The Shotgun Blog
Wednesday, October 01, 2008
Warman wins once more
From today's Calgary Herald: The Canadian Human Rights Tribunal has again upheld complaints by anti-racism activist Richard Warman about online hatred.
Too bad the Canadian Constitution Foundation's conference on freedom of expression is being held just a few days after the October 14 general election.
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This case is not just another run-of-the-mill decision against hate speech. It sets a significant new precident that could be quite far reaching in its effects. The complaint against Guille was upheld even though SHE DID NOT WRITE OR POST the offending messages. In fact, she even REMOVED those messages immediately when informed that they were in violation of the HRA.
What does this mean? It means that any website that has a forum that does not pre-moderate comments by posters faces the possibility of being found in violation of the HRA for ANYTHING that someone should come along and post, even if they remove it right away. It is the same thing as holding me responsible for displaying an offensive symbol if I, one day, find a swastika painted on my front door EVEN IF I REMOVE IT RIGHT AWAY. That is madness!!!
What is going on here is very obvious. The decision is not one that was based on what the the HRC really believes the law says. They most certainly would not find against a Jew whose front door had a swastika on it because he had been targetted by neo-nazis, even though the situation is exactly the same under the law. What the HRC is doing is squinting at the HRA and deciding that they can get away with punishing Guille because of who she is and what she believes. That is outrageous and unacceptable.
I have consistantly maintained that section 13 of the CHRA should be struck down, but I also have found that to date each decision the CHRC has made on section 13 cases has been a correct interpretation of the act. That ends today. With this decision they have for the first time decided to find against someone not because they actually violated the rules, but because they decided that the respondant is a bad person.
This is a VERY dangerous precident indeed.
Posted by: Fact Check | 2008-10-01 12:30:47 PM
These Human Rights Commissions are giving the jackboot to all Canadians. Free speech should be an election issue. The Harper government was an intervenor against free speech,in the Lemire Case, yet there are some people who will still vote for this party that is undermining our freedoms.
Posted by: Stephen J. Gray | 2008-10-01 12:33:16 PM
The HRC's should be abolished, obliterated, quickly and completely, in such a fashion that resurrection will be totally out of the question. Human rights is about freedom from persecution, not freedom from embarrassment. That this human-rights Hitler has been allowed to use them to purge the land of his political foes, going so far as to sit on the tribunal for a time and investigate complaints he himself filed, is a bald abuse of process and perhaps the most egregious example of demagogic corruption by any public official since Boss Tweed.
Posted by: Shane Matthews | 2008-10-01 12:40:35 PM
Its interesting to see that even though we are politically divergent, we all agree on this.
Abolish the HRC's.
Posted by: JC | 2008-10-01 12:49:24 PM
If you have a a moment, perhaps we could play the legal game again (I love it, and I don't get a chance to do it anywhere else.)
I was reading the CHRT's decision here:
From my reading, it looks like a key part of the decision is in Section 40-41. The tribunal found that:
"The Canadian Heritage Alliance constitues [sic] a group of persons acting in concert."
On my reading, this means that the tribunal found that anyone posting on the CHA website was part of the group, and that the group itself could be held accountable for the actions of its members.
This somewhat cuts against your swastika analogy because the Jew and the person who left the swastika are not in any way part of the same group, so the one can't be held accountable for the actions of the other.
This line at 50 is pretty amusing but in my opinion is rather too much editorializing in this kind of document:
"The evidence shows that Ms. Guille has close ties with neo-nazi and white supremacists sympathizers which, in this day and age, is quite disconcerting."
Quite disconcerting. Indeed.
Anyway, the tribunal's logic culminates around 130-132. For the purposes of Section 13(1), the CHA is a group. The commentators caused the communication of material likely to expose people to hatred/contempt. The commentators are members of the CHA group. Therefore, CHA can be held responsible for their actions.
Looked at this way, as bad as the decision is, I'm not sure it's inconsistent with Section 13(1) as you suggest. We can and should quibble with the idea that (for example) everyone who ever comments on the Shotgun is part of the Shotgun for legal purposes. Maybe broader law also speaks against the HRT's decision that regard (can someone fill me in on this?)
There's also a weird philosophical question of what it means to "cause" the communication of hateful material. If, as a Shotgun moderator, I fail to prevent hateful material from being communicated, does that mean I've caused it to communicated for the purposes of Section 13(1)?
Because the HRT seemingly bundled everyone who ever left a comment at the CHA's website as part of the group, they were able to sidestep this issue (the CHA "caused" the material to be communicated because one of its members communicated it, right?)
What do you think, Fact Check? As you've indicated before, I'm prone to hyperbole, so I'd like to think that you're absolutely correct (so that I can yell from the rooftops about the CHRT with a clean conscience, naturally.) To what extent am I misreading the law?
Posted by: Terrence Watson | 2008-10-01 1:03:29 PM
I think most liberal minded (in the true sense of the word) people would like to see the HRCs abolished.
It's a little strange that neither CPC nor the LPC have any position on this matter. Are they cowards?
