tag:blogger.com,1999:blog-66757940997329771382024-03-21T18:37:16.527-06:00Phantom of the GalaxyA selection of my writing on law, music, and weightlifting. There is no organizing theme, don't bother trying to find one.Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.comBlogger30125tag:blogger.com,1999:blog-6675794099732977138.post-11135073690637004652014-06-12T08:43:00.001-06:002014-06-12T08:45:59.719-06:00Whatcott: the redaction of the Taylor dissent<div>
<b><span style="font-size: large;"><br /></span></b></div>
<b><span style="font-size: large;">INTRODUCTION</span></b><br />
<br />
In its 2013<i> Saskatchewan v. Whatcott</i><a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn1">[1]</a> decision, the Supreme Court of Canada (SCC) unanimously upheld the constitutionality of the hate speech prohibition contained in section 14(1)(b) of <i>The Saskatchewan Human Rights Code</i>.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn2">[2]</a><br />
<br />
The impugned provision makes it illegal to publish printed material that exposes or tends to expose any person or class of persons to hatred on the basis of a prohibited ground of discrimination. After undergoing a <i>Charter</i><a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn3">[3]</a> analysis, the SCC held that section 14(1)(b) of the Code infringes sections 2(b) freedom of expression and 2(a) freedom of conscience and religion but that this infringement is demonstrably justified under section 1. The SCC has again shown itself unwilling to defend a broadly construed constitutional right to freedom of expression. <br />
<br />
But in the end, what is surprising about the Whatcott decision is not the result. It’s surprising because it is unanimous.<br />
<br />
<br />
<b><span style="font-size: large;">PROCEDURAL HISTORY</span></b><br />
<br />
In 2001 and 2002, William Whatcott, a self-proclaimed anti-gay activist produced and distributed a variety of offensive flyers in Regina and Saskatoon. The flyers contained his opinions regarding homosexuality. Four recipients of Whatcott’s flyers filed complaints with the Saskatchewan Human Rights Tribunal (Tribunal) alleging that the flyers promoted hatred against individuals on the basis of their sexual orientation.<br />
<br />
The Tribunal held that four of Whatcott’s flyers contravened section 14(1)(b) of the Code. Section 14(1) reads:<br />
<blockquote class="tr_bq">
<b>14(1)</b> No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:</blockquote>
<blockquote class="tr_bq">
…<br />
<blockquote class="tr_bq">
<b>(b)</b> that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.</blockquote>
</blockquote>
In 2007, the Saskatchewan Court of Queen’s Bench affirmed the Tribunal’s decision.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn4">[4]</a> In 2010, the Saskatchewan Court of Appeal (SKCA) allowed the appeal concluding that none of Whatcott’s flyers satisfied the high legal standard set for “hatred” by the SCC’s jurisprudence and that Whatcott therefore had not violated section 14(1)(b).<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn5">[5]</a> At no time were the constitutional arguments advanced by Whatcott successful in any of these decisions.<br />
<br />
<br />
<b><span style="font-size: large;">THE 1990 TAYLOR DECISION</span></b><br />
<br />
Both Saskatchewan courts recognized they were bound by the SCC’s seminal <i>Canada v. Taylor</i><a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn6">[6]</a> decision. It was the definition of “hatred” as set out in <i>Taylor </i>that the SKCA held Whatcott’s flyers failed to satisfy.<br />
<br />
<i>Taylor </i>concerned the constitutionality of the hate speech prohibition in section 13(1) of the <i>Canadian Human Rights Act</i>.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn7">[7]</a> In that decision, the SCC found that section 13(1) is aimed only at expression involving feelings of an “ardent and extreme nature” and “unusually strong and deep-felt emotions of detestation, calumny and vilification.”<br />
<br />
John Ross Taylor publicly distributed cards inviting calls to a phone number that was answered by a recorded message. The Canadian Human Rights Commission (CHRC) received complaints about the anti-Semitic content in the message. The CHRC held that the messages were discriminatory under section 13(1) and ordered Taylor to cease the practice. Taylor challenged the constitutionality of section 13(1), arguing that it violated his freedom of expression.<br />
<br />
Section 13(1) was repealed in 2013, but in 1990 it read:<br />
<blockquote class="tr_bq">
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.</blockquote>
On appeal to the SCC, four of the seven justices upheld section 13(1). In the years following, the <i>Taylor </i>decision was severely criticized—fuelled in no small part by the dissenting opinion of Justice McLachlin (as she was then).<br />
<br />
In her reasons, McLachlin, J. canvassed many of the problems with hate speech prohibitions as contained in human rights legislation. For instance, there are problems of subjectivity. The word “hatred” is an ambiguous, emotionally charged term indicating a psychological state and it is capable of a wide range of meanings amongst different people. Lacking any definition in the statute and arguably incapable of sufficiently precise definition, it must inevitably function as a proxy for the personal and political views of the judiciary.<br />
<br />
Also, since the hate speech prohibition in section 13(1) lacks any intent or harm requirement, it is entirely possible that someone be punished under this provision for acts that were never intended to be discriminatory and that caused no one any harm or actual discrimination. <br />
<br />
The provision’s inherent subjectivity and overbreadth make it impossible to know beforehand whether any particular expression is illegal or not. And as a result, the prohibition produces a chilling effect on the free expression of ideas. <br />
<br />
In the years following <i>Taylor</i>, McLachlin, J.’s dissent seemed to be winning broad support. <br />
<br />
In December 2007, Maclean’s magazine and author Mark Steyn were the subjects of human rights complaints by Mohamed Elmasery of the Canadian Islamic Conference before the Canadian, Ontario, and British Columbia Human Rights Tribunals for publishing 18 allegedly “Islamophoic” articles. And between 2006 and 2008, Ezra Levant was the subject of an Alberta human rights complaint made by Syed Soharwardy of the Islamic Supreme Council of Canada because Levant published the infamous Jyllands-Posten cartoons of Muhammed in his Western Standard magazine. None of these complaints were successful, but both Steyn and Levant became out-spoken critics of hate speech prohibitions as contained in human rights legislation—with Levant publishing a book on the topic.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn8">[8]</a><br />
<br />
In 2008, Professor Richard Moon of the University of Windsor’s Faculty of Law released a report<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn9">[9]</a> commissioned by the CHRC on section 13 recommending that the hate speech prohibition be repealed and that,<br />
<blockquote class="tr_bq">
We must develop ways other than censorship to respond to expression that stereotypes and defames the members of an identifiable group and to hold institutions such as the media accountable when they engage in these forms of discriminatory expression.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn10">[10]</a></blockquote>
In 2009, the Canadian Human Rights Tribunal refused to apply section 13 of the <i>Canadian Human Rights Act </i>against Mark Lemire for discriminatory comments allegedly made by a third party on a website administered by Lemire. The Tribunal held that section 13 is an unjustifiable violation of freedom of expression because it permits the government to penalize individuals with large monetary fines for merely saying something offensive or unpopular.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn11">[11]</a><br />
<br />
Over this same period of time, the work of various Canadian civil liberties organizations, like the British Columbia Civil Liberty Association (BCCLA), the Canadian Civil Liberties Association (CCLA), and the Canadian Constitution Foundation (CCF), brought the censorship of Canada’s various hate speech provisions as contained in human rights legislation under public scrutiny. <br />
<br />
In a 1998 position paper of the BCCLA titled “Freedom of Expression in Public Spaces”, the author wrote: <br />
<blockquote class="tr_bq">
Freedom of expression is not simply an abstract principle. It is a fundamental part of any democratic society. It is also the best weapon we have to combat hateful expression. It is more effective than censorship. If, as a society, we choose to abandon it, we become something less than a democracy. Tolerating speech with which we disagree is thus not only the surest way to minimize the effects of hatred, it is also the surest way we have of supporting democracy itself.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn12">[12]</a></blockquote>
In 2008, Alan Borovoy, the founder of the CCLA was quoted in the Edmonton Journal as saying,<br />
<blockquote class="tr_bq">
Groups that bash gays, women or religious organizations may be repugnant, but democracies must allow them to speak freely…<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn13">[13]</a></blockquote>
A 2008 report published by the CCF argued:<br />
<blockquote class="tr_bq">
Laws and policies which restrict freedom of expression have a dangerous “chilling effect” which leads to self-censorship among citizens. A restriction on speech affects not only those caught and prosecuted, but also those who may refrain from saying what they would like to because of the fear that they will be caught. Thus, restrictions on freedom of expression inhibit worthy minority groups and individuals from saying what they desire to say for fear that they might be prosecuted.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn14">[14]</a></blockquote>
This author was highly critical of the <i>Taylor </i>decision’s treatment of freedom of expression in a 2012 paper in the C2C Journal.<br />
<blockquote class="tr_bq">
Subsection 13(1) is too great an interference with freedom of expression, because its intended benefit pales in comparison to the harm it produces. The free expression of ideas, especially those that are unpopular, is of foundational importance in “a free and democratic society”… Freedom of expression is a fundamental human right that is necessary for “a free and democratic society” because it protects individuals from the tyrannies of the state and the majority.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn15">[15]</a></blockquote>
Each of these aforementioned examples provided advocates for liberty and limited government the hope that the <i>Whatcott </i>appeal would give the SCC the an opportunity to reconsider the constitutional issues previously decided in <i>Taylor</i>.<br />
<br />
<br />
<div>
<span style="font-size: large;"><b>WHATCOTT—a restatement of <i>Taylor</i></b> </span><br />
<br />
When its decision was released on February 27, 2013, the SCC held that two of Whatcott’s impugned flyers contravened the section 14(1)(b) of the Code, but that the other two did not. <br />
<br />
What came as a complete surprise advocates for liberty and limited government was that instead of issuing a highly divided decision—like the <i>Taylor </i>court—the SCC unanimously upheld the constitutionality of section 14(1)(b) of the Code finding only that portion which reads “ridicules, belittles or otherwise affronts the dignity” as unconstitutional.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn16">[16]</a> In reaching this conclusion, the SSC held that section 14(1)(b) infringed Whatcott’s <i>Charter </i>rights to freedom of expression<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn17">[17]</a> and freedom of religion,<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn18">[18]</a> but that these infringements were justified under section 1.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn19">[19]</a> <br />
<br />
Of the four flyers at issue, the SCC found the Tribunal’s decision that the first two flyers exposed or tended to expose gays to hatred reasonable. Among other things, those two flyers contained Whatcott’s assertions that gay and lesbian teachers use “dirty language to describe lesbian sex and sodomy to their teenage audience”,<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn20">[20]</a> and that “Sodomites are 430 times more likely to acquire Aids and 3 times more likely to sexually abuse children”.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn21">[21]</a> <br />
<br />
The SCC found that the remaining two flyers did not to satisfy the legal definition of hatred. These flyers contained photocopies of personal ads and Whatcott’s handwriting that read,<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn22">[22]</a><br />
<blockquote class="tr_bq">
Saskatchewan’s largest gay magazine allows ads for men seeking boys!;</blockquote>
and,<br />
<blockquote class="tr_bq">
If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea.</blockquote>
Writing for the unanimous SCC, Rothstein, J. said,<br />
<blockquote class="tr_bq">
...in my view the <i>Taylor </i>definition of “hatred”, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in prohibitions of hate speech.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn23">[23]</a></blockquote>
In his subsequent discussion, Rothstein, J. made three main prescriptions to ensure that section 14(1)(b) of the Code operated within the limits placed on all legislation by the <i>Charter</i>. <br />
<br />
First, “hatred” must be assessed objectively, not subjectively. The courts must pose the question whether “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred.”<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn24">[24]</a> During the course of an assessment, the adjudicator is to place his or her personal views aside.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn25">[25]</a> Shifting the analysis away from the speaker’s intent allegedly helps to answer the criticism that “hatred” is an unworkable as a legal test on account of its irremediable subjectivity.<br />
<br />
Second, “hatred” must be restricted to only those extreme manifestations of emotion described by the words “detestation” and “vilification”.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn26">[26]</a> Expression that exposes vulnerable groups to detestation and vilification must be far more than merely discrediting, humiliating, or offending. It must vilify and seek to abuse, denigrate, or delegitimize a protected group or person as lawless, dangerous, or unacceptable.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn27">[27]</a> <br />
<br />
In the SCC’s opinion, this standard will yet permit offensive and repugnant speech provided that it does not incite the high level of abhorrence necessary to satisfy the definition of “hatred”.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn28">[28]</a> And building on this definition, human rights legislation should not be considered to aim at the elimination of the emotion of hatred from human experience. Instead, it aims to eliminate extreme forms of expression that have the potential to inspire the illegal discriminatory treatment of protected groups.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn29">[29]</a><br />
<br />
Third, adjudicators are to focus on the effect of the expression—<i>i.e. </i>whether the impugned expression is likely to expose a protected group to hatred. The repugnancy of the ideas expressed and the intent of the individual(s) expressing those ideas are not sufficient on their own.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn30">[30]</a> It is the mode of public expression and the effect that this mode of expression may have—not the ideas themselves—that must concern adjudicators.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn31">[31]</a> And this is where the correct objective test must be applied—would a reasonable person consider the expression vilifying a protected group or individual as having the potential to lead to discrimination?<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn32">[32]</a><br />
<br />
Applying this to <i>Whatcott</i>, the SCC found in two short paragraphs that section 14(1)(b) of the Code infringed Whatcott’s rights to freedom of expression and freedom of religion. Nearly all the remaining analysis in the decision centered on how these infringements are justified under section 1 of the <i>Charter</i>. In the end, the SCC held that Saskatchewan government’s objective in enacting a hate speech prohibition was pressing and substantial<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn33">[33]</a> and proportional<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn34">[34]</a>—thereby satisfying the Oakes<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn35">[35]</a> test.<br />
<br />
In dealing with the criticism that the impugned prohibition requires no intent to discriminate, Rothstein, J. offered no new analysis and merely quoted a portion of the <i>Taylor </i>decision before dismissing the criticism in two sentences.<br />
<blockquote class="tr_bq">
The preventative measures found in human rights legislation reasonably centre on effects, rather than intent. I see no reason to depart from this approach.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn36">[36]</a></blockquote>
Regarding the criticism that the Code requires no proof of actual harm, Rothstein, J. held that establishing a causal link between an expressive statement and any resulting hatred suffered is too onerous a burden for a complainant to bear, and as such, preventative measures—like prohibiting speech deemed hateful without proof of harm—are justified.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn37">[37]</a><br />
<br />
And regarding the criticism that the Saskatchewan legislature has provided no defences—including that the content of any impugned expression is true—to individuals accused of publishing hate materials, Rothstein, J. said,<br />
<blockquote class="tr_bq">
<b>[139] </b>Critics find the absence of a defence of truth of particular concern, given that seeking truth is one of the strongest justifications for freedom of expression. They argue that the right to speak the truth should not be lightly restricted, and that any restriction should be seen as a serious infringement.<br />
<br />
<b>[140] </b>I agree with the argument that the quest for truth is an essential component of the “market of ideas” which is, itself, central to a strong democracy. The search for truth is also an important part of self-fulfillment. However, I do not think it is inconsistent with these views to find that not all truthful statements must be free from restriction…</blockquote>
Rothstein, J. then dismissed this criticism since “even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.”<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn38">[38]</a><br />
<br />
<br />
<b><span style="font-size: large;">WHATCOTT—the redaction of the <i>Taylor </i>dissent</span></b><br />
<br />
In striking contrast with the 1990 <i>Taylor </i>decision, the 2013 <i>Whatcott </i>decision is unanimous and monolithic—there is no dissent. The SCC has closed ranks and will no longer broach alternatives. This means that Chief Justice McLachlin’s <i>Taylor </i>dissent has effectively been redacted. The problems canvassed in <i>Taylor </i>have not been satisfactorily resolved in <i>Whatcott</i>—all we get is the SCC’s undivided assertion that the prohibition is constitutional when applied in a manner complying with the three prescriptions discussed above. But does this imply that there never was a problem? And most importantly, what has happened in the intervening 20+ years to change Chief Justice McLachlin’s mind?<br />
<br />
It wasn’t always this way. Freedom of expression and free speech both have long been recognized in Canadian law. The right to freedom of expression in Canada was not created by the <i>Charter. </i> Canadians enjoyed a right to free speech and freedom of expression prior to 1982.<br />
