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Monday, September 15, 2008
Free Speech and Canadian elections
A while ago a civil servant working for the Human ‘Rights’ Commission claimed that free speech was not a Canadian value. I wasn’t surprised to learn that those that head the HRC have no legal background. Or, at least, I assume that they don’t, otherwise they would have known this section of the Charter of Rights and Freedoms:
2. Everyone has the following fundamental freedoms:
b) freedom of thought,
belief, opinion and expression, including freedom of the press and other media
of communication;
There it is my fellow Canadians. The Canadian leviathan has promised to protect our rights to speech. As flawed of a document you may think the Charter is (and I do), it is nice to have this promise written down somewhere.
Of course there is always this:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Now we have a problem. What can we call a "reasonable limit"? The Supreme Court has developed a formula for deciding these things, but it’s not a science. Besides, studying case law makes for a poor philosophical pursuit, so we won’t rely on those nine people in silly outfits, and ask ourselves this important question:
Is any limit to free speech reasonable?
I mentioned the HRC at the top of this post. They have been attacked for a while now as the primary threat to free speech in this country. That may be so, but they are not the only threat. Other threats are readily apparent during an election.
I am not, nor are any of you, allowed to buy television time to endorse a political party or candidate. This means that I cannot enter into a contract with a willing partner to freely express my opinion to the audience of my choice. On the face of it this would violate Section 2b, but apparently it doesn’t. This law has been deemed "reasonable."
I cannot tell someone living on the west coast which of my fellow citizens will be making my laws until those westerners are done voting. I and the media are not free to express an opinion of those newly-minted MPs until the state gives us permission. This too has been deemed "reasonable."
Why are these restrictions reasonable? The excuse given for the latter restriction is that if it were not in place it may affect the outcome of the election. So to be clear, we are not allowed to do these things because we may influence people. Does that seem like a reasonable limit to you?
The former restriction is in place to keep political parties from using arms-length groups to attack each other. Is this really enough of a reason to restrict speech? To stop a political tactic that some think is unsavoury? Personally, I’m always a little annoyed when a politician talks about their home life in an election. Should we have the Supreme Court ban that too? Does this seem like a reasonable limit to you?
Free speech is a Canadian value. It has been since the days of LaFontaine and Baldwin. Sometimes we simply can’t rely on the leviathan to protect it for us.
Posted by Hugh MacIntyre on September 15, 2008 in Canadian Politics | Permalink
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Comments
I recieved a survey questionnaire today from the CPC. One of the questions was to do with the HRC's overstepping their bounds. Did I think that this was so? I replied "Abolish the Stalinist HRC's"
Now...on to the right to defend your self?
That would fall under property rights if anyone cares to take notice. "I" own "me"...not the damned government.
Posted by: JC | 2008-09-15 10:06:56 PM
I've tried to explain this before on this blog, but people seem to prefer fake outrage to the truth. But let me try one last time:
Did you know in Canada you can't "take the fifth"? You *DO* have the right not to incriminate yourself here, but it's not called "taking the fifth" because that is a term that is American-specific by refering to the US Constitution's fifth amendment.
Did you knw that in Canada the police don't have to Mirandize you? They don't read a little speech that starts, "You have the right to remain silent. Anything you say can and will be used against you in a court of law." You certainly *DO* have the right to remain silent and you *DO* have the right to a warning about your rights by the police, but the Miranda warning is American. Like "taking the fifth", Canadians get the idea that Miranda is Canadian too from TV.
Dean Steacy said, Freedom of speech is an "American concept, so I don't give it any value." He also said in the same questioning period "If somebody is claiming freedom of expression, it is not rejected." He was being rather dickish, but the point he was (unnecessarily) making was that the US Constitution says "Congress shall make no law ... abridging the freedom of speech". The Canadian Constitution and Charter of Rights does not use the term "freedom of speech". As you correctly quoted, it used the term "freedom of ... expression".
In fact, the full quote from Steacy was this: "If somebody is claiming freedom of expression, it is not rejected. As I said, freedom of speech is an American concept, it is not a Canadian concept. If somebody said, 'I am doing this because of freedom of speech,' I would equate that to somebody raising a freedom of expression concept."
