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Saturday, June 28, 2008

Supreme Court expands freedom of expression

While we're busy lamenting the Human Rights Commission in Canada, and debating whether Canada or the U.S. is freer, our Supreme Court has expanded the meaning of "fair comment," giving all of us a little more freedom.

The details of the case are not important (in my judgment). It was about an abrasive radio DJ saying mean things about someone or other, and making reference to Nazis and the Klan and so on in the process. There was something about homosexuality in there as well, but, frankly, who cares? What matters is this:

"A key component of the fair comment defence has long been that the person making the comment must sincerely believe in it. In the course of the ruling, however, the high court modified that test.

"Commentary must still have a factual basis, be made without malice and be in the public interest, said Binnie.

"But the test of honest belief is not whether the specific person holding the opinion believed it. The yardstick is whether any person might honestly hold the view based on the facts at issue."

The Globe and Mail puts the whole test in point-form:

"The comment must be on a matter of public interest.
"It must be based on fact.
"Although it can include inferences of fact, the comment must be recognizable as comment.
"It must be capable of satisfying the question: Could any person honestly express that opinion on the proved facts?"

Justice Binnie, speaking for the unanimous court (get that? Unanimous! Nine to zip), said some things that, I think, are a nice hint to those of us who want to see the end of the HRCs. Read the following lines and tell me the court isn't wholly unsympathetic with their kangaroo-counterparts:

"We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones."


“An individual's reputation is not to be treated as regrettable but unavoidable roadkill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill' freewheeling debate on matters of public interest,” Mr. Justice Ian Binnie said."

Unavoidable roadkill. That's what he said: Roadkill! It's not a sad fact about public commentary and opinion that people's reputations are on the line and sometimes exposed to ridicule, it is part and parcel of public controversy.

Binnie said more. And I wonder if he wasn't speaking about Ezra Levant (our former publisher when we had a print edition) and Paul Jones (publisher of Maclean's) when he said:

“Of course, the law must accommodate commentators such as the satirist or the cartoonist who seizes on a point of view, which may be quite peripheral to the public debate, and blows it into an outlandish caricature for public edification or merriment,” he said. “Their function is not so much to advance public debate, as it is to exercise a democratic right to poke fun at those who huff and puff in the public arena. This is well understood by the public to be their function.”

"Judge Binnie expressed a concern that issues of public interest could go unreported “because publishers fear the ballooning cost and disruption of defending a defamation action. … Public controversy can be a rough trade, and the law needs to accommodate its requirements.”

I know some other costs that are ballooning--the costs of facing down a bunch of puffed-up bureaucrats in the kangaroo circuit.

I'm positively giddy. Dear Canadian Constitution Foundation: I can't wait for your next "Judging the Judges" (last year's study, in PDF) report. Last time, you said the Supreme Court judged in favour of liberty and equality before the law in 83 per cent of the cases you analyzed. Now we've got one more case that went our way.

Dear 'Roos: I can't wait for you to make the mistake of judging some publisher or newspaper columnist or public commentator "guilty" who has the means or the temerity to say "bollocks to that" and "I'm going to take this to a real court." Precedent has been set. Put your joeys in your pouch, flyers and boomers of the "I don't understand your question" tribunal, and find some sort of real employment. You know, the kind you don't have to be ashamed of.

Posted by P.M. Jaworski on June 28, 2008 in Current Affairs | Permalink


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Why are we even debating what King John signed at Runneymede centuries ago? And what hundreds of years of Common Law has verified.
The Supremes should just piss off and leave this

Posted by: atric | 2008-06-28 2:22:52 PM

Somebody should tell that to the Harper government and B’nai Brith who are intervenors against "free expression."

An Award for upholding “human rights in Canada”

By Stephen J. Gray

“Prime Minister Stephen Harper today became the first Canadian to receive the B’nai Brith International President’s Gold Medallion, in recognition of the Government’s efforts to fight discrimination and uphold human rights in Canada and around the world.”

