Thursday, May 15, 2008

The hubris of the lawyers: the Attorney General of Canada on Marc Lemire

UPDATE: Welcome Blazing Cat Fur, SDA, Steyn, and FFofF, visitors; don't miss Deborah Gyapong's interview with Keith Martin; and Ezra's latest on the Ottawa reaction to the AG's crazy brief.

Hubris? Or does this post refer just to the overbearing desire to be in a position where hubris would be possible for a "lawyer", where the lawyer could play the hero and not simply his counsel or judge? Anyway, it seems to me that presently there is a confusion about the role of the law in society among our “heros” working for the Attorney General of Canada, and the Minister of Justice, Mr. Rob Nicholson.

I have been reading the legal memorandum sent by the AG to the Canadian Human Rights Tribunal, as the AG's intervention on the question of the constitutionality of the case being made by the Canadian Human Rights Commission against Marc Lemire.

This is only going to be a brief (despite the post's length) review of parts of that document. I don't have time to treat that document or its arguments in their entirety. I pick and choose those parts that jumped out as me as most revealing of a disquieting mindset of mock heroism-becoming hubris in the halls of legal power. And yet, even then I will leave out many examples of this hubris, for example the ready deferral to an undemocratic international regime of human rights law, to the desire for lawyers and mutually self-accrediting “experts” to play on an elite, post-Nuremberg, stage of "heros" and "gurus" who take their self-righteous role as regulators of national and democratic “excess” to heart.

I am slow to this topic; many other bloggers have already commented on this document and the Canadian government's use of the "hate speech" “expert” Alexander Tsesis, starting with Ezra Levant (here and here; a good place to find links to others is Blazing Cat Fur). But I have been otherwise occupied and just couldn't jump quickly into the fray. My comments are in the way of a first impression that come to me without a wide reading of the critics of Tsesis (see Cat Fur).

Throughout the AG's memorandum, a repugnance of Mr. Lemire's views on race, Judaism, and nationalism are often implied; that's to say their foulness is taken for granted but never mentioned, as if such a demonstration of the particulars in the Lemire case were not necessary to defending the constitutionality of Canada's laws against hate speech in general. The memorandum makes a number of points defending the constitutionally settled nature of the law, in light of previous Supreme Court of Canada decisions. These do not concern me here. I am not a lawyer. I am much less interested in arguing the law from within its disciplinary perspective as I am in understanding the lawyers and their world view from the vantage of an anthropological discipline concerned with understanding why human freedom exists and why it is necessary that it continue. It concerns me to know what the lawyers for the Attorney General take for granted, as judicially settled, in respect to justifications for the restraint of free speech.

While one must accept that no law can allow itself to remain open to endless constitutional challenges, it is nonetheless the very nature of any law restricting our most inherently human freedom – speech – that it cannot be free from endless challenges arising from new situations. No one whose voice is throttled can but query whether this is, in each and every case, a unique injustice. This is because the object of our every speech act is to represent a unique and variable human scene and only last of all the abstract universe in which lawyers defend the wide applicability of the law.

The exact same series of words can mean something quite different in two different contexts. So, inevitably as we will see, the lawyers defending hate speech laws assume that language is to be judged as much on its effect, as on its content, according to some standard of offensiveness. This will inevitably politicize judges making decisions on “offensive” political speech; the judiciary can only do its job of recognizing offensiveness by being politically correct, taking for granted what mainstream or elite liberal opinion takes for granted is offensive.

I have no idea whether or not it is the case that Lemire's web site was host to deeply repugnant and hateful comments (other than those mischievously planted there by the Canadian Human Rights Commission, or associated figures in the dirty war of secret agents like “jadewarr” against hate speech). Mr. Lemire's reputation as a protege of the Holocaust denier, Ernst Zundel, is certainly known to me; but I have never cared to study the man or his ideas.

I, a descendant on my mother's side, of a family largely destroyed by the murderous resentment of the Nazis, have never felt sufficiently threatened here in Canada to take a moment's notice of the writings put forth by the likes of Lemire, whatever those are exactly. I know a Jewish man who makes it his business to keep tabs on the "neo-Nazis" on the internet, to file reports for Jewish organizations that work with law enforcement agencies. I have heard him say that the racist filth out there seems limitless at times. It gets him depressed.

