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Monday, January 14

Canada's version of The Minority Report: pre-crime and presumption of guilt in Section 13 cases. More on the Maclean's Magazine Affair.

There have been developments since my January 8 post on the Maclean's affair. And since then I have learned more about Section 13 of Canada's Human Rights Act, which is at the heart of the affair.

All this has caused my view on the matter to evolve. Section 13 is so bizarre that I think many have been on a steep learning curve since the news broke in December about the Maclean's affair.

So I have set aside my intended post about Mohamed Elmasry's complaints against Maclean's magazine in favor of more discussion on basic issues relating to Section 13.

Readers unfamiliar with the Maclean's affair and Section 13 might want to read the January 8 post before tackling this one. But in brief, Section 13(1) states:
It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Subsections 2 and 3 extend Section 13 to include computers, the Internet and similar means of communication.

One of the developments I referred to is that on January 11 Ezra Levant appeared at a preliminary inquiry conducted by the Alberta Human Rights Commission. The inquiry was in response to two complaints filed against Levant under Section 13.

While he was publisher of the Western Standard magazine Levant reprinted the famous Danish cartoons about Islam's prophet that had outraged many Muslims. This was the basis of the Section 13 complaints against him, which were filed by Muslims citing religious grounds for their complaints.

Levant launched his appearance at the inquiry with a ringing defense of what he claimed is his "inalienable" right as a Canadian to free speech. It was a beautiful declamation but misinformed. It turns out that a fascinating qualifiying clause in Canada's version of the U.S. Bill of Rights effectively renders null and void all the rights accorded Canadians. They exist at the pleasure of their government.

So Levant is also misinformed when he centers blame on Canada's human rights commissions for censoring speech in that country.(1) Mark Steyn and virtually all others cheering on Maclean's (and Levant) also seem misinformed on that point. So I'll begin here:
The first section of [Canada's Charter of Rights and Freedoms] states that its guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society," a qualification not found in the U.S. Constitution.
The passage is from an article on Canada's Constitution that is published on the website for the Canadian Embassy in Washington, DC.

So to whatever extent the human rights commissions are censoring speech, they are only carrying out laws that represent what Canada's government deems "reasonable limits" on speech. And so far, Canada's Supreme Court has backed up limitations on speech imposed under Section 13. (See the Jan 8 post note.)

That said, the Section 13 proceedings still strike me as unconstitutional. I do not believe anyone has disputed the proceedings on the grounds I propose. So the rest of this post will be to sketch my argument.

First, I'll return to the article about Canada's Constitution:
The Canadian Charter of Rights and Freedoms guarantees some of the same rights, called "fundamental freedoms," that are protected in the U.S. Bill of Rights: freedom of conscience and religion; freedom of thought, belief, opinion and expression, including freedom of the press; freedom of peaceful assembly; and freedom of association. It guarantees legal rights, such as the presumption of innocence; the right to life, liberty, and security of the person; and security against unreasonable search and seizure.
If you go down the list, it's fairly easy to see how any of those rights might be limited under certain extreme or precise conditions -- with one exception:

The right to presumption of innocence.

There is no way democratic government can limit or suspend that particular right without crashing the entire legal system, not to mention the entire society unless it becomes a police state.

Any Canadian court that presumes the guilt of the defendant prior to a fair hearing has committed a crime. Would this also apply to proceedings conducted by Canada's "quasi-judicial" human rights commissions? I'd say yes:

HRC decisions are backed by law; the respondent's failure to comply with the decisions can lead to a prison term. Once prison is in the mix, a proceeding cannot evade presumption of innocence by claiming to be quasi-judicial.

Except under Section 13 there are very specific criteria for discriminatory acts; e.g, denial of housing, being fired from a job, and so on. Once the term "discrimination" is used in a legal context, there must be objective criteria for establishing whether discrimination occurred. So, with the exception of Section 13, you have to produce evidence that an act is discriminatory.

The rules do not apply with Section 13 because it does not relate to acts, discriminatory or otherwise. It deals exclusively with hatred and contempt. To be more precise, it deals with "likely" hatred and contempt arising from a communication.

In other words, Section 13 deals with hatred and contempt that have not yet occurred. It deals only with likelihood, which refers to the future.

How can the HRC agree to review a complaint about the likelihood of a future occurrence? Only by assuming that the occurrence is likely.

That means presumption of guilt.

The situation evokes Philip K. Dick's science fiction story, The Minority Report. The plot revolves around a criminal justice system that includes "pre-crime." A person can be arrested and sentenced to prison for a murder that has not occurred but which is deemed likely to occur.

Of course such a justice system is a contradiction in terms. It's not justice or even law; it's an inversion of both concepts. The very notion of charging a person with pre-crime is an outrage against humanity that cannot be justified under any circumstance.

But in Canada, under Section 13, pre-crime charges and convictions are a fact.

I should add that terms such as "conviction" are not used in the HRC process. Because the HRCs are quasi-judicial they don't employ judicial language. But again, once the threat of a prison sentence is in the mix, it's merely a matter of convention that the HRCs employ non-judicial language. HRC's that find against the respondent engage in de facto conviction and sentencing.

To wrap it up, although it seems Canada's Supreme Court has done fancy footwork to allow Section 13, there is no way to administer Section 13 without running afoul of the law pertaining to presumption of innocence.

1) Above I only provided one link to Ezra Levant's tales of his encounter with the Alberta Human Rights Commission. But if you access his blog's main page you'll see he has several posts on the subject, including video clips of his discussion with a commissioner. The posts provide some illuminating insights about the Section 13 inquiry process and related matters.

Levant had quite an adventure at the Alberta HRC. He went armed with the Oakes Test, which describes the Canadian legal test that governments must meet before they're allowed to override freedom of speech.

He recounts that the hearing commissioner nodded her head "in agreement."

"But look at any -- actually, every -- human rights decision: these commissions claim that the Oakes Test doesn't apply to their censorship."
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