Anti-Bullying Legislation a Good Thing, Right?

Following the debacle of the Rehteah Parsons case last year, I was a little unsure of how the noises being made by both the provincial and federal governments about tightening up both the law and the legal process around the issue of bullying were going to work out.

Unsure because, really, can you actually legislate bullying out of existence?

And as far as Rehteah's case went, a sexual assault is a sexual assault is a sexual assault, is it not? Even if the police refuse to properly investigate the matter?*

But be that as it may, I initially thought it was a good thing when the federal government recently announced changes to the Criminal Code making it a criminal offence to spread intimate pictures of someone without their consent. After all, what could go wrong with that, right?

A lot, apparently. At least, a lot when you're talking about a federal government that is willing to be more than a little sneaky and turn its self- this proclaimed anti-bullying legislation into ... what exactly?

Apparently only about one and a half pages of the 65-page Bill actually deal with making it illegal to spread an intimate picture of someone without their consent.

The rest of the Bill varies widely, much of it giving the police new powers to obtain digital information (including lowering the standard required to get a warrant to obtain such information from having "reasonable and probable grounds to believe" a crime has been committed to having "reasonable grounds to suspect" a crime has been committed). And let's not forget the provisions about obtaining production orders against financial institutions for banking records.

But, wait, there's even more.

One section of the bill makes it illegal to use a device to hook up to a telecommunications service without lawful payment. It’s not clear whether computer programs count as a device, or if the proposal could be broad enough to punish something as common as hooking up cable without paying for it or accessing a locked Wi-Fi signal. 

Now whether or not these amendments are "good ideas" is not really the point.

No, the point is this - how dare the government try to sneak in all these totally unrelated criminal provisions under the heading of "protecting children from cyber-bullying"? And how dare the media go along with that characterization, happily proclaiming the new legislation as being about protecting our children from cyber-bulling, full stop, until someone stood up and demanded that the truth be made known?

This is so whether or not one thinks these amendments are a good idea. And I say that despite the fact that one, in particular, I do believe is a very good, appropriate change. Just not one to be characterized as above.

You see, one of the amendments expands the definition of “identifiable groups” that can be the subject of hate speech to include a person’s age, sex, mental or physical disability and national origin. And this particular change, I firmly believe, is a very good thing.

One of the reasons why the writer of this vile hate-filled "letter" could not be prosecuted was because individuals with physical or mental disabilities were not included as an "identifiable group" under sec. 318 of the Criminal Code.  You see, while it is a crime in Canada to "advocate or promote genocide" based on colour, race, religion, ethnic original or sexual orientation, neither age, race, sex nor physical or mental disability was included. From which one can only (wrongly) presume that it is, indeed, okay with Canadians to advocate killing off, amongst others, persons with disabilities.

That it was only after this incident that the government stepped up to amend that section is sad. But the fact that they are willing to do so now is a good thing. Although apparently they were not so anxious for anyone to actually realize they are doing a good thing ... after all, they could have scored points with many Canadian citizens had they proclaimed the fact that they were making this change instead of hiding it among so many other hidden amendments.

By the by, no one should have any trouble with this particular amendment, should they?

Well, the British Columbia Civil Liberties Association, of all people, apparently is not in favour of this proposed amendment.

“Imagine your rant about children today. Your rant about men this, women that. The question is what on earth is contemplated here,” said Vonn. 

“Which is not to condone hate. We don’t do that. But we are talking about some very serious provisions of the Criminal Code. 

In particular, Vonn said she has heard concerns from the Palestinian community that protecting national origin could criminalize harsh criticism of Israel.

Perhaps some legal education is called for here.

First of all, "rants" are not criminalized. Neither before this proposed amendment nor afterwards.

What is (and, just for the record) has been criminalized) is "advocating or promoting genocide" and "publicly stirring up and inciting hatred" against an identifiable group. So unless someone would believe that you're seriously calling for the death of all children or all members of the (presumably) opposite sex you should be okay.

And about those Palestinians - correct me if I'm wrong (and I know you will) but aren't chances pretty good they were already covered by the term "ethnic origin"?

Then again, should I really be surprised?

After all, we have a government that is unethical enough to try to put this one over on the very people it has been elected to serve and a media who was either too complicit or too stupid lazy to actually do its homework (as in, actually read the proposed legislation) and initially call foul.

Why would I expect the BC Civil Liberties Association to be any better? My bad.

* The much-belated recent police investigation falling, in my mind, in the category of "Too Little. Too Late."

Standing Up for Human Rights in the Disability Community

I have waxed poetic (or, hopefully, at least semi-poetically) on the subject of human rights several times over the years on this blog. And yet it will come as no surprise to those who really know me that my true passion in the area of human rights involves the disability community.

On my legal blawg, I have discussed at length a variety of issues, including education, transportation, recreation, employment, medical care or housing - all of which, bottom line, deal with the right to equality, the right to have the same access to the same services and (even more importantly, the same opportunities) as everyone else,

Yes, there will always be those that have it worse than you and I, than mine and yours. But just think of what it must be like to live with a disability in a third world country or a country where you are, irrespective of your disability, of the *wrong* gender or race. Then again, come to think of it, you could be an Aboriginal child with a disability living right here in Canada. Think of how much worse your life could would be.

But that really isn't the point, is it?

Of course not - the point is that no matter where we live, no matter who we are, we are all entitled to the same basic human rights. Not because the government of the day happens to agree or because we live in relative wealth, but because of one simple, inescapable fact - male or female, old or young, no matter our race or gender identity or sexual orientation or any other difference, no matter where we happen to live on this earth ...

We.

Are.

All.

Human.

And yet, simply *having* these rights is obviously not enough. Like any other "right", such rights would be meaningless without a mechanism of enforcement.

And as I turn my mind to the legal world, to "the law", I can only sincerely and humbly thank those who had the grit, determination and drive to realize the obvious and fight to have those rights enshrined as part of our law. And, in Canada's case, not just as part of the law. but as part of the highest law of the land, our Constitution.

But, sadly, two steps forward and one step back seems to be the way of life in so many ways. For even though sec. 15 of the Canadian Charter of Rights and Freedoms guarantees that every individual is "equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability" and even though Canada is a signatory to both the Universal Declaration of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities, we are still forced to stand up and fight for these rights over and over, right here in Canada.

So it is that I can only offer my eternal gratitude to those, both inside and outside the disability community, who have stood up to demand that these rights be, not just recognized, but given real meaning; to those who have stood up for the rights of our parents, our siblings, our children, our friends, ourselves.