So I have no doubt that the "neo-Nazis" - so often used in my post-war lifetime by Hollywood as stock figures to revile, in simple-minded caricatures that reduce the neo-Nazi to the scapegoat equivalent of the dirty Jew in Nazi propaganda, the indubitable devil who must be eliminated to bring a happy conclusion to the story (the kind of figure without which many a story could not exist, which would be a real problem for those who rely on such stories to understand themselves) - are out there, somewhere. It's just that I'm safely isolated from them. However many, they are marginal in Canada as any student of our public life should know.

The people who scare me are not those hacking away on basement computers, those who would be quickly eliminated, if they were not already completely marginal, from any significant position of institutional authority or social status in this country if they were publicly to open their mouths and express Nazi-like views on Jews and race.

No, those who scare me are those who (not entirely unlike the Nazis) are in positions of authority and responsibility and think that this gives them a vantage point on what kinds of speech should and should not be acceptable. It's not that I care deeply if some truly marginal and deeply resentful fool gets caught in the sights of some kind of hate police and penalized. It's that in creating such a precedent for thought policing, both cop and citizen naturally ask, well, who's next? How much latitude do officials have in drawing the line between what can and cannot be policed? What can those self-righteous agents hired to protect our “human rights” hope to build in the way of a self-perpetuating bureaucratic empire? In other words, whoever Mr. Lemire may or may not be, it is irrelevant to my concerns here. (UPDATE: Kate has a good response to this paragraph.)

It's easy to be against the truly hateful who don't have any power. But what's the point? Sure, you might make some victim of hate feel better, feel that the maternal welfare state is “on your side”, as the lawyers behind the AG's memo argue. Then again, you might make that "victim" feel much better by being a good neighbor who makes his defense for him, not making him rely on government, pointing out that the hate monger is a loser and that the real victory lies in growing a skin thick enough to shrug off the idiots while participating freely with good people in the ethically serious debate about what is real and true. However, if you become intellectually and politically dependent on penalizing the hateful losers, well then it just becomes harder to take the ethically high road because your position will become defined by its dependence.

Once one has set a precedent for policing hate speech, the problem will always lie with the question of what a person of any influence, what a person with any kind of serious claim on a centre of attention, can and cannot say. By the very nature of such a mainstream situation, when dealing with a popular but polemical writer like, say, Mark Steyn, it is not possible to be a neutral arbiter when it comes to policing speech, to know what is the level of violence inherent or potential in any speech act, or to know what is too “extreme”. Language is not a simple object readily judged. It's the basis for all and sundry forms of exchange. It's simply not possible to police those with any power or influence without quickly taking the road to some kind of state where all thought, in its very (non)formation is shadowed by the threat of state policing.

The potential for good or evil in any given words is not knowable in advance. To take for example the central issue of our day, the relationship between Western and Islamic culture: does someone who offends Muslims by criticizing something they hold sacred, say the life of Mohammed, do potential violence towards them? Possibly; but the answer is really unknowable because such criticism, even the most mean-spirited rant, may well serve as a historical contingency that becomes key to a future articulation of a shared understanding by which Muslims and non-Muslims might live together in some kind of peaceful coexistence. However implausible it sounds to a lawyer, the law is not in a position to know how new things come into this world.

The question is really whether or not Canadians can be trusted in the exercise of their freedom, or whether their creativity must be controlled in the name of safety. But then, can there really be safety in controlling creativity if the free exercise of language is the only real hope for mediating peacefully the inevitable conflicts that arise when different understandings of the sacred come into contact? I think name calling is not just a danger but also a necessary part of a “multicultural” society that wants to be free.

The key point here being that words, in relation to their (sacred) object, are always somewhat hypothetical; their primary object is not, as many ill-informed understandings of language have it, to simply make transparent or indexical reference to the things of the material world. Rather, the primary purpose of language is anthropological: it's focussed on the need of the human community to maintain its human order as something other than an animal pecking order. Human language began with the object of signifying and representing the sacred. The sacred is that which defers our capacity for human-on-human violence. This, at least, is the anthropological understanding I bring to my criticism of the AG's memo, though to argue it out in detail now would distract attention further from the subject at hand.

