Tuesday, February 19

Pundita leads The Honorable Keith Martin on a tour of Jurassic Park to illustrate where he's wrong about Section 13

The Honorable Keith Martin: Say, this is a beautiful room! Odd; it looks familiar. It reminds me of the dining hall in Jurassic Park. Look! There's even the banquet table, just like in the movie. There's even the bowl of green Jell-O! As I was saying, it's great than an American has taken such an interest but I think your concerns are overblown. All right; I might have misstated a bit about the meaning of Section 13 but I really think the issue is about freedom of speech. And look at the tremendous support we're receiving for M-446, and it's across party -- [grabbing Pundita's arm] Look at the Jell-0! Why is it shaking? [THOOM] What the -- [THOOM] Pundita, what is that sound?

Pundita: The Cohen Commission. We'd better hide in the kitchen and hope it hasn't figured out yet how to turn a door handle.
* * * * * * *

On Saturday I experienced something close to physical shock when I clicked on a link at Steyn Online that took me to a Feb 8 statement by Keith Martin:
"... a poorly crafted section, 13(1) of the Canadian Human Rights Act, has enabled the commissions to move into an entirely different area – investigating, prosecuting and fining people who communicate anything that someone else takes offence to. In other words, if an individual feels offended by what somebody has written, they can go to the commission, lodge a complaint and the commission's lawyers will investigate ..."
Mr Martin is wrong. And unless he rights his understanding of the meaning of Section 13, his Private Member's Motion M-446 is like a lamb to the slaughter.

No, you cannot prompt a human rights commission investigation under Section 13 by claiming or implying that you are offended by a particular public message(s). Of course you can file such a claim but it'll be rejected by the HRC.

I've already covered this ground in earlier posts but to review, in order for the HRC to investigate a Section 13 complaint:

1) You must be a member of a group considered vulnerable or 'protected' by the Human Rights Act.

2) You must claim or clearly imply that you believe that a public message(s) exposes you to the likelihood of hatred and contempt.

3) You must claim or clearly imply that you have reasonable grounds for the belief expressed in (2) above.

4) The words "hatred and contempt" have a precise and profound meaning in the HRC and Human Rights Act lexicon. The meaning, which has nothing to do with the sense of being offended, has been upheld all the way up to Canada's Supreme Court.

5) The words "hatred and contempt," when used in the context of Section 13, indicate that the person who meets the criteria for making a Section complaint is particularly vulnerable to psychological trauma due to fear of being exposed to hatred and contempt.

If readers who have followed my earlier discussions of Section 13 exclaim, 'You never told us that last part!' -- recall that I asked you to study the Supreme Court decision on John Ross Taylor and the Western Guard Party v. the CHRC et al. I stressed that everything one needs to know about Section 13 was written in the opinions of the Supreme Court justices in that case. Now where was I?

6) If you are not in a vulnerable group, you are expected to live with whatever mental trauma you experience, if you find yourself the object of "likely" hatred and contempt due to a particular public message.

7) If you are in a vulnerable group and find yourself such an object, then under law you are a special case, and so you have a right to file a Section 13 complaint. Moreover, if you can present reasonable grounds for your fear, you are virtually guaranteed of a HRC Section 13 tribunal finding in your favor.

If you tell me that's crazy -- well, it's just old. The thinking behind Section 13 is a product of an earlier era in which the research findings of psychologists were deified in government circles, both in Canada and the United States. Back in the 1960s and 1970s, if a psychologist was commissioned for a government study and announced a finding that the moon was made of green cheese, officials agreed it must be so.

To understand the connection between that era and the reasoning behind Section 13, here is a passage in the Supreme Court discussion of the Taylor case:
Parliament's concern that the dissemination of hate propaganda is antithetical to the general aim of the Canadian Human Rights Act is not misplaced. The serious harm caused by messages of hatred was identified by the Special Committee on Hate Propaganda in Canada, commonly known as the Cohen Committee, in 1966.

The Cohen Committee noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct.

This intensely painful reaction undoubtedly detracts from an individual's ability to, in the words of s. 2 of the Act, "make for himself or herself the life that he or she is able and wishes to have".
Now do you see that the inclusion of phrases such as 'The respondent's speech robs me of my feelings of dignity and self worth' in Section 13 cases is not incidental, and has nothing to do with a person being merely offended?

