...born with the gift of laughter and a sense that the world was mad

Brrrr: Though the mercury in Toronto has skyrocketed into the 40s, there’s a definite chill in the air. It arrives courtesy Faisal Joseph’s closing argument, as summarized by blogger extraordinaire, Andrew Coyne:

We’re here to right a terrible wrong. Case involves a complicated intersection of two important values — free speech and the right to be free from discrimination. Neither trumps the other, in his view. Not all speech is afforded the same protection — speech that is not close to the “core value” of free speech is not as well protected. That would be hate speech. Doesn’t advance truth-seeking, because it silences the target group. Doesn’t advance their self-development, etc.

Not offensive speech we’re after, but hate speech. And only on enumerated grounds — so just exposing individual polticians, say, to hatred is okay, but not those groups listed in the code. Two-part test under the code: does the speech itself espouse hatred, and is it likely to cause others to hate.

Going through the case law on Sect. 7.1 of the BC Human Rights code. Factors to take into account: the vulnerability of the target group, the tone of the message, whether it’s presented as opinion or fact, the context, the method of dissemination. Particular case that’s noteworthy: Canadian Jewish Congress vs. North Shore News (ie the “Doug Collins” case.)

Stressing that it’s a two-part test, so free speech is  well protected. eg. Speech that is neutral in tone, but might cause someone else to hate, is not caught; ditto speech that is itself hateful, but might not cause others to hate. Catches “only the speech that is appropriately silenced.” Application ensures there will be no — he pauses to do big air-quote — “chilling” effect.

Concedes some speech within a “shaded” area will be suppressed — but will only require authors who are “close to the line” to “think very carefully” about how they say it.

Using “Taylor” definition (from eponymous Supreme Court decision)  of hatred and contempt — “extreme ill will,” group presented has having “no redeeming qualities”, “looking down upon” targeted group etc. 

Law focuses on effects on targeted group, not the intentions of the author, so as to allow reparations. Test to apply is how a reasonable person would interpret the content, in this time and place, and if informed of its social and historical context: would a reasonable person find it hateful...

And who gets to decide what’s “reasonable,” Mr. Joseph? Mohamed Elmasry? Karrun Awan? Barbara Hall? All, no doubt, among the most “reasonable” of the “reasonable” in this, the best of all possible Trudeaupias. But what passes muster as “reasonable” at certain times and in certain places is not, ipso facto, “reasonable,” or for that matter, rational. After all, in apartheid-era South Africa, the powers-that-be deemed it “reasonable” for a portion of the population to face discrimination and be consigned to a second-class status based purely on their skin colour. In Nazi Germany, those in charge thought it “reasonable” to want to get rid of the Jews. Is it “reasonable” that, in Canada, a bunch of hack bureaucrats presiding over Soviet-style courts get to shut down any and all criticism of Islam, even as sharia, quietly and without much fanfare, continues to insinuate itself into our body politic? Is it “reasonable” for Canadians to be held hostage to a Supreme Court decision made a generation ago, when the world was a far different place?

A pox on “reasonable.” Give us back our freedom.

Posted by: scaramouche at 17:44 | link | comments

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