<br />
Before she became Chief Justice, Justice McLachlin said in <i>R. v. Keegstra </i>that “freedom of speech is a fundamental Canadian value”,<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn39">[39]</a> and <br />
<blockquote class="tr_bq">
Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the <i>Charter </i>in 1982. </blockquote>
She further said that,<br />
<blockquote class="tr_bq">
The enactment of s.2(b) of the <i>Charter </i>represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn40">[40]</a></blockquote>
Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?",<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn41">[41]</a> Justice McLachlin went on to affirm that,<br />
<blockquote class="tr_bq">
Freedom of expression was not invented by the <i>Charter of Rights and Freedoms</i>... </blockquote>
Justice McIntyre shared Justice McLachlin’s view. In the SCC <i>RWDSU v. Dolphin Delivery Ltd.</i><a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn42">[42]</a> decision of 1986, Justice McIntyre indicated the fundamental importance of freedom of expression for our democratic institutions.<br />
<blockquote class="tr_bq">
Freedom of expression is not, however, a creature of the <i>Charter</i>. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftn43">[43]</a></blockquote>
In other words, as the various Canadian civil liberties organizations have been arguing, the continued existence and flourishing of our free society is dependent upon the right of each individual to freely express his or her ideas without fear of reprisal. And regardless of how difficult the SCC says it is to satisfy the legal definition of “hatred”, the threat posed by Canada’s various hate speech prohibitions—of which Saskatchewan’s section 14(1)(b) is an example—does have a chilling effect on freedom of expression. <br />
<br />
And there’s a simple and ironic fact that cannot be overlooked in all of this. If Whatcott is on a hate campaign, Saskatchewan’s hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials and broadened his public exposure. Had no complaint been made about Whatcott’s flyers in 2001 and 2002, they would have faded into obscurity and Whatcott likely would not have received national media coverage.<br />
<br />
At this stage it’s entirely likely that Whatcott will be elevated to the status of folk-hero by those who share his prejudices. Instead of facing a legal prosecution, lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. After all, it’s best not to silence bigots by the application of force—let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.<br />
<br />
There is a second irony also. It has not been that long since homosexuality was considered repugnant to the majority of Canadians which resulted in the marginalization of homosexuals within our society. This has changed in part because of the recognition by our governments and courts that freedom of expression without fear of legal reprisal is a fundamental human right. Permitting the free expression of what was once considered repugnant has resulted in greater freedom and legal rights for gay individuals. Thus, to protect a broadly construed individual right to freedom of expression is to preserve the very conditions that made the current more tolerant state of affairs possible.<br />
<br />
The SCC has shown itself unwilling to defend a broadly construed constitutional right to freedom of expression as desired by advocates of liberty and limited government from across the political spectrum. <br />
<br />
Section 13 of the Canadian Human Rights Act was repealed in 2013 in the months following the Whatcott decision. Saskatchewan’s prohibition remains on the books.<br />
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<div style="text-align: center;">
<i>This Case Comment was published in the Alberta Law Review in the Spring of 2014.</i></div>
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<b><span style="font-size: large;">ENDNOTES:</span></b><br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref1">[1]</a> <i>Saskatchewan (Human Rights Commission) v. Whatcott</i>, 2013 SCC 11 [<i>Whatcott</i>]. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref2">[2]</a> <i>The Saskatchewan Human Rights Code</i>, SS 1979, c S-24.1 [Code]. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref3">[3]</a> <i>Canadian Charter of Rights and Freedoms</i>, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [<i>Charter</i>]. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref4">[4]</a> <i>Whatcott v. Saskatchewan (Human Rights Tribunal)</i>, 2007 SKQB 450 (CanLII). <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref5">[5]</a> <i>Whatcott v. Saskatchewan (Human Rights Tribunal)</i>, 2010 SKCA 26. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref6">[6]</a> <i>Canada (Human Rights Commission) v. Taylor</i>, [1990] 3 SCR 89 [<i>Taylor</i>]. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref7">[7]</a> <i>Canadian Human Rights Act</i>, RSC 1985, c H-6 [CHRA]. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref8">[8]</a> Ezra Levant, <i>Shakedown</i> (Toronto: McClelland and Stewart Ltd, 2009). <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref9">[9]</a> Richard Moon, "Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet" (October 2008) online: <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865282">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865282</a> <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref10">[10]</a> <i>Ibid.</i> at 1. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref11">[11]</a> <i>Warman v. Lemire</i>, 2009 CHRT 26. This decision was overturned and the constitutionality of section 13 upheld on appeal to the Federal Court in <i>Warman v. Lemire</i>, 2012 FC 1162. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref12">[12]</a> “Freedom of Expression in Public Spaces”, online: <a href="http://bccla.org/our_work/freedom-of-expression-in-public-spaces/">http://bccla.org/our_work/freedom-of-expression-in-public-spaces/</a> <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref13">[13]</a> Edmonton Journal, “Defence of Free Speech Must be Absolute” Edmonton Journal (28 October 2008) online: <a href="http://www.canada.com/edmontonjournal/news/cityplus/story.html?id=449e1994-5d1d-4808-abca-aa7b1f096f66">http://www.canada.com/edmontonjournal/news/cityplus/story.html?id=449e1994-5d1d-4808-abca-aa7b1f096f66</a> <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref14">[14]</a> John Carpay and Desmond Burton-Williams, “The Right to Offend: a Canadian Constitutional Principle” online: <a href="http://theccf.ca/wp-content/uploads/2013/07/The-Right-to-Offend.pdf">http://theccf.ca/wp-content/uploads/2013/07/The-Right-to-Offend.pdf</a> <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref15">[15]</a> Karen Selick and Derek From, “The Charter at 30: Charter Jurisprudence that Went off the Rails” C2C Journal (19 March 2012) online: <a href="http://c2cjournal.ca/2012/03/the-charter-at-30-charter-jurisprudence-that-went-off-the-rails/">http://c2cjournal.ca/2012/03/the-charter-at-30-charter-jurisprudence-that-went-off-the-rails/</a> <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref16">[16]</a> <i>Ibid. </i>at paras. 99-100. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref17">[17]</a> <i>Ibid. </i>at para. 63. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref18">[18]</a> <i>Ibid. </i>at para. 156. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref19">[19]</a> <i>Ibid. </i>at paras. 151 & 164. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref20">[20]</a> <i>Whatcott</i>, at para. 182. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref21">[21]</a> <i>Ibid. </i>at para. 183. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref22">[22]</a> <i>Ibid. </i>at para. 184. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref23">[23]</a> <i>Ibid. </i>at para. 55. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref24">[24]</a> <i>Ibid. </i>at para. 35. Also see para. 56. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref25">[25]</a> <i>Ibid. </i>at para. 35. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref26">[26]</a> The <i>Taylor </i>decision also included “calumny”—along with “detestation” and “vilification”—but this is now unnecessary for reasons described in para. 42 of <i>Whatcott.</i> <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref27">[27]</a> <i>Whatcott</i>, at para. 41. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref28">[28]</a> <i>Ibid. </i>at para. 57. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref29">[29]</a> <i>Ibid. </i>at para 48. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref30">[30]</a> <i>Ibid. </i>at para. 58. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref31">[31]</a> <i>Ibid. </i>at para 51. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref32">[32]</a> <i>Ibid. </i>para. 52. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref33">[33]</a> <i>Ibid. </i>at paras. 69-77. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref34">[34]</a> <i>Ibid. </i>at paras. 78-151. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref35">[35]</a> <i>R. v. Oakes</i>, [1986] 1 SCR 103. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref36">[36]</a> <i>Whatcott</i>, at para. 127. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref37">[37]</a> <i>Ibid. </i>at para. 130. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref38">[38]</a> <i>Ibid. </i>at para. 141. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref39">[39]</a> [1990] 3 S.C.R. 697 at 809. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref40">[40]</a> <i>Ibid. </i>at 808. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref41">[41]</a> (1989), 68 Can. Bar Rev. 713. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref42">[42]</a> [1986] 2 S.C.R. 573. <br />
<br />
<a href="file:///C:/Users/Derek/Dropbox/CCF%20Files%20for%20Work/Whatcott,%20The%20Redaction%20of%20the%20Taylor%20Dissent%20-%20Case%20Comment%20-%20ALR.docx#_ftnref43">[43]</a> <i>Ibid. </i>at para. 12.<br />
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-81208422312549756322014-05-09T09:36:00.001-06:002014-05-09T09:36:09.181-06:00Alberta's Municipal Anti-Bullying Laws are Deeply Flawed<span style="font-family: Arial, Helvetica, sans-serif;">One of the easiest ways for a municipal politician to keep his constituents happy is to give them what they want. Sometimes this means enacting popular yet dubious bylaws.<br /><br />Perhaps this is the impetus behind the Town of Airdrie's push to amend its <a href="http://www.airdrie.ca/getDocument.cfm?ID=197">Public Behaviour Bylaw</a> to prohibit bullying. After all, nearly everyone will rally behind politicians who enact laws to protect children from harm, regardless of those laws' faults.<br /><br />And Airdrie is not alone. Many other municipal governments in Alberta have already enacted similar bylaws. For instance, Consort, Grand Prairie, Hanna, and Rocky Mountain House each already prohibit bullying. Oyen's Town Council has discussed it. There are likely many others.<br /><br />Each of these bylaws is similar. Bullying will not be tolerated at any place in town to which the public has access. In some municipalities, bullies can be fined up to $1,000 plus costs, and be imprisoned for six months on default of payment. These are significant penalties.<br /><br />Regardless of their goal, each of these bylaws is flawed. They are redundant and viciously subjective, they make some acts illegal that they shouldn't, and they are outside of the jurisdiction of any Alberta municipality.<br /><br />Consort's bylaw considers "harassment of others by the real or threatened infliction of physical violence and attacks" and the "extortion or stealing of money and possessions" as bullying. But harassment, extortion, and theft are already illegal. How will enacting yet another law solve the problem when there's an apparent lack of will to enforce current laws?<br /><br />Grand Prairie's bylaw defines bullying as an "objectionable or inappropriate comment, conduct or display" directed at an individual "which causes or is likely to cause physical or emotional distress". Simply put, this is vague and hopelessly subjective. By relying on words like "objectionable" and "inappropriate" and requiring those enforcing the law to find the line between behaviours that are likely to cause emotional distress and those that are not, this bylaw will inevitably function as a proxy for the personal views of those enforcing it. This could easily make all sorts of otherwise excusable behaviours illegal. For example, a fine could be issued for a single hurtful comment uttered in anger even though "<a href="http://www.merriam-webster.com/dictionary/bullying">bullying</a>" is generally understood to mean repeated hurtful behaviour.<br /><br />Rocky Mountain House's bylaw, like the others, applies in all locations that the public has access, including schools, public parks, recreational facilities, and even sports grounds. Don't taunt the umpire at a baseball game in Grand Prairie--even in jest--because if it could be construed as likely to cause emotional distress and you could be fined for single offhanded remark. And while in Hanna, it's best to avoid verbally taunting your opponents if you are playing in the game.<br /><br />At their core, these bullying bans are unadulterated attempts to restrict freedom of expression and are therefore outside of municipal jurisdiction. Alberta's Municipal Government Act lists three <a href="http://www.canlii.org/canlii-dynamic/en/ab/laws/stat/rsa-2000-c-m-26/latest/rsa-2000-c-m-26.html#sec3">municipal purposes</a>, none of which grants municipalities the power to enact laws for the sole purpose of restricting expression. Further, the Province of Alberta cannot delegate to municipalities the authority to restrict expression. Under the <a href="http://www.canlii.org/canlii-dynamic/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.html#EXCLUSIVE_POWERS_OF_PROVINCIAL_LEGISLATURES__115150">Constitution Act, 1867</a>, provincial laws may only incidentally restrict expression provided those laws are otherwise within provincial jurisdiction.<br /><br />But it's not all bad. There is some good in these bylaws. Each demonstrates that bullying is not acceptable and should not be tolerated, and issuing fines may be a quick and efficient means to curb hurtful behaviour. And to be clear, no one endorses or excuses real bullying. It can have devastating and lasting effects, particularly on children.<br /><br />Regardless, the flaws in these bylaws cannot be ignored. Each needlessly duplicate other laws, some make excusable and non-reoccurring acts illegal, and all overstep municipal and constitutional authority. Think of the problem this way. What these bylaws do--they should not. What they should do--they cannot. Relying on bad laws to prevent bullying is similar to believing that two wrongs somehow make a right.</span><div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>This piece was first published in the Huffington Post on September 24, 2013.</i></span></div>
Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-55449981884511453912014-05-09T09:34:00.000-06:002014-05-09T09:37:23.696-06:00Canada's Hypocritical Blasphemy Law<span style="font-family: Arial, Helvetica, sans-serif;">On September 30, 2005, the Danish newspaper Jyllands-Posten published the now notorious cartoons of the prophet Muhammad. The cartoons were republished by newspapers around the world and over 200 people died as protests and riots erupted in response. Prime Minister Stephen Harper issued a statement that he regretted that Canadian newspapers had also published the cartoons, but that Canadians had a right to freedom of expression.<br /><br />On February 19, 2013, the Canadian government opened the<a href="http://www.international.gc.ca/religious_freedom-liberte_de_religion/index.aspx"> Office of Religious Freedom</a> within the Foreign Affairs and International Trade department and mandated the new office to protect and advocate for religious minorities, oppose religious hatred and intolerance, and promote the Canadian values of pluralism and tolerance around the world.<br /><br />But there is some irony here. While the Canadian government publicly defends the freedom to publish cartoons that mock a religious figure and looks abroad to protect religious minorities from oppression, <a href="http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec296subsec1">section 296</a> of the Criminal Code makes it an indictable offence to publish blasphemous materials in Canada. If an accused is convicted under section 296, he or she is liable for up to two years of imprisonment. In other words, Canada is promoting tolerance and the freedom to speak freely about religion abroad while restricting each domestically.<br /><br />Most Canadians probably do not know what blasphemy is, let alone that publishing blasphemous materials is a criminal offence. To <a href="http://www.merriam-webster.com/dictionary/blaspheme">blaspheme</a> is to insult or show contempt or a lack of reverence for God or other things sacred.<br /><br />Originally, the prohibition on blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute. The courts held it to be a criminal offence to publish any <a href="http://www.merriam-webster.com/dictionary/profane">profane</a> words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if done with the intent to shock or insult believers, or mislead the ignorant and unwary. Even though the most recent decision on section 296 arguably generalized the prohibition so that it may now be illegal to blaspheme other religions as well, this has not been tested in court and the prohibition has fallen into disuse.<br /><br />It should be surprising that Canada has any sort of law prohibiting blasphemy. First, blasphemy is everywhere. It is not difficult to find all sorts of published material that break this law -- movies, music, books, magazines, video games, visual art, etc. Second, the Canadian Charter of Rights and Freedoms guarantees everyone the right to freedom of expression -- this includes the right to speak freely about religion. And third, any sort of restriction on what the government will allow us to say on religious topics seems a potentially dangerous limitation on freedom of expression.<br /><br />There have been few blasphemous libel prosecutions in Canada, and none since the 1930s. It is likely that section 296 is effectively dead even though it remains in the Criminal Code.<br /><br />But being effectively dead is not truly dead. The UK had a similar criminal prohibition with much the same story as Canada's -- it languished unused for a significant period of time. Yet in the 1979 case of <a href="http://en.wikipedia.org/wiki/Whitehouse_v._Lemon">Whitehouse v. Lemon</a>, Mary Whitehouse resurrected the UK's blasphemous libel prohibition in a successful so-called "<a href="http://en.wikipedia.org/wiki/Private_prosecution">private prosecution</a>." The accused was convicted but did not have to serve the prison term. The UK repealed its blasphemy law in 2008.<br /><br />Aside from the previous point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296.<br /><br />First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance, and more so now that Canada has an Office of Religious Freedom intended to promote religious tolerance. Remember that <a href="http://www.biblegateway.com/passage/?search=Matthew%207:%201-5&version=NIV">famous admonition</a> to take the plank out of your own eye first?<br /><br />And second, there is no certainty that the Charter's guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel. That remains an unanswered question yet to be tested in court. Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression, and there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech. The answers to such questions are inherently uncertain and court decisions can often yield surprising results.<br /><br />For these reasons, it's best to repeal section 296 rather than to leave it in force and assume that it will never be used for ill-purposes in the future.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>This piece was first published in the Huffington Post on October 1, 2013.</i></span></div>
Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-15158082602465937922014-05-09T09:28:00.002-06:002014-05-09T09:28:53.161-06:00Bill C-13: The Encore Performance of Bill C-30<div class="separator" style="clear: both; text-align: center;">
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<span style="font-family: Arial, Helvetica, sans-serif;">If at first you don’t succeed, try, try, try again. Perhaps that’s the federal government’s motto regarding <a href="http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6311444&File=27#1">Bill C-13 — the Protecting Canadians from Online Crime Act.</a> It represents yet another attempt by this government to pass legislation that will open the door to undue state intrusion.</span><div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The <a href="http://www.thestar.com/news/canada/2013/11/20/federal_cyberbullying_law_to_be_introduced_today.html">currently proposed legislation</a> is a more palatable but still troubling restatement of the unpopular Bill C-30 — the Protecting Children from Internet Predators Act. That bill, tabled in February 2012, mentioned neither children nor predators and was likely so-named only to sway the public toward accepting the legislation. It attempted to do precious little of what its title purported, mostly dealing with giving the police new powers — including making it mandatory for Internet service providers to disclose subscriber information to police without court oversight.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Vic Toews, then minister of justice, famously rebuked critics saying, <a href="http://www.thestar.com/news/canada/2012/02/13/vic_toews_accuses_bills_opponents_of_siding_with_child_pornographers.html">“either stand with us or with the child pornographers.”</a></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The public saw through the rhetoric and the outcry was immediate. Organizations opposing undue state intrusion on individual liberties recognized this as an unwarranted expansion of police powers to snoop on Canadians.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The outcry was merited. After all, the best way to evaluate legislation is to examine how it can be abused, not what the government says its goals are. In the end, Bill C-30’s flaws were too great and it never reached a second reading in the House of Commons.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">With Bill C-13, the government is at it again.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Debate around Bill C-13 has cast it as dealing with cyberbullying — especially relevant after the tragic stories of <a href="http://www.thestar.com/news/canada/2012/10/12/bc_victim_of_cyberbullying_commits_suicide.html">Amanda Todd</a> and <a href="http://www.thestar.com/news/canada/2013/04/12/rehtaeh_parsons_a_familys_tragedy_and_a_towns_shame.html">Rehtaeh Parsons</a>. The cyberbullying label is less disingenuous than the previous legislation’s title — Bill C-13 does make it illegal to distribute intimate images without consent. But just like Bill C-30, it deals with far more. Of the 60 plus pages in Bill C-13, the majority grant new powers to police and do not deal with cyberbullying.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Peter MacKay, the current justice minister, justifies this as a modernization of the Criminal Code. In a news release, the Department of Justice says Bill C-13, “would ensure that the same type of information that is currently available to law enforcement agencies for telephone calls would be available to police for newer technology such as computers, smart phones and the Internet.”</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">In fairness, there are some important differences between Bill C-13 and the failed Bill C-30, and many of the most egregious opportunities for undue state intrusion have been removed. For example, gone is Bill C-30’s requirement that telecommunications service providers have real-time data intercept capacity. And the mandatory disclosure of subscriber information to police without court oversight appears to be gone, too.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">But appearances can be deceiving.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Buried within Bill C-13 is a clever mollifying of Bill C-30’s mandatory disclosure provision. The legislation clarifies that the police may request the voluntary disclosure and preservation of data or documents, and that someone in possession of that information can choose to comply with the police request, provided that it is not otherwise illegal to do so.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This alone seems innocuous. But the very next provision says that anyone who voluntarily provides such information to police upon request is absolved of all criminal and civil liability for the disclosure.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This absolution is problematic because it undermines the incentive to await court oversight before disclosing information to the police. Without the fear of incurring liability, Internet service providers possessing information wanted by the police may be more likely to comply with baseless disclosure requests. Fishing expeditions and snooping may become more common. Further, it’s not unreasonable to question whether a so-called voluntary disclosure can ever be completely without coercion, especially when you risk losing the goodwill of police.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Even though protecting Canadians from the harms of cyberbullying may be a laudable goal, we must ask how these new police powers in Bill C-13 could be abused. The mandatory disclosure provision from Bill C-30 may be gone, but Bill C-13 contains a subtle means of accomplishing much the same. And we should not be too quick to give up our right to privacy, because once we do, it will be difficult to get back.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>This piece was first published by the Toronto Star on March 26, 2014.</i></span></div>
Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-80993084232800276202013-07-05T10:28:00.001-06:002013-07-05T10:29:06.333-06:00Paying for Blood Donations Can Be both Safe and Non-ExploitativeOn June 27, 2013, the federal government released a <a href="http://www.hc-sc.gc.ca/dhp-mps/consultation/biolog/plasma-eng.php" target="_blank">summary report</a> of its consultations with stakeholders regarding payment for plasma donations. Meanwhile, a company called <a href="http://www.giveplasma.ca/" target="_blank">Canadian Plasma Resources</a> has constructed two privately owned clinics in Toronto that await approval prior to paying donors for their blood plasma.<br />
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Right on cue, the union representing employees at <a href="http://www.blood.ca/" target="_blank">Canadian Blood Services</a> (which has a government-granted monopoly on whole blood collection in Canada, outside of Quebec) proclaimed that safety will somehow be jeopardized if plasma is collected by anyone other than a public facility. Other opponents have attempted to sway public opinion by arguing that payment for plasma is somehow exploitative. Both criticisms are smoke-and-mirrors. I know from experience.</div>
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I have the blood that everyone wants. I am heterosexual, monogamous, and in good health with no underlying medical conditions. I don’t travel to regions of the world where strange infections persist. I’ve had no recent surgeries or dental work. I take no drugs. And I rarely—if ever—get sick. Oh yes, I have no fear of needles.</div>
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Despite these ideal attributes, I rarely donate. The entire process is a bother. It inevitably consumes the most productive hours of the day. Even though it involves only a small measure of discomfort, it always seems to negatively impact upon my work and personal endeavors. For me, altruism alone is not a sufficient incentive.</div>
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But there was a time in my life when I was attending school in the US, living off loans and struggling to pay the bills. Financially, those were stressful times. That’s why I was delighted by the opportunity to earn $45 per week.</div>
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Down the street from my budget apartment was a private medical clinic that collected plasma. The clinic gave first-time donors a thorough health examination. And after a lengthy interview to assess risk factors, donors who qualified were permitted to give plasma twice a week. The first visit in each seven-day period earned me $20, and the second earned $25.</div>
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I like to think that my plasma donations helped someone who needed it. Although I can’t claim to have had purely altruistic motives, I doubt the recipient of the life-saving medical products my plasma was used to create cared much about my motivation.</div>
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On other hand, the money was a boon for me. It meant that I could afford better food, put gas in my car, and maybe even go on an occasional evening out with my wife. And just for giving plasma—something that regenerates quickly. This is why it annoys me when I hear the word “exploitation” bandied about by those who oppose paying donors. Being paid to give plasma was a great help to me at that time in my life. And I am certain that it could be for others too. There is simply nothing exploitative about it at all.</div>
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First, I was in no way being abused by those paying me—if that’s what is meant by “exploit”, the criticism is ludicrous. The plasma was mine. The money was theirs. They wanted my plasma and I wanted their money, so we came to a mutually beneficial agreement to exchange the two. We both got what we wanted. No abusive exploitation.</div>
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Second, if anything, it was me doing the exploiting. Even though I made an effort to lead a healthy lifestyle—eating quality foods and exercising, while avoiding tobacco, alcohol, and the like—many of the physical characteristics that made me a good candidate were given me by my parents. Yet I reaped the benefit. I exploited this resource.</div>
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Third, how is paying someone for plasma more exploitative than offering no compensation? With or without payment, plasma donations are always voluntary. If either is exploitative, expecting donors to give plasma without payment—perhaps by inducing guilt or shame—seems more so to me.</div>
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The concern regarding safety is a sham—most plasma available in Canada already comes from donors paid in private clinics. Health Canada says approximately 70% of the plasma products available in Canada originate from such donors. Most of them are Americans. So either demand for plasma products in Canada outstrips the capacity of Canadians to donate, or Canadians have insufficient incentive. My experience makes me suspect the latter.</div>
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Evidently, altruism alone cannot supply all the blood products that Canadians need. It was the financial incentive that motivated me to donate, and my donations likely saved lives. That’s a win-win solution that should not be rejected under pressure from vested interests.</div>
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<i>This piece first appeared in the Huffington Post in July 2013.</i></div>
Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-13484355768994992842013-07-05T10:19:00.000-06:002013-07-05T10:19:48.713-06:00Censorship Laws Do Not Protect Everyone<div class="separator" style="clear: both; text-align: center;">
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On June 19th, comedian Guy Earle <a href="http://canlii.ca/t/fzchz" target="_blank">lost his appeal</a> of a 2011 <a href="http://www.canlii.org/en/bc/bchrt/doc/2011/2011bchrt101/2011bchrt101.html" target="_blank">BC Human Rights Tribunal decision</a>. The Tribunal found that Earle discriminated against Lorna Pardy during an open mic event for amateur stand-up comics. The story of what happened is difficult to piece together, but it seems that Pardy heckled Earle and he responded by making insulting comments regarding her sexual orientation. The confrontation escalated to the point where Pardy threw a glass of water in Earle’s face. The Tribunal ordered Earle to pay Pardy $15,000 for injury to her “dignity, feelings, and self-respect”—yes, that’s something that human rights laws often protect. The Supreme Court of British Columbia upheld the Tribunal’s decision.<div>
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In contrast, in 2003, the <a href="http://canlii.ca/t/fl1d8" target="_blank">Alberta Human Rights Commission</a> did not protect the dignity, feelings, or self-respect of Quintin Johnson. Johnson, a Christian, had complained to the Commission regarding a song titled “<a href="http://youtu.be/nXN_6CLrfpE" target="_blank">Kill the Christian</a>” by the death metal band Deicide. The lyrics included “you are the one we despise”, “I will love watching you die”, and “kill the Christian”. The Commission dismissed Johnson’s complaint on the grounds that Deicide did not have a wide enough listening audience or popular appeal, even though the band had sold nearly 500,000 albums in the U.S. alone by that time.</div>
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So why is Earle’s artistic expression discriminatory while Deicide’s is not? What makes Earle’s expression more harmful than Deicide’s?</div>
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It’s not the content of the expression. Deicide is counselling violence against Christians, while Earle only demeaned Pardy’s sexuality. Earle may have hurt Pardy’s feelings, but Deicide’s lyrics may be vociferous enough to sustain an investigation under the “hate propaganda” section of the Criminal Code.</div>
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It’s not the context of the performances. The song “Kill the Christian” can be purchased at nearly any popular music record store. It is available online via iTunes, Amazon, and from a myriad of other online music retailers. And because of the nature of recorded music, a listener can choose to hear the song over and over again. Earle’s insults were purely transient. After he uttered them, no one, including Pardy, could hear them again.</div>
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It’s not the size of the audience. Deicide regularly tours the world, including Canada, and is free to perform music that advocates killing members of the Christian faith. Yet when Earle stood on a stage and made one-time remarks about Pardy’s sexuality, she was awarded $15,000 of Earle’s money. The complaint against Deicide was dismissed because the audience was deemed too small. Yet Earle’s audience was much smaller.</div>
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Maybe it’s who the complaint was made about? Deicide’s lyrics are written by the band’s vocalist, Glen Benton. It would be an extreme understatement to say that Benton is a controversial figure in the music industry. He has been labelled an animal abuser, a misogynist, and an anti-Christian Satanist. Earle, on the other hand, is a law-abiding amateur stand-up comic who has an otherwise untarnished reputation.</div>
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To be absolutely clear, both Deicide and Earle should have won their human rights cases. Freedom of expression and the liberty to speak freely should prevail. Further, no government official should be in the business of deciding what qualifies as artistic expression or determining the value of that expression.</div>
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Even if Pardy and Johnson suffered hurt feelings, neither one should be permitted to drag the party who hurt their feelings through a human rights process. Both Pardy and Johnson should have demonstrated their maturity by walking away. Pardy could have walked out of the club that night at the first sign of trouble. If she had, there would have been no problem. Johnson could have easily avoided Deicide’s music. Had he done so, he could not have been offended.</div>
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Any clear-headed appraisal of these cases would find Deicide’s expression more harmful than Earle’s. So if it’s not the content, the context, the audience, or the person who the complaint was made about, then what?</div>
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The lesson to be learned is that human rights laws only protect certain people—the identity of the complainant matters. Because Pardy is a lesbian, her feelings are protected by the law. As a Christian, Johnson’s are not.<br /><br /><br /><div style="text-align: center;">
<i>This piece first appeared in the Huffington Post in July 2013.</i></div>
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-32386895250637937542013-05-10T08:59:00.000-06:002013-05-10T08:59:56.022-06:00Sometimes the Government Cannot Defend ItselfOn January 31, 2013, Fiona Johnstone won her discrimination case against the federal government at the Federal Court (<a href="http://canlii.ca/t/fw0l1"><i>Canada v. Johnstone</i></a>). Many legal experts expect that the government will not appeal the decision even though it has the potential to adversely affect every employer in Canada. In this case, the government has failed to fully defend its own interests and has thereby failed to protect the interests of other affected Canadians.<div>
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Johnstone complained to the Canadian Human Rights Commission in 2004 because she was unable to maintain full-time employment status due to her rotating shift schedule and ensuing difficultly securing childcare. Without full-time employment status, she was ineligible for workplace benefits. The Canadian Human Rights Tribunal (Tribunal) found that due to this ineligibility, Johnstone was the victim of an employment policy that discriminated against her on the basis of family status—i.e. having children requiring childcare.</div>
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The Federal Court affirmed the Tribunal’s decision that Johnstone’s childcare schedule should have been accommodated by her government employer, the Canadian Border Service Agency (CBSA). Effectively, the decision means that Johnstone has a right to benefits and a job that fits the time constraints of her personal life. It also demonstrates that both Johnstone and the court expect others—in this case, Johnstone’s employer and fellow employees—to shoulder some of the burden of Johnstone’s life-choices.</div>
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<a href="http://www.oyetimes.com/news/canada/35777-federal-court-rules-against-discriminated-of-employed-mother">Robyn Benson</a>, head of the Public Service Alliance of Canada, called this ruling “a huge win for Canadian workers with family obligations”, and that “it is now clear that employers must carefully consider each and every family status accommodation request and accommodate [those requests] short of undue hardship”.</div>
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It is unsurprising that organized labour would gleefully endorse this ruling—it greatly expands employer obligations to employees. But if Benson’s assessment proves accurate, employing young workers (particularly women) with family obligations will become more complicated and costly. This is why this decision will ultimately backfire and not have the desired effect of preventing future discrimination because instead of protecting the interests of young workers with family obligations, this ruling encourages employers to find subversive and clandestine means to ignore the job applications and advancement requests of otherwise qualified young workers since hiring and promoting those workers is now associated with greater risk and higher costs.</div>
