The Kafka-esque Kommando of Kanada

With respect to Mark Steyn and McLean’s magazine and Canadian hate law I have done some digging and what follows might be of interest to those not acquainted with the Canadian situation.

I know little about Canadian law but have many years of law behind me so I will try to abstract from what I have found that appears significant and present it here.  This should be helpful for those who find reading the law itself unrewarding yet want to have some understanding of this law’s origin and the way it is being administered.

Please bear with me. It gets more interesting the further along you read.

The current Canadian situation can perhaps be better understood by considering a summary history of the development of law in Canada, which is entirely different from US Law, which is a law of legislative and judicial continuity from the adoption of the US Constitution in 1786. The US courts also incorporated by judicial decision the pre-Constitutional British common law and the subsequent US common law, while at the same time interpreting federal and state legislation consistent with the US Constitution.

Relying on Wikipedia, which appears to offer a concise summary of the evolution of Canadian law, I have abstracted the following paragraphs. I have added some comments.

1. The first paragraph shows the dependency of Canada on British law, more or less, until as recently as 1930, with an actual termination of that authority happening as late as 1982:

“In 1931, the British Parliament passed the Statute of Westminster, 1931 (22 Geo. V, c.4 (UK)). This Act gave all dominion countries equal legislative authority with the United Kingdom. This was followed up in 1982, when the British Parliament passed the Canada Act, 1982 ([UK] 1982, c.11) giving up all remaining constitutional and legislative authority over Canada. The enactment of the Canada Act is often referred to in Canada as the ‘patriation’ of the constitution and it was largely due to the work of Pierre Elliot Trudeau, the Prime Minister of Canada at the time.”

2. I disagree with the writer’s suggestion immediately below that there were no solid protections of individual rights prior to the adoption of the Charter in 1982; but it is probably true that it required some elaborate judicial constructions to find rights in the traditional law:

“With the introduction of the Canada Act and the accompanying Charter, much of Constitutional law in Canada has changed. The Canada Act has entrenched many constitutional conventions and has made amendments significantly more difficult (see amendment formula). The Charter has shifted the focus of the Constitution to individual and collective rights of the inhabitants of Canada. Before the enactment of the Canadian Charter of Rights and Freedoms in 1982, civil rights and liberties had no solid constitutional protection in Canada. Whenever one level of government passed a law that seemed oppressive to civil rights and liberties, Canadian constitutional lawyers had to argue creatively, such as by saying that the oppressive law violates division of federal and provincial powers or by citing some other technical flaw that had little to do with the concept of civil rights and liberties. Since 1982, however, the Charter has become the most often cited part of the Constitution and has thus far solidified the protection of rights for people in Canada. . . .”

3. The foregoing must be taken in conjunction with the unwritten constitution:

In practice, there have been three sources of unwritten constitutional law:

[1] Conventions: Constitutional conventions form part of the Constitution, but they are not legally enforceable. They include the existence of the Prime Minister and Parliamentary Cabinet, the fact that the Governor General is required to give assent to Bills, and the requirement that the Prime Minister call an election upon losing a vote of non-confidence.

[2] Royal Prerogative: Reserve powers of the Canadian Crown; being remnants of the powers once held by the British Crown, reduced over time by the Parliamentary system. Primarily, these are the Orders-in- Council which give the Government the authority to declare war, conclude treaties, issue passports, make appointments, make regulations, incorporate, and receive lands that escheat to the Crown.

[3] Unwritten Principles: Principles that are incorporated into the Canadian Constitution by reference from the preamble of the Constitution Act, 1867. Unlike conventions, they are legally binding. Amongst the recognized Constitutional principles are federalism, democracy, constitutionalism and the rule of law, and respect for minorities. Other principles include responsible government, judicial independence and an Implied Bill of Rights. In one case, the Provincial Judges Reference (1997), it was found a law can be held invalid for contradicting unwritten principles, in this case judicial independence. . . .” [There is actually an express provision in the US Constitution which allows the Congress to limit the review powers of the federal courts but Congress has never used the power. The US founders did not envision three equal branches but rather three separate branches.]

