Supreme Court Fossils rule that "Truth is no Defence!"
“Truth the often inconvenient ... offence alone can't be grounds for censorship unless we want to end up not being able to discover new truths.”
Dr. Donald Downs
Professor of Political Science, Law and Journalism at the University of Wisconsin, Madison.
It really makes you wonder what goes through the heads of the fossils that sit on the Supreme Court of Canada. In the recent Sask Vs. Bill Whatcott ruling on so-called “hate speech”; the fossils found that truth should not be a defence in a “human rights” hearing. Brian Lilley wrote a fantastic article on this and the mainstream media in Canada has dumped all over the Supreme Fossils [here] [here] [here]
The fossils in black robes found that:
“The discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians. As such, the legislature is entitled to a reasonable apprehension of societal harm as a result of hate speech. The lack of defences is not fatal to the constitutionality of the provision. Truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction. Allowing the dissemination of hate speech to be excused by a sincerely held belief would provide an absolute defence and would gut the prohibition of effectiveness.”
Interestingly enough, in my case, the government called multiple expert witnesses, and NONE would dare state that truth should not be a defence. In fact, quite the opposite, the governments own witnesses [witness for the Attorney General of Canada] said that truth is a “critical part” part of the evaluation of alleged hate speech.
But that doesn’t bother the fossils on the Supreme Court; they choose to just ignore the governments own witnesses, and override their testimony, to fit into their 1970’s outdated view of the world. When the facts don’t fit… ignore them!
Supreme Court of Absurdastan:
Rothstein, now aged 73!
Is this Weekend at Bernie’s Part 2?
Don’t confuse us with the facts; Our minds are already made up!
Here is what my Memorandum of Fact and Law says about truth, based on the testimony of expert witnesses in my case:
84. The extension of s. 13(1) to the Internet justifies revisiting the finding in Taylor regarding the failure to provide any defences such as truth, lack of intent and fair comment in the proportionality test under s. 1. The communications context of telephone answering machines meant that the messages subject to the provision were pre-recorded voice tapes of approximately one minute in length. [see: Smith, supra, p. 2] The communications context of the Internet includes limitless material from books and journals, historical documents, newspapers and TV programs. It includes religious tracts such as the Bible.
85. The subjection of the full spectrum of knowledge to s. 13(1), where there are no defences, especially that of truth, is an extraordinary violation of traditional notions of freedom of expression. It is not a reasonable limit on s. 2(b) rights in the communications context of the Internet.
86. The extension to the medium has allowed s. 13 to catch messages, in the Harrison case, which were posted at a rate of several every few minutes, many of which were nothing more than angry rants. The chilling effect of catching such irrelevant rants far outweighs the benefit. [see AB, v. II, p. 562]
87. Dr. Mock gave testimony that truth is an essential element in deciding whether expression was, as she defined it, hatred or contempt. She also testified that it was possible for someone to experience hate or contempt when hearing truthful statements. [AB, v. III, p. 720-721] She agreed with the proposition that to make the distinction between criticism and contempt, one had to decide whether what was being said was factually true or not. [AB, v. III, pp. 719]
88. She testified that in determining how far a person was allowed to go in criticizing a group before it became contempt, one of the factors to be examined was whether it was “lies that are being promoted.” [AB, v. III, p. 716] She testified that it would be appropriate in a section 13(1) hearing to give the respondent the opportunity to attempt to prove the truth of the premises upon which a respondent had based his expression. [AB, v. III, 720-721] It was the “constant repetition of half truths, lies, exaggerations, stereotypes, etc.” that created a climate where people were dehumanized. [AB, v. III, p. 685]
89. Dr. Tsesis testified that the assessment of truth or falsity of a statement would be a “critical part” of the assessment of the nature of an expression and its effect. He testified: “I think it would only be logical for a court to inquire into its truth.” [AB, v. III, p. 724] He said that a person should be allowed to prove that a statement was true, even though it exposed an identifiable group to hatred. [AB, v. III, pp. 725-726]
90. Dr. Downs, an expert called by Lemire, testified: “Truth the often inconvenient...offence alone can't be grounds for censorship unless we want to end up not being able to discover new truths.” [AB, v. III, p. 727] He also quoted Deborah Lipstadt, who opposed laws against Holocaust denial, on the grounds that it harmed the truth-seeking process. By placing Holocaust denial into the hands of the state for punitive enforcement it was taking it out of the truth determination process. [AB, v. II, p. 563; AB v. III, pp. 728-730; see also “Illiberal Europe” at AB, v. II, p. 567 for the extraordinary chilling effect of such laws.]
91. It is respectfully submitted that this testimony by the government’s own witnesses shows that truth is an essential part of determining whether in fact words complained of are “hate” or expose to “hate.” By failing to provide this important defence, as well as any other standard defences such as fair comment, s. 13(1) fails to meet the proportionality test of section 1 of the Charter.
Sun Commentator Brian Lilley chimes in on truth and how essential it is:
The truth will set you free — well, except in Canada.
Wednesday’s Supreme Court ruling upholding parts of the Saskatchewan Human Rights Act restricting free speech is mind boggling in many ways, but the most head-scratching part must be the claim that the truth is no defence.
“I agree with the argument that the quest for truth is an essential component of the ‘marketplace of ideas’ which is, itself, central to a strong democracy,” Justice Marshall Rothstein writes.