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What has been the government’s response? In cases like this, the government cannot be trusted to fully defend its own interests in court because it has an insufficient incentive to put up a good fight. Moreover, lacking sufficient incentive, the government may mount a less than rigorous defence because the financial burdens associated with an unfavourable court decision are ultimately borne by the taxpayers.</div>
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In defending its interests against Johnstone’s human rights complaint, the government advanced three arguments. First, that the term “family status”, as used in the <a href="http://canlii.ca/en/ca/laws/stat/rsc-1985-c-h-6/latest/rsc-1985-c-h-6.html#sec3subsec1"><i>Canadian Human Rights Act</i></a>, should not be construed to include childcare obligations. Second, that Johnstone had not satisfied the <i>prima facie</i> test for discrimination. And third, that the tribunal lacked the authority to order the remedies it awarded to Johnstone. These arguments—although interesting to lawyers—do not truly strike at the heart of the matter, especially from a private employer’s perspective.</div>
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The government did not argue that Johnstone has no legal right to receive workplace benefits, that human rights legislation should not be used to force others to bear some of the costs of Johnstone’s personal life, that Johnstone was requesting preferential treatment, or that a victory for Johnstone would be a setback for employees with childcare obligations. Although each of these runs contrary to existing and established precedent, private employers had an interest in these arguments being advanced in court.</div>
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Of the arguments the government did advance, none addressed whether human rights legislation can or should provide the basis for a positive rights claim, or, in other words, whether the legislation could be used to force a defendant to expend his own resources to provide some good or service to the claimant. No where did the government argue that human rights legislation should not be used as a means of transferring the costs of an individual’s chosen lifestyle to other members of society—in this case, from Johnstone to her employer, her fellow CBSA employees, and ultimately, taxpayers.</div>
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A private employer would have defended himself vigorously against Johnstone’s complaint because that employer would directly bear the financial burden of losing the case. The court’s decision means that every employee with childcare obligations in circumstances similar to Johnstone’s must receive accommodation from employers short of undue hardship. This greatly complicates an employer’s task of generating an employee work shift schedule, as a particular segment of employees have effectively been given trump cards permitting them to avoid working undesirable shifts. Even more, this decision not only restricts employer freedom, it also has a negative impact upon employees who do not have childcare obligations since it is these employees who will be scheduled to work the undesirable shifts.</div>
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But the government does not bear its own financial burdens the way that a private employer does. A ruling, regardless of the result, would have no direct impact upon the financial bottom-line at the CBSA since it is operated by the government and funded by taxpayers. Further, since it is the government’s legislation that enabled Johnstone to make a complaint, government lawyers were unable to argue that the law is unconstitutional, poor policy, or that it produces absurd results. In other words, not only did the government lack incentive to defend itself fully, it may have had an interest in advancing an incomplete defence to preserve its own legislation.</div>
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There are other examples of when the government cannot mount a rigorous or complete defence. On April 26, 2010, five applicants sued the Canadian and Ontario governments for failing to develop an effective housing strategy to deal with “inadequate and high-priced housing” (<a href="http://socialrightscura.ca/eng/legal-strategies-charter-challenge-homlessness.html"><i>Tanudjaja v. Canada</i></a>). The applicants are advancing a positive rights claim asking the courts to force taxpayers to fund their lifestyles. The Attorneys General of Canada and Ontario have filed motions to dismiss the application. And like the <a href="http://canlii.ca/en/ca/fct/doc/2013/2013fc113/2013fc113.html"><i>Johnstone</i></a> case, should this application proceed, both government defendants will be incapable of mounting a complete defence.</div>
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For example, one argument unavailable to the governments’ lawyers is that the governments’ own policies and regulations are the primary cause of inadequate and high-priced housing. Economists Edward L. Glaeser, Joseph Gyourko, and Raven E. Saks answer the question posed by the title of their own paper, “<a href="http://www.nber.org/papers/w11129.pdf?new_window=1">Why Have Housing Prices Gone Up?</a>”, with,</div>
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“…the evidence points toward a man-made scarcity of housing in the sense that the housing supply has been constrained by government regulation as opposed to fundamental geographic limitations.”</blockquote>
And as long-time Governor of the Reserve Bank of New Zealand, Donald Brash said in his introduction to the <a href="http://www.demographia.com/dhi2008.pdf">2008 Demographia</a> survey,<br />
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“…the affordability of housing is overwhelmingly a function of just one thing, the extent to which governments place artificial restrictions on the supply of residential land.”</blockquote>
Although this may be a controversial proposition in the discipline of urban planning, notice that no government that already places “artificial restrictions” on residential land supply could defend itself by advancing Brash’s argument in court. To do so would be to undermine its own interventionist programs. Instead, in the <a href="http://socialrightscura.ca/eng/legal-strategies-charter-challenge-homlessness.html"><i>Tanudjaja</i></a> application, the Federal and Ontario governments will be forced to justify their levels of interference in the housing market rather than address what Brash thinks is the root of the problem.</div>
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Of course, this will suit the five applicants’ positive rights claim well. As long as the arguments before the court concern only the adequacy of the governments’ housing policies and not whether governments should interfere in the housing market, the debate will not address the fundamental problem—that “artificial restrictions” drive-up housing costs. The prevailing assumption shared by all parties to the <i><a href="http://socialrightscura.ca/eng/legal-strategies-charter-challenge-homlessness.html">Tanudjaja</a> </i>application will be that government interference in the housing market is justified and perhaps necessary. No one will suggest that the court undergo a thorough examination of how government intervention creates housing shortages and high prices, despite that it would be in the interests of taxpayers to do so.</div>
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The <i><a href="http://canlii.ca/en/ca/fct/doc/2013/2013fc113/2013fc113.html">Johnstone</a> </i>and <a href="http://socialrightscura.ca/eng/legal-strategies-charter-challenge-homlessness.html"><i>Tanudjaja</i></a> cases are excellent examples of litigation where the government has an insufficient incentive to defend itself rigorously and completely. In both cases, the government is defending itself against a positive rights claim. In every positive rights claim advanced in court, the claimant is asking that his or her actions be indemnified by the defendant. When such a claim is made against a private defendant, that defendant has a significant interest in defending himself since he will bear the costs of losing. But this is not true for governments.</div>
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Governments do not bear the financial burdens associated with an adverse court decision in the same way that a private defendant does. When a positive rights claim is successful against a government defendant, the costs associated with that unfavourable ruling are dispersed across a broader segment of society and ultimately borne by taxpayers (for another example, see <a href="http://canlii.ca/t/ftp16"><i>Moore v. BC</i></a>). In essence, the government merely functions as a conduit passing on to others any new burdens it receives.</div>
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There are two obvious problems resulting from this. </div>
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First, when the government is defending itself from a positive rights claim, taxpayers have an interest in the outcome because ultimately they will have to bear the cost of an unfavourable decision. If the government—for whatever reason—fails to fully and completely defend itself, taxpayer interests have not been duly represented before the court. </div>
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And second, since every court decision has a precedential value, as similar adverse decisions accumulate over time, the body of case law will become more and more skewed in favour of a claimant advancing a positive rights claim.</div>
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<i>This piece was first published by the <a href="http://c2cjournal.ca/2013/04/it-shouldn%E2%80%99t-take-a-community-to-raise-your-kid-and-why-the-government-won%E2%80%99t-do-anything-about-it/" target="_blank">C2C Journal</a> April 23, 2013.</i></div>
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-1468993220300125842013-03-22T08:36:00.001-06:002013-03-22T08:36:27.746-06:00Canadians should be free to speak without fear<br />
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Last Wednesday, the Supreme Court of Canada ruled that governments are permitted to violate the right of Canadians to speak freely about issues of public importance in order to stamp out any expression they consider hateful. (<i><a href="http://www.canlii.org/en/ca/scc/doc/2013/2013scc11/2013scc11.html" target="_blank">SK v. Whatcott</a></i>)<br /><br />In 2001 and 2002, William Whatcott, a self-proclaimed anti-gay, anti-muslim, anti-you-fill-in-the-blank activist, distributed offensive flyers in Regina and Saskatoon. The Saskatchewan Human Rights Tribunal ruled that the flyers contravened the province's hate speech prohibition.<br /><br />On appeal, the Saskatchewan Court of Queen's Bench upheld the tribunal's decision, while the provincial Court of Appeal overturned it. The Supreme Court of Canada heard the appeal in October 2011.<br /><br />The Supreme Court of Canada's decision is a devastating blow to free speech and the rights of every individual Canadian. In principle, this decision means that the government can silence your speech on issues of public importance if that speech is deemed hateful. It doesn't matter if what you said was true, that it caused no one any harm, or that you never intended to say anything discriminatory - you can still be dragged into court and lose for committing a victimless crime.<br /><br />In its 1990 <i><a href="http://www.canlii.org/en/ca/scc/doc/1990/1990canlii26/1990canlii26.html" target="_blank">Taylor </a></i>decision, the Supreme Court of Canada reached a similar conclusion - with one salient difference. In Taylor, Justice Beverley McLachlin (as she was then) wrote a strong and clear-headed dissent. She canvassed many of the problems with hate speech prohibitions.<br /><br />Hatred is an ambiguous and emotionally charged term, capable of a wide range of meanings among different people. Incapable of precise definition, it inevitably functions as a proxy for the personal and political views of the judiciary. Further, a successful hate speech prosecution requires no proof of actual harm or intent to discriminate, and truth is no defence. These are serious, irremediable flaws.<br /><br />Fast-forward to 2013. Unlike <i>Taylor</i>, the <i>Whatcott </i>decision is unanimous and monolithic - there is no dissent. The Supreme Court of Canada has closed ranks and will no longer broach alternatives. This means that McLachlin's <i>Taylor </i>dissent has effectively been redacted, leaving us with muddled confusion.<br /><br />The problems canvassed in <i>Taylor </i>are not resolved in <i>Whatcott </i>- all we get is the Supreme Court of Canada's undivided assertion that no problems exist. Does that imply that there never was a problem? What has happened in the intervening 23 years to change McLachlin's mind?<br /><br />It wasn't always this way. The Supreme Court of Canada once recognized that the freedom to express unpopular and even offensive ideas is of foundational importance to a free and democratic society.<br /><br />In 1986, <a href="http://canlii.ca/en/ca/scc/doc/1986/1986canlii5/1986canlii5.html" target="_blank">Justice William McIntyre</a> said,<div>
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[Freedom of expression] is one of the fundamental concepts that have formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.</blockquote>
In other words, the continued existence and thriving of our free society is dependent upon the right of each individual to freely express his or her ideas without fear of reprisal.<br /><br />There's one simple and ironic fact that cannot be overlooked in all of this.<br /><br />If Whatcott is on a hate campaign, Saskatchewan's hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials. Had no complaint been made about Whatcott's flyers in 2001 and 2002, they would have faded into obscurity and this marginalized, bigoted, fundamentalist would not have received national media coverage.<br /><br />At this stage, it's entirely likely that Whatcott will be elevated to the status of folk hero by those who share his prejudices. Instead of facing a legal prosecution, lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. It's best not to silence bigots - let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.<br /><br />The Supreme Court of Canada has shown itself unwilling to uphold the right of Canadians to express their views without worry of a state prosecution. The best answer to this problem has always been legislative. Canada's hate speech laws were enacted by governments and can be repealed at any time by those same governments. It's time to hold our politicians' feet to the proverbial fire for the good of all Canadians.<div>
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<i>This piece was originally published in the Calgary Herald on March 4, 2013</i></div>
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-45792922785775877702013-02-26T14:08:00.002-07:002013-02-26T14:09:20.840-07:00Dean Steacy was wrong: Freedom of Speech is a Fundamental Canadian Value<br />
The right to <a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#Fundamental_Freedoms__1683">freedom of expression</a> in Canada was not created by the <a href="http://canlii.ca/t/ldsx"><i>Charter</i></a>. Canadians enjoyed a right to free speech and freedom of expression prior to 1982.<br />
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Before she became Chief Justice, Justice McLachlin said in <i><a href="http://www.canlii.org/en/ca/scc/doc/1990/1990canlii24/1990canlii24.html">Keegstra</a> </i>that “freedom of speech is a fundamental Canadian value”, and </div>
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Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the <i>Charter </i>in 1982. </blockquote>
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She further said that, </div>
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The enactment of s.2(b) of the <i>Charter </i>represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society. </blockquote>
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Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713, Justice McLachlin went on to affirm that, </div>
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Freedom of expression was not invented by the <i>Charter of Rights and Freedoms..</i>. </blockquote>
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Justice McIntyre shared Justice McLachlin’s view. In the Supreme Court of Canada <a href="http://canlii.ca/t/1ftpc"><i>Dolphin Delivery</i></a> decision of 1986, Justice McIntyre indicated the fundamental importance of freedom of expression for our democratic institutions. </div>
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Freedom of expression is not, however, a creature of the <i>Charter</i>. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.</blockquote>
Now that you know all this, doesn't it make you wonder what Dean Steacy (the lead Canadian Human Rights Commission investigator in the Marc Lemire case) meant when he said,<br />
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Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept.</blockquote>
Actually, Mr. Steacy, freedom of speech is a fundamental Canadian value that the Supreme Court of the land has ruled responsible for the maintenance and protection of Canadian society.<br />
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-48896340985125274392013-02-12T09:37:00.000-07:002013-02-12T09:37:18.646-07:00No Separation of Church and State in CanadaThe <a href="http://news.nationalpost.com/2012/12/17/saskatoon-bus-display/" target="_blank">National Post</a> reported on December 19, 2012 that a disgruntled Saskatoon resident is about to launch a human rights complaint against the city of Saskatoon for placing the words “Merry Christmas” on its buses.<br />
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<a href="http://nationalpostnews.files.wordpress.com/2012/12/saskatoon-bus-display1.jpg?w=620" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="240" src="http://nationalpostnews.files.wordpress.com/2012/12/saskatoon-bus-display1.jpg?w=620" width="320" /></a>The media coverage surrounding this issue has made me realize that many Canadians are confused about whether the <i>Charter </i>guarantees the separation of church and state. It does not. Further, our constitution lacks a clear equivalent to the most famous of such constitutional protections—the American establishment clause.</div>
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The <a href="http://en.wikipedia.org/wiki/Establishment_Clause" target="_blank">establishment clause</a> is a phrase in the 1st Amendment of the U.S. <i><a href="http://en.wikipedia.org/wiki/Us_bill_of_rights" target="_blank">Bill of Rights</a></i> that says "Congress shall make no law respecting an establishment of religion". Canada has no equivalent constitutional protection.</div>
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Although the linked National Post article above focuses on the up-coming human rights complaint, on the <a href="http://charlesadler.com/" target="_blank">Charles Adler</a> show on the afternoon of December 18, 2012, Mr. Solo implied that Canada has constitutional protection regarding the separation of church and state.</div>
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If I had to guess, I would say that Mr. Solo, and other Canadians like him, are confused because they have watched US legal dramas on TV and assume that, like the U.S., Canada has a similar separation of church and state. We do not. Consider this plain and simple fact: the Queen remains the <a href="http://en.wikipedia.org/wiki/Monarchy_of_Canada#Personification_of_the_Canadian_state" target="_blank">Head of State</a> in Canada even though she is the <a href="http://en.wikipedia.org/wiki/Church_of_England" target="_blank">Supreme Governor</a> of the Church of England.</div>
