and psychological security."
I admit I've been caught flat-footed by this. I didn't know that I was supposed to be a caricature of a thin-skinned Jew, a neurotic Woody Allen stereotype, a perpetual victim. But that's not being fair to Allen -- he works through his "psychological insecurities" using self-deprecating comedy, as so many Jewish comedians do. Come to think of it, I imagine he'd be a foe of section 13, if he knew about it. If he were Canadian, he'd probably even be charged under it. If you don't realize that Allen has his tongue in his cheek, his movies' outlandish characters and stories could come across as anti-Semitic. (Zelig is my favourite.) Allen himself could be convicted of "likely" spreading "hatred" against Jews.
I'm not the only Jew who didn't get the groupthink memo from our so-called "representatives". It seems that Jonathan Kay, George Jonas, David Frum, Kevin Libin, Michael Ross and Karen Selick of the National Post (not to mention the Asper family), Edward Greenspon of the Globe and Mail, Charles Adler of Corus radio, Ellen Seligman of PEN Canada and Alan Borovoy of the Canadian Civil Liberties Association aren't fulfilling the official stereotype either. Neither are Noam Chomsky or cartoonist Art Spiegelman or blogger Pamela Geller, but they're not Canadian. I'm not sure if Paul Schneidereit of the Halifax Chronicle Herald is Jewish, and Mark Steyn, Michael Coren and Christopher Hitchens may have some Jewish ancestry but they say they're not members of the tribe, so maybe their anti-section 13 heresy is permitted.
Each of the aforementioned individuals has come out against section 13. But that's the problem: they're individuals. The Official Jews, the Professional Jews, the Jews Who Are Jews for a Living, say that we're all just one big blob of "Jews" who think as we're told to think by them.
And what about Heather Reisman, patron of one of Canada's biggest and most active synagogues, Toronto's Holy Blossom? This Wednesday she is hosting a book launch -- not a book burning -- for Steyn's paperback edition of America Alone. Apparently Reisman isn't aware that Steyn's book is a section 13 crime, denounced (without a trial) by the Ontario HRC's czarina, Barbara Hall, and is about to be subject to a trial in B.C. next month. The CJC's Bernie Farber has less than 72 hours to tell Reisman to start feeling psychologically insecure!
If Canada's Official Jews want to claim that they're "psychologically insecure", they can knock themselves out. It seemed to work for Giacomo "Serenity now!" Vigna. But perhaps they'd be so kind as to speak for themselves, not for the rest of us. Now I know how Clarence Thomas and Colin Powell must feel when they hear Al Sharpton and Jesse Jackson speaking "for Blacks".
There is one useful element to their psychobabble dressed up as a legal brief. It is proof, in their own writing, that section 13 is being abused in ways that were never contemplated -- let alone permitted -- by our Supreme Court when they last assessed section 13 in 1990. To protect Jewish "psychological security"? So that's all it takes to trump our fundamental freedom of speech, as enshrined in the Charter of Rights, Bill of Rights, and 800 years of common law?
If you're a Jew (or know of a Jew) who has spoken up against the thought crimes provisions of Canada's human rights laws and I've inadvertently left you off of this list, e-mail me, and I'll add you. And why not e-mail your "representatives" at the CJC, B'nai Brith and (weirdly, as if they're some sort of political body) the Simon Wiesenthal Center at the same time.
Tell them that we all know they need some sort of "crisis" to write about in their endless fundraising letters. But perhaps they might find some other, real, threats to Jewish security -- oh, say, a synagogue or school torching -- and leave the "psychological security" schtick to Woody Allen or Jerry Seinfeld.
ADDENDUM: It's not just that Jews are opposed to section 13. It's that anti-Semites are in favour of it -- and are using it as a weapon against us. Look at the character of the men who have recently been filing complaints under section 13 and its provincial analogs. Mohamed Elmasry, the terrorist-supporting president of the Canadian Islamic Congress, filed three complaints against Judeophile Mark Steyn; Syed Soharwardy, the infidel-hating president of the Islamic Supreme Council of Canada filed a complaint against me (and, though he later dropped it, the Edmonton Council of Muslim Communities picked it up); and even Richard Warman, Canada's most prolific section 13 complainant, has admitted under oath that he went online, under a secret codename, and posted comments on white supremacist websites, signing off with Nazi shorthand for "heil Hitler".
Warman is now suing not only me, but the Zionist National Post and its editor Jonathan Kay, as well as four of Canada's most pro-Israel Gentile bloggers, Kathy Shaidle, Kate McMillan and Connie and Mark Fournier. Section 13 doesn't give "the Jews" security. Section 13 is being used to silence "the Jews" and our righteous Gentile allies. If anything, it makes me "psychologically insecure" to know that section 13 is being supporting in my name even as Alberta's own version of section 13 is being used against me.
I know that the CJC is beyond redemption. And the Wiesenthal Center is really just a museum and a gift store. But I still hold out hope from the B'nai Brith. Does Frank Dimant even know what his organization is doing?

Posted by: Stephen J. Gray | 2008-05-05 9:32:33 AM

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