Here he seems to be saying that not only the terms used in the constitutional documents is different, but jurisprudence in the two countries have refined what each term means in a way that makes them actually slightly different concepts. But he does say that in canada when someone uses the phrase "freedom of speech" he knows what they mean and presumes they are talking about the Canadian court-defined "freedom of expression."
Steacy sounds like he can be a bit of an obnoxious guy. He likes to play "I know something you don't know" about the specific legal differences between Canadian and US law and has a smug attitude to those who use American legal terms in a Canadian legal context. So he's a jerk. But he does not think that freedom of speech as you and I and any ordinary person understands it is somehow alien to Canadian values. You can continue to pretend he does figuring it is just deserts for him being a jerk about it, but you (among others) should know better than to think you are making a truthful claim here by pretending that he does not care about free speech as it is ordinarily understood.
Posted by: Fact Check | 2008-09-15 10:26:10 PM
To be honest I had never heard that interpretation of what he meant. I won't insist on the interpretation that I understood nor will i accept yours out of hand. Since it doesn't really matter to the point of my post, I'll dismiss his either stupidity or arrogance for now.
(I understood the use of the term not as a legal term but a philosophical term. That was likely a prejudice of my own educational background.)
Posted by: Hugh MacIntyre | 2008-09-15 10:40:14 PM
The Leviathan, as Hobbes described it, is misrepresented in this article. It is not an agent of freedom. It is an agent of peace, order and censorship.
"The sovereign has twelve principal rights:
1. because a successive covenant cannot override a prior one, the subjects cannot (lawfully) change the form of government.
2. because the covenant forming the commonwealth is the subjects giving to the sovereign the right to act for them, the sovereign cannot possibly breach the covenant; and therefore the subjects can never argue to be freed from the covenant because of the actions of the sovereign.
3. the selection of sovereign is (in theory) by majority vote; the minority have agreed to abide by this.
4. every subject is author of the acts of the sovereign: hence the sovereign cannot injure any of his subjects, and cannot be accused of injustice.
5. following this, the sovereign cannot justly be put to death by the subjects.
6. because the purpose of the commonwealth is peace, and the sovereign has the right to do whatever he thinks necessary for the preserving of peace and security and prevention of discord, therefore the sovereign may judge what opinions and doctrines are averse; who shall be allowed to speak to multitudes; and who shall examine the doctrines of all books before they are published.
7. to prescribe the rules of civil law and property.
8. to be judge in all cases.
9. to make war and peace as he sees fit; and to command the army.
10. to choose counsellors, ministers, magistrates and officers.
11. to reward with riches and honour; or to punish with corporal or pecuniary punishment or ignominy.
12. to establish laws of honour and a scale of worth.
Hobbes explicitly rejects the idea of Separation of Powers, in particular the form that would later become the separation of powers under the United States Constitution. Part 6 is a perhaps under-emphasised feature of Hobbes's argument: his is explicitly in favour of censorship of the press and restrictions on the rights of free speech, should they be considered desirable by the sovereign in order to promote order."
Posted by: DJ | 2008-09-15 10:46:15 PM
Hugh,
So what you're saying, as I understand it, is that you don't have a legal background? And you're not really interested in the considered opinion of the nine people who have risen to the top of the legal profession? Because, hey, you took a philosophy course somewhere along the way and you know reasonable when you smell it. Is that sort of what you're getting at?
Posted by: truewest | 2008-09-15 10:49:22 PM
truewest, is it really that unreasonable to say what you would like the law to be without getting into a discussion about the legal justifications for the current law? These are 2 completely different topics. It may be legal to block speech in Canada, that doesn't mean it should be.
Posted by: Ken | 2008-09-15 10:58:39 PM
Ok, Hugh. About the rest of your post...
"Is any limit to free speech reasonable?"
Yes, of course! Treason is possible to commit through speech alone. Fraud is possible to commit through speech alone. Conspiracy to commit murder is possible through speech alone. There are many other examples (including the proverbial yelling "fire" in a crowded theater).
Ok, you might say, but what about election gag laws? Well, on the issue of reporting election results, I think it is a good thing to prevent people from reporting east coast results before the west coast polls close, but the best way to make sure that this does not happen is not through a gag law (that cannot possibly be effective) but through not counting any ballots before the last poll closes. Yeah, the Newfs will have to wait up very late or wait until morning, but there is no real harm done in doing that.