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On the other hand, <a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#Fundamental_Freedoms__1683" target="_blank">section 2</a> of the <i>Charter </i>does guarantee "freedom of religion", and the courts have interpreted this to include a right to be free from religion.</div>
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But this right to be free from religion is subtly, yet significantly, different from a separation of church and state. Freedom of religion under the <i>Charter </i>means that Canadians are free to practice their religions in a non-harmful fashion (e.g. the <i><a href="http://canlii.ca/en/ca/scc/doc/2006/2006scc6/2006scc6.html" target="_blank">Multani</a> </i>case), while freedom from religion means that Canadians cannot be forced to adopt a religious practice (e.g. the <i><a href="http://www.canlii.org/en/ca/scc/doc/1985/1985canlii69/1985canlii69.html" target="_blank">Big M Drug Mart</a> </i>case).</div>
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-8677104954570398212013-02-12T09:29:00.000-07:002013-02-12T09:29:14.602-07:00Bylaws Made in Secret, Good Government, and Economic Freedom<div class="separator" style="clear: both; text-align: center;">
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Last July 16, Calgary city council voted to enact a bylaw to ban the distribution and sale of shark fins in Calgary.<br /><br />Ald. Brian Pincott brought the bylaw to council supported by a petition containing thousands of signatures. Ald. John Mar admonished Calgary’s Chinese-Canadians saying they may need to give up some of their traditions, such as shark fin soup. Coverage by some media outlets juxtaposed images of Chinese restaurants and mutilated sharks. As a result, few people outside of Calgary’s Chinese community have questioned the good intentions behind council’s decision. But more of us should.<br /><br />Council justifies the proposed bylaw on two grounds. First, sharks are “apex predators” that accumulate toxins such as mercury in their bodies. Shark fins therefore contain dangerous levels of mercury. Second, some 70 million sharks are allegedly caught each year, stripped of their fins, and thrown back helpless into the ocean to die a painful death. So shark fins are therefore cruel and unethical.<br /><br />These two justifications may seem innocuous, initially. Although Alberta’s <i>Municipal Government Act</i> is silent regarding sharks, it does give municipalities the authority to pass laws for human safety, health, and welfare.<br /><br />So is the proposed bylaw about protecting humans from toxins like mercury? If sharks are contaminated with mercury, why would council ban only the fins and not the entire shark? Why is the practice of finning sharks and not fishing sharks the focus of the bylaw? Also, what about tuna? Tuna is an ocean dwelling apex predator that accumulates mercury, and it’s more regularly consumed by Calgarians than shark fins. If human health is truly council’s concern, the bylaw would be about the regulation or banning of mercury in foods, not just shark fins.<br /><br />The human health justification appears to be a contrivance designed to divert attention from the fact that council has no authority to enact legislation protecting sharks.<div>
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<a href="http://www.ppcgeeks.com/wp-content/uploads/2012/02/gavel.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em; text-align: center;"><img border="0" src="http://www.ppcgeeks.com/wp-content/uploads/2012/02/gavel.jpg" height="208" width="320" /></a>Toronto had a similar ban until November 2012 when a judge ruled the bylaw was outside of Toronto’s authority. Even though Calgary is a different city, in a different province, and functioning under different legislation, the legal principles relied upon by the Ontario judge would similarly strike down Calgary’s proposed bylaw. Like Toronto’s, Calgary’s ban is simply not about protecting human health — it’s about the preservation of a marine animal over which council has no jurisdiction.<br /><br />Of course, Calgary’s city council could not have known in July about the legal status of municipal shark fin bans before the judge struck down Toronto’s bylaw in November — or could they?<br /><br />On July 16, hidden behind closed doors, council was given legal advice regarding the proposed bylaw. That advice is currently unavailable because council directed that it remain confidential under the <i>Freedom of Information and Protection of Privacy Act</i>. That seems odd.<br /><br />Upon exiting their private meeting, council resolved to ask the provincial and federal governments to enact shark fin bans. Why? Perhaps the city’s legal department told council that the proposed ban is outside the city’s authority. If that’s the case, council knew their ban was potentially illegal prior to Toronto’s bylaw being stuck down.<br /><br />What’s disturbing about this scenario is far more than shark finning. If city council was told that banning shark fins may be outside of their authority, and yet continued efforts to enact the ban while keeping that unfavourable legal advice hidden, what else are they capable of? And even if council was not initially aware that the ban may be outside their authority, they became aware after Toronto’s bylaw was struck down.<br /><br />This should trouble every Calgarian, not just the Chinese community. Don’t be misled — this ban is about far more than shark fins. Calgarians should consider whether they can trust a council that keeps secrets while seeking to enact legislation it knows may exceed its authority.<br /><br />The real issues are good government and the freedom to earn an honest living. A Calgary restaurant owner assured me that she purchases shark products not from China but only from Spain — a country that regulates its shark industry to prevent overfishing and cruelty. Throughout the EU, the whole shark is harvested. The media’s gory portrayal of floundering mutilated animals is simply inaccurate in her case. She is serving an ethical and sustainable food product to her customers. It would be unjust if council’s overly broad ban stripped this facet of her livelihood away.</div>
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<i style="font-family: Arial, Helvetica, sans-serif; text-align: center;">This piece was originally published by the Calgary Herald on February 6, 2013 and Troy Media on February 7, 2013.</i></div>
Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-43784485530161367572012-12-12T08:23:00.000-07:002012-12-12T08:25:07.052-07:00Economic Freedom helps Consumers<br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Ontario Progressive Conservative leader Tim Hudak’s plan to privatize retail liquor sales in Ontario—ending the near total monopolies of the LCBO and The Beer Store—is an ambitious step towards prioritizing consumer and retailer interests. And even if his plan relinquishes only part of the Ontario government’s control over liquor, it will result in greater economic freedom.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">On this issue, Ontario could learn a lesson from Alberta. In 1993, Alberta privatized the retail portion of liquor distribution within the province. By all accounts, it has been successful. Since then, liquor sales have increased, resulting in higher government revenues while consumers enjoy greater product selection and lower prices. This has been the direct result of a more competitive and freer market—i.e. greater economic freedom. And there is no evidence that crime or alcohol related offences have increased as a result. </span><span style="font-family: Arial, Helvetica, sans-serif;"><br /><br />Saskatchewan and Manitoba are both currently experimenting with the same idea. And who can blame them? What province doesn’t want to increase its revenues and cut costs all without causing any of the social ills that modern-day prohibitionists expect?</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">But, as Gerry Nichols points out in his </span><a href="http://www.thestar.com/opinion/editorialopinion/article/1297729--time-to-privatize-the-lcbo#.UL66llqF_i4.facebook" style="font-family: Arial, Helvetica, sans-serif;">Toronto Star</a><span style="font-family: Arial, Helvetica, sans-serif;"> article on Dec 4, it will be difficult for Hudak to relinquish government control over liquor sales because “well-funded special interest groups have a keen desire to keep the monopoly alive.” </span><span style="font-family: Arial, Helvetica, sans-serif;"><br /><br /><br /><b>VESTED INTERESTS: Unions</b></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Nichols’s point is borne out in Saskatchewan. On its website, the Saskatchewan Government Employees’ Union issued a <a href="http://www.sgeu.org/news/government-moves-toward-privatized-liquor-sales-without-consulting-public-0">press release</a> decrying the opening of two private liquor stores in the province. SGEU president, Bob Bymoen says, "Alcohol is not just another consumer product. It is a drug that can and does cause serious problems for families and communities. Because of that, Saskatchewan citizens should have a say in how alcohol is sold in this province."</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Chanting the same mantra, Manitoba’s government employees’ union opposes liquor sale privatization because it is <a href="http://www.nupge.ca/news_2009/n06ja09b.htm">dangerous</a>. An MGEU press release says, "Alcohol is an intoxicant and it can be extremely harmful if misused or abused. The fact is that regulating alcohol sales is the responsible choice for Manitoba families and communities.”</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">As expected, these union outcries are shrill, at odds with the interests of the consuming public and small retailers, unsubstantiated by the empirical evidence collected over 20 years in Alberta, and contrary to economic freedom. But each does substantiate Nichols’s claim—the Ontario Public Service Employees’ Union (OPSEU) will likely oppose Hudak’s plan.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><b>VESTED INTERESTS: Labatts, Molson, and Sleeman</b></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">But it’s not only the OPSEU that will resist a freer market and greater competition. Hudak will also have to stand up to Labatts, Molson, and Sleeman.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The LCBO is government owned and operated, but <a href="http://www.thebeerstore.ca/about-us">The Beer Store</a> is a private organization owned by three major breweries: Labatt Brewing Company Ltd., Molson Coors Brewing Company Ltd., and Sleeman Brewery Ltd. Even though The Beer Store is meant to be a non-profit, the owner breweries are able to restrict competition to the detriment of both the non-owner breweries and the consuming public.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">There are two obvious means by which The Beer Store can restrict competition: through fees and product placement.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Non-owner breweries are charged two fees to have their products sold in The Beer Store. The first is a listing fee of $2,650.14, plus $212.02 per retail location where the product will be available. And the second is a handling fee between $3.65 and $4.15 for every case of 24 beers. As ludicrous as it seems, under the current system, non-owner breweries must pay substantial fees to their competitors if they want their product to be available at Ontario’s biggest retail outlet for beer.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The Beer Store can also restrict competition by giving product placement priority to the owner-breweries’ products. And because of the Ontario government’s control over the liquor market, these other producers do not have the option to open their own retail outlets to compete with The Beer Store and its owner breweries.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This government mandated arrangement results in higher prices and a more limited selection for Ontarians while it inhibits the development of a retail industry that would be more responsive to market demands.</span></div>
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<b style="font-family: Arial, Helvetica, sans-serif;">TAKE 'EM DOWN!</b></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Hudak will need to take on both the OPSEU and the private owners of The Beer Store if he wants to give Ontarians the benefits of an Alberta-styled liquor retail industry. In the end, consumers, small producers, and small retailers will thank him because it will be a boon for economic freedom.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>This piece was published by Troy Media on December 9, 2012</i></span></div>
Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-21485536880457825442012-12-03T15:15:00.000-07:002012-12-03T15:16:08.165-07:00Put Students First by Permitting Competition in Education<div class="separator" style="clear: both; text-align: center;">
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<span style="font-family: Arial, Helvetica, sans-serif;">Imagine a world where General Motors has to ask Ford’s permission to bring a new car to market. In such a scenario, GM spends its own resources in research and development, gauging consumer demand, and implementing new procedures for efficient manufacturing. GM’s competitor, Ford, does nothing.</span><span style="font-family: Arial, Helvetica, sans-serif;"><br /><br />Now imagine that Ford has the legal authority to hijack any of GM’s ideas and claim them for itself. Everyone knows there is something unfair about this. If this arrangement does not drive GM out of business, it will negatively impact upon consumer choice. There are few surer ways to stifle innovation and market-responsiveness.<br /><br />But this is precisely what Alberta’s new <i>Education Act </i>does. The act continues to require that an application for a new charter school must be first presented to the local school board. The school board has two options if it thinks the charter proposal has merit: it can reject it—only to see students exit its own schools—or it can mimic (i.e. hijack) the application by starting an “alternative program”. Either way, the school board gets first dibs. This is a clear conflict of interests.<br /><br />This problem is not hypothetical—it has happened at least once already. The All Boys Program in Calgary is based upon an application originally made for a charter school. The Calgary Board of Education (CBE) hijacked the proposal and claimed for itself the effort invested in the application. Adding insult to injury, the CBE implemented the proposal minus some key innovations—such as merit-based pay for teachers. This half-hearted implementation has reportedly undermined some of the program’s effectiveness.<br /><br />University of British Columbia Dean of Education, <a href="http://oldfraser.lexi.net/publications/books/market_schools/7_bosetti.pdf" target="_blank">Lynn Bosetti</a>, says “local school boards have no incentive to support charter schools”, and that school boards—like the CBE—perceive charter schools as “undesirable competition”. Could this be true? Undesirable competition? Shouldn’t Alberta’s public school system prioritize student needs? Fostering market-based fair competition between charter and government schools would be an excellent vehicle to prioritize student needs. Instead, the act undermines competition to the detriment of student interests.<br /><br />This anti-competitive arrangement is contrary to entire impetus behind the charter school movement.<br /><br />In 1994, the Government of Alberta passed legislation creating charter schools by permitting non-profit organizations to operate public schools to increase school choice and parental involvement while adopting innovative instructional methods to improve educational outcomes. Charter schools are supposed to be the testing grounds for the delivery of public education. The problem is that the charter schools have become too successful.<br /><br />Today, charters continue to operate tuition-free publicly funded schools that, along with private schools, consistently out-rank the majority of government public schools on the Fraser Institute’s annual School Report Card. True to their mandate, the charters have innovated. There are charters tailored to meet specific student needs, including one for English is a second language students, one for at-risk youth, and others that emphasize fine arts, music, and science. The students in these programs flourish.<br /><br />If enrolment is an indication of meeting market demand, then charter schools are wildly successful. One Calgary charter has its enrolment capped by the government at just under 3,000 students and is annually filled to capacity while approximately 7,000 students wait to get in. For your child to attend this charter, you must apply nearly as soon as he or she is born.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">But the strength and value of charter schools is not solely how they have innovated and produced superior results compared to government schools. Another significant success is in empowering parents. When parents have a choice of where to send their child to school, the decision becomes a matter of careful consideration. This creates a new relationship between the parent and the school freely chosen—one that’s markedly different than the complacency and compromise that characterizes having no choice but the local government school. As Sheldon Richman points out in his 1994 book “Separating School and State”, the single most important factor in a child’s educational success is an active, supportive family. By offering parents a choice of school outside of the government’s offerings, charter schools help to accomplish that.<br /><br />Competition is always better than monopoly for consumers, and the delivery of educational services is no different than any other industry. The legislature has done Alberta’s students and parents a great disservice in the Education Act. By making charter schools beholden to school boards with vested interests, the government is sending a clear message: student needs and educational outcomes are not the government’s primary objectives.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>This piece was originally published by Troy Media on December 3, 2012</i></span></div>
Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-9114056875499740872012-11-23T08:22:00.000-07:002012-11-23T08:24:58.444-07:00The (Potentially) Unlimited Price of Outcomes<a href="http://www.justiceforharkat.com/files2/Canadian-Supremes.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em; text-align: center;"><br /></a>