But as I write this I realize that what concerns me, personally, most of all in this matter are those in the disability community who, for whatever reason, will not stand up and be counted, not stand up and be heard, not stand up and support others in their fight for equality. For it is only if we all stand together that any one of us can be truly successful. And so I leave you to ponder the famous words of Martin Niemöller:

First they came for the Jews
and I did not speak out
because I was not a Jew.
Then they came for the Communists
and I did not speak out
because I was not a Communist.
Then they came for the trade unionists
and I did not speak out
because I was not a trade unionist.
Then they came for me
and there was no one left
to speak out for me.

More Good News on the "Hate Speech" Front

You might recall that I was very pleased when the move was made to remove sec. 13 from the Canadian Human Rights Act last year.

Well, I was even more pleased when I learned today that the Supreme Court of Canada (SCC) has now weighed in on the wording of a similar provision in Saskatchewan's Human Rights Code.

The facts of the case are notorious. After William Whatcott distributed flyers condemning homosexuality using very strong language, the Saskatchewan Human Rights Tribunal found that that his actions breached sec. 14(1)(b) of the Code, which prohibits the publication of printed matter that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons” because of sexual orientation.

Although the SCC upheld part of that provision as constitutional and not a violation of Whatcott's freedom of expression under the Canadian Charter of Rights and Freedoms, it found that the prohibition against ridicule, belittlement or affronts to dignity did not meet constitutional muster.

The Court held that those words are not synonymous with hatred, which was defined as “whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination”. Thus, the Court made clear that it is unconstitutional to prohibit speech that is something less than detestation and vilification.

Finally, the SCC held that although freedom of religion (Whatcott argued that his flyers were motivated by his sincere religious beliefs) and religious speech have broad protection like the freedom of expression, at the same time, that speech cannot expose vulnerable groups to detestation and vilification, even if it is sincerely-held.

Although it will fall to the politicians to ultimately (hopefully) remove remaining "hate speech" provisions from Canadian human rights legislation, the SCC decision at least clarifies that

• the test of hatred must be applied objectively (i.e., the reasonable person aware of the relevant context and circumstances), not based on the subjective views of the publisher or the victim; and
• “hatred” involves two concepts—detestation and vilification, which enforce the legislative objectives of anti-discrimination laws.  

I guess all we can do now is await the political process. Bill C-304, which would repeal the hate speech provision in the Canadian Human Rights Act (and which provision the Federal Court found largely constitutional in October, 2012),  has passed the House of Commons and is currently being debated in the Senate.

In Alberta, Premier Redford promised during her leadership campaign to repeal the equivalent Alberta provision.

Any other Province care to step forward and be heard?

~  ~  ~  ~

By the by, writing this post got me to thinking about our good friend (term used loosely), Rev. Stephen Boissoin, whose case (last we checked) was winding its way through the courts.

I am pleased to say that the good Reverend (again, using the term loosely) was successful, both in Alberta's Court of Queen Bench and the Court of Appeal, where the Court held that “matters of morality, including the perceived morality of certain types of sexual behavior, are topics for discussion in the public forum,” and “freedom of speech does not just protect polite speech.”

In the words of Jonathan Kay, "Just so".

To Dream the Impossible Dream

It's been eighteen years since I've practiced law. That's right. Eighteen years.

Long time, no?

You see, I've always said I wouldn't go back to practice unless I could have just a "disability" practice.

In other words, not unless I could only take cases involving disability-related issues. But considering that most families with a disabled family member can't afford a lawyer and I figure that it will likely take Nova Scotia a good 20 years to get to the point where the government helps subsidize the cost of legal representation for families ... I just wasn't feeling the love.

But for the past year or so, I've been playing around with the idea of doing just that ... going back to the practice of law. No, I hadn't given up on what I really wanted or lowered my standards. Nor was the thought born out of desperation.

But I had finally come to realize (with a little bit of help from some friends) that I could use what I have been doing with the NS Legal Guardianship Kit and the presentations on disability-related topics as a springboard.

What if I went back to practice? Just on a part-time basis?

What if I could offer people the option of either purchasing the Guardianship Kit or hiring me to bring their guardianship application? Not only would my fees be significantly lower than the majority of lawyers' but I had also started to develop a reputation in the disability community. People were already asking if they could hire me to bring guardianship applications and I had to explain that no, I wasn't practicing.

So it was that I've been playing around with this idea for a while now.

Tried to talk myself out of it ... after 18 years of not practicing, just how many hoops would the Barristers' Society make me go through before granting me practicing status again? For a while, that seemed like a good enough reason not to proceed any further.

But eventually I realized that I might just be staring in the face (and yet not seeing) exactly what I have been looking for so hard for quite a while now - having convinced myself that I would never go back to practice because, after all, who could financially survive financially with the type of practice I wanted, I had been thinking that maybe the solution was finding work for a disability organization in a position where I could use my legal background and training. But that opportunity simply was not presenting itself. Although, in all honesty, I had come across what looked like the perfect job a few years ago. There was only one problem ... it was in BC. As in clear across the other side of the country. So, yeah. Not so much.

And yet this has been my passion for so many years now - how long have I been telling people that if I could find a way to marry law and disability (and get paid for it), I would be truly happy? Trust me, a long time. Said to a lot of people.

And so it was that eventually, very slowly, light began to dawn on marblehead (that would be me, in case you were wondering) and I "made the decision" (well, kind of, sort of anyway ... who says I'm not decisive?*) to take the leap and return to practice. 

The only problem was that required applying for a change of status (and forwarding the appropriate application fee) to the Bar Society, who would review my application and then tell me what hoops I would have to go through.

Now, really, that change of application fee would be hardly significant for most people. It shouldn't have been a big deal. And yet once I (kind of, sort of) made the decision to go back to practice, there just wasn't any money to spare to make the application. And then every time I planned on doing it (as in as soon as I get paid for ... whatever), something would happen and the money would be demanded elsewhere.

Oh what a tangled web we weave ....

Anyway, on a different note, guess what I did today? Come on. Guess.

No, I didn't finally *find* the money for the application fee.

No, I didn't finally start the required paperwork.

Give up? Are you sure?

All right, all right. I will tell you.

Listen carefully now.

  

(crickets)

Today. I. Mailed. The. Application.

(With. The. Cheque. Of. Course).

To. The. Bar. Society.

(more crickets)

Proud of me? I am. 

Proud. And excited. And more than a little nervous.

And so it is that the adventure continues. Wish me luck!

* In my defence, I did have a few good personal reasons for hesitating about taking the plunge. One being my health. But, hey, why let a little thing like that stop me, right? I figure if I don't try, I'll never know.