As for campaign advertising, I think the laws limiting them are reasonable. The law does not "gag" anyone, since everyone is allowed to take out ads. It only limits the volume of them through limiting the amount total you can spend. This prevents the people with the deepest pockets from dominating the political advertising and thus having an undue amount of influence on the election. Let everyone have their say, but during the short time of an election campaign a limit on how much anyone can dominate the conversation is good for democracy. It is reasonable.
By the way, do you know how many (if any) organizations spend the maximum allowed? I don't know myself, but I wonder just how many people are being limited in their speech in the first place, thus how much of a live issue this is.
Posted by: Fact Check | 2008-09-15 11:00:01 PM
Fact Check, the gag laws do actually "gag" people. Sure, an election campaign is allowed to take out ads. I am personally not allowed to take out ads expressing my opinions. During an election campaign is exactly when people should be encouraged to speak their mind (assuming there were better times than others) because it is when the public is listening.
Posted by: Ken | 2008-09-15 11:05:25 PM
Ken,
"I am personally not allowed to take out ads expressing my opinions."
False. You are allowed to spend up to $150,000 on election advertising as a "third party" (ie; "a person or group other than a candidate, registered political party or an electoral district association of a registered political party"). That's $25,000 per day. Look it up.
Posted by: Fact Check | 2008-09-15 11:20:44 PM
Ken,
Maybe you should read the law. Under the Elections Act, you can take out ads expressing your opinion, as long as you don't spend more than $3000 opposing or supporting a particular candidate in a particular riding or more than $150,000 in total.
Is that a reasonable limit? Not if you want to swift boat a party leader, perhaps. Not if you want to run a year-round special interet advocacy group, like the NCC, that cleaves to one political party and would like to piggyback its agenda on the election. But for most people, $150,000 buys a pretty big megaphone. In any case, it's hardly a gag.
Posted by: truewest | 2008-09-15 11:23:46 PM
Truewest,
I think I made it pretty clear that I was interested in discussing not what the law is but what it should be. The Supreme Court, rightly, is only interested in what the law is.
Fact Check,
I never claimed that there was no limit I merely asked you to ask if there should be and what that limit is.
If you really cared about stopping the West coast to know the East coast results, your proposal of waiting to count East coast ballots is a good way to do it. But frankly I don't know why this matters so much. It certainly does not matter enough to justify restricting free speech. Sure it may change the way they vote on the west coast, but the government shouldn't be deciding what is a good reason for deciding your vote anyway.
Your complaint against the 'swift boat' groups is not enough to limit expression. As I pointed out in my post there are all sorts of campaign strategies that are annoying. Should we limit them all? As for disparity of resources in a debate, your argument can be summed up as; people shouldn't use their own resources as they like, because it is unfair that some people are richer.
Dj,
Hobbes is not that normative. He doesn't say that you need censorship but that the Leviathan can have censorship to promote peace. In my opinion a wise Leviathan would not limit speech or be very careful on how it does so. Ultimately a free society is a more peaceful one. In this case the state has written this policy of free expression into the constitutional framework. Yet I think free speech should be extended and further protected, if for nothing else the sake of peace and order.
Posted by: Hugh MacIntyre | 2008-09-16 5:44:20 AM
Sorry, I meant I am personally not allowed to take out all ads *to the extent that I may wish* expressing my opinion. Limits are still limits. I don't think the clarification matters though.
Posted by: Ken | 2008-09-16 6:43:17 AM
Hugh,
Actually, you weren't discussing what the law should be. You were opining on how s.2(b) of the Charter should be interpreted. To airily dismiss the Supreme Court's consideration of that issue as mere "case law" and thus as "poor philisophical pursuit" makes you sound like a snotty, pretentious grad student. That and the fact that you mistated the law. As has been pointed out, there is nothing in the election act preventing you from buying television time to support or oppose a candidate.
Posted by: truewest | 2008-09-16 6:54:18 AM
What you have tried to do, Fact Check, is take the route of Judge Happy-Dope (former Supreme Court Justice Madame Claire L’Heureux-Dubé) by playing the great contrarian. Your very screen name is an affirmation of your own infallibility. Now then.
1. Even though it’s not called “taking the Fifth,” the basic right to non-incrimination of self is the same, and people know what you mean. Feeling the need to draw this nonexistent distinction only demonstrates reflexive anti-American tendencies. Not much of that in Canada, especially among the Left.