Suffice it to say that there are any number of paradoxes concerning the operation of language. One is that even the most violent language will have some role, however inadequate it may or may not be, in deferring actual violence. As long as I'm obsessed with calling you names, I'm potentially both encouraging and deferring violent combat. How successful this paradoxical deferral may be, you can't know in advance. While it would be preferable not to have the resentment voiced against you in the first place, the law must deal with human realities, not just ethical preferences. Sometimes bad is better than worse.

Almost invariably someone accused of "hate" speech is making an accusation that entails a charge that his “victim” is himself a source of potential violence. No doubt this is often just inexcusable scapegoating; and yet the problem for censorious lawyers will always be that some times you can't yet know. In any case, accusations of hatred being slung back and forth may well serve to set the scene for some kind of unprecedented compromise and synthesis that brings peace to parties that would otherwise have slipped into deadly conflict if the war of words had been suppressed by self-important governmental do-gooders. This is because government, however well-intentioned, cannot by its very nature be the agent of creative compromise. And sooner or later no society can survive the lack of resentment-driven creativity.

Again, it is easy to brush off “hate speech” as that which is never going to be part of a creative compromise. Yet in allowing yourself to silence the terminally resentful you risk silencing the creatively resentful.

So now directly to my reactions to selected passages of the AG's memo. All my quotations are in the order they appear in the document. I have left the paragraph numbers of the AG's memo to give the reader a reference point and sense of how much I am omitting.

"52. Contrary to Dr. Persinger's contention, Dr. Tsesis has considered the proposition that tolerance of hate speech is a necessary outlet for self-expression and has concluded that this is based on a false premise: Bigotry is not cathartic. To the contrary, it is inflammatory."

-It is easy and right to denounce the most stupid hatreds, but what's the point of a law? The above quote is a simple-minded statement that assumes a false dichotomy in an attempt to deny a fundamental human paradox that any law on language must eventually face when those being policed are no longer just the marginal losers. A serious war of words is often both inflammatory and cathartic. How can a catharsis be effected if not first by some conflict being both inflamed and deferred by language re-figuring what the parties hold sacred? Every compact or covenant that makes our civil society what it is today began in someone's tracing of a real conflict, with an aim of finding some new way to represent the sacred (just as I am doing now). That is how transcendent or “cathartic” language and experience emerge.

The meaning of language should not be blithely abstracted from the multi-stage events in which it exists and has various roles; it should not be reduced to mean any one thing, good or bad. We should not give the power to police language to anyone who doesn't realize that that which inflames or engenders our violent desires is also that which is deferring them. Public life is always and necessarily a wager between good and bad potential consequences. It's always risky. To speak violently can be unnecessary and dangerous, for it may lead us in madness to real violence. Yet, not having violent thoughts can also be dangerous. A man with little imagination, but just enough to be deadly, may be much quicker to the sword than, say, a much more deeply resentful Hamlet. No doubt the banal Nazi bureaucrat usually spoke less violently than the average Nazi soldier. But who was more deadly in the end?

Violent thoughts and ideas sometimes lead to real violence; and often they do not when they do indeed have a "cathartic” effect. No doubt it is better to promote the higher ethical values than low resentments; but in many situations even low and resentful culture will be better than none. It is impossible to neatly sum up all the pluses and minuses of the many figures of violence in culture. All that we can be generally sure of is that the more degrees of freedom in a culture, the better.

"The longer a group goes unopposed in communicating its aggressive hatred of minorities, the more it becomes habituated in defamatory
statements and unjust acts. Social attitudes are entrenched in negative images about outgroups and popular dialogue incorporates stereotypes into puns and expletives. Once individuals perceive members of identifiable groups as legitimate targets of
aggression, their personal dislikes are reinforced by negative social attitudes and rationalizations. When definitions and stereotypes are culturally established and personalty internalized through oft repeated fallacies about outgroup characteristics, they facilitate arbitrary stratification and behaviors, prolonging their vitality and passing their malignant venom to succeeding generations."