PMO-CPM Release June 27, 2008. ( http://pm.gc.ca/eng/media.asp?id=2173 )

I must say this award sounds very good until one thinks about the words about upholding “human rights in Canada.” P. M. Harper’s government is an intervenor along with B'nai Brith Canada and the Canadian Human Rights Commission against free speech in Canada. Here are the intervenors:

“The Attorney General of Canada, the Canadian Human Rights Commission, the Canadian Jewish Congress, the Simon Wiesenthal Centre and B'nai Brith Canada will be intervening in the Lemire case in support of Section 13, arguing that it is a reasonable restriction on freedom of speech” (Canadian Constitution Foundation Letter of April 28, 2008.)

The words “reasonable restriction on freedom of speech” have become a weapon to punish decent law abiding Canadians for daring to have an opinion in a so-called “free society.”

Decent Canadians who have been harassed, vilified, tormented and denounced by these unelected and appointed so-called, “Human Rights Commissions”(HRCs) are as follows: Chris Kempling, Scott Brockie, Knights of Columbus, Stephen Boissoin, Bishop Henry, Ezra Levant and others. Now Catholic Insight magazine, the Christian Heritage Party and MacLean’s magazine are under the guns of the HRCs. And the “Gold Medallion” award winning Mr. Harper, his government and B'nai Brith Canada are “…in support of Section 13, arguing that it is a reasonable restriction on freedom of speech.”

The Canadian Constitution Foundation (CCF) in its letter of April 28, 2008, had this to say about its own potential intervenor status in Lemire, “By intervening in support of the application put forward by Marc Lemire, the CCF would not be endorsing the content of his message, but supporting the rights of all Canadians to say and write whatever they
believe, without fear of violating a law such as Section 13, of the Canadian Human Rights Act.” Amen to that!

“I may not agree with what you say, but I will defend to the death your right to say it.” Voltaire.

Unfortunately Voltaire’s words do not apply to Canada. Voicing an opinion or writing letters to a newspaper, cracking jokes or printing cartoons can get a person dragged before the Human Rights Commissars of Canada. Their accusers get a free ride and the accused have to pay for lawyers for their own defence. Does this not sound like a dictatorship?

Meanwhile P.M. Harper is quoted as saying this: “What took place Friday in Zimbabwe’s run-off election was ‘an ugly perversion of democracy,’ Harper said.” (CBC News, June 27, 2008.)

Well said Mr. Harper, but, unfortunately we have an ‘an ugly perversion of democracy,’ here in Canada, and you and your government are siding with the undemocratic human rights commissars. Still, at least you are getting an award for upholding “human rights in Canada.” But, I believe, some thinking people in Canada will believe this award rings hollow when your government and B'nai Brith Canada are “…in support of Section 13, arguing that it is a reasonable restriction on freedom of speech”

Stephen J. Gray
June 28, 2008.
[email protected] website http://www.geocities.com/graysinfo

Posted by: Stephen J. Gray | 2008-06-28 3:23:56 PM

Can't argue with that, Stephen.

Posted by: atric | 2008-06-28 4:02:59 PM

But, I believe, some thinking people in Canada will believe this award rings hollow when your government and B'nai Brith Canada are “…in support of Section 13, arguing that it is a reasonable restriction on freedom of speech”
Posted by: Stephen J. Gray | 28-Jun-08 3:23:56 PM

Looks like nothing more than pandering to an ethnic group to get their vote, something Conservatives used to slam the Liberals for doing. Odd isn't it how a group of 370,000 people can have so much influence over a country of 33 million.

Posted by: The Stig | 2008-06-28 5:01:30 PM

I don't know, P.M. Remember, this is dealing with tort law - not any of this other nonsense that we've faced.

My gut feeling on this is that this decision relates almost entirely to the fact that the Court doesn't like Kari Simpson or what she believes. I doubt if such a broad shield against defamation would be afforded to someone who held her views if they so abused someone with Mr. Mair's views.

Posted by: Adam Yoshida | 2008-06-28 5:48:47 PM

hard to add what Stephen Gray said.
but, let's see what the lower courts belch up over this. Happy Free Canada Day.

Posted by: reg dunlop | 2008-06-28 8:56:18 PM

Well put, Adam.

Posted by: rbk | 2008-06-29 1:41:20 PM

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