2. Miranda, same deal. Again the need to prove our distinctiveness. I’ve never understood what drives people to have this compulsion.
3. Not only was he being dickish, he was also being an airhead. Freedom of expression covers freedom of speech, press, and any other means of communication. It’s a meaningless distinction to draw; again, must differentiate ourselves from the Americans. It’s become a pathology among Canada’s elite. Call it Trudeau’s Disease, if you will.
4. Dean Steacy is more than an obnoxious jerk; he’s an activist, and activists have no place whatever in deciding anything of importance. One of the cornerstones of justice is an impartial judge, and Canada’s HRC witch-finders have shown themselves to be anything but. THAT is the salient point, and THAT is why they should either be either overhauled or scrapped altogether.
Posted by: Shane Matthews | 2008-09-16 7:35:19 AM
Strange, isn't it, Truewest, that you seldom comment on any blog except those concerning the HRC. I really do begin to wonder if you work for them and are afraid that if they are banned you will be thrown out of work.
You are not in a position to question Hugh's legal background, not since you so densely attempted to justify having untrained and unwashed activists with no legal training sit in judgement over us. What's sauce for the goose is sauce for the gander.
Posted by: Shane Matthews | 2008-09-16 7:40:28 AM
As for election gag laws, Fact Check, I would go even farther than your suggestion, and begin counting the polls at the regular time, and just report the damned stuff. I have seen no proof that election results in the East influence those in the West, and even if they do, so what? So long as the ultimate decision still resides with the voter, I fail to see the difference it makes.
Posted by: Shane Matthews | 2008-09-16 7:43:14 AM
And Truewest, if you cared anything for the law yourself, you'd realized that ANYTHING not codified in a statute but on the books as the result of a judicial ruling is considered case law.
Case law is the bastard child of the common-law system; the bookcases of any judge or lawyer are stacked floor to ceiling with centuries of it. It's getting so that things are so complex that often not even judges are sure of the law, never mind the citizens who are expected to obey it.
Common law was fine for Saxon England. But in today's civilization it is crumbling under its own weight. And by the way, Truewest, since you have proven yourself to be such an expert on legal matters (especially since your disproven assertion that most HRC members have legal training), perhaps it's time you told us what you do for a living, and whether there not might be a conflict of interest?
Posted by: Shane Matthews | 2008-09-16 7:52:56 AM
Shane,
No conflict of interest here. I don't work for an HRC, don't appear in front of HRTs and any legal work I've done on human rights cases is on the defendant's side.
My only purpose in weighing in on this issue is to counterbalance the misinformation and outright lies promulgated by folks like Levant (who, being trained as a lawyer, has a duty to refrain from this sort of nonsense) and you (who at least has the defence of ignorance).
Speaking of ignorance, saying that "case law is the bastard child of the common-law system" is a little like saying "water is the bastard child of the Great Lakes". As Wikipedia helpfully explains, "Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive action."
Incidentally, there are significant differences between US and Canadian law with respect to freedom of expression, self-incrimination and exclusion of evidence obained by unconstitutional means. To suggest that the distinction is "non-existent" is just further proof of your blowhard ignorance.
Posted by: truewest | 2008-09-16 8:30:10 AM
"Any work you've done on human rights cases is on the defendant's side"? Well, given your pro-HRC sympathies, that might explain their high conviction rate. Do you get kickbacks for bringing them minnows to fry?
Levant, being a lawyer, is nonetheless not held to a higher standard of truth than anyone else, when outside court. In fact Levant, being a lawyer, is unofficially expected (and paid) make the the truth as unknowable as possible, while inside court, except for those cases when it's actually on his side.
In case you haven't noticed, both statute law and case law coexist under our current system, common law being inadequate to the needs of a modern democracy. My contention is that case law is inferior to statute law, inasmuch as it is fundamentally undemocratic and enacted by unelected appointees, not elected representatives representing the will of the people. Also inasmuch as it is written down and plain understanding whereas common law places you at the mercy of a judge who may have stubbed his toe while mounting the bench.
Are there case-law differences between the two countries? Of course. But if you read the Charter and the U.S. Constitution, you'll find that while the wording is different (one is two centuries older than the other, after all), the basic rights they protect amount to exactly the same thing. To wit:
1. You do not have to testify against yourself, and the government or its agents cannot make you.
2. Your ideas, beliefs, and so forth are protected, as is your right to peacefully air them without pain of punishment or official persecution.