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<span style="font-family: Arial, Helvetica, sans-serif;">On Nov. 9, 2012, the Supreme Court of Canada (SCC) unanimously rejected equality of opportunity in favour of equality of outcome by finding that Jeffrey Moore was discriminated against when his North Vancouver school district failed to accommodate his learning disability.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br /><br />In 1994, the cash-strapped school district de-funded an expensive and highly specialized program for dyslexic children in an effort to save money. Beginning two years later, the parents of nine-year-old Jeffrey chose to pay approximately $100,000 over nine years for a private education that included the same program previously available in the public system. Jeffrey's father then complained to the B.C. Human Rights Tribunal that his son's right to be free from discrimination entitles his family to be reimbursed for the cost of the private school.</span><span style="font-family: Arial, Helvetica, sans-serif;">Justice Abella wrote the SCC's decision. In her reasons, she found that the program was the "means" by which Jeffrey could gain "access to the general education services available to all British Columbia's students." She also concluded that without public funding for the program, Jeffrey was incapable of achieving the same level of academic competency as other students in B.C.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br /></span><span style="font-family: Arial, Helvetica, sans-serif;">This decision has the potential to burden B.C. taxpayers with an unlimited financial liability to fund special education programs. The SCC decided that B.C. students are guaranteed equality of outcome because the government has, as Justice Abella says, a "duty to ensure that no student is excluded from the benefit of the education system," and that "adequate special education, therefore, is not a dispensable luxury."</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br /></span><span style="font-family: Arial, Helvetica, sans-serif;">If you believe in equality of opportunity, you will agree that the B.C, government did not discriminate against Jeffrey. At all times, he had access to exactly the same educational services available to every other public school student in his region of B.C. Apparently, this does not matter since the SCC decided that the B.C. government has a duty to ensure that Jeffrey - and students like him - achieve the same academic outcomes as other students in B.C. But it's impossible for the B.C. government to ensure the equal educational outcomes of all B.C. students. It is only within the government's power to provide each student with an equal opportunity to achieve his or her academic potential.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br /></span><span style="font-family: Arial, Helvetica, sans-serif;">Going forward, it's not clear from the decision whether the cost of delivering special education programs can be considered by school districts experiencing financial difficulties - even when those financial difficulties result in yearly deficits and budget cuts. As a result, this SCC decision has the potential to burden B.C. taxpayers with a nearly unlimited financial liability aimed at producing equal academic outcomes because this "duty to ensure no student is excluded" must ultimately be funded by their taxes.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br /></span><span style="font-family: Arial, Helvetica, sans-serif;">Let's take a step back. The B.C. government never intended to bind itself through the Human Rights Code to provide highly specialized educational programs for disabled children without regard to cost. In particular, the provision that Jeffrey relied upon was not enacted by the legislature to be used in this fashion. Section 8 of the Human Rights Code is meant to prohibit restaurant-owners, shop-owners, and the like, from discriminating in the delivery of their services. For example, no taxi driver in B.C. may place a sign in his cab saying "no Hispanics."</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br /></span><span style="font-family: Arial, Helvetica, sans-serif;">This same provision is being constantly abused. In 2011, it was used by the B.C. Human Rights Tribunal to silence the free expression of comedian Guy Earle. In 2012, the tribunal used it to restrict the free expression of religious belief by bed-and-breakfast owners Les and Susan Molnar. In both of these instances, this provision was used to violate a fundamental freedom guaranteed by the Charter. The Jeffrey Moore decision represents a new stage in the continuing evolution of section 8 - the SCC has created the right to receive a highly specialized public education without regard to cost.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br /></span><span style="font-family: Arial, Helvetica, sans-serif;">Jeffrey, now in his 20s, has experienced a lot of success - he is a journeyman plumber. In an April 21, 2009, interview with Katie Mercer in The Province, Jeffrey said that his chosen career "pays quite well and you can really get into it, and right off the bat. You're not paying off a student loan," and that, "it's a pretty quick way to start making money for someone who wants to have a useful skill and a good income." Perhaps it's Jeffrey, not the hard-working B.C. taxpayers, who should pay his father back.</span><span style="font-family: Arial, Helvetica, sans-serif;"><br /></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><i>Originally published in the Vancouver Sun, November 17, 2012</i></span></div>
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</span>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-40518171694107732512012-10-30T10:12:00.000-06:002012-10-30T13:08:52.082-06:00Confusing Compulsion for Freedom<br />
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<span style="font-family: Arial, Helvetica, sans-serif;">The <a href="http://www.torontosun.com/2012/10/29/the-problem-with-unions">Toronto Sun</a> reported yesterday that one of the reasons the <st1:state w:st="on">Quebec</st1:state> student protests were so well-organized last spring is because the protesters were receiving financial help from unions across the country.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Canadian unions are well-known to give financial support to political causes—almost exclusively to those on the left side of the political spectrum. </span><span style="font-family: Arial, Helvetica, sans-serif;">Many provinces in Canada, including Ontario, Manitoba, Saskatchewan, and British Columbia, have enacted legislation that forces even non-union members to pay union dues. </span><span style="font-family: Arial, Helvetica, sans-serif;">And regardless of the wishes of the individuals forced to financially support them, unions are permitted to spend the money they collect to advance political causes that those same unwilling supporters oppose.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">This issue was before the Supreme Court of Canada in the 1991 <i><a href="http://canlii.ca/t/1fsjw">Lavigne v. Ontario Public Service Employees Union</a> </i>case. This case examined whether the <i>Charter</i> right to <a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec2">freedom of association</a> prohibits the government from compelling individuals into associations against their will.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Lavigne was a teacher at a community college. His employment contract incorporated the so-called <a href="http://en.wikipedia.org/wiki/Rand_formula">Rand Formula</a>, which forced him to pay union fees regardless of whether he was a union member. The union then used Lavigne’s money to support the NDP and other political causes that he deeply opposed.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Once he became aware of this, Lavigne applied to get his money back so that it could not be used to further causes he considered unjust. His application was unsuccessful so he appealed all the way to the Supreme Court of Canada. The court’s decision was truly baffling.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Of the seven judges who heard the appeal, only three correctly held that freedom of association includes both a right to associate and a right to not associate. These three judges recognized that it’s just a matter of plain logic. If you are free to associate, you must also be free not to associate. That’s precisely what “free” means.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The remaining judges held that compulsory associations do not violate the <i>Charter</i> and that freedom of association “should not be expanded to protect the right not to associate.” Expanded? This implies that freedom from association is something other than a corollary of freedom of association. This view is incorrect. And it’s illogical.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">In the end, the court had to bend the rules of good-reasoning to protect the Rand Formula. The word “freedom” necessarily implies choice. At a bare minimum, it must mean that individuals are free to choose to associate and free to choose not to associate. Yet the <i>Lavigne</i> decision protects the government’s constitutional authority to force individuals into involuntary associations. This is to confuse freedom with compulsion.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The real injustice in <st1:place w:st="on">Quebec</st1:place> is not that tuition rates have been raised by a fraction. It’s that unions are supporting the protesting students using money involuntarily collected from unwilling Canadians.</span></div>
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-10891772760052024902012-10-01T08:49:00.002-06:002012-10-01T08:50:54.327-06:00Canada Should Repeal Its Blasphemy Law<br />
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<span style="font-family: Arial, Helvetica, sans-serif;">It's time for Canada to repeal its prohibition on blasphemous libel.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;"><a href="http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#Blasphemous_Libel__958032">Section 296</a> of the <i>Criminal Code</i> of <st1:place w:st="on">Canada</st1:place> makes it an indictable offence to publish blasphemous libel. Upon conviction, an accused is liable for up to two years of imprisonment. Section 296 permits an accused the defence of “good faith” provided that “decent language” is used. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">296. (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.<o:p></o:p></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.<o:p></o:p></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">It’s probably a safe bet that most Canadians do not know what the term “blasphemy” means, let alone that blasphemous libel is a criminal offence. According to the Merriam-Webster online dictionary, to <a href="http://www.merriam-webster.com/dictionary/blasphemy">blaspheme</a> means to insult or show contempt or a lack of reverence for God or other things sacred.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Originally, blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute—presumably excluding other religions. The courts held the prohibition to include any <a href="http://www.merriam-webster.com/dictionary/profane">profane</a> words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if it was done with the intent to shock or insult believers, or mislead the ignorant and unwary.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Arguably, the most recent decision on section 296 generalized the prohibition so that it may now be possible to blaspheme other religions as well. But this has not been tested in court because the prohibition has fallen into disuse.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">The first time I read this prohibition in the <i>Criminal Code</i> during law school, I found it surprising that <st1:place w:st="on">Canada</st1:place> has any sort of law prohibiting blasphemy. First, blasphemy is everywhere. It is not difficult to find all sorts of published material that break this law—movies, music, books, magazines, video games, visual art, etc. And second, any sort of prohibition on blasphemy strikes me as an unacceptable restriction on freedom of expression and one more potential foothold for tyranny. Notice that the way that the prohibition is worded inevitably makes it function as a proxy for the personal and political views of the judiciary. Perhaps "foothold for tyranny" is an understatement?<o:p></o:p></span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Fortunately, there have not been any blasphemous libel prosecutions in <st1:place w:st="on">Canada</st1:place> since the 1930’s. It is likely that section 296 is effectively dead even though it remains in the <i>Criminal Code</i>.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">But being <i>effectively</i> dead is not truly dead. The <st1:country-region w:st="on">UK</st1:country-region> has had a similar prohibition with much the same story as <st1:country-region w:st="on">Canada</st1:country-region>’s—it languished unused for a significant period of time. Yet in the 1979 case of <i><a href="http://en.wikipedia.org/wiki/Whitehouse_v._Lemon">Whitehouse v. Lemon</a></i>, Mary Whitehouse resurrected the <st1:country-region w:st="on">UK</st1:country-region>’s blasphemous libel prohibition in a successful <a href="http://en.wikipedia.org/wiki/Private_prosecution">private prosecution</a>. The accused was convicted but did not have to serve the prison term. By the way, the UK repealed its blasphemy law in 2008.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">Aside from the important point that <i>effectively</i> dead laws are not guaranteed dead, there are other reasons to repeal section 296. </span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">First, the continued existence of a prohibition on blasphemy places <st1:place w:st="on">Canada</st1:place> in an awkward and hypocritical position when it criticizes other countries of religious intolerance. Remember the famous admonition to take the mote out of your own eye first?</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">And second, there is no certainty that the <i>Charter’s </i>guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel. That’s an unanswered question that has never been tested in court. Sadly, there are <a href="http://www.canlii.org/eliisa/highlight.do?text=blasphemous&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1990/1990canlii105/1990canlii105.html">cases</a> that refer to section 296 as a potentially justifiable violation of freedom of expression. Also, there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech. Trials are inherently uncertain and court decisions can often yield surprising results.</span></div>
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<span style="font-family: Arial, Helvetica, sans-serif;">It’s probably best to repeal section 296 rather than assume that it will never be used in the future.</span><br />
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-38182877941376212322012-03-24T07:42:00.002-06:002013-02-19T13:21:23.944-07:00Provincial Liquor Monopolies may be Unconstitutional<div class="separator" style="clear: both; text-align: center;">
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<span style="font-family: Arial, Helvetica, sans-serif;"><a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#Mobility_Rights__5347" target="_blank">Section 6</a> of the <i><a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#PART_I_CANADIAN_CHARTER_OF_RIGHTS_AND_FREEDOMS__554" target="_blank">Charter</a> </i>guarantees that Canadians and permanent residents of Canada can move to and take up residence in any Canadian province. It also guarantees that the same people can pursue the gaining of a livelihood in any Canadian province. Like so many of the other freedoms we enjoy, we take our mobility rights for granted.<br />
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Canadian liquor producers do not enjoy the same luxury. Even though the producers themselves can freely cross between provinces, their products cannot.<br />
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<b>THE BACK-STORY</b><br />
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It takes a short history lesson to explain why. In 1928, as Canada’s prohibition era was coming to an end, the provinces wanted to control the importation of liquor across their own borders. However, they recognized that they lacked the constitutional authority to enact such legislation, so they requested that the federal parliament delegate that power to them. The result was that, in the same year, the federal parliament enacted legislation titled the<i> <a href="http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-i-3/latest/rsc-1985-c-i-3.html" target="_blank">Importation of Intoxicating Liquors Act</a></i>.<br />
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The act makes it illegal to import liquor into a province unless it has been purchased by or on behalf of the Queen. And you could be fined or jailed if you don’t comply. In practice, this means that all liquor imported into any province in Canada is the government’s liquor. Effectively, this 1928 law creates the monopoly over liquor enjoyed by each province. It prohibits producers from selling their products directly to consumers in other provinces. And, as is the case with any monopoly, this arrangement prevents innovative marketing, limits consumer choice, and drives up the price.<br />
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When liquor is imported into a province, the local provincial authority places a tax on it. This tax is hidden in the purchase price. In 2007/2008, the Alberta Gaming and Liquor Commission collected some $678 million in fees. In the same period, B.C. collected $857 million. But not to be outdone, in 2006/2007, Ontario collected an astounding $1.28 billion. These considerable sums of money increase the cost of liquor for consumers at the point of retail.<br />
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Today, because of the way these fees are collected, very few consumers are aware they are even being taxed.<br />
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What is difficult to understand about these provincial monopolies is that <a href="http://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.html#sec121" target="_blank">section 121</a> of our <i><a href="http://canlii.ca/t/ldsw" target="_blank">Constitution Act, 1867</a></i>, states that all articles of “growth, produce, or manufacture” must be “admitted free” into each province. Early on, our courts decided this prohibited customs duties only, but subsequent court decisions seem to indicate that this constitutional provision means inter-provincial trade should be free of government imposed impediments, like hidden taxes, and the threat of fines and jail. Although constitutional law can be confounding at times, it is surpassingly odd that collecting $1.28 billion in hidden taxes could be considered “admitted free”.<br />
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Another interesting facet is that the provincial monopolies over liquor appear to be houses built on sand. In 1928, when the provinces requested that the federal parliament pass the <i>Importation of Intoxicating Liquors Act</i>, they effectively admitted that they did not have the constitutional authority to pass this legislation themselves. Parliament complied, relying on its authority to regulate trade and commerce.</span><br />
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<b>SECTION 121 IGNORED</b><br />
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But it seems that no one at that time considered section 121 of the constitution. Or perhaps it was conveniently forgotten? While parliament has the constitutional authority to regulate trade and commerce, section 121 reads as though it must not interfere with inter-provincial free trade while doing so. Ultimately, if parliament does lack the authority to enact legislation that props up each province’s liquor monopoly, the constitutional legitimacy of those monopolies should be called into question.<br />
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A modern and fair-minded reading of section 121 of our constitution makes it seem like a guarantee of economic mobility. Just as Canadians and permanent residents can freely cross provincial borders, section 121 seems to mean that liquor producers should enjoy that same freedom for their products. Since 1928, that freedom has been denied them. And consumers are literally paying the price.</span></div>
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<i style="font-family: Arial, Helvetica, sans-serif;">This piece first appeared in Troy Media in June 2011</i><span style="font-family: Arial, Helvetica, sans-serif;">.</span> <span style="font-family: Arial, Helvetica, sans-serif;"><br />
