Hate Speech Law Violates Charter
Old 09-03-2009, 10:22 AM   #1 (permalink)
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Default Hate Speech Law Violates Charter

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Hate-speech law violates Charter rights, tribunal rules

From Thursday's Globe and Mail
Last updated on Thursday, Sep. 03, 2009 03:07AM EDT


A federal law governing hate speech violates Canadians' charter rights to freedom of expression, the Canadian Human Rights Tribunal has ruled.

The development could give more ammunition to those who complain that the Canadian Human Rights Commission, which refers cases to the tribunal, is engaging in censorship by attempting to restrict what people say on the Internet.

The decision, released in Ottawa Wednesday, also seems to call into question whether the tribunal should be involved at all in policing online content through Section 13 of the Canadian Human Rights Act.

“This case raises questions about the substance of the law itself,” said Michael Geist, a University of Ottawa law professor who holds the Canada Research Chair in Internet and E-commerce Law. “This will only build the momentum for another examination of how we approach this.”

At issue was a complaint lodged with the tribunal against Marc Lemire, webmaster of freedomsite.org. Ottawa lawyer Richard Warman alleged that the messages posted on the site were discriminatory and exposed minority groups to “hatred and contempt,” key language under Section 13 of the law.

Mr. Lemire responded by requesting that the law be “declared inoperative” because it is inconsistent with the Charter of Rights and Freedoms. Tribunal member Athanasios Hadjis agreed. He wrote in the ruling that the law was originally intended to be “remedial, preventative and conciliatory in nature,” rather than a means to hand out penalties.

Section 13 defines it as “discriminatory” for an individual or group “to communicate telephonically or to cause to be so communicated … any matter that is likely to expose a person or persons to hatred or contempt” based on characteristics such as race, religion, sexual orientation, and so on.

Advocates call the law a necessary control on hate speech in an age where the Internet makes the spread of messages easier and faster. Opponents say it's censorship and has no place in a free society.

The tribunal's decision, which will likely be appealed, is not binding beyond Mr. Lemire's case. However, it moves the debate forward, said University of Windsor law professor Richard Moon.

“It creates a new situation in which all the different legal and political actors have to think about what their response is,” Prof. Moon said.

In 2008, Prof. Moon wrote a report for the CHRC about the role of Section 13 in the Internet age that said the law should be repealed. He wrote that Internet use means that “any attempt to exclude all racial or other prejudice from the public discourse would require extraordinary intervention by the state.”

But Mr. Warman, who brought the case, disagrees.

“There is no unlimited right to speech,” he said. “The fact is, this was a hate website and it attracted hate.”

Mr. Warman cited postings by a visitor to freedomsite.org that, in a separate case, the tribunal called “as vile as one can imagine and not only discriminatory, but threatening to the victims.”

Mr. Lemire said webmasters are not responsible for content on message boards.

“It's not for the state to … decide what beliefs we can have,” he said. “People shouldn't be put through a six-year-long hearing even if they're Nazis, even if they're communists, even if they're racists.”

Bernie Farber, the CEO of the Canadian Jewish Congress, said all hate speech is a potential trigger.

“Racist war, from the ethnic cleansing in Cambodia, to the Balkans, to Darfur, to the Holocaust, did not start in a vacuum,” he said.

“Hateful words do have an effect. … The Internet cannot and should not be a wild frontier where anything goes.”
Pretty big decision
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Old 09-03-2009, 10:29 AM   #2 (permalink)
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Hate crime laws are racism. By giving different punishments you are implying that they're different even though they're not. Most crimes are commited from hate anyways.
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Old 09-03-2009, 10:37 AM   #3 (permalink)
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If you bury these people underground, you cant keep tabs on them.

If my neighbour is a Nazi, I want him to hang a swastika from his window so I have a heads up.
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Old 09-03-2009, 10:56 AM   #4 (permalink)
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Originally Posted by rapsdabest View Post
Hate crime laws are racism. By giving different punishments you are implying that they're different even though they're not. Most crimes are commited from hate anyways.
You're gonna have to explain this one a little more. I'm not sure what you're really trying to say.
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Old 09-03-2009, 10:58 AM   #5 (permalink)
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You're gonna have to explain this one a little more. I'm not sure what you're really trying to say.
By charging someone more years for killing someone because they have a different ethnicity just promotes the belief that they are different becqause even the law is treating it differently.
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Old 09-03-2009, 11:36 AM   #6 (permalink)
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to quote Ice T


"Freedom of speech is a bunch of bullshit"
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Old 09-03-2009, 12:22 PM   #7 (permalink)
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The Charter was well thought out, went through endless hours in debates, etc. It's a great document which protects our freedoms and when it is threatened in any way shape or form we should feel threatened. The U.S. people allowed their politicians to over right their constitution after 9-11 and what has happened is that Americans have few rights and essentially the government down there now can detain anyone, without council and without proven just cause in the name of national security. The government down there has also taken away some of their freedom of speech rights.