3. Information obtained illegally, usually in the absence of a warrant or probable cause, is generally inadmissible as evidence.
Naturally all are subject to reasonable limits. But the concepts are the same, and the basic freedoms thus protected, also. All you're doing is what Steacy did, saying that A was B just so you can be different from the Americans. As I said, it's a pathology. One that's stunting Canada's development.
Posted by: Shane Matthews | 2008-09-16 9:06:49 AM
Hugh,
"I never claimed that there was no limit I merely asked you to ask if there should be and what that limit is."
Yes. I know. Which is why I said that it is obvious that there is a limit and gave some examples of where that limit is. I never claimed that YOU claimed that there was no limit. You really should read more carefully. And on that point...
"Your complaint against the 'swift boat' groups..."
Ummm .... I didn't mention 'swift boat' groups at all. Truewest did.
"If you really cared about stopping the West coast to know the East coast results, your proposal of waiting to count East coast ballots is a good way to do it."
Good.
"the government shouldn't be deciding what is a good reason for deciding your vote anyway."
So you advocate making vote buying legal? And to be clear - yes, I mean the actual offering of cash to people in exchange for their agreement to vote the way you want them to? Because "he paid me $20 bucks to vote for X" might be a good reason to some people.
"As for disparity of resources in a debate, your argument can be summed up as; people shouldn't use their own resources as they like, because it is unfair that some people are richer."
If you want to fundamentally misrepresent what I said, sure it can be summarized that way. But you *DO* think that people should be allowed to use their resources as they like without restriction? So you *DO* support vote buying? And I guess you also support the idea that they should be allowed to make cash payments to Parliamentarians in exchange for their votes in the HOC. After all, if people should be allowed to use their resources as they like and if the governemnet should not tell people what is a good basis for casting a vote, it should be ok, right?
Well, I can see how that is a logical conclusion a silly little boy flirting with big political ideas as an undergrad for the first time could come to, but I bet that most people who call themselves "libertarian" would say that legalizing vote buying - whether it is the vote of a citizen in an election or the vote of an MP in Parliament - is going too far.
Sometimes in rare cases letting people spend their resources in any way they like does subvert the fundamental principles of democracy. Capping election advertising spending to third parties at $150,000 is a pretty good compromise between allowing democracy to be subverted by the domination of a few voices and letting people have their say. But maybe you don't care for democracy. Maybe you'd prefer a libertarian philosopher-king run the show. It's an interesting idea when shooting the shit in a student lounge, but in the real world democratic institutions are the best hope we have. To make them run at their best we should ensure that people don't buy votes and that special interests with deep pockets don't shout down all other voices in campaign advertising.
Posted by: Fact Check | 2008-09-16 9:18:19 AM
Shane,
That's what I like about you. Having demonstrated your ignorance once, you don't hesitate to elaborate on your ignornace or to top it up with a healthy helping of stupidity. I've got better things to do than shovel all the shit you've piled up, but a few points:
- as a lawyer, Levant has a duty not to misrepresent the law to the public. As will be explained to him when he appears before the Law Society
- case law and statute law have ALWAYS co-existed within common law legal systems. Funny thing, though: statutes must be applied and interpreted by someone, typically a judge. The result is case law, which under common law systems has precedential value and guides future interpretations.
You may now resume your inane babbling.
Posted by: truewest | 2008-09-16 9:18:38 AM
Truewest, that's a mighty high horse for you to be climbing up on, considering that you didn't even know that most HRC panel members have no legal background whatever When I pointed this out, you at first vehemently denied it was true. Then, when your own research confirmed my claim, you argued that it ought not to matter. Now, boxed into a corner, arrogance, pomposity, and swaggering self-importance are your weapons of choice. You have better things to do, eh? Then why do you keep coming back?
Levant has said several things that have since been confirmed by independent investigation, facts on the books but little known. Lowered standards for rules of evidence, including triple hearsay; truth not a defence, law not a defence, absence of harm not a defence; the onus on the accused (including the expense of hiring a lawyer), while complainant commits to absolutely nothing. You have already agreed that these complaints are true AND HAVE DEFENDED THIS BY SAYING IT IS THE WAY IT SHOULD BE. How this amounts to misrepresenting the law you do not say.