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Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-74255450552861989912012-03-24T07:00:00.001-06:002012-03-24T20:26:47.791-06:00Damned if you do, damned if you don't<span style="font-family: Arial, Helvetica, sans-serif;">Canadians have a common law right to defend themselves, their family, and their property. This includes using reasonable force to protect oneself from physical harm. But this right – surely a fundamental, natural right immune from government interference – is being eroded and is under attack.<br />
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Ian Thomson, a Port Colbourne, Ontario resident, defended his life with a handgun – only to be charged later with three <i>Criminal Code</i> offences. He goes on trial January 30th and 31st.<br />
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<b>PREVENTED HIS OWN MURDER... THEN CHARGED</b></span><br />
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</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;">Thomson, a target shooter and former firearms instructor, was awakened to the sound of shouted profanity and breaking glass early one August morning. Three masked men had come onto his land with Molotov cocktails and were firebombing his home while he slept. The highly agitated and aggressive intruders ignited Thomson’s front porch and dog kennel. They appeared bent on murder.</span><br />
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Thomson responded by doing two things: he phoned emergency services, and he retrieved a legally registered and properly secured firearm. Thomson exited his burning home and discharged the firearm two or three times to drive off his attackers.<br />
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Twenty-two minutes after being contacted, the police arrived. In the interim, Thomson dowsed the fires that the masked intruders had ignited. He had clearly prevented his own murder, yet Crown attorneys charged him with careless use of a firearm, careless storage of a firearm, and pointing a firearm.<br />
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There are at least three reasons why these charges are morally indefensible.<br />
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First, Thomson had no other viable alternative courses of action. He could not have awaited police assistance inside a burning home. He could not have negotiated with the intruders. He could not have fled unarmed without exposing himself to a potentially lethal attack and permitting the continued destruction of his home. Thomson took the most reasonable course of action. And he conducted himself in a manner that injured no one and damaged nothing.<br />
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Second, the<i> Criminal Code</i> provisions under which Thomson was charged clearly state that no criminal act has been committed if someone uses, stores, or points a firearm with a “lawful excuse”. The <i>Criminal Code</i> does not define “lawful excuse”, leaving the courts to decide what qualifies on a case-by-case basis. Surely even the Crown Attorneys who charged Thomson recognize that “lawful excuse” must include preventing your own murder.<br />
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Third, there is no question or doubt that Canadians have the right to defend themselves from violent attack. Contrary to popular wisdom, the State does not andshould not have a monopoly on the use of force. When you have a reasonable apprehension that someone is about to cause physical harm to you, your family, or your property, you have legal authority to use as much physical force as reasonably required to repel the attacker.<br />
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What is considered reasonable can only be determined by the particular facts and circumstances you are facing. This includes the nature and seriousness of the attack, the relative size and strength of the attackers, the number of attackers, and when and where the attack is occurring. Further, a person undergoing an attack is not expected to measure with exactitude or nicety the power of his blows.<br />
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<b>BLAMING THE VICTIM</b><br />
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Now apply this to Ian Thomson. He was asleep at home alone. He was violently attacked by three masked men intent on burning his house down with him in it. He could have shot to kill, yet he chose a reasonable and morally acceptable course of action. He chose to deter and defend, and to cause no harm.<br />
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The Crown has dropped the careless use and pointing charges, but the fact that the charges were laid at all indicates that something has gone seriously awry. The charges effectively victimize Thomson. They imply that he should have remained idle while his life was threatened. This turns both common sense and our moral inclinations on their heads. Thomson was a victim, not a perpetrator. He suffered a violent attack only to face criminal sanction for defending himself. This shifts the moral blame to a victim who should not be expected to have done otherwise.</span></div></div>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-16015683353636379612012-03-24T06:54:00.001-06:002012-03-24T20:27:00.448-06:00The Human Rights Industry Harms Those It Professes to Help<div class="separator" style="clear: both; text-align: center;"><a href="http://beaconnews.ca/wp-content/uploads/2012/02/Kangaroo-court-600.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em; text-align: center;"><br />
</a></div><div class="separator" style="clear: both; text-align: center;"><a href="http://www.canadianconstitutionfoundation.ca//files/24/alisonmackinnon.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://www.canadianconstitutionfoundation.ca//files/24/alisonmackinnon.jpg" /></a></div><span style="font-family: Arial, Helvetica, sans-serif;">A recent Human Rights Panel decision from PEI demonstrates perfectly how the human rights industry harms those that it professes to protect. You can read the decision <a href="http://www.gov.pe.ca/photos/sites/humanrights/file/MacKinnon%20v_%20Inn%20on%20the%20Hill.pdf" target="_blank">here</a>.<br />
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Alison McKinnon started a new job at the Inn on the Hill on September 20, 2010, and was fired less than a month later during her probationary period because her work was unsatisfactory.<br />
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<b>BUT WAS IT DISCRIMINATION?</b><br />
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On October 18, 2010, McKinnon let her employer know that was pregnant. Forty minutes after acknowledging the pregnancy, McKinnon was given two weeks’ notice. McKinnon refused the two additional weeks’ work and complained to the Human Rights Commission of PEI claiming that she had been discriminated against due to her pregnancy.<br />
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At first, these circumstances may seem to indicate discrimination, but there are two significant intervening facts. First, a week before October 18, McKinnon’s employer had discussed firing her with senior staff and decided that her employment was to be terminated. McKinnon’s pregnancy was not a relevant factor because the employer did not know about it. In fact, her employer planned to fire her on October 17, a day earlier, but found no convenient time to do so. Second, employment law recognizes that employers have the right to fire employees without cause or consequence during their probationary periods. This is because employers are particularly vulnerable when they hire new employees. New employees are less productive and tend to cost more.</span> <span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span><span style="font-family: Arial, Helvetica, sans-serif;">The Human Rights Panel awarded McKinnon $15,206.00 of her former employer’s money even though it accepted that there was no intention to discriminate. Ignoring the law on probationary periods, the Panel held that new employees are in a vulnerable position and that McKinnon’s dismissal had a discriminatory effect on her.<br />
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The distinction between intention and effect is the key to understanding this decision. You can be found guilty of discrimination even if you didn’t do anything that was discriminatory. It seems as though everyone in the human rights industry thoughtlessly accepts this oddity along with the claim that human rights law is remedial and not intended to punish.<br />
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No one can honestly believe that a $15,206.00 fine levied against an individual is not punishment. According to the Merriam-Webster online dictionary, punishment is to impose a penalty for a fault, offense, or violation. When someone complains about you to a human rights commission, that commission assesses whether your actions amount to discrimination. If they do, the commission will order you to pay money to the one you discriminated against. This scenario perfectly satisfies the dictionary definition of punishment, and no amount of obfuscation can change that brute fact.<br />
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It is equally a farce that the human rights industry maintains that human rights law is remedial. Remedy implies that someone failed to satisfy their duty to you. And where there is no duty, there can be no remedy. If your neighbour’s tree falls on your property and damages your fence, the law permits you to recover sufficient damages from your neighbour to return your fence to its previous undamaged state. Remedy is granted because your neighbour failed in his duty to prevent his tree from causing you loss.<br />
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<b>WHY NOT STOP HIRING YOUNG WOMEN?</b><br />
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If human rights law were truly remedial and non-punitive, McKinnon’s complaint should have been dismissed.<br />
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Decisions like this make employers less willing to hire young female employees. If a new male employee proves unsatisfactory, he can be fired without a second thought. But if a new female employee proves unsatisfactory, employers better hope that she is not pregnant. Even though discriminatory hiring practices are illegal, decisions like this encourage employers to simply look passed the job applications of qualified females—or any applicant that might make a human rights complaint. If no one will ever know, employers will always choose to hire the employee that comes with less risk.<br />
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And that’s the core of the problem. Not only does the human rights industry ignore the common sense meaning of words, it subtly harms those that it professes to help. By giving McKinnon $15,206.00 of her former employer’s money, the PEI Human Rights Panel is encouraging employers to find subversive ways to avoid hiring young women.</span><br />
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</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;"><i>This piece was originally published by Troy Media in February 2012.</i></span></div>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-68280769856699169042012-03-23T19:55:00.002-06:002012-03-24T20:27:18.972-06:00What's the Purpose of a Constitution Anyway?<div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"><a href="http://t0.gstatic.com/images?q=tbn:ANd9GcSyUsQn3gL4ZPjDf5jfQQHOHs4Mf_2GWZyUhGGGDeWacqZq_eFS34scaBmm-g" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://t0.gstatic.com/images?q=tbn:ANd9GcSyUsQn3gL4ZPjDf5jfQQHOHs4Mf_2GWZyUhGGGDeWacqZq_eFS34scaBmm-g" /></a></div><span style="font-family: Arial, Helvetica, sans-serif;">What is the purpose of our constitution? Among other things, our constitution is a special type of law. It is our supreme law. This means that it is the standard by which all our other laws are measured. It is organizational. It sets some of the rules for how our state is to function. But most importantly, our constitution limits the authority of government. It does this in at least two ways: first, by prohibiting the government from enacting laws that infringe individual freedoms without justification; and second, by preventing the government from passing laws over certain matters. In both of these instances, even though it is accomplished by different means, government authority is limited. This is one of the chief purposes of our constitution.<br />
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The Canadian<i> <a href="http://www.canlii.org/en/ca/const/const1982.html">Charter of Rights and Freedoms</a></i> limits government authority. The <i>Charter </i>prevents both the provincial and federal governments from enacting “unconstitutional” laws. Section 2 of the <i>Charter </i>provides a good example. <a href="http://www.canlii.org/en/ca/const/const1982.html#freedoms">Section 2(b)</a> prevents the government from enacting legislation that infringes upon the fundamental freedom of freedom of expression. If a court finds that a law infringes freedom of expression without sufficient justification, that law will be made powerless. In this way, the constitution protects individuals from both federal and provincial governments that might otherwise infringe on their freedom. <br />
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The<i> <a href="http://www.canlii.org/en/ca/const/const1867.html">Constitution Act, 1867</a></i>, originally called the <i>British North America Act, 1867</i>, also limits government authority. <a href="http://www.canlii.org/en/ca/const/const1867.html#distribution">Sections 91 and 92</a> of the <i>Constitution Act, 1867</i>, state whether the federal or provincial governments have the requisite authority to enact laws regarding health, education, banks, trade and commerce, etc. Sections 91 and 92 grant this legislative authority exclusively. This means, for example, that since the provinces have the direct authority to enact laws regarding healthcare under section 92(7), the federal government has no direct authority over healthcare. The constitution limits the federal government’s authority by prohibiting it from directly interfering with the authority of the provinces over healthcare.<br />
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It is easy to forget that one of the most important purposes of our constitution is to place limitations on government. Our constitution should protect the freedom of individuals from the intrusion of government on their lives. Our constitution is supposed to prevent overreaching governments from exercising more authority than they have been granted. All too often, Canadians seem to believe that the freedom we enjoy needs to be justified. Yet it is the opposite that is true. It is the government that needs to justify its intrusion in the lives of individuals. <br />
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Since it is government actions, not those of individuals, that need to be justified, each government act should be scrutinized in the light of our constitution. That includes both those that infringe individual freedoms and those that go beyond the authority granted to the government. </span><br />
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</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;"><i>This appeared in the Canadian Constitution Foundation blog in June 2011.</i></span></div>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-63442732472787149122012-03-23T19:47:00.001-06:002012-03-24T20:27:33.810-06:00The Rule of Law? What's That?<span style="font-family: Arial, Helvetica, sans-serif;">The preamble to Canada’s <a href="http://www.canlii.org/en/ca/const/const1982.html"><i>Constitution Act, 1982</i></a> reads:</span><br />
<blockquote class="tr_bq"><span style="font-family: Arial, Helvetica, sans-serif;">Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law…The constitution then goes on to describe the limitations on our governments and the rights Canadians.</span></blockquote><span style="font-family: Arial, Helvetica, sans-serif;">Both the “supremacy of God” and the “rule of law” have a rich storied past. Arguably, these two concepts together underpin the Western legal traditions of <a href="http://en.wikipedia.org/wiki/Natural_law">natural law</a> and <a href="http://en.wikipedia.org/wiki/Natural_rights">natural rights</a>. But if you search for these terms using <a href="http://www.canlii.org/en/index.php">CanLII</a>, you will find that the “rule of law” is cited with far greater frequency than the “supremacy of God”. So what is the rule of law?<br />
<br />
In <a href="http://en.wikipedia.org/wiki/Common_Sense_%28pamphlet%29"><i>Common Sense</i></a>, Thomas Paine quipped that “in America, the law is King”. This is a pithy and succinct explanation. Following Paine, the rule of law means that no individual is King, the law itself is the King.<br />
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British Law Lord, Tom Bingham, wrote in his 2010 book that rule of law means,</span><br />
<blockquote class="tr_bq"><span style="font-family: Arial, Helvetica, sans-serif;">…all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered by the courts.In practical terms, what does Bingham’s explanation mean?</span></blockquote><span style="font-family: Arial, Helvetica, sans-serif;"></span><br />
<ul><li><span style="font-family: Arial, Helvetica, sans-serif;">Governments are not above the law.</span></li>
<span style="font-family: Arial, Helvetica, sans-serif;">
<li>Governments do not have arbitrary discretionary powers.</li>
<li>Governments must respect the rights of individuals.</li>
<li>Individuals must have access to clearly written and unambiguous laws.</li>
<li>Individuals must be treated as equals by the law.</li>
<li>Individuals must be given fair opportunity to protect their rights.</li>
</span></ul><br />
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</div><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><i>This appeared in the Canadian Constitution Foundation's blog in July 2011.</i></span>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-28101233310891515162012-03-23T19:41:00.004-06:002012-03-24T20:27:46.077-06:00So Far So Good... or maybe not.<div class="separator" style="clear: both; text-align: center;"><a href="http://www2.macleans.ca/wp-content/uploads/2012/02/Trudeau_constitution_wide.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="176" src="http://www2.macleans.ca/wp-content/uploads/2012/02/Trudeau_constitution_wide.jpg" width="400" /></a></div><span style="font-family: Arial, Helvetica, sans-serif;">The <a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#PART_I_CANADIAN_CHARTER_OF_RIGHTS_AND_FREEDOMS__619"><i>Canadian Charter of Rights and Freedoms</i></a> is 30 years old in 2012.</span><br />
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In Canadian law, the “<i>Charter</i>” is the first 34 sections of the <a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html"><i>Constitution Act, 1982</i></a>. Broadly speaking, the <i>Charter </i>is a bill of rights recognizing individual rights and limiting the authority of the federal and provincial governments.</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;"><br />
For example, <a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#sec2">section 2</a> of the <i>Charter </i>guarantees that everyone has the fundamental freedoms of religion, expression, assembly, and association.</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;"><br />
<a href="http://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html#Legal_Rights__8594">Section 7</a> contains another important rights guarantee. This section recognizes that everyone has a right to liberty constrained only by the demands of justice—presumably the liberty of criminals can be constrained.</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;"><br />
There was good reason to be optimistic in 1982 when the<i> Charter</i> was new—various portions were drafted to protect individual freedoms by limiting government authority. But in the 30 years following, the courts in Canada have continually done the opposite. Instead of the <i>Charter</i> protecting individual freedoms from overreaching governments, it has been given a government-promoting interpretation that negatively impacts upon individual freedoms.</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;"><br />