-I tend to agree with this, but think this is just the reason not to have hate speech laws which will only buttress popular prejudices, giving them the legitimacy that only attempts to ban something can give. The best way to oppose “aggressive hatred” is through the ethic that only a free citizenry responsible for protecting each other's freedom can provide. If Canadians are truly so hopeless in this regard, then government's heavy hand may become inevitable and necessary. But by what right does the present government have to declare, implicitly, that Canadians cannot police themselves?

Unhealthy prejudices need to be debated out in the open. It's a sign of the government's bad faith in the wisdom of the crowd in free societies that they would attempt to argue that bureaucrats have a better grip on social fallacies than do ordinary people in free debate.

53. The harmful effects of hate speech are not limited to the targeted group, but extend to the wider community as well. Dickson CJ recognized this in Keegstra:
A second harmful effect of hate propaganda which is of pressing and substantial concern is its influence upon society at large. The Cohen Committee noted that individuals can be persuaded to believe "almost anything" (p. 30) if information or ideas are communicated using the right technique and in the proper
circumstances (at p. 8):
we are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil. So Milton, who said "let truth and falsehood grapple: who ever knew
truth put to the worse in a free and open encounter". We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.

-The utter snobbery of this argument is shocking. And yet, it is indeed an important revelation of the 20th century that we can be in no way pure creatures of reason, always in touch with the good (how can someone at once pronounce this lesson and not consider its applicability to one's own legal positioning?).

But to suggest that it is "emotion" that drives reason from the field is to reveal that you really have little in the way of a systematic idea what evil is or what causes it. (Briefly, evil must be understood in terms of an anthropology of the sacred and of the resentment that stems from a sense of alienation from the sacred.) Furthermore it is to imply that the would-be guardians of truth are themselves somehow above "emotion" and irrationality, at least more than the ordinary person, which is sadly not the case. Yes, we are fallen creatures but as a general rule we become more aware of our weaknesses by living in a free society where these are revealed to us through all kinds of feedback mechanisms. Trying to block the lessons that can only come with a feeling that one is free to say almost anything is likely to make us more irrational and "emotional" not less. To invoke Hitler is properly to remind that the real danger comes from the state, not the "impudent" advertising crew.

56. The Cohen Report states that the psychological limits of human beings ought to be taken into account when formulating laws affecting freedom of speech:
... issues relating to freedom of expression are not all open to the simple solutions that would have been applied to them a hundred years ago. Those who urged a century ago that men should be allowed to express themselves with utter freedom even though the heavens fell did so with great confidence that they would not fall. That degree of confidence is not open to us today. We know that, as well as individual interests, there are social interests to be protected, and these are not always protected by unrestricted individual freedom. The triumphs of Fascism in Italy, and National Socialism in Germany through audaciously false propaganda have shown us how fragile tolerant, liberal societies can be in certain
circumstances. They have also shown us the large element of irrationality in human nature which makes people vulnerable to propaganda in times of stress and strain. Both experience and the changing circumstances of the age require us to look with great care at abuses of freedom of expression.

-But if "irrationality" is inherently part of human nature, what right do we have to believe in legislated solutions to it? Liberal societies, as the writers of this document imagine them, are indeed fragile; and they are fragile because they rely too heavily on the kinds of self-righteous "liberal" minds that wrote this document. Liberal societies have, so far in history at least, relied largely on a Gnostic elite who think they have the secret key that can control or overcome the irrationality in human nature, rather than relying on the evolving common sense of a people experienced in freedom and hence in the need to act as guarantors of each other's freedom.

A government that does not defer to the freedom and wisdom of the people is almost sure to make society less tolerant and more fragile. Tolerance cannot be legislated; it has to be lived, learned in a context where real intolerance exists in opinions other than those righteous ones of the politically-correct liberal and governing elites.