Posted by: Johan i Kanada | 2008-10-01 1:03:59 PM
Just because someone posts to a blog doesn't make them a member of the blog, any more than a subscriber writing a letter to the editor that is then published makes him a member of the paper. I wish I could say I was surprised, but these clowns' ideological biases have been blatant from day one.
Posted by: Shane Matthews | 2008-10-01 1:18:15 PM
Canadians should wake up. If you do not have free speech you are NOT free. These politicians have to be held accountable. Where is the "accountability" a certain political leader talked about. This subversion of free speech will only get worse if we do not take a stand
Posted by: Stephen J, Gray | 2008-10-01 1:21:29 PM
Yeah, I agree that grouping together everyone who has ever posted on a blog as members of a single entity that can be held responsible for the actions of any of them is ridiculous and frightening.
If the CHRT can do that, consistent with the law, that's yet another reason to abolish Section 13.
In fact, it's so ridiculous I wonder if another case like this could align more people against Section 13. The CHRT may have seriously erred here.
Posted by: Terrence Watson | 2008-10-01 1:35:54 PM
It's a little strange that neither CPC nor the LPC have any position on this matter. Are they cowards?
Posted by: Johan i Kanada | 1-Oct-08 1:03:59 PM
You may be asking the wrong guy Johan. My first thought is that the main stream parties like things just the way they are. They like laws of control that can be interpreted any way they see fit on any given day.
Its unbelievably wrong.
Posted by: JC | 2008-10-01 1:45:23 PM
I knew from the first, from the moment they started including touchy-feeling language like "dignity" and talking about feelings, that we were in for trouble. There's a reason they don't let talk-show hosts preside over real trials.
Posted by: Shane Matthews | 2008-10-01 1:50:28 PM
Thanks for your reply. I guess I should remember a policy I try to observe: never believe a media report when the original source is available. My post was based on reading the Calgary Herlad article only, not the decision. But having read the decision, I am more confused than reassured.
First, you are right about my swastika example. In fact, given that graffiti is not communication done "telephonically", it would not be covered by the federal HRA anyway. But the question of whether, for example, The Western Standard could lose a human rights case based on lunatic ravings of anonymous commentators (remember obc?) is unclear to me.
I don't quite understand how the Canadian Heritage Alliance forum works (and the site seems down now, so I can't check). We are told that posters had to register as "members" at one time, but then they changed that and let anyone post. It is not clear if topic threads can be started by anyone or only approved of "moderators". And if Guille is the head of the CHA and another "official" of the CHA posted hateful messages on the CHA website, a site she is chief administrator for, then I can see how she can be held responsible. Just as it makes sense for whoever is the big cheese of The Shotgun to be held accountable for the ravings of Adam Yoshida, for example.
But the decision does suggest that just anyone could come along and post on the site and that the CHA and Guille as its leader can be held accountable for these posts by anyone. I get this reading from paragraph 126, which says:
"... The Canadian Heritage Alliance website hosted a forum section where individuals were allowed to start threads and post articles. This forum was not of a private nature and everyone accessing the website could read the material posted on the website.... The Canadian Heritage Alliance website was a means for people to express their views ... people could come to the website and post their articles and opinions ... they could start a thread in the forum section and exchange views...."
The CHA forum sounds at least as public as The Shotgun, if not more so by letting anyone start threads. But the most disconcerting paragraph of the decision is this:
" The Tribunal is of the view that it is not an excuse for Ms. Guille to say that she did not write an article or did not post an article on the Canadian Heritage website which might be in breach of section 13 of the Act. As the site administrator or webmaster, she is responsible for what is put on the website she administers and over which she exercises, as the evidence indicates, full control. It is her responsibility to put in place the proper controls so that if hate messages, threads or articles, are posted, they will not breach section 13 of the Canadian Human Rights Act and violate the fundamental freedoms that each Canadian enjoy...."
So that seems to say that if I or anyone who comes along posts a racist message right here on The Shotgun that the chief administrator is accountable for it even if he deletes it right away. Jaws posted about this issue two weeks ago ( http://westernstandard.blogs.com/shotgun/2008/09/marc-lemire-and.html ) commenting on a National Post article ( http://www.nationalpost.com/news/canada/story.html?id=792277 ). At the time I thought he might be overselling the concern, especially as the article shows how the CHRT seems to both be aware of and concerned about the idea that message board opeators could be held responsible for public posters' comments. But the CHA decision makes me worry that they might well have just made that a reality.
So I hope I am wrong, but I think there is good reason to still think that the Guille decision is not only wrong in law, but very dangerous as a precedent.
Posted by: Fact Check | 2008-10-01 7:10:46 PM
You know, I'm not really worried about Mr. Warman. In my life, I've discovered that one CANNOT dismiss the inevitability of KARMA. Every pain this man has caused others, every dime he has cost others, every injustice he has caused others, will be EXTRACTED from Mr. Warman ONE THOUSAND TIMES OVER. What awaits Richard Warman in the future is something I would not wish on a junkyard dog. The likelihood of a prolonged and painful death is something most of us would want to MINIMIZE, but the ARROGANT AND SMUG - like Richard Warman - believe they are above the laws of consequence. Silly Dickie Warman...
Posted by: Theist | 2008-10-02 3:53:51 AM
Was ist das?
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