Humpty Dumpty Strikes Again

So, here we go again ... what's up with some people's apparent need to define words however they think they should be defined, either because it suits their own immediate purposes or ... it gets them in the news, perhaps? Hell, if I know.

My latest little rant involving a "study" (using the term somewhat loosely) by Canadian researchers on the effect "spanking" has on a child's future mental health. Which, apparently, is a two to seven per cent increase in the chance of said child later developing mental illness, such as mood and anxiety disorders, problems with alcohol and drugs and more.

Don`t believe me? Check this out:

Between two and five percent of disorders like depression, anxiety, bipolar, anorexia or bulimia were attributable to physical punishment as a child, the study said.

From four to seven percent of more serious problems including personality disorders, obsessive-compulsive disorder and intellectual disabilities were associated with such punishments in childhood.

Oh, where to begin?

First of all, I don't know how you might define the term "spanking" but to me it does not necessarily include "harsh physical punishment," or "pushing, grabbing, shoving, slapping or hitting as a form of punishment from elders".

To me (and, might I suggest, most sane people), a spanking means just that - "spanking" or striking a child's bottom, aka buttocks, aka rear end. Coincidentally, Wikepedia offers the same defintition. Now, I'm not among Wikepedia's hugest fans (then again, who exactly is?) but still ... it is what it is. And something tells me that definition would be very similar, if not exactly the same, for that of most people who stumble across this blog.

To be clear, in my mind, there is a huge difference between smacking a child on the bottom and smacking them up the side of the head; between smacking a child on the bottom and pushing or shoving them around. And I certainly don't equate the term "spanking" with "harsh physical punishment".

But who knows? Perhaps our Canadian researchers grew up in households where any kind of physical contact as discipline was taboo. Or, perhaps, they grew up in families where they were routinely "smacked around".

I suppose we should just be grateful that, unlike other supposed research studies on "spanking", this study actually excluded both sexual abuse and physical abuse "that left bruises, marks or caused injury". Wait, does that mean they included sexual and physical abuse that didn't leave bruises or marks or cause "injury"? You have got to be kidding...

But, presuming it's even possible to move past that little wrinkle, my point is that I'm pretty sure their definition of what constitutes a spanking does not equate with the majority of the world's or, at least, the majority of my generation.

But let's move on, shall we?

Just Gotta Be Lovin' That 'Discrimation' ...

Don't use words too big for the subject. Don't say "infinitely" when you mean "very"; otherwise you'll have no word left when you want to talk about something really infinite.

C.S. Lewis

File this one under the category of pet peeves ...

We all have our collection of pet peeves, don't we? Things that drive us a little bit wacky (or wackier than usual).

So I've often wondered just how much a person's pet peeves say about the person themselves. What drives you nuts might cause me to simply shrug and walk away. And vice versa. So do the things that really get to us tell us anything about ourselves? And others?

The answer is, of course, that I don't really know. But I'm thinking maybe, for at least some of our pet peeves.

I could probably categorize my pet peeves, not that I have that many really, but most of them do tend to fall into fairly discrete categories. And one of my big ones has to do with people screwing up all manner of things legal.

Although this can show up in various ways (anyone ever pay close attention to the court scenes in television or movies?), the one that comes to mind today is people who throw around legal terms without a clue of what they really mean.

For example, people who equate rudeness with discrimination. Or assume that anything that offends them must constitute discrimination. Well, either that or a "hate crime", of course.

And so it was that I opened today's newspaper to find that Neil Rideout considers police enforcement of a section of the Motor Vehicle Act providing that the only motorized vehicles allowed on sidewalks are wheelchairs to be discriminatory. Against him. Because he was "pulled over" for driving a motorized cooler on the sidewalk.

That's right - I actually said "cooler". As in Coleman. The story itself is rather amusing, complete with a police officer asking if he could search the "vehicle".

But what isn't so amusing (at least to me) is Mr. Rideout's contention that he's being "discriminated" against because there is also no provision in the Motor Vehicle Act for electric scooters or motorized kids' toys. Which, I can only presume, he is implying are not being "pulled over" by police.

"Son, stop that Tonka right now and put your hands where I can see them".

But all humour aside, as I've said before, real instances of discrimination do to occur. As does racism. And real hate crimes (against people with disabilities, for example).

There are dangerous consequences to thinking and acting like Humpty Dumpty, I fear.

Because when we, as a society, find discrimination (and racism and hate crimes) lurking under every rock or in every bizarre comment someone makes, we are marginalizing the whole concept to the point of meaninglessness.

And then what word will we have to describe it when it really occurs?

So, yeah, maybe this one is a little bigger than a pet peeve for me ...

And Just How Do We Honour the Victims?

"In Canada all girls and women are equal to men under the law and have the right to live free from violence and abuse."

Rona Ambrose, Minister responsible for the status of women

Let's a few minutes and talk about a practice called "honour killings".

That's right, honour killings - “murders carried out in order to cleanse the family name and restore the family honour.”

You can read some real horror stories surrounding honour killing (as if the practice, in and of itself, is not horrific enough) if you're so inclined, including the story of a 16-year-old mentally retarded girl who, after being raped was turned over to her tribe's judicial council in Pakistan. Where, even though the crime was reported to the police and the perpetrator was arrested, it was decided that she "had brought shame to her tribe". She was killed in front of a tribal gathering.

Then there's the story of Samia Imran, whose murder in broad daylight, was abetted by her mother (a doctor) and occurred in the office of a prominent Pakistani lawyer and the UN reporter on extrajudicial, summary, or arbitrary executions.

Right, doesn't that have echoes of the United Nations electing Iran to its Commission on the Status of Women, handing a four-year seat on the influential human rights body to a theocratic state in which stoning is enshrined in law and lashings are required for women judged "immodest"?

But let's put that little unpleasantness aside for the moment and return to the subject at hand, shall we?

You remember, honour killings.

Unfortunately, Canada is not immune.

16-year-old Aqsa Parvez might be the most widely talked about [you can read Asqua's entire story here] case of honour killing in Canada but she is far from the first.

A 14-year-old female rape victim is strangled to death in March 2004 by her father and brother because she has supposedly tarnished the family name.

In April 2004, a man brutally kills his wife and daughter after finding out that his brother had previously molested them.

A teenage girl with a Turkish background has her throat cut by her father after he learns she has a Christian boyfriend.

Which brings us to the question - should "honour killing" be added as a separate criminal offence in Canada?

For better or for worse, apparently, that's the latest politcal buzz.

Following the release of a report from the Frontier Centre for Public Policy (whoever the heck they are) this week entitled "Culturally-Driven Violence Against Women: A growing problem in Canada’s immigrant communities", Rona Ambrose, the minister responsible for the status of women, publicly stated that the government is "looking at" adding "honour killing" as a separate charge to the Criminal Code.