As Eric Voegelin who lived through that age argued, the disaster of the Nazis was more a case of the Nazis taking to an extreme the existing Gnostic assumptions of the governing "liberal" elite of Weimar and pre-WWI Germany, than of Germany ever being too free. There were censorship laws in Weimar Germany targeting the Nazis. When the Nazis came to power they simply took this censorious approach, along with all other kinds of nonsense about heroic leaders and experts leading the people to some Utopia of good government, to an extreme.

58. Dr. Tsesis has developed an extensive critique of Oliver Wendell Holmes' notion of the "marketplace of ideas," and reaches similar conclusions:
Beyond the theoretical difficulties of Holmes' marketplace of ideas it is simply untrue that the dissemination of vitriol defuses racism, sexism, or anti-Semitism. Experience disproves the notion that falsehood is always vanquished by truth. To the contrary, history teems with examples of times when lies, distortions, and propaganda empowered groups like the Nazis to repress speechand perpetrate mass persecutions ... Even when both true and false beliefs are available, persons often cling to the false to retain power. In spite of the availability in the United States of literature against slavery, that institution did not end through rational discourse but through a bloody civil war.

-Are we really to take seriously a government that advances, as legal argument, such blithe tautology: "vitriol does not defuse racism, etc.?" But then, again, it all depends on what the response to that vitriol is. Yes, indeed, often vitriol will not defuse. Yet, on the other hand, it is not entirely implausible that someone (or his audience) who hates, say, Jews for being successful in the marketplace might, in expressing some nutty conspiracy theory about Jews controlling the market, be eventually met on the field of name calling, then suitably positioned and eventually taught by rhetorical conflict something of why Judaism had led to many Jews being successful in the free marketplace. There is nothing better than real experience, which can only come with freedom, to discipline the imagination.

In any case, the argument here misses a larger point: no "true" idea does the work of truth forever. Truth, in human affairs, is no absolute insight that has perennial value. Truth is something that works, in a given place and time, for a time, but is itself subject to inevitable discounting in the political marketplace. Once everyone knows a truth, people will still remain humans with conflicting desires. Thus, the truth that can defer conflict must be continually re-presented through free exchange, and this is something that by its very nature government cannot do.

The nihilism that suggests that because, in one instance, a modicum of rational discourse was not sufficient to overcome the decline of a political culture into civil war, therefore the way to avoid civil war in future is to set up a privileged arbiter of what can and cannot be said in public, is just insane. War is not something mankind has yet learned to overcome through wise government; and it is the hubris that pretends war can be outlawed by some regime of "human rights" that acts to increase not defer dangerous tensions in this world. Some tensions can only be successfully deferred by allowing the expression of resentments that can in turn be addressed in ways that allow for a productive exchange of positions.

62. From a historical perspective, hate speech has been a key tool for channelling societal difficulties, and the blame for them, towards minority groups. Dr. Tsesis cites Nazi Germany as the leading example, where hyperinflation and the aftermath of the Versailles Treaty created general troubles for which a charismatic leader was able to divert blame onto a minority group. Hitler drew on a long history of German anti-Semitism to foment a mass delusion that Jews were responsible for bad times, and as a result a Holocaust could be perpetrated against them without general

-This is history with a sophistication appropriate to grade schoolers, history reduced to legal “sound bites”, and with an aim to justifying the state's penalization of the politically incorrect!

The Holocaust was, by definition, not a series of riots, book burnings, and pogroms. It was an event of such scope and scale that it could only have happened in the context of a total war and the corresponding call on Germans to accede to evil in the name of protecting the fatherland at a time of extreme danger. So what's going on in the AG's memo? Are we being told that if Germany had had hate speech laws, that Hitler's charisma and desire for total war would have been stopped? Why would he have paid such laws a moment's notice? It was when he was in prison, after all, that he wrote Mein Kampf.

The Holocaust is an extreme and in many ways unique event that, like the history of slavery, is far from the best historical analogy for understanding the realities of life in Canada in the 21st century. When evil is central to how a society operates, how is any discussion of the absence of laws protecting “minorities” relevant? Centralized evil can co-opt any law, so the question is really how to limit the power and potential evil that is collected at any centre. Maximizing freedom is generally the best answer to that.