I believe the Charter should always trump everything else. It's our shield against internal tyranny in any shape or form.

I don't support hate and ignorance but I also don't support more controls and centralized power.

Last edited by Apollo; 09-03-2009 at 12:27 PM.
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Old 09-03-2009, 04:18 PM   #8 (permalink)
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The internet complicates everything, sometimes in ways I like, and sometimes not. It's hard to say where everything is going to fall out just yet. It is a bit of a wild frontier. We need to see how it ultimately effects living, breathing citizens rather than just netizens, and I would hope there would be some means to strengthening the former rather than the latter.
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Old 09-03-2009, 04:46 PM   #9 (permalink)
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Quote:
Originally Posted by Apollo View Post
The Charter was well thought out, went through endless hours in debates, etc. It's a great document which protects our freedoms and when it is threatened in any way shape or form we should feel threatened. The U.S. people allowed their politicians to over right their constitution after 9-11 and what has happened is that Americans have few rights and essentially the government down there now can detain anyone, without council and without proven just cause in the name of national security. The government down there has also taken away some of their freedom of speech rights.

I believe the Charter should always trump everything else. It's our shield against internal tyranny in any shape or form.

I don't support hate and ignorance but I also don't support more controls and centralized power.
the charter has 2 built-in limits to freedom of speech (and all other charter rights) called: 'section 1', better known as the reasonable limits clause, and the notwithstanding clause.

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“ 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.

this is from wiki, but it is quite true:

Quote:
it allows the government to legally limit an individual's Charter rights. This limitation on rights has been used in the last twenty years to prevent a variety of objectionable conduct such as hate speech (e.g. in R. v. Keegstra) and obscenity (e.g. in R. v. Butler). It has also been used to protect from the unreasonable interference of government in the lives of people in a free and democratic society by defining these limits.

When the government has limited an individual's right, there is an onus upon the crown to show, on the balance of probabilities, firstly, that the limitation was prescribed by law namely, that the law is attuned to the values of accessibility and intelligibility; and secondly, that it is justified in a free and democratic society, which means that it must have a justifiable purpose and must be proportional.
from the canadian bar association: http://http://www.cba.org/bc/public_...ights/230.aspx

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Section 1 allows reasonable limits on Charter rights
Charter rights and freedoms are not absolute. The Charter and the courts recognize that governments can make laws in the broader public interest, even if a law violates a Charter right or freedom. In such a case, a court will consider if the government can justify the violation under section 1. This section says that Charter rights and freedoms are subject to reasonable limits prescribed by law as can be demonstrably (clearly) justified in a free and democratic society. A court may permit a violation of a Charter right if the government can meet this section 1 test. But section 1 applies only to written laws, not to government action, because it requires any limit on a Charter right to be “prescribed by law.” So when government action violates the Charter, section 1 does not let the government try to justify the violation.
the other limit to charter rights is the notwithstanding clause (the following is also from the canadian bar association):

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The “notwithstanding clause”
The federal and provincial governments can override specific Charter rights in certain situations. They can say that a law operates “notwithstanding” (in spite of) some Charter rights. So far, governments have used this power only rarely.
here is the actual clause:

The Notwithstanding Clause of the Charter (BP-194E)
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Old 09-03-2009, 05:13 PM   #10 (permalink)
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I will accept hate speech if it means that all speech is protected. I would prefer that people are open and honest about their opinions, and that these opinions can be safely and publicly debated; in the case of hate speech, we can quite simply demonstrate that these opinions are simply ridiculous.

When we decide to categorize certain types of speech as "hate speech", and thus legally impermissible, I worry that we create a slippery slope where some types of legitimate criticism could be mischaracterized. I think it is less dangerous to permit all speech than it is to arbitrarily restrict some speech by subjective opinions of what constitutes "hate speech".

Further, permitting completely free speech brings idiotic ideas out of the darkness and into the critical eye of the public. As someone alluded to above, I prefer a Nazi who hangs a Swastika outside their house to a Nazi in hiding.
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Old 09-03-2009, 05:24 PM   #11 (permalink)
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i would argue that someone who had been subjected to terrible atrocities at the hands of the nazis probably doesn't want to wake up every morning to look at that swastika. what is no big deal to you might be a horribly traumatic experience for them.

one of the fundamental differences between canada and the us is the american glorification of the individual vs the canadian recognition of the value of the collective. this is precisely what is enshrined in the reasonable limits clause, and why you see fundamental differences in the application of law such as was seen in skokie in the states or keegstra in canada.

imo, there is a reasonable limit to what can be considered acceptable free speech, and the legal test to limit it must be thorough and difficult so that it doesn't happen too often. that's what our charter is set up to do, and also what makes it so much more sophisticated than the american version that just argues that the rights of any individual are paramount.
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