Apparently, she also "affirmed" the federal government's "zero-tolerance stance" against "honour killing," declaring such "barbaric cultural practices" as "heinous abuses" that have no place in Canadian society.

That whole zero tolerance thing kind of makes sense I suppose - considering Canada already has (as do all other civilized countries) a law or two on the books that tend to kick in whenever someone ends up "killing" somebody else. Yeah, that whole "killing" thing might just get you a raised eyebrow or two in some circles. It's all so ... distasteful, you know.

But, yeah, that whole idea that maybe honour killing would become a separate charge under the Criminal Code - they sort of backpedalled on that, really rather quickly, I would say.

She was asked if the government was considering such changes, and she replied that it was under consideration.

"I'll say that it's something that we're looking at," she said. "Nothing more than that at this time."

However, when contacted for more details about possible changes, a spokeswoman for the Department of Justice said in fact, that is not the case.

"There are currently no plans to do that," said Pamela Stephens.

"While we're always interested in new input into ways to improve the Criminal Code, currently honour killing suggests a certain motive or conduct. But regardless of the motive the law as it exists in Canada is clear that intentional killing is murder, regardless of the motive."

Quite frankly, the idea of making "honour killing" an entirely separate criminal offence seems a little over the top to this tired little legal mind.

We already have provision for culpable homicide, murder (both first and second degree) and manslaughter. We deal separately with "contracted murder", "murder of a peace officer", death caused when a person is committing or attempting to commit a hijacking, sexual assault, kidnapping, criminal harassment, terrorist activity or intimidation and death caused "for the benefit of, at the direction of or in association with a criminal organization".

Yeah, I think we pretty much got it covered. Don't you?

But where it might make more sense to make special provision for "honour killings" in our criminal justice system is in sentencing.

Under the so-called "hate crimes" amendments made to the Criminal Code in 1996, Canada considers evidence that an offence was "motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor" to be an aggravating factor in sentencing. As is evidence that the offender abused their spouse or common-law partner, abused a person under the age of eighteen years or abused a position of trust or authority in relation to the victim.

Which, although I suppose one or two of the above would no doubt be covered off under most honour killings anyway, why not just find some way to wordsmith honour killings (or any offence motivated by a desire to cleanse a family name and restore the family honour) in there while we're at it?

It's true enough that some among us will be appalled dare we do anything, including even dare to use the term "honour killing".

So where, exactly, would that leave us - trying to convince ourselves that honour killing isn't culture specific (that, you see, would be an example of "racial profiling") and that education would be “patronizing,” as the practice (if we are allowed to even call it that) is just part of the larger problem of crime and violence in general? Or, perhaps, just another example of garden-variety "domestic violence"?

We can bury our heads in the sand all we wish, I suppose. But that does nothing to assist (or honour - what a strange use of words) those women (many just in their teens) who are being murdered by their own families right here in Canada.

Including the fact that a murder is an honour killing as an aggravating factor in sentencing might well be only "symbolic", as some suggest.

But at least it will symbolize something.

At least it should get more Canadians talking about the issue.

At least, we will be taking one small first step forward in trying to ensure that Minister Ambrose's words actually mean more than paper they're written on - that in Canada all girls and women are equal to men under the law and have the right to live free from violence and abuse.

Sounds nice, doesn't it?

Over The Edge

I've watched with some degree of bemusement as racism seems to grow into a bigger and bigger issue on almost daily basis in the US. Or, perhaps I should not say so much a bigger and bigger issue as much as more and more the 'call of the day'. The only explanation for everything that happens.

After all, anyone who didn't vote for President Obama must have been a racist, right?

And we are know that the "tea baggers" are nothing but a bunch of racists ... even though the latest polls paint a slightly different picture, revealing that although they were slightly more likely to be employed, male and definitely more conservative, in several other respects, "their age, educational background, employment status, and race -- Tea Partiers are quite representative of the public at large."

But what do I know? I just find it strange is all.

Not that Canada is that much better.

As just one example, we have the complaints made on behalf of Cheryfa MacAulay Jamal to the Halifax Regional Police and the Nova Scotia Human Rights Commission about a 2008 cartoon in the Chronicle Herald. The police complaint was apparently made under under Section 318 of the Criminal Code, as "hate propaganda", more commonly known as a "hate crime".

Of course, whether you're default position is racism or some other form of discrimination, the result is really the same. Real racism and real discrimination do occur. But when we find it lurking under every rock or in every bizarre (uncaring, stupid, pick your word) comment someone makes, we are marginalizing the whole concept to the point of meaningless. And that is dangerous.

So why bring this up now?

Yesterday, I thought this story in the Chronicle Herald was a bit odd - two parents were more than a little upset about a comment made by Karen Hilchey, a substitute teacher, to their 12-year-old daughter. The teacher, who was filling in for a music class allegedly pointed at their daughter, who had been adopted from China, and said, "We are all white Christians here, except for you."

The child's mother not only wanted an apology from the school board, but had also contacted the RCMP and the provincial Education Department "seeking an investigation and a guarantee that the teacher will not be in the classroom again".

That was all of the story we had yesterday, no context to even try to explain the comment. Which, admittedly, struck me as more than a little strange and unusual for a teacher to make. What call would a music teacher have to even note such a thing? Yet alone point out the child in front of the whole class?

A stellar example of good teaching practice? Not so much.
Were the parents justified in seeking an explanation? Sure.

But racism?

The headline read "Racist Remark Sparks Outrage". The mother referred to never having experienced any racism before. And the police received a complaint and had visited the school as part of their investigation.

Today, we see the teacher scrambling madly to clarify the "misunderstanding" and give the comment some context. You can read her side of the story for yourself and draw your own conclusions.

I would think that an apology to the child and an explanation to the parents are no doubt in order. Perhaps even some sensitivity training in assisting the teacher with implementing her good intentions in the classroom. Or perhaps not.

But here is what I don't get.

Tait [the mother] said she’s still bewildered about the classroom address. She is pursuing the matter with the RCMP to see if the incident with her daughter can be considered an alleged hate crime.

A hate crime?

Lord, give me strength.

"Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years." [sec. 318, Criminal Code]

Right.

Because a comment that everyone in a room "are all white Christians", with the exception of one student, while it may be more than a little stupid and insensitive for a teacher to make, doesn't quite qualify as "advocating or promoting genocide", does it?

Does it?

I mean you can all but visualize the teacher handing out swords to the other students so they could rid the classroom of this little invader, can't you? [That was sarcasm, by the way. For anyone out there who couldn't tell. Of which I'm thinking there are probably a few.]

