Monday, May 12, 2008

Ezra Levant Slams Attorney Generals' total support of "Section 13" the thought crimes provision of the Canadian Human Rights Act



Justice Minister Rob Nicholson finally weighs in on section 13


Finally, Rob Nicholson, the Conservative government's Justice Minister, has weighed in on section 13, the thought crimes provision of the Canadian Human Rights Act.

He's in favour of section 13.

Here's a 50-page legal brief (3 MB file) his department filed, against Marc Lemire's constitutional challenge to that section.

I would sum it up as follows:

1. The Conservative government believes that the constitutionality of section 13 has already been approved by the Supreme Court, and so it shouldn't be questioned again; and

2. In any event, section 13 is a reasonable limit on free speech.

My two general responses would be:

1. In the 18 years since the constitutionality of section 13 was examined in 1990, the Canadian Human Rights Commission has taken a more and more abusive approach to its application, exceeding the narrow permission granted by the Supreme Court eighteen years ago.

2. The government's arguments that hate speech is the precursor to violence -- and that laws banning speech are necessary to prevent violence -- are absurd. They're logically false and they're historically false.

Read some of the junk history in the brief. Like paragraph 56, in which the government argues:

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.

Take a moment to absorb that sentence, and then think for yourself.

Nazism in Germany was odious not because of its "audaciously false propaganda", but because it murdered people by the millions. It's not the propaganda that killed the Jews; it was the fact that their property rights, their rights to self-defence, their economic rights, their mobility rights, their rights to life and liberty were taken away.

But look at the second half of that sentence: tolerant, liberal societies can be fragile. First, the Weimar Republic had within it the legal and constitutional seeds of Nazism, that Hitler exploited -- anti-hate speech laws being amongst them, and weak constitutional protections of real rights, too. But more importantly, what is the government's implication here? That tolerant, liberal societies are not strong? That, instead, we need the stern hand of a state political censor? Isn't that exactly the opposite of the lessons of Nazism?

It gets even more muddled. Look at paragraph 58:

...history teems with examples of times when lies, distortions and propaganda empowered groups like the Nazis to repress speech...

Read that again. The government is arguing that we should limit speech because we've seen how the Nazis could limit speech. Huh?

It wasn't propaganda that repressed speech. It was laws against speech that repressed speech. And those laws were passed by the Weimar Republic. But putting that aside, what exactly is the argument here? That we'd better ban speech first, before the Nazis do?

Paragraph 60 takes the cake. It's a list of examples of "violence" that the government says was granted "social acceptance" because of free speech. Black slavery in America is included in that list.

But slavery existed not because of White propaganda, but because Blacks were not given their rights. To focus on the propaganda isn't just ridiculous, it ignores what the real problem was: a lack of civil rights for Blacks. All the propaganda in the world couldn't enslave Blacks; free Blacks in the northern states weren't spared hate speech, just as Blacks everywhere in America today aren't, either. But besides being an offensive nuisance, hate speech can't enslave Blacks. In fact, the opposite point is the lesson of slavery: abolition came about precisely because of free speech, first in the UK and then in America. As Abraham Lincoln supposedly said to Harriet Beecher Stowe, the author of Uncle Tom's Cabin, "So you are the little woman who wrote the book that started this great war."

Read paragraph 61 of the government's brief:

black people would not have been the main victims of slavery in the antebellum American south without the support of extensive mass mythology about their alleged inferior qualities.

Really? Is that all it took to enslave Blacks -- "mass mythology"? And without that, they would have been free? The same crock is served up in paragraph 62: Hitler fomented "a mass delusion that Jews were responsible for bad times, and as a result, a Holocaust could be perpetrated against them without general opposition."

Is that what happened? Hitler hypnotized Germany -- put them in some trance, some "mass delusion"? Just like the U.S. South was all living in some "mass mythology"?

If so, then why did Hitler have to pass the Nuremberg Laws? Why did he have to strip Jews of their real rights, if all it took to implement the Final Solution was some propaganda? Even medieval slave traders couldn't act without legal sanction -- the Vatican had to pass edicts in 1452 and 1455, etc., authorizing the enslavement of certain races. Even in the dark ages, men had natural rights that couldn't be taken away except for by government intervention. It's that government intervention that kills people, not the free speech of private citizens.

So who is this nut the government keeps quoting?

His name is Alexander Tsesis, a professor at a middling U.S. law school. Tsesis has two political clients: the Canadian Justice Department, and Sen. Edward Kennedy of Massachussets, tied with Barack Obama as the most left-wing senator in America. Tsesis is a left wing kook -- but the Canadian government hangs on his every word.

When the government lawyers do their own reasoning, they're even fuzzier. Try to make sense of paragraph 109:

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.

What does that mean? That because someone says something mean about Scientologists, Scientologists are any less free to "entertain their own beliefs"? How exactly is one man's propaganda a "hindrance" to another person's faith? And how did the word "reprisal" sneak in there? We're talking about propaganda here -- mere words. We all agree that violence or other infringements on real rights should be illegal. So why is that in there, other than to scare people who don't know the difference between words and actions?

How about paragraph 113, where the government argues that censorship protects the "self-worth" of "the Jewish community". Really? Is that all it takes to give Jews self-esteem? And is giving Jews -- or anyone else -- self esteem the job of the government? And does that important goal trump someone else's freedom of speech? 

Now let me state the obvious: the decision by the Justice Department to intervene was made before Rob Nicholson was the minister -- even before the Conservatives were the government. It was made when Irwin Cotler, the Liberal, was minister, if I'm not mistaken. Ever since then, federal lawyers have been beavering away in support of section 13, along with other tax-paid lawyers from the CHRC (and the gaggle of Jewish censors from the Canadian Jewish Congress, B'nai Brith and the Simon Wiesenthal Center).

Putting aside politics, if a previous Justice Minister instructed his lawyers to intervene in support of censorship, it's those lawyers' duty to do so until their instructions change. And, since the Conservatives have not yet changed course on section 13 -- or any other aspect of the Canadian Human Rights Commission -- it should not be surprising that Justice Department lawyers are still serving up the kind of junk history and psychobabble that is evident in this memorandum.

There are probably hundreds of cases in the bowels of the Justice Department that are ongoing from previous administrations. Most of them are likely non-partisan matters. But not this one -- this is intensely ideological.

It is the worst of politically correct, historically inaccurate, junk sociology, dressed up as a legal brief. It's the kind of stuff that radical law professors love. And it's precisely the kind of thing that Stephen Harper has been good at rooting out -- such as the awful Court Challenges Program.

I simply don't believe that a single member of the Conservative government, let alone the Justice Minister or the Prime Minister, would agree with, or even understand, the following passage (from paragraph 116):

"on a macro level, the general tone of society can affect the mind", and can lead to incivility and the "breakdown of community protection"

I don't even think the lawyers who drafted the brief even know what the hell that means. But they're just following old instructions, and they'll continue to do so until someone in the Conservative government yells "stop!"

I'd like to invite readers -- and fellow bloggers -- to go through the memo in detail. Give it a good fisking. Don't be intimidated by all the legalese; focus on the arguments, the logic, the history, the psychobabble, the plain old unintelligible political correctness of it.

And, if you happen to be a Conservative Member of Parliament, ask yourself: does this legal brief speak for the government? And, if you happen to be the Conservative Justice Minister, what are you going to do about it?