And, to refer back to the above quote, anyone who thinks blame is something that can be wrongly “diverted”, i.e. that pinpointing blame is otherwise a serious mode of thought (when dealing with major historical events), is probably just about ready to “blame” pretty much any politically correct scapegoat at hand.

63.Social psychologists, including Dr. Mock, have observed that the law has a role to play in priming supportive attitudes towards minorities and ensuring that the boundaries of what is acceptable are taken seriously by the population in general. She has also noted that the proliferation of stereotypes and hatred against various groups can facilitate violence by leading to desensitization.

-It is a mischaracterization of the role of law in society and history to suggest it is ever about “priming” attitudes. The law institutionalizes and reproduces ethical understandings; it certainly does not create them in the first place. The writer of this document is a long way from understanding how anything new comes into the world. There is no attempt to offer a serious anthropology to justify the ideas here being advanced.

67. In any case, there is little or no truth value in hate propaganda to attract the protection of the Charter, thereby making the restriction easier to justify. The Supreme Court of Canada has recognized the importance of reputation to human dignity and Charter values, and has noted how false allegations can destroy a person's sense of worth and value. Hate speech bears scant relationship to the truth. and does not require the same protections as ordinary speech. Dr. Downs, drawing an analogy with pornography, has also argued that certain forms of intimidating speech are unworthy of protection.”

-Again with the endless tautology: what is bad is not good, what is hate is not true... and so it has no right to exist. Yeah, whatever; but the question is not what is due the devil, but rather the state's power to name the devil. And if the incredibly self-righteous attitudes expressed in this government document are any guide, it would be a brave fool who would dare write anything politically risky that could possibly get labeled hate speech by some lawyer, for then one would be in the realm of that which has no right to exist. Quite aside from lost words, one's reputation would be destroyed, one would be an evildoer in the land where “hate is not true” therefore we don't have to listen to your lies that your hate is not hate. Oh, and when did you stop hitting your wife?”

92. In concluding that s. 13 of the CHRA-minimally impairs freedom of expression, Dickson CJ in Taylor examined the language chosen by Parliament and determined that it provides a standard of conduct that is sufficiently precise. He added:
Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.

-What is offensive is a question of what one holds sacred. If Canada is truly a multicultural society, with many competing understandings of the sacred present, the question of what is evidently offensive cannot be seriously thought to be self-evident. Is a cartoon of Mohammed hate speech? It would seem that some people think so, so much so that government agents are willing to commence proceedings against someone for merely republishing a cartoon in the midst of a newsworthy international event concerned with same. What the court is really saying here is that people who belong to the class of liberal Canadian elites know what is best and correct. And they're sure as hell going to make it clear to anyone who thinks, say, that he might have some business questioning the value of homosexuality, or what have you.

95. Reliance on private incentives is not sufficient to address the government's task of protecting Charter rights. As Professor Bailey has noted, the use of such techniques as filtering and zoning may mitigate some individual psychological harm, but "fails to address the key social harms of concern in the context of hate propaganda: the threat to social harmony and equality posed by widespread adoption of hate propaganda's message.” She observes that the market has "an unimpressive record in correcting discrimination based on personal characteristics such as race, gender and sexual identity", since its focus is on meeting the mass tastes of consumers.

-What do the “mass tastes” of consumers have to do with an argument for regulating “hate” speech? Well, besides demonstrating elitist snobbery and the desire to control “the masses”, not much. The truly successful thought market today is in politically correct snobbery, which rules all of our institutions and much of public life. It is the cheap patina of aristocratic bearing now made available to any semi-educated schmuck. So to say the market has an unimpressive record in this regard is simply the sign of someone who doesn't believe in the law of diminishing returns and is sure that the market is going to continue to reward her all too common condescension towards it.

105. The Tribunal noted that s. 2(a) of the Charter refers to both freedom of conscience and freedom of religion. Conscience has been defined as "personal morality which is not founded in religion" or "conscientious beliefs which are not religiously motivated"

-I'm sure religious Canadians will be impressed to learn that conscience is not part of their faith. Surely conscience and religion have exactly the same anthropological foundation, if we think back, hypothetically, to the beginning of humanity. This is not to say however that you have to be religious to be conscientious today.