So tell me, have we all lost our minds?

Or have I simply went down the rabbit hole? Again?

Update: As pointed out in comments, other potentially relevant Criminal Code sections include s. 319 (1) and (2) ["public incitement of hatred" and "wilful promotion of hatred"].

Although, in my opinion, the singling of a person out as being of a different religion or race, without more, does not qualify as either inciting or promoting hatred, I note that two of the available defences to a charge of willful promotion of hatred are (a) "if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true"; or (b) "if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada". Both of which, I submit, might well apply here assuming the teacher's version of events is true.

But my real point is that so many different things have now been alleged as racist or hate crimes in the media that many some people don't even know what these words mean any more. And that, to me, is scary.

Lawyer Jokes

Update: Sorry, didn't publish properly. Now there's 18.

Eighteen lawyer jokes. Just for you.
Because I'm feeling generous today.

Q: What do lawyers use for birth control?
A: Their personalities.

Q: What is the difference between a tick and a lawyer?
A: A tick falls off of you when you die.

Q: Why does the law society prohibit sex between lawyers and their clients?
A: To prevent clients from being billed twice for what is essentially the same service.

Q: What do you have when 100 lawyers are buried up to their neck in sand?
A: Not enough sand.

Q: What's the difference between a dead skunk in the road and a dead lawyer in the middle of the road?
A: There are skid marks in front of the skunk.

Q: What is black and brown and looks good on a lawyer?
A: A Doberman.

Q: Why are lawyers like nuclear weapons?
A: If one side has one, the other side has to get one. Once launched, they cannot be recalled. When they land, they screw up everything forever.

Q: What do lawyers and sperm have in common?
A: One in 3,000,000 has a chance of becoming a human being.

Q: Did you hear that the Post Office just recalled their latest stamps?
A: They had pictures of lawyers on them ...and people couldn't figure out which side to spit on.

Q: Lawyer's creed:
A: A man is innocent until proven broke.

Q: What's the difference between a female lawyer and a pit bull?
A: Lipstick.

Q: What do you call 20 lawyers skydiving from an airplane?
A: Skeet.

Q: If you see a lawyer on a bicycle, why should you swerve to avoid hitting him?
A: It might be your bicycle.

Q: What's the difference between a porcupine and a Porsche with two lawyers in it?
A: With the porcupine, the pricks are on the outside.

Q: Santa Claus, the tooth fairy, an honest lawyer and an old drunk are walking down the street together when they simultaneously spot a hundred dollar bill. Who gets it?
A: The old drunk, of course; the other three are mythical creatures.

Q: It was so cold last winter ... (How cold was it?)
A: I saw a lawyer with his hands in his own pockets.

Q: A man walked into a lawyer's office and inquired about the lawyer's rates.
A: "$50.00 for three questions", replied the lawyer. "Isn't that awfully steep?" asked the man. "Yes," the lawyer replied, "and what was your third question?"

Q: You're trapped in a room with a tiger, a rattlesnake and a lawyer. You have a gun with two bullets. What should you do?
A: You shoot the lawyer... Twice.

Well, Well, Well

Thanks to Dust's comment over at Lex's, I turned to my good friend Google to see whatever happened to that pastor who was ordered by the Alberta Human Rights Commission last year to desist from expressing his views on homosexuality in any sort of public forum. And pay the complainant $7,000 in damages.

Turns out the good Reverend is a fighter.

Today, however, he is in Alberta Court of the Queen's Bench, appealing the conviction of hate speech that resulted in the above penalties. That conviction was based upon a letter to the editor in the Red Deer Advocate, in which Boissoin expressed his opinion that homosexuality is immoral and dangerous, and called into question new gay-rights curricula permeating the province's educational system.

Personally, I'm rooting for a victory for Rev. Boissoin. Because, as I've said before on more than one occasion, I'm a firm believer that Canada has went too far with some of the "hate speech" provisions in our various Human Rights Acts.

And, lo and behold, apparently some progress is being made on that front.

OTTAWA, Ontario, September 2, 2009 (LifeSiteNews.com) - The Canadian Human Rights Tribunal ruled today that section 13 of the Canadian Human Rights Act, Canada's human rights legislation against hate messages, unreasonably limits the Charter right to freedom of expression.

You might protest that the Commission's decision in this matter is self-serving. A last ditch effort to save itself. And you may (or may not) be right. But either which way, it's the result that matters to me. And this is a result I strongly agree with.

It's not that I feel such cases shouldn't be brought forward where appropriate. It's just that it strikes me that a court of law (with all the substantial and procedural protections that applies) is the forum for such cases to be litigated.

Because although I firmly believe in free speech as a constitutional right, I also believe that it, like all rights, has to be subject to such "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

And that’s why I feel these matters shouldn’t be dealt with by human rights commissions. The balancing involved is too important, too critical … it needs to be done in a court, not by a quasi-judicial tribunal. Where there is too much potential for abuse.

So. Onward and upward, then.

Madame Justice ...

Your result for Which Supreme Court Justice Are You Test...

You are Justice John Paul Stevens

You agreed with Stevens 64% of the time.

John Paul Stevens (born April 20, 1920) is the senior Associate Justice of the Supreme Court of the United States. He joined the Supreme Court in 1975 and is the oldest member of the Court. He was appointed to the Court by Republican President Gerald Ford. Although Stevens is widely considered to be on the liberal side of the court, Ford praised Stevens in 2005: "He is serving his nation well, with dignity, intellect and without partisan political concerns." He is also the only current Justice to have served under three Chief Justices (Warren E. Burger, William Rehnquist, and John G. Roberts).

Early in his tenure on the Supreme Court Stevens had a moderate voting record. He voted to reinstate capital punishment in the United States and opposed the racial quota system program at issue in Regents of the University of California v. Bakke. But on the more conservative Rehnquist Court, Stevens tended to side with the more liberal-leaning Justices on issues such as abortion rights, gay rights and federalism. His Segal-Cover score, a measure of the perceived liberalism/conservatism of Court members when they joined the Court, places him squarely in the ideological center of the Court. A 2003 statistical analysis of Supreme Court voting patterns, however, found Stevens the most liberal member of the Court.

Stevens' jurisprudence has usually been characterized as idiosyncratic. Stevens, unlike most justices, usually writes the first drafts of his opinions himself and reviews petitions for certiorari within his chambers instead of having his law clerks participate as part of the cert pool. He is not an originalist (such as fellow Justice Antonin Scalia) nor a pragmatist (such as Judge Richard Posner), nor does he pronounce himself a cautious liberal (such as Justice Ruth Bader Ginsburg). He has been considered part of the liberal bloc of the court since the mid-1980s, though he publicly called himself a judicial conservative in 2007.Stevens was once an impassioned critic of affirmative action, voting in 1978 to invalidate the racial quota system program at issue in Regents of the University of California v. Bakke. He also dissented in 1980's Fullilove v. Klutznick, which upheld a minority set-aside program. He shifted his position over the years and voted to uphold the affirmative action program at the University of Michigan Law School challenged in 2003's Grutter v. Bollinger.