The start of that paragraph sounds good because the quest for truth is part of a strong democracy. But unfortunately for Canadians who value truth, Rothstein went on to say that doesn’t mean you can’t face sanction for uttering words that are true.
“However, I do not think it is inconsistent with these views to find that not all truthful statements must be free from restriction.
“Truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.”
The ruling stems from the case of Bill Whatcott, an activist opposed to homosexuality, especially any teaching about homosexuality in schools. Supporters of this decision will say that Whatcott’s words hurt people and that he was spreading hatred, something the Saskatchewan Court of Appeal disagreed with.
But none of that matters now — Whatcott’s pamphlets are irrelevant. From this day forward, Canadians can be hauled before the various human rights bodies and face fines, prohibitions on future speech and other sanctions — and claiming what they said was true will not matter. Neither will intent.
“Similarly, it is irrelevant whether the author of the expression intended to incite hatred or discriminatory treatment or other harmful conduct towards the protected group,” Rothstein wrote.
Elsewhere in the decision he upholds the idea that there does not need to be any actual harm caused by the words written or uttered to find someone in violation.
So, let me get this straight. In Canada today I can state something that is true, mean no harm to anyone nor cause any actual harm to anyone and still be in violation of various human rights acts spread across the country.
Amazingly, Rothstein said that the law should be readily understood by reasonable people.
“The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred,” he wrote, unaware that no reasonable person would understand the court’s twisted logic.
Now, the astute reader might be saying at this point that we have freedom of expression and it is guaranteed by the Charter of Rights and Freedoms. They would be correct in pointing to the charter but incorrect in assuming those rights and freedoms actually mean anything.
Whatcott argued that his pamphlets, while offensive to homosexuals, should be protected by the charter’s guarantees of freedom of expression and freedom of religion.
The court agreed that the Saskatchewan Human Rights Act violated the Charter of Rights and Freedoms but then said it was A-OK all due to Section 1 of the charter.
See, in Canada we have rights as long as the government and courts say we can have them.
There are no absolutes, just a bevy of limits.
The charter guarantees our rights “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
In today’s Canada, hurt feelings trump freedom of expression and freedom of religion.
As for the truth, our courts can’t handle the truth.
[See the full article at: http://blogs.canoe.ca/lilleyspad/contributor-columns/column-lilley-truth-is-no-defence/]
Deborah Gyapong commented that:
The Whatcott decision ---truth is no defense
I thought my head was going to explode when the Whatcott decision came out yesterday. Equality trumps both religious freedom and freedom of speech. Truth, speech based on objective facts, is not defense.
Constitutional lawyer Iain Benson, who also argued for Whatcott, said the decision does "not recognize that 'hatred' is too vague a term if it is disconnected from incitement to cause imminent violence or physical harm."
"There is a real need for new thinking on the terms that it uses: 'discrimination' and 'vulnerable groups,' where what is really at issue is not 'attacks on the vulnerable' but strong feelings about what is and what isn't permissible sexual conduct," said Benson. "The court seems unable to make these distinctions with any convincing logic."
Though the court struck down a portion of the code by striking out part of the section that refers to expression that "ridicules, belittles, or otherwise affronts the dignity" of identifiable groups, it left in place the "troublesome" words "tends to expose to hatred," said CCRL executive director Joanne McGarry.
It also leaves in place a system where people can be prosecuted for hate speech without the rules of evidence, right to counsel, and presumption of innocence found in a real court of law, McGarry said.
This means people continue to be vulnerable to complaints about religious expression like those faced by Calgary Bishop Fred Henry for a 2005 pastoral letter and newspaper column defending traditional marriage.
"The league will continue to stand for the principle that if there is any intrusion on charter-protected freedoms, it should be left at the criminal level, which has its own internal processes before a charge can be laid, and a standard of proof of an intention to provoke hatred as part of the charge," said CCRL president Phil Horgan.
He said the code is likely to continue to be used to prosecute people who argue for Christian morality.
"It's not much help to publishers or clergy wondering, 'Can I say this?' or 'Can I say that?'" McGarry said, noting the whole category of hate speech "is subjective."
"I find it troubling that statements that are true or based on fact are not considered a defence," McGarry added.
Derek James from wrote a fantastic article which appeared in the Calgary Herald:
Canadians should be able to speak without fear
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.
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.
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.
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.
In its 1990 Taylor 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.
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.
Fast-forward to 2013. Unlike Taylor, the Whatcott 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 Taylor dissent has effectively been redacted, leaving us with muddled confusion.
The problems canvassed in Taylor are not resolved in Whatcott - 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?
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.
In 1986, Justice William McIntyre said, "(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."
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.
There's one 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. 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.
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.
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.
Derek James From is a Calgary-based lawyer practising law with the Canadian Constitution Foundation
[See the full article at: http://www.calgaryherald.com/opinion/columnists/Canadians+should+able+speak+without+fear/8044017/story.html]
As the judges put it, “not all truthful statements must be free from restriction.”
We lived through a time like that once. It was called the Dark Ages. We “restricted” scientists like Galileo for daring to suggest that the Earth rotated around the Sun — a fact considered offensive in 1615. We emerged from this censorship through a period called the Enlightenment, when science and skepticism allowed us to question anything — even if feelings were hurt. Especially if they were hurt, actually.
Fight Censorship – Support freedom