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Tuesday, January 22

If we would all learn never to say anything to cause fear you wouldn't have to ask these silly questions

Readers who closely follow the Section 13 Affair know that within the past week there has been a massive shift in perception.

Two weeks ago arguments about Section 13 revolved almost exclusively around the issue of freedom of speech, as they had for years. Then came a convergence of events from unrelated quarters.

When the events met last week, thousands of Canadians and many outside Canada suddenly realized that Section 13 of Canada's Human Rights Act was more than an outrage against free speech: the way it's administered made it a crime, a government crime.

As to why nobody had noticed before, that part is easy to explain. The announcement of the Section 13 filing against Maclean's magazine brought more scrutiny to Section 13 from more sharp observers than had ever occurred before, and all at the same time. This converged with revelations arising from other Section 13s under HRC review, and which pointed to criminal aspects of specific Section 13 proceedings.

The perception shift is so new that I assume the attorneys defending the Section 13 respondents are still trying to sort it out. It has not yet made its way into Canada's mainstream media.

Also, I doubt the shift has percolated into Canada's Parliament, with the possible exception of any MPs who closely follow Section 13 cases. And it doesn't seem that the shift in perception has arrived at the Attorney General/Justice Minister's office.

So. What's the next step?

Clearly nobody likes my idea -- at least, not yet -- of bringing criminal harassment charges against Canada's human rights commissions. (See my last post.)

Mark Steyn and Ezra Levant like the idea of approaching Rob Nicholson, Canada's Attorney General/Justice Minister, and asking him to explain why the HRCs he oversees are engaged in criminal behavior. In that regard I received a letter from a Canadian reader who observed:
Mark Steyn and others have raised the question of whether some complaints made to Human Rights Commissions and Tribunals have involved criminal activity by the complainants and the staff of the Commissions and Tribunals acting in collusion, presumably amounting to the crime of conspiracy or something analogous to it.

There have also been suggestions that the Attorney General of Canada should look into this. I have no idea whether the Attorney General would be minded to prosecute, but it seems to me possible, assuming that there has been such criminal activity, that it could be prosecuted by means of a private prosecution. The information [at the
Canadian Federal Prosecution Service policy webpage] seems to indicate that this course is feasible.
If you want the Attorney General to act, there might be a snag, which Levant alludes to in the post he titled Questions for Rob Nicholson. Levant observes
[...] I'd hang the antics of the human rights commission around the neck of the man who is ultimately responsible for it -- and in the case of the federal HRC, that would be Rob Nicholson.
I don't want to short Levant's opinions in this matter so I recommend reading the entire post. But with regard to the snag, Levant closes by observing that he knows Nicholson well enough to know he's "not clueless" and yet Nicholson is:
[...] likely facing resistance from bureaucrats and civil service lawyers giving him a dozen "yes minister" reasons why the CHRC can't be reformed or abolished. But they're not the ones who are ultimately politically accountable -- he is.
I think there are two ways to read Levant's observations:

1. If Nicholson finds himself under enough pressure he might overcome politics as usual.

2. The fox is in charge of the chicken coop.

There is a third possibility, which is that Levant is wrong; that with regard to the legality of Section 13 Nicholson really does not have a clue.

I do have another suggestion. It might be a help if a few Canadians who've become familiar with the criminal aspects of Section 13 administration would attend a January 24 panel discussion in Calgary called "Offensive Speech: What's Legal? What's Ethical?"

The panelists will be Alan Borovoy, "Canada's best-known civil libertarian;" Stephen Ward, Director of the Centre for Journalism Ethics at UBC; and Micheal Vonn, Policy Director of the B.C. Civil Liberties Association.

See The Sheldon Chumir Foundation for Ethics and Leadership for details; attendance is free but requires registration.

The discussion will focus on "the limitation of offensive speech in a free society."
Micheal Vonn will weigh-in on the importance of not side-lining equality rights in free speech advocacy. “The tone of the current debate is quite troubling. The free speech advocates I'm reading in the mainstream press are insistent that marginalized groups are 'merely offended' and not threatened or genuinely afraid. What this public discussion needs is a lot less polemic and a lot more honest assessment of the complexity of the issues.”
The website also notes that "Panellists will discuss where we should draw the line when speech is offensive to one or more groups, for example, gays or Muslims."

So I think it would be a help if during the Q&A period something like this was asked of the panelists:

"You've spoken about where to draw the line. Have you given any thought to how? The way that Section 13 of Canada's Human Rights Act is administered means that respondents are presumed guilty of instigating actions that have not occurred and might never occur.

"That kind of government proceeding is illegal in any society that accords presumption of innocence; in fact, it's illegal in Canada. Yet the proceedings continue with the full backing of Canada's Parliament and federal and provincial governments. Do you have any idea why?"

I warn this line of questioning might be lost on Ms Vonn, who has clearly gone beyond the Section 13 goal of ending the likelihood of hatred and contempt and is now working on ridding Canadian society of the likelihood of fear. However, asking how she intends to do this by revoking presumption of innocence in quasi-judicial proceedings could scare up -- if you'll pardon the expression -- an interesting reply.

I note from the website that on appointment the panelists are giving interviews before and after the discussion. So interested bloggers and reporters might want to put the above questions, and others relating to the legality of Section 13 proceedings, during an interview.
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