Such phrases have particular and profound meaning in the context of the Cohen Commission findings, and lawyers for the complainants know this when they prepare the wording for a Section 13 complaint.

Forty years out from the findings of the Cohen Commission, psychology research has progressed. Today, it's commonly known that anyone, in any kind of position where he feels very vulnerable, may experience debilitating and even life-threatening psychological trauma due to fear of being exposed to hatred and contempt.

Consider the female teenager who becomes anorexic at the fear she will be singled out for hatred and contempt because she's overweight. Consider boys into Gothic lifestyle who bring guns to school because they fear classmates are laughing at them behind their back.

And consider people who have been subjected to physical or emotional abuse during childhood, and who need to be medicated in adulthood to deal with their paranoia that they're singled out for hatred and contempt by their coworkers.

The list of mental trauma victims in this era goes on and on.

So in light of what we know today, the move to apply the Cohen Commission findings about psychological trauma to Section 13 sounds bigoted. It comes close to implying that certain religious affiliations or racial makeup are a genetic handicap. This is because Section 13 only applies to certain persons.

Of course visible minorities, and people who belong to a certain religion, do not possess a gene that makes them more vulnerable to fear of hatred and contempt than any other person who feels discriminated against by the mere fact of his appearance, manner, habits, or existence.

It's been argued that modern psychology is simply tracking a pandemic of insecurity that has arisen during the past half century because of the way children are schooled in the public education system. If I recall, the argument is that the very low ratio of adult authority to children in public schools, when coupled with little adult influence on the child outside school, has created great insecurity in children, which translates into widespread instances of psychological trauma in a broad range of adults.

I'm not qualified to present informed opinion on the argument; I mention it to underscore that there is widespread insecurity today, or at least the phenomenon is better tracked today than it was more than 40 years ago.

In any event, the issue of a history of violence against certain races or religions must not be taken out of context to the larger issue of psychological trauma, which can affect people no matter their race, gender, religion or ethnic makeup.

Violence against particular groups is not enough of a rationale to justify applying the Cohen Commission findings to a law that strips the accused in Section 13 cases of several rights under the Constitution and greatly threatens democracy.

I believe that is a key argument that must be made by Keith Martin and all other Canadians who support M-446. Don't assume that those who will practically die to defend keeping Section 13 will instantly nod their heads in agreement with the argument. It's going to be a tough slog. The Cohen Commission findings on psychological trauma were given so much weight because they supported Canada's official policy of multiculturalism.

Clearly, multiculturalism policy expanded beyond a defensible mandate when Section 13 gave government sweeping power to suspend laws crucial to democracy -- laws such as the presumption of innocence.

The task is to demonstrate that you cannot hold onto democracy if you base your concept of social harmony on averting psychological trauma.

I suspect that the recent flood of articles in Canada about the need to defend free speech has lulled some supporters of M-446 into believing that getting rid of Section 13 will be a walk in the park. It's a walk in the park, all right -- Jurassic Park.

There are parallels between the Section 13 issue and Jurassic Park. One is an experiment in social engineering devised by shortsighted people; the other is an experiment in DNA engineering devised by shortsighted people. Both experiments met with awful consequences; it's just that it's taking longer for the implications of Section 13 to play out.

There is indeed a push to criminalize "offensive" speech, which is not big in Canada at this time although it's wafting to North America via Europe. It's the product of this era's version of social engineers run amok. But set aside that issue for now because it's red herring if you want to understand Section 13.

There is dissenting judicial opinion in the Taylor Supreme Court case, and the only hope of getting rid of Section 13 -- as against applying a patch to the wording that removes the very worst affronts to liberty -- rests on legislators understanding the opinion and expanding on it.

There a good arguments against Section 13 but "Canadians have a right to free speech" ain't one of them, not unless you first tackle the issues that originally justified Section 13.

This is not to say that public outrage over the free speech issue has no use. But I have observed before that the Section 13 issue has many parts. If you think you can defeat Section 13 simply by getting a majority to agree that free speech is a good thing, you're overlooking an old angle that underpins that section of the Human Rights Act.

I will close with the immortal words of Alan Grant: "Mr Hammond, I've decided not to endorse your park."

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