As for case law coexisting for statute law, well, duh. You can't have any kind of law without some statutes; there would be nothing for the common people to obey, case law being largely restricted to subtleties of the sort so often exploited by hustling lawyers. My point is that there are civil-law systems, such as found in Continental Europe (and also in Louisiana and Quebec) where case law is much less important and judges more likely to rule based on what the statute actually says, which seems an eminently more sensible way of doing it than having to wade through centuries of precedent and holding ordinary mortals beholden to the result.
Posted by: Shane Matthews | 2008-09-16 9:49:00 AM
Fact Check wrote: "Maybe you'd prefer a libertarian philosopher-king run the show. It's an interesting idea when shooting the shit in a student lounge, but in the real world democratic institutions are the best hope we have. To make them run at their best we should ensure that people don't buy votes and that special interests with deep pockets don't shout down all other voices in campaign advertising."
Finally, something we agree on. Well said! But I still don't see how publishing the East's election results before Western polls close amounts to buying votes or otherwise subverts the spirit of democracy.
Posted by: Shane Matthews | 2008-09-16 9:52:52 AM
P.S. Truewest, you may now return to your accustomed position underneath Barbara Hall's desk.
Posted by: Shane Matthews | 2008-09-16 9:55:51 AM
A reminder on "free speech" and the "conservative" government!!! SJG
Freedom of Expression and the “Conservative” Government
By Stephen J. Gray
“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)
Freedom of expression is a right guaranteed by the Charter of Rights and Freedoms; yet, the Attorney General of Canada along with others is an intervenor in the Lemire case. Free speech is either FREE or it isn’t. Are politically correct words like, “reasonable
restriction on freedom of speech” weapons used to suppress what people can say? (We already have laws of libel and defamation so is there any need for “reasonable restrictions?”)
We may not like what people say but in the words of Voltaire, “I may not agree with what you say, but I will defend to the death your right to say it.” In Canada today, we are seeing the death of free speech. Anything you say may be taken down and used against you and reported to unelected, appointed Human Rights Commissars (HRCs). Those dragged before these Stalinist tribunals have to pay for their own lawyers and their own defence. Meanwhile, their accusers are given a free ride. Therefore, one has to ask, has freedom in Canada become subject to the approval of certain powerful groups who appear to be able to have their way with governments?
“What a strange place Canada is in 2008,…where fundamentalist Muslims use hate-speech laws drafted by secular Jews,…” (Ezra Levant, Globe and Mail, January 21, 2008).
Mr. Levant, who is Jewish, went on to say in the Globe and Mail article that the people taking him to the HRCs were “…using the very precedents set by the Canadian Jewish Congress.” Which makes one wonder, why would a powerful organization like the Canadian Jewish Congress not realize that the very “laws” that they “pressed Canadian governments to introduce” could also be used against Jewish people. After all, what’s sauce for the goose is also sauce for the gander, as the saying goes.
But, not only Jewish people are being dragged before the HRCs. Before they came for the Jews, the HRCs came for Chris Kempling, Scott Brockie, Knights of Columbus, Stephen Boissoin, Bishop Henry and others. Now Catholic Insight magazine, the Christian Heritage Party and MacLean’s magazine are under the guns of the HRCs. Nobody is safe from these appointed interrogators of totalitarian bent. So what can be done to return freedom of speech and freedom of expression to Canadians?
Governments appointed these HRCs therefore government could disband them. But will they? Witness, the Attorney General of Canada as an intervenor in the Lemire case. 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!
A Lifesite news article of February 12, 2008, by John-Henry Westen had this to say about the Conservative government’s stand on Human Rights Commissions: “Internal Memo Tells Canada’s Conservative MPs to be Noncommittal on Human Rights Commissions: Specifies that Conservative MPs are not to stand up publicly for freedom of speech for Mark Steyn and Ezra Levant.”
The article stated: “An internal memo to Conservative MPs sent last week will be sure to disappoint freedom-loving Canadians. The memo, confirmed by LifeSiteNews.com as legitimate, originated from the office of the Minister of Justice Rob Nicholson. The ‘talking points’ memo directs Conservative MPs to remain noncommittal on support for Liberal MP Keith Martin’s motion M-446, which would put an end to the growing and dangerous abuse of human rights commissions….”(Lifesite News February 12, 2008)
These HRCs have become a weapon to suppress and oppress the people of Canada. Yet, a “conservative” government is an intervenor against free speech. Is this why they sent out a memo about being “noncommittal” about “Liberal MP Keith Martin's motion M-446 which would put an end to the growing and dangerous abuse of human rights commissions….”? Are they political hypocrites who say one thing and do another?
“Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society … It is, in fact, totalitarianism. I find this is very scary stuff” (Stephen Harper).[1]
Stephen J. Gray
May 2, 2008.
Endnote:
[1] Stephen Harper quote from article by Gerry Nicholls at: The Interim Newspaper
Posted by: Stephen J. Gray | 2008-09-16 10:50:09 AM
You should have a look at the case of A-G Canada v. Edwards, famous as the so-called "Persons Case" although in fact it had nothing to do with the status of women as persons. It explains with considerable scholarship the nature of common law.
For present purposes, the main point is that common law is not distinct from statute law and is not primarily made by judges. Common law is the expression of social consensus in exactly the same way as statute law; it is recognized by judges, not created by them.
Judge-made law is a tiny subset of common law. There can be situations that arise that are novel or unforeseen, and on which no consensus can be said to have been reached. If parties in such a case agree to let a judge decide how it is to be handled, and if the judge decides in a way that is satisfactory to the parties and to society at large, then that precedent becomes part of the common law by genral acceptance. Otherwise it is not law, and competent judges aren't shy about noticing previous decisions that are not law and refusing to recognize them as authority.
The Canadian judicial system, to which trollwaste and others are so sycophantically attached, has effectively rejected the idea of common law. It takes instead a Marxist approach: the purpose of the judiciary is to mould the law to accord with the policy of the Party. (In Canada, that would be the Liberal Party.) Thus the notion, entirely alien to common law or to any notion of the rule of law, that a judge can make law. He can do so only as agent of the Party, once the Party has assumed authority over the state and society.
Posted by: ebt | 2008-09-16 2:17:24 PM
That may be the most erudite post yet.
Posted by: Shane Matthews | 2008-09-16 3:15:59 PM
Yes, an excellent comment by ebt. It is interesting to note that decision was made in England by Ramsay McDonald's (Labour Party PM & Fabian) appointment Lord Sankay who was censorious of the SCC's strict constitutional interpretation. The BNA, according to Sankay, was a "living tree", a unique characterization although some say based on Oliver Wendell Holmes defence of the tyrant Lincoln's abrogation of the US Constitution. No doubt it would have met with Hobbes approval.
Posted by: DJ | 2008-09-16 3:34:45 PM
And you're not really interested in the considered opinion of the nine people who have risen to the top of the legal profession? Because, hey, you took a philosophy course somewhere along the way and you know reasonable when you smell it. Is that sort of what you're getting at?
Posted by: truewest | 15-Sep-08 10:49:22 PM
I'm not at all interested in the opinions of nine people who have risen to the top of the "legal" profession. Especially sinse they got there through "political" appointment. They operate on a "political agenda" and can not be trusted to be the gaurdians of "justice". And this country flushed its justice system down the toilet a long time ago and replaced it with a system of "laws".
So no thank you. I'll pass on the opinion of the "judiciary" as regards anything to do with justice. They aren't really all that qualified to speak on matters of justice.
Posted by: JC | 2008-09-16 4:36:35 PM
The BNA, according to Sankay, was a "living tree", a unique characterization although some say based on Oliver Wendell Holmes defence of the tyrant Lincoln's abrogation of the US Constitution. No doubt it would have met with Hobbes approval.
Posted by: DJ | 16-Sep-08 3:34:45 PM
Interesting. Kind of like Dubya's comment that "The Constitution is just a damned piece of paper"
Posted by: JC | 2008-09-16 4:39:22 PM
From a Hobbesian perspective Canada has the superior constitution than the Americans. (but please remember Hobbes is not normative) Ultimately, though the US constitution is more Libertarian in principle, I tend to agree with the Hobbesian perspective.
Posted by: Hugh MacIntyre | 2008-09-16 8:47:40 PM
Gay marriage is the offspring of Sankay's "arbor victus".