In an article prepared for the <a href="http://c2cjournal.ca/">C2C Journal</a>, Karen Selick and I outline four portions of the <i>Charter </i>that have been given this government-promoting interpretation. You can read the article online <a href="http://c2cjournal.ca/2012/03/the-charter-at-30-charter-jurisprudence-that-went-off-the-rails/">here</a>.</span></div><div><span style="font-family: Arial, Helvetica, sans-serif;"><br />
Here is a brief outline of the article.</span></div><div><ul><li><span style="font-family: Arial, Helvetica, sans-serif;">In the 1990 </span><a href="http://www.canlii.org/en/ca/scc/doc/1990/1990canlii26/1990canlii26.html" style="font-family: Arial, Helvetica, sans-serif;"><i>Canada v. Taylor</i></a><span style="font-family: Arial, Helvetica, sans-serif;"> decision, the Supreme Court of Canada (SCC) restricted the section 2(b) individual right to freedom of expression in order to preserve the hate speech provision in the </span><i style="font-family: Arial, Helvetica, sans-serif;">Canadian Human Rights Act</i><span style="font-family: Arial, Helvetica, sans-serif;">.</span></li>
<span style="font-family: Arial, Helvetica, sans-serif;">
<li>In the 1991 <a href="http://canlii.ca/t/1fsjw"><i>Lavigne v. Ontario Public Service Employees Union</i></a> decision, the SCC held that the section 2(d) freedom of association does not prohibit the government from forcing individuals to associate.</li>
<li>In the 1988 <a href="http://canlii.ca/t/1ftjt"><i>R. v. Morgentaler</i></a> decision, the SCC decided that the section 7 right to liberty grants individuals only a degree of autonomy when making decisions of fundamental personal importance, and that decisions of lesser significance could expect no constitutional protection.</li>
<li>In the 2003 <a href="http://canlii.ca/t/1gbdn"><i>R. v. Malmo-Levine</i></a> decision, the SCC decided that the government is free punish individuals for actions that cause no one any harm, despite the section 7 guarantee of individual liberty.</li>
</span></ul></div><div><span style="font-family: Arial, Helvetica, sans-serif;">For the full discussion on each of these issues, go to the C2C Journal’s website and read the entire article. I think you will be convinced that the first 30 years of the <i>Charter’s </i>existence have yielded mixed results.</span><br />
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</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><i>This appeared in the Canadian Constitution Foundation's blog in February 2012. </i></span><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-37382540665609735742012-03-23T10:36:00.005-06:002012-03-24T20:28:19.948-06:00Christians to the Lions: Christians cannot be discriminated against<div class="separator" style="clear: both; text-align: center;"><a href="http://upload.wikimedia.org/wikipedia/commons/thumb/9/92/BehemothBAND.jpg/201px-BehemothBAND.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://upload.wikimedia.org/wikipedia/commons/thumb/9/92/BehemothBAND.jpg/201px-BehemothBAND.jpg" /></a></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">In 2006, I attended a Behemoth concert at <st1:place w:st="on"><st1:city w:st="on">Toronto</st1:city></st1:place>’s <a href="http://www.theoperahousetoronto.com/" target="_blank">Opera House</a> with two Christian friends. If you are unfamiliar with Behemoth, they are a Polish death metal band that tends to sing about the evils of organized religion. They also profess that they have the freedom to vociferously speak their minds.</span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">Each of us was familiar with Behemoth and their opinions prior to going to the concert, so it came as no surprise when the band performed some of its most popular songs like “<a href="http://www.youtube.com/watch?v=Gld8n86Vics&feature=colike" target="_blank">Christians to the Lions</a>”.</span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">Despite titles like this, my friends chose to attend the concert because they enjoyed the music and could easily ignore anything they found hurtful or offensive.</span></div><div class="MsoNormal"><br />
</div><div class="separator" style="clear: both; text-align: center;"><a href="http://www.rapturechrist.com/lionrome.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="194" src="http://www.rapturechrist.com/lionrome.jpg" width="320" /></a></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">But about halfway through Behemoth’s set, it became very difficult to ignore the content of the band’s message. In the silence between two songs, the band’s lead vocalist instructed the Christians in the audience to raise their hands. A few poor souls did. Then the lead vocalist instructed the rest of the audience to find a self-professed Christian and tell them “f*** you”.</span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">I wish that I could somehow accurately convey how intimidating this must have been for those people that actually raised their hands. Unless you’ve been to a metal concert, I don’t think that I can sufficiently explain it. It is one of those things you have to experience for yourself.</span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
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</span></div><div class="separator" style="clear: both; text-align: center;"><iframe allowfullscreen='allowfullscreen' webkitallowfullscreen='webkitallowfullscreen' mozallowfullscreen='mozallowfullscreen' width='320' height='266' src='https://www.youtube.com/embed/ZanVYQDeml4?feature=player_embedded' frameborder='0'></iframe></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;">Thankfully, my friends were not foolish enough to identify themselves as Christians.</span><span style="font-family: Arial, Helvetica, sans-serif;"> </span><span style="font-family: Arial, Helvetica, sans-serif;">The dimly lit venue was packed full of testosterone and beer fuelled concert-goers, and lead vocalist’s request could easily have resulted in violence.</span><span style="font-family: Arial, Helvetica, sans-serif;"> </span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">As unbelievable as it may seem, had this concert been in <st1:state w:st="on"><st1:place w:st="on">Alberta</st1:place></st1:state>, the Alberta Human Rights Commission would have found that Behemoth’s instruction was not discriminatory. Even though Behemoth singled out a religious group for public ridicule and contempt, because Christians are not a disadvantaged group, they are afforded no protection from discriminatory acts.</span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">I previously wrote an Op-Ed on this issue that was published by the Vancouver Sun and Troy Media. You can read it on this blog <a href="http://phantomofthegalaxy.blogspot.ca/2012/03/identity-matters.html" target="_blank">here</a>. </span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">I don't have the time right now, but I will soon write a blog about why I think that Christians should be interested in protecting Behemoth's right to express a strident anti-christian message.</span></div>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-12127581026648112142012-03-23T10:13:00.003-06:002012-03-24T20:28:35.940-06:00Intolerance in Quebec, Part Deux.<div class="separator" style="clear: both; text-align: center;"><a href="http://inforrm.files.wordpress.com/2010/06/supreme_court_of_canada.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="240" src="http://inforrm.files.wordpress.com/2010/06/supreme_court_of_canada.jpg" width="320" /></a></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">In February of 2012, the Supreme Court of Canada (SCC) decided that the Province of Quebec can force all school children—whether in public, private, or home schooling—to take a course on "Ethics and Religious Culture" (ERC).</span></div><div class="MsoNormal"><br />
</div><ul style="margin-top: 0in;" type="disc"><li class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">The SCC's decision can be read <a href="http://canlii.ca/t/fq4b5">here</a>.</span></li>
<li class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">A QB government video on the ERC course can be watched <a href="https://www7.mels.gouv.qc.ca/DC/ECR/index_en.php?page=video">here</a>.</span></li>
<li class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">I wrote a previous blog regarding the decision <a href="http://phantomofthegalaxy.blogspot.ca/2012/03/intolerant-quebec-really.html" target="_blank">here</a>.</span></li>
</ul><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">Two Catholic parents in <st1:state w:st="on"><st1:place w:st="on">Quebec</st1:place></st1:state> challenged the province's authority to force their children to study religion in school. Their argument was that the course implicitly taught that all religions were equally viable belief systems, and that this interfered with their religious duty to pass their faith on to their children. In the opinion of the parents, this interference violated their constitutional guarantee to freedom of religion contained in <a href="http://www.canlii.org/en/ca/const/const1982.html#freedoms">section 2(a)</a> of the Charter.</span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">There has been significant media interest in this case following the SCC's decision, but much of it has been flawed. The only legal analysis that can make sense of this issue is based upon individual autonomy and the constitutional right to be free from government intrusion.</span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">One statist analysis has listed <a href="http://www.thecourt.ca/2012/02/28/the-positive-role-for-government-in-freedom-of-religion-s-l-et-al-v-commission-scolaire-des-chenes-et-al/comment-page-1/#comment-444785">three reasons</a> why QB should be prohibited from forcing all QB children to study the ERC course:</span></div><div class="MsoNormal"><br />
</div><ol start="1" style="margin-top: 0in;" type="1"><li class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">The State has no business teaching religion;</span></li>
<li class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">Religion is an should remain an intensely private matter; and</span></li>
<li class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">The risk of producing ignorance would be mitigated by a program focusing primarily on ethics and tolerance without religion.</span></li>
</ol><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">Each of these reasons is (seriously) flawed.</span></div><div class="MsoNormal"><br />
</div><div class="separator" style="clear: both; text-align: center;"></div><div class="separator" style="clear: both; text-align: center;"><a href="http://passivevoices.files.wordpress.com/2011/01/queenelizabethii.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="200" src="http://passivevoices.files.wordpress.com/2011/01/queenelizabethii.jpg" width="160" /></a></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">Regarding the first, if the author is making a descriptive argument, there is no constitutional separation of Church and State in <st1:country-region w:st="on"><st1:place w:st="on">Canada</st1:place></st1:country-region>. The Queen remains both the head of State and the head of the Church of England. And it is not (yet) possible to initiate a constitutional challenge on a lack of separation between Church and State. As a result, there is currently no constitutional bar against the State teaching religion. If the author is making a normative argument, it does not map onto the issue: the ERC course is forced on all public, private, and home schools. The issue is much broader than what the QB government is permitted to teach in <i>public </i>schools.</span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div class="separator" style="clear: both; text-align: center;"><a href="http://libertyhaven.files.wordpress.com/2010/10/flower-in-rifle.jpg?w=300&h=198" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://libertyhaven.files.wordpress.com/2010/10/flower-in-rifle.jpg?w=300&h=198" /></a></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">Regarding the second, religion is <i>not </i>an intensely private matter and few religious people would agree that it should be (or remain) an intensely private matter. Since it is not a private matter, what would the State need to do to make it one? It would have to use coercive force to silence and marginalize religious folks. That would amount to tyranny and would undermine individual freedom.</span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
Regarding the third, the State has no legitimate role in changing the minds of religious people. "Mitigating ignorance" is a recipe for disaster. The State would have to decide who is ignorant and on what grounds. It would then have to choose the means for alleviating that ignorance. Finally, it would have to take active steps to compel people to change their minds. Again, this would amount to tyranny and would undermine individual freedom.</span><br />
<span style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div class="MsoNormal"><span style="font-family: Arial, Helvetica, sans-serif;">I recently wrote an Op-Ed on this case. It can be read <a href="http://www.canadianconstitutionfoundation.ca/article.php/296">here</a>. My analysis is not statist. It focuses on individual liberty and the right of all Canadians to live free from state interference. In my opinion, this is the only way to make sense of what is so wrong with the ERC course.</span></div><div class="MsoNormal"><br />
<br />
<i style="font-family: Arial, Helvetica, sans-serif;">This appeared in the Canadian Constitution Foundation's blog in February 2012</i><span style="font-family: Arial, Helvetica, sans-serif;">.</span> </div>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0tag:blogger.com,1999:blog-6675794099732977138.post-39003320831187835262012-03-23T10:04:00.005-06:002012-03-24T20:28:49.186-06:00Some Restraint Please! or Knowing Your Limits<div class="separator" style="clear: both; text-align: center;"><a href="http://www.stevensph.com/news/1517360.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="208" src="http://www.stevensph.com/news/1517360.jpg" width="320" /></a></div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">On March 22, 2012, the Supreme Court of Canada (SCC) will hear the appeal of <i>Moore v. BC Ministry of Education</i>.<span style="font-size: small;"> Among other things, this case will decide whether the BC Human Rights Tribunal has the authority to dictate what services the BC government provides.<o:p></o:p></span></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">Jeffrey Moore started grade school in 1991 and was soon diagnosed as dyslexic. When he was in grade 3, his parents were advised that he would have a better educational outcome if he enrolled in a publicly funded program tailored for dyslexic children called “intensive remediation”. But in 1994, the cash-strapped North Vancouver school district defunded the program in an effort to save money—just weeks after Jeffrey had been referred for help. As a result, the Moore family paid approximately $100,000 over nine years for Jeffrey’s private education.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">In 1999, Jeffrey’s father complained to the <a href="http://www.bchrt.bc.ca/" target="_blank">BC Human Rights Tribunal</a> on Jeffrey’s behalf. In its 2005 decision, the Tribunal decided that the BC Ministry of Education had discriminated against Jeffrey by failing to provide him with a “service customarily available to the public” under <a href="http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-210/latest/rsbc-1996-c-210.html#sec8subsec1" target="_blank">section 8</a> of the <a href="http://canlii.ca/t/jj1b" target="_blank">BC <i>Human Rights Code</i></a>. This decision means that Jeffrey had a right to be provided a specialized and expensive education at taxpayer expense.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">The BC Supreme Court and Court of Appeal have both subsequently decided that the Tribunal’s decision was in error—Jeffrey was not discriminated against.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">In my opinion, the Tribunal’s decision was indeed mistaken because it confused equality of opportunity with equality of outcome, and it overstepped its authority by making a public policy decision.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">Under the BC <i><a href="http://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-412/97804/part-3/rsbc-1996-c-412-part-3.html" target="_blank">School Act</a></i>, BC children are entitled to enrol in the educational program provided by the public school board where they live. There is no guarantee of educational success—children are only entitled to an equal opportunity. The Tribunal erred by confusing entitlement to an opportunity with entitlement to a particular outcome, and held that Jeffrey was therefore entitled to receive intensive remediation so that he would have the same educational outcomes as non-dyslexic students.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">In 1990, the North Vancouver school district was in financial dire straits. The financial crisis persisted for several years, resulting in large deficits despite on-going budget cuts. On review, the district was found to have engaged in excessive spending during a period of public sector restraint. In arriving at its decision, the Tribunal failed to appreciate that it lacks the expertise to make decisions regarding the government’s financial capacity to fund social programs—particularly in difficult economic times.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">Further, the Tribunal overstepped its authority because the BC legislature never intended to bind itself through the BC <i>Human Rights Code</i> to having to provide highly specialized educational programs for disabled children without regard to cost. In a <a href="http://canlii.ca/t/1j5fs" target="_blank">similar case from 2004</a>, the SCC held that a legislature is “free to target the social programs it wishes to fund as a matter of public policy”, so long as the program’s benefit is not conferred in a discriminatory manner. Effectively, the Tribunal attempted to make a public policy decision regarding public school funding while lacking either the expertise or authority to do so.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">So was Jeffrey treated differently than other children in BC? He had access to all the same educational services as other children his age. And even though Jeffrey faced difficult circumstances, no human rights tribunal should make public policy decisions binding both on the government and taxpayers without regard to cost.<o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">Jeffrey, now in his twenties, has experienced a lot of success—he is a journeyman plumber. In an April 21, 2009, interview with Katie Mercer in The Province, Jeffrey said that his chosen career “pays quite well and you can really get into it, and right off the bat. You're not paying off a student loan,” and that, “It's a pretty quick way to start making money for someone who wants to have a useful skill and a good income." <o:p></o:p></span></span></div><div class="MsoNormal"><br />
</div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;">The SSC would be wise to follow BC courts and constrain the authority of the BC Human Rights Tribunal to dictate public policy decisions.</span></span></div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;"><br />
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</span></span></div><div class="MsoNormal"><span lang="EN-GB"><span style="font-family: Arial, Helvetica, sans-serif;"><i>This piece was published by the Vancouver Sun and Troy Media in March 2012.</i></span></span></div>Derek James Fromhttp://www.blogger.com/profile/12115211648883154693noreply@blogger.com0