106. It is submitted that such beliefs need to be analogous to religion in their sophistication and coherence in order to meet this definition. Mr. Lemire has failed to demonstrate that the exressionof hatred towards identifiable minority groups derives from any basis of conscience or a coherent belief system.

-too bad for Lemire. But bully for the Jihadis.

107. Freedom of religion was defined in Big M Drug Mart as:
... the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal and the right to manifest religious belief by worship and practice or by teaching and dissemination.

108. However, as the Supreme Court found in Ross, this freedom is restricted by the "right of others to hold and manifest beliefs and opinions of their own, and to be free from injury from the exercise of the freedom of religion of others.

109. Hate speech infringes upon these rights. Propaganda against different religions and cultural groups encroaches on the freedom of Canada's diverse peoples to entertain their own beliefs, declare them openly "without fear of hindrance or reprisal" and to manifest them in practice. Hate speech, by its very nature, intimidates minority groups and causes them to fear the manifestation of their religious and cultural beliefs in a society where they should be accorded dignity and freedom

-no doubt, the hated minority is intimidated; but I'd rather have my neighbor come to my aid than some government bureaucrat. To rely heavily on government for your freedom is not really to be free or to have firm rights. The political winds can shift direction any time, and only a well-exercised spirit of freedom among my neighbors can truly guarantee our shared freedom. If I rely on government, when my religion becomes unfashionable and is seen to impose on the rights of other forms of religious exercise, I will be silenced. I'd rather take the risk of being insulted by ordinary folk than by fools who think many religions can co-exist without conflict, as long as everyone defers to the government. Religious conflict can only be truly mediated by free political and intellectual interaction. Government cannot create, as a mediator, that which can only be created in freedom; only our freedom to talk openly, bluntly, to each other can engender the positioning by which new forms of relationship and reciprocity can come into the world to truly mediate our conflicts.

110. Dr. Tsesis refers to the role of religious dogma in upholding slavery as an expression of the natural order as a factor contributing to its persistence in pre-Civil War America. He also notes that similar religious beliefs support present-day slavery in Mauritania. The perception of Jews as the killers of Christ was historically at the root of much anti-Semitism.

Again, let's note that the defense of slavery is central to slave-owning societies. So, where is the apt analogy to those marginal figures who are prosecuted for hate speech in 21st C. Canada? Is the government of Canada actually proposing to outlaw some hateful ideology that is central to how our society works? In any case, it was the brave exercise of free speech, by people who were exposed to accusations of hatred and much else, that brought an end to slavery. And what of the beginnings of slavery? Are we seriously to believe that this institution that has been pervasive in human history until very recently came about because of a lack of hate speech codes? Why should we be impressed by those reducing historical complexities to cheap arguments so that Utopian Gnostics may justify their high offices in government?

117. Dr. Tsesis has similarly noted that all rights have corresponding natural limits:
... abstract uncertainties about potential evils should not constrain legislators from passing laws narrowly designed to curb expressions whose only object is to endanger the lives, professions, properties and civil liberties of the less powerful.

-Says who? Anyone who thinks the objects of language are obvious and singular, in any context, is someone who hasn't thought much about what language does. For example, even when I am pointing the finger of blame directly at some poor sod, one cannot ever say that my only object is to endanger him; i am also inevitably representing myself in the act of pointing the finger; one might say, with only a modest attempt at humour, that in scapegoating the Other, I am claiming the mantle of a Canadian government lawyer.

120. The Supreme Court has explained why the terms "hatred" and "contempt" (described by Mr. Lemire as "extremely abstract")are in fact sufficiently explicit, and the Tribunal has adopted this explanation:
With "hatred" the focus is a set of emotions and feelings which involve extreme ill-will towards another person or group of persons. To say that one hates another means in effect that one finds no redeeming qualities in the latter. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings.

-Strictly speaking, hatred is not an emotion; animals have biological emotions but do not hate in any way like humans do. Hatred is an extreme form of resentment; resentment is the product of a sense of alienation from the sacred. Our relationship to the sacred is infinitely complex. To think that one can define it away as a (biological) emotion is a sign that one really does not have a serious understanding of where hate comes from and why it's an inevitable part of the human condition that cannot be legislated away.