Take Which Supreme Court Justice Are You Test at HelloQuizzy

That's me ... idiosyncratic. And a mite confused.

HUH?!

Which would pretty well sum up my reaction upon reading this article in today's edition of the Chronicle Herald which portended to delve into the "culture clash" between the Western world's child protection systems and various religious and cultural minorities. Due to the writer taking a major left turn halfway through the article.

After noting that "not one of the world’s major religions sanctions child abuse" [ED. A point open to debate - after all, if female genital mutilation isn't a form of child abuse, then what, pray tell, might be?], that "bridging the cultural gap in western countries would be easier if professionals, such as doctors who are compelled to report child abuse to the authorities, were exposed more often to people of diverse backgrounds", the reality that many medical graduates have never met a Muslim, a Sikh or a Sunni and that UNESCO reports some 250 million youngsters worldwide "suffer child abuse in the form of slavery, bondage, serfdom . . . child pornography, prostitution and yes, female genital mutilation", completely out of left field, at least for this reader, the article goes on to note that in Canada, "the biggest legal controversies involving child protection and religion have been well-publicized disputes involving Jehovah’s Witness families and their views on blood transfusion". According to Queen’s University law professor, Nicholas Bala.

My problem with this coverage of the fifth World Congress on Family Law and Children’s Rights in Halifax is the comparison of the issue of blood transfusions in Witness families and child abuse in any form, let alone slavery, bondage, serfdom, child pornography, prostitution and female genital mutilation.

As Mr. Bala rightfully notes, in cases of Witness children younger than age 12, the situation is generally pretty cut and dried - within a blink of the eye, the child is made a ward of the state, given a blood transfusion and then returned to their parents. Although this latter point he somehow neglects to mention. As these children become older (usually ages 12 to 16) and begin to articulate their own religious views, the courts are placed in the position of struggling with how much weight to give to the child’s wishes.

So tell me this, please - although I certainly make no argument against a valid interest in the state intervening if doctors feel a child needs life-saving medical treatment, is this really akin to child abuse?

Unfortunately, I know a fair bit about your more typical child abuse cases (leaving out of the discussion issues such as child slavery, bondage, serfdom, child pornography, prostitution and female genital mutilation for the moment) due to my regular reading and review of such legal decisions in my current work.

Two thoughts come to mind - first, I find it difficult to characterize a parent's refusal to provide consent to a blood transfusion for their child for religious reasons the same way as the horrific stories of neglect and abuse I regularly read and, secondly, trust me when I say that the children involved in such cases where abuse is found are rarely never simply thrown back into the offending parent's care, case closed, end of discussion. At least not these days. Not in this jurisdiction. If a child has been found to have been abused, they are not going back home without, at a minimum, supervision, follow up and the parents having participated in appropriate training and services.

And as far as comparing issues such as child slavery, bondage, serfdom, child pornography, prostitution and female genital mutilation to a parent's refusal of a blood transfusion for their child ... pulleaze. Give. Me. A. Break.

Granted, both child abuse and parental refusal to consent to medical treatment are child protection issues. But in my mind, to lump together child abuse (even in its more common forms of sexual, physical and mental abuse and neglect, let alone it's even more horrendous forms) with the issue of state intervention for children whose parents refuse to consent to a blood transfusion as done in this article is nothing if not disingenuous.

I also can't help but note the article's failure to make any mention of those cases where adult* Witnesses have had blood transfusions forced upon them agains their express wishes (to the extent of doctors tranquilizing patients against their wishes or even having them forcibly restrained). Which, while perhaps not technically relevant in a discussion of child protection issues, might be material in regards to full disclosure on the issue of the interaction between members of this particular religious sect and the medical profession around their medical care.

In the interests of full disclosure, although I most definitely am not a member of the Jehovah's Witnesses, I was raised as one and, as such, am quite familiar with both their beliefs and their history.

* See para 26 of the linked decision

Price of a Shoe Toss

Three years? Three years in jail?
For tossing a shoe, of all things?

Talk about a political shoe toss football ...

There's ridiculous. And then, apparently, there's Iraqi justice. Yeah, I know, a bit of a oxymoron that.

Thinking Outside The Box

When Harper prorogued [I know, cool word, eh?] Parliament late last year, he and the leaders of the opposition parties might have forgot one tiny thing ... terrorism (or the GWOT or those pesky wars "over there" or whatever you may choose to call it) has not been prorogued. Meaning, it's not about to go away any time soon.

And although, personally, I'm not quite as positive about our new Liberal leader as Danny Eisen (but I am prepared to sit back and give him a chance to show us his stuff - hey, he has to be better than his predecessor), I am somewhat enamoured with this new idea.

Cindy Barkway was five months pregnant with her second child and was in New York on the morning of Sept. 11, 2001, while her husband David attended a meeting on the 105th floor of the World Trade Center. You can read the rest of her story here.

But she has now banded together with Maureen Basnicki, another 9-11 widow, and other terror victims across Canada to promote a different kind of anti-terror legislative initiative.

These two women and their associates who are members of C-CAT, the Canadian Coalition Against Terror, have taken aim at those who fund and sponsor atrocities like the attacks on Mumbai. The complex and convoluted nature of terrorist financing has made it extremely difficult for our criminal courts to prove the guilt of terror sponsors "beyond a reasonable doubt." Only one person has ever been convicted of this crime in Canada, even though authorities have identified hundreds of millions of terror-related dollars flowing through this country in recent years.

But the legislative initiative proposed by Ms. Barkway and other Canadian terror victims would change that. It would allow Canadian terror victims to launch civil suits against state and local sponsors of terrorism in Canadian courts. In civil action, only the preponderance of evidence is required to successfully find the purveyors of mass murder liable for their actions, to seize their assets and to expose them to the public for what they are. This bill can succeed in deterring terror sponsorship where the criminal justice system has failed to do so. Yet it violates no one’s rights, does not require the firing of a single bullet and does not need the permission of the Governor General.

Civil liability for terrorist acts. Who would've thunk it?

The legislation will soon be re-introduced in the Senate by Senator David Tkachuk. And although I am honestly unsure as to the logistics and the potential, practical effusiveness of such legislation (just how does one go about enforcing a civil judgment against Al-Qaeda, for example), I do hope that the Conservatives, Liberals and other assorted actors will be able to pull their heads out of their own orifices long enough to give it serious consideration.