Judicial audacity scales new height
"The Supreme Court of Canada scaled a new peak in hallucinatory constitutional interpretation on Dec. 9, 2004. In an advisory opinion sustaining the Canadian Parliament's power to recognize same-sex "marriages," the best and the brightest of Canada's jurists insisted the nation's constitution was an organic "living tree," not a petrified forest incapable of new limbs and climbing treetops. The "living tree" standard of interpretation, the justices say, gives birth to "progressive" laws and policies addressing "the realities of modern life."
But like the emperor's new clothes, a "living tree" legal doctrine is naked of substance. It empowers the Canadian Supreme Court to weave its own progressive finery into the Canadian constitution without restraints on personal whims or prejudices. Such judicial abuse and arrogance is what the Democrat Party in the United States champions and hopes to foist on the American people. It speaks volumes that liberal Democrats have not denounced the Canadian judicial frolic, a silence that echoes their unspoken joy over the Massachusetts Supreme Judicial Court's invention of a state constitutional right to same-sex "marriage" in 2003.
Living trees, simpliciter, are not sinister things. Henry Wadsworth Longfellow versified in "The Village Blacksmith," "Under the spreading chestnut tree the village smithy stands." The no less "gifted" Barbara Walters pointedly asked honorifics to disclose their arboreal ambitions. But even U.S. Chief Justice Earl Warren, during a rare earthbound moment in Reynolds vs. Sims (1964) recognized that unlike people, trees have no representation in legislative bodies. Trees likewise command no role in constitutional thinking, whether weeping willows, giant redwoods or sweet magnolias.
The Canadian Supreme Court did not discover the "living tree" vitality of the constitution in the document itself. Instead, it summoned an encyclical by Lord Sankay speaking for the Privy Council in 1930 that frowned on "narrow and technical" constructions in favor of "large and liberal" interpretations, but within "certain fixed limits." The "living tree" principle, the justices merrily chorused, enables the constitution to pioneer new vistas of rights and powers unanticipated by the framers without the bother of amending the charter with the people's consent. The principle, however, is a one-way ideological street. As the justices admonished, a living constitution's tree trunk sports only "large, liberal, or progressive" branches unblemished by a single conservative limb or twig. The court thus decreed: "In determining whether legislation falls within a particular head of power, a progressive interpretation of the head of power must be adopted." The justices, of course, make decisions based on their political biases whether a law is a progressive reflection of new thinking or a retrograde endorsement of social Darwinism, i.e., whether it advances the welfare state or rewards individual talent or industry.
Lord Sankay had spoken of latitudinarian interpretations within certain fixed or natural limits. But the Canadian Supreme Court crippled that hedge against judicial creativity by confining the meaning of "natural" to what is universally accepted. With regard to marriage, views differ as to whether same-sex partners are natural. Accordingly, the court reasoned, the constitution must embrace the most ecumenical concept to escape the reproach of liberal historians. Since no idea worth discussing is universally acclaimed, Lord Sankay's dictum leaves Canada's Supreme Court omnipotent over the meaning of Canada's constitution.
The court's outlandish "living tree" standard of interpretation is twice-cursed. As a judicial doctrine, it is intellectually vacuous and irreconcilable with the rule of law. Constitutional principles aim to dispel doubts and to provide guideposts for the future. The "living tree" standard, in contrast, leaves the Canadian Parliament and subordinate tribunals clueless in assessing the constitutionality of legislation, other than guessing the political prejudices of the justices. Indeed, the "living tree" standard implicates neither judging nor specialized legal knowledge. It entails only a forceful articulation of a political faith.
The standard also enervates democracy. It arrogates to the Canadian Supreme Court power to decide vexing or troublesome policy questions that are the responsibility of the people and their elected representatives.
Responsibility begets maturity and enlightened compromises. It fosters wisdom and a mastery of complexities. It is the alpha and omega of an active citizenry that collectively and individually lives democracy by word and deed in its professional and private spheres.
Without popular responsibility, self-government becomes a shadow of the genuine article. The common citizen becomes inert, passive and aloof from national destiny. The fighting issues of the day are left to judges and lawyers, and government by the consent of the governed becomes more myth than reality.
The Canadian Supreme Court's domination of Canada under the aegis of "living tree" judicial power will destroy Canada's democracy and pluckiness on the installment plan. The U.S. Supreme Court should learn by that example."
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
Posted by: DJ | 2008-09-16 11:34:26 PM
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