136. This is consistent with the CHRA's aim of breaking the cycle of systemic discrimination. As the Supreme Court has observed:
... in attempting to combat systemic discrimination, it is essential to look to the past patterns of discrimination and to destroy those patterns in order to prevent the same kind of discrimination in the future.

-It takes my breath away to imagine these Utopian polizei knocking on doors at 3Am to destroy all that is evil in our sordid past. I would just settle for equality before the law, which becomes impossible once you have the law permitting the existence of some thoughts and not others. At least, it's now becoming clear that we have people in government who are out not just to police the marginal nutters, but to shut down something they deem central to our society. One hopes that in future they will make this clear without such reliance on abstract academic jargon that amounts to little more than a conspiracy theory, a non-interpretation, of history.

139. The aim of these remedies is to ensure ongoing compliance with the CHRA and protection of the public. They are not a punishment, but rather intended to assist in the effective enforcement of the protection of human rights.

- So one can be given significant fines; one can be forced to apologize for one's sins and effectively banned from publicly speaking or writing on a given subject; and one can be held in contempt of court and imprisoned if one refuses such a ban. But none of this is punishment? It is simply enforced service, kind of like what a peasant owes his feudal lord? What Orwellian world have we entered?

142. In any event, the Supreme Court has disposed of this argument in Taylor. The Court noted that a contempt order must be preceded by an order of the Tribunal to cease and desist a discriminatory practice, and observed:
Such a directive from the Tribunal necessarily brings to a respondent's attention the fact that his or her messages are likely to have a harmful effect. Uncertainty or mistake as to the probable effect of these messages is thus dissipated, and consequently their continued promulgation will be accompanied by the knowledge that certain individuals or groups are likely to be exposed to hatred or contempt on the basis of race or religion. At this stage of the process, it cannot be argued that an individual is innocent or negligent as to the effects of his or her message, and hence the spectre of imprisonment absent intent is dispelled [...] I therefore cannot agree that the possibility of a contempt order issuing against an individual unduly chills the freedom of expression.

-do what we say, or go to jail, because we know what's best and you have been warned... Sure, that's not unduly chilling... I mean, just ask Jadewarr.

Reading this document makes me ashamed to be a Canadian. We should all hate Canadians and destroy their damnable Human Rights Act. There, i've said it; lock me up before I go crazy.


Blazing Cat Fur said...

Thank you.

Dag said...

Wow. Peers, that is the best.

Anonymous said...

This analysis is incredibly good. As a professional writer (not "journalist"! I actually research and write for a living!), I wish I could say I had written this myself.

Hopefully, Shaidle and Co will link to this SUPERB analysis. The "anthropological" take makes me suspect I know the author VERY well. Next time I see the chap, I'll ask him about this site. - SIMON

truepeers said...

Simon, your name doesn't ring a bell. Note the link to Generative Anthropology in my piece. But thanks for the kind words.

Freedom Fan said...

Wow. TruePeers you have a first-class mind. Thank you for this thoughtful fisking of Rob Nicholson's shameful legalese psychobabble attacking free expression.

I hope you don't mind, but I sent a link to this article to Anuj Desai.

truepeers said...

OH I'm happy for any links, thanks.

Anonymous said...


You are most welcome, my friend. BTW, "Simon" is not my actual name. My career and profile prevent me from self-identification here (it's an employment issue. I need to eat and feed my family as well!) :-)

Truepeers, the writing style and succinctness of thought tell me that we do indeed know each other rather well. Bee seeing you! ;-)

truepeers said...

"Simon", I hope so; but keep in mind that succinctness has not always been my forte. There are a couple of academics publicly associated with Generative Anthropology here in Vancouver; alas, I'm not one of them.

Anonymous said...

Decades of the victories of 'Canadian Values' in election after election can't be undone by a single essay; at least not quickly enough. I won't forget that some of the essayists of liberty are also known as its martyrs. Good luck to you, but prepare to flee.