You have to admit, it is a novel idea. Albeit one that doesn't seem to be receiving much media attention. Although Ms. Barkway appears to be well-known to Canadians in regard to the loss of her husband on September 11th, there isn't much to find in regard to this initiative.

But desperate times, as they say, require desperate measures. Or, perhaps more accurately, it's time to start thinking outside the box and at least consider other possible ways to financially impair the terrorist infrastructure that has hurt us all.

Chuckle of the Day

Polygamy is illegal in Canada. Just in case anyone was unaware.

I only mention it because, apparently, Winston Blackmore, isn't so sure. In his mind, out of tens of thousands of polygamists across the country, his religious sect is being targeted, disregarding his basic charter right to religious freedom.

"This is not about polygamy," Blackmore said in a statement to media Thursday. "To us this is about religious persecution."

He said the issue is political.

Umm, no.

Sorry, sir, but I do believe that you might be just a little bit misinformed.

This is about enforcing the criminal law of the country. Something which should have been done long ago. Particularly where, in these types of sects, child marriages are common. Those too violate the law, you see.

As far as your Charter rights go, Mr. Blackmore, you might want to remember that those are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".

Reasonable limits. Demonstrably justified in a free and democratic society.

Right. See you at the SCC, sir.

And good luck with that. Not.

The Politics of Pre-Natal Screening

I have intentionally avoided much comment on the US election. Trying to be a good neighbour and all. After all, it's really not my business (other than as an affected observer) and it's all too divisive anyway.

Until today, that is. My attention grabbed by the headline, "U.K. Mother Murders Daughter Because "Embarrassed" by Disability", I really didn't expect to find much more than the usual macabre story of a parent unable to "cope" with their child's disabilities. Takes all kinds to make the world go around, as they say. Too bad it's the innocent children who pay the price.

I certainly didn't expect this particular political spin.

This trial, which is still in progress, comes during a week in which the devaluation of children with disabilities has been very much in the media spotlight, thanks largely to Gov. Sarah Palin's much publicized decision to carry to term her son Trig, who has Down's syndrome.

Prominent bioethicist Wesley Smith recently commented on the media bias against Palin, and says it occurs in part because, "Palin is viewed as 'the other,' symbolized by her and Todd's (Palin's husband) loving acceptance of Trig."

Smith said he hopes that the unconditional love the Palin's show to their son Trig will be an example for a world that is evermore justifying murder of the innocent.

"I hope that people will decide to emulate the Palins in their unconditional acceptance and love for their beautiful son, Trig," said Smith.

Well, gee, I hope so, too. But, I'm still not sure I see the connection. Fortunately, Patricia E. Bauer's blog makes it a little clearer:

Andre Lalonde, executive vice president of the Society of Obstetricians and Gynecologists of Canada (SOGC), says he is concerned that abortions in the case of Down syndrome may decline as women follow the example of Sarah Palin. Palin’s infant son Trig was born after she received a prenatal diagnosis of Down syndrome.

From the Globe and Mail:

As a vocal opponent of abortion, Ms. Palin’s widely discussed decision to keep her baby, knowing he would be born with the condition, may inadvertently influence other women who may lack the necessary emotional and financial support to do the same, according to Lalonde.

Dr. Lalonde said that above all else, women must be free to choose, and that popular messages to the contrary could have detrimental effects on women and their families.

Things that make you go Hmmm. Is it possible ... could it at all be related to this?

Yes. Yes, it could. And it goes something like this. Last year, the Society of Obstetricians and Gynaecologists of Canada and the Board of the Canadian College of Medical Geneticists issued a recommendation that all pregnant women be offered screening for Down syndrome. Sounds good, right? Until you consider the fact that statistics point to over 90 per cent of pregnancies diagnosed with Down syndrome being terminated.

Which leads to the question of just what exactly parents whose pre-natal screening show that their child will have Downs Syndrome are being told. And perhaps more importantly, what aren't they being told?

It's one thing to say that "It is estimated that 90 percent of women in Canada who receive a prenatal diagnosis of Down syndrome decide to abort their pregnancies". But it's completely another matter to ask how informed and real that choice really was.

I must confess that when I was first put on to this issue earlier this year by the Nova Scotia Down Syndrome Society, I had trouble seeing a real issue. Until I stopped to actually think about exactly what type of information was being provided to parents as part of this screening service.

It's no real secret that doctors generally paint a very dark picture of life with Down syndrome during prenatal diagnoses. In fact, it's this very situation which has led to the Canadian Down Syndrome Society challenging the ethical implications of the recommendations by the obstetricians’ group. And to the currently circulating Petition for a Prenatal Diagnosed Condition Awareness Act. A Petition I have wrote more extensively about here.

Now let me make two things clear here.

First of all, unlike some of the commentors here, I don't believe that this is an issue of 'socialized medicine'. No matter how fun and easy it is for our American friends to go there in a hurry. After all, the best defence is a good offence, as they say. But that would likely serve as better fodder for another blog post.

No, I see this is an issue facing many different countries with different health care systems today. And I think these doctors are, for the most part, motivated by what they feel is 'doing the right thing'. Not so much for the sake of the health care system or the the cost to society, but for the parents.

The poor, poor parents.

Remember, it wasn't that many years ago when (nearly) all challenged children (be it physically or mentally) were placed in institutions immediately at birth. As societal values slowly change and technology rapidly advances, many (including the medical professionals) are left scrambling to play catch up. Some, perhaps, at a quicker pace than others.

Secondly, I am not for one minute advocating that every woman pregnant with a child with Down syndrome, or any other disability for that matter, should be or is obliged to carry that child to term. We all need to remember that as a society we have a hell of a long way to go in providing proper support and services for individuals with disabilities and their families. It is not an easy row to hoe, not always an easy life to live. And yet many, many will share you with the positive ways their child has impacted not just their life, not just their family's life but the lives of all those they touch.

But here's the thing ... if we believe in a right to "choose", if we are ever going to give more than lip service to that concept, we must never forget that the key word is choice. As in making that extra effort to ensure that the choices are promoted in a fair and valid manner. Which means giving giving people all the information they need to such a life-altering choice.

But getting back to Sara Palin, in the words of Krista Flint, executive director of the Canadian Down Syndrome Association:

“We know overwhelmingly the message families get is ‘Don’t have this baby, it will ruin your life,’” Flint says. “And I don’t think people would look at Sarah Palin and see a ruined life. Regardless of politics, I think it’s a good example.”

So love her or hate her (and God knows there's enough of both swirling around the blogosphere), you have to give Ms. Palin credit where it's due ... she might just be bringing into light an issue that has for too long been in the shadows. And that, no matter what your political persuasion, has to be a good thing.

As an aside, it's interesting to note that Dr. Lalonde has apparently attempted to clarify his previous remarks. According to the L.A. Times,

Doctor Lalonde's point of view should not have been portrayed as a concern that the number of abortions would decline but rather, as expressed in the Globe and Mail, that women would be influenced by Gov. Palin's decision to keep Down syndrome children that they were neither emotionally nor financially prepared to care for.

Which is a good thing, I suppose. Particularly when you consider that one of the principal precepts taught all physicians is "First Do No Harm".

Update: Just in case anyone continues to labour under the false belief that this is a 'socialized medicine' issue. It could just be that Canadian doctors are being more up-front about it, is all.

Law School Musical

Come, now. I know I've warned you before as to what too much law school might do to ya but ... it wasn't really that bad!



And on the plus side, at least you got to enjoy yourself while doing in your liver... As far as I can tell, the only people who party more than law students are naval aviators!

H/T to LawEddie.com ~ sorry, Eddie, but I just had to steal the post title, too!

Sucks To Be Him

Poor Ezra Levant!

Apparently he won the human rights case he found himself embroiled in. Which for him is akin to losing.

From over here, it’s just more of what I said before. It looks like Ezra is *disappointed* that he’s been vindicated because it gives him less to rant about … and less ammunition in his fight to scrap the entire system. The last thing in the world he and others of his ilk want is to have to admit that the human rights system can and usually does work properly.

I do agree with Ezra when he says this, though:

Both managed to hijack a secular government agency to prosecute their radical Islamic fatwa against me — the first blasphemy case in Canada in over 80 years.“

It’s just that I don’t think for one minute that our Islamic friends [term used loosely] are the only ones with an agenda in this piece of theatre. Time will tell, I suppose.

H/T to Neptunus Lex, even though we do disagree in the result

Just So You Know

We've taken a lot of heat lately concerning the Mark Steyn/MacLeans human rights complaint. So I thought it was only right to let you know.

The Canadian Human Rights Commission dismissed a hate speech complaint against Maclean's magazine on Friday in a decision the complainants blamed on "inappropriate political pressure."

Just to be clear, that would be the complaint claiming that an article written by Mark Steyn, entitled "The Future Belongs to Islam", made a number of statements and assertions that were likely to expose Muslims to hatred or contempt.

So, in other words, the system can and does work, as I've said before.

For those interested, you can find the Commission's entire decision here, courtesy of MacLeans. As best as I can tell, a decision has not yet been rendered in the British Columbia case. You know, the one that was live blogged. So for that, we wait.

Funny, though, I almost think that many will be disappointed in the result, despite protesting otherwise. The last thing in the world they want to do is admit that the human rights system can and usually does often work properly. No, they want the worst possible, most outrageous, decisions. To prove their supposed point and have more ammunition in their fight to scrap the entire system. Because, just as many might argue that the complainants in the Steyn/MacLean's complaint had their own agenda, they too have an agenda at play.

Which is why I think that perhaps something else good has come out of this controversy. Apparently an independent review of the Commission's approach to hate speech on the Internet has been launched by the Commission's chief commissioner, Jennifer Lynch.

And I actually think that is a very good thing:

And so the debate Elmasry sparked has become less about media attitudes toward Islam and more about the balance between free speech and hate speech, and whether Canada's federal and provincial human rights commissions can rightly weigh it.

The last time Canada's human rights hate speech law was examined in depth was before the advent of the Internet, in a 1990 Supreme Court of Canada decision about the operator of a neo-Nazi phone-line. In that case, the prohibition on messages that are "likely to expose" identifiable groups to hatred or contempt was judged to be a reasonable limit on the Charter guarantee of freedom of expression. But the extension of the law from telephone lines to the Internet in 2001 has resulted in a whole new ballgame.

So, let's give it a look, says I. Give it a tweak here and there. Even overhaul the entire system if need be. So that it continues to work as advertised. Namely, to protect the rights of all Canadians not to be discriminated against on the enumerated grounds. But for those with a problem with even the concept that the government should have a role to play in protecting individuals from being discriminated against, too bad says I.

Oh yeah, about that "inappropriate political pressure" comment ...

Faisal Joseph, lawyer for the CIC, said the dismissal was predictable, given the political climate and the campaign against the commissions themselves.

"We are not surprised at the decision in light of the inappropriate political pressure that has been brought to bear on the commission and that has prompted the commission to set up an internal review of its procedures under (the hate speech section of the Human Rights Act)," he said.

Well, I guess that's not surprising, I suppose. After all, they always say the best defence is a good offence.

Live Blogged?!

As pointed out by Lex, the hearing of the human rights complaint against Mark Steyn and MacLeans magazine’s is being live blogged. Which, by itself, is probably worthy of a post. But I won't go there right now, except to say that given it's going to be a five day hearing, I would tend to be concerned that both the blogger and the reader might find themselves falling asleep on occasion.

What's that you say? You want to know what I think?

Funny you should ask. Because in addition to my previous somewhat-related comments ...

1. I think it's fascinating. The whole process.

2. I think that it's rather telling that the complainants chose the Human Rights Commission as opposed to launching a court action for defamation or some other cause of action.

3. I think that although Human Rights Commissions have a valuable role to play in Canadian society, this is most definitely not the proper forum to adjudicate this type of dispute.

4. I think hope that, despite that because of the above, the complaint will be dismissed.

5. I think that should things go the "wrong way" for MacLeans, they will definitely fight it up the chain to the very top, which will be a very good thing.

6. I think that the whole "kangaroo count where proper rules of evidence do not apply" argument has been done to death. No doubt by many who wouldn't recognize "proper rules of evidence" if they landed on their heads.
   
   It's true that the BC Human Rights Tribunal, like many administrative tribunals, has been given the power to make their own rules of evidence. And although the ones set out here are admittedly sparse, the point is that, contrary to popular opinion, the Commission has not been given carte blanche to just "make things up" as they go. The entire procedure has to comply with the rules of natural justice.
   
   In other words, a court has to find that the process was fair. So what, exactly, was their point?

~ Final thoughts ~

• Whichever way this case goes, it will most likely (unless decided on some obscure technical point) be very precedent setting in Canada.

• A good friend of mine has been know to say that "Common sense is the least common sense of all". I'm hoping betting that she will be proven wrong in this case.

• "PS - Not with a bang, but with a whimper" - don't count us out, Lex. It ain't over 'til it's over.