The Implied Bill of Rights is a judicial theory in Canadian jurisprudence that recognizes that certain basic principles are underlying the Constitution of Canada. Invoked more often before the Canadian Charter of Rights and Freedoms was enacted it is nonetheless important when questions of parliamentary supremacy and the override power come into play. It played a part in the reasons given in the Reference re Secession of Quebec [1998] 2 S.C.R. 217.

4. Here is the pre-1982 rationale for protecting rights and freedoms:

“The concept of an implied bill of rights develops out of Canadian federalism. When provincial legislation intrudes deeply into fundamental freedoms of speech, religion, association or assembly, the provincial legislature is creating criminal legislation, which under the distribution of powers is reserved exclusively to the Parliament of Canada by section 91(27) of the Constitution Act, 1867.”

“Provinces cannot intrude in this area; if they do, such legislation is void and has no effect. Because provincial prohibition touching on the fundamental freedoms of speech, religion, assembly and association were declared unconstitutional by the courts, and in light of the expansive obiters [An obiter is a discussion of the law which goes beyond that which is necessary to decide the case at hand: obiter dictum; and by tradition in US Law at least, obiter does not constitute binding precedent.] in the leading cases, the writers were able to claim that there was a bill of rights implicit in the Constitution. . . . .”

5. But today Canada operates under express constitution protections. At the time of the Canada Act in 1982, the “Canadian Charter of Rights and Freedoms” was adopted, being the first part of the Constitution, which made explicit those rights up to that time derived from judicial interpretation “The Implied Bill of Rights.” Of particular application here is Section 2 of the Charter:

Section 2. Everyone has the following fundamental freedoms:

1. freedom of conscience and religion; 2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; 3. freedom of peaceful assembly; and 4. freedom of association.

So when an American looks at the Canadian fundamental law, the immediate reaction is to think the text is recognizable and sufficient to assure rights and freedoms. The foregoing are paralleled in the US Bill of Rights, the first ten Amendments to the US Constitution, the acceptance of which was the sine qua non for the required number of states to accept the constitution itself, specifically here the parallel language of the First Amendment. So the question really is one of interpretation, as it always is, which invariably involves the adjudicators suppositions regarding the nature of man, society, and always implicitly, the soul and God.

On the Mark Steyn case, our cause célebre, this from a Canadian blog site, which says in part:

“On June 28 2008, the Canadian Human Rights commission dismissed the complaint against Maclean’s magazine (Rogers Media) concerning an article by Mark Steyn, and rightly so. (The complainants held that the article, among others, established a pattern of discrimination, and following repeatedly rebuffed attempts to respond in Maclean’s magazine, felt compelled to bring further action).”

As many of you are aware, one article, ‘The Future Belongs to Islam,” is an opinion piece in which Steyn employs demographic information to support his opinion that the future of the Western world is in peril/doubt because of the spread of Islam.

From the recent Maclean’s decision (by the Human Rights Commission):

“The Supreme Court of Canada ruled in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 that this legally prescribed limitation of fundamental Charter rights [Section 13(1) of the Canadian Human Rights Act] [See below] was reasonable and justifiable, but warned that caution and restraint would be required in the application of the section so that the limitation on free speech would be minimized to the greatest possible extent.”

The blog site seems to stop short. So here is the problem as I see it: No one can know for certain under Section 13(1) of the Canadian Human Rights Act whether he may be forced to defend himself at great expense from a prosecution brought by the state, with no possibility of expenses much less damages should he be vindicated. Thus the mischief is in a law that allows anyone to attack anyone for speech and employ the machinery of the government to bear the expense.

[If the law merely permitted a private action there would be little problem because in a private action the losing party may be taxed costs and lawyers’ fees. It forces a litigant to consider the consequences. There have been attacks on such laws by litigious elements in the US who feel such burdens chill the readiness to litigate. I would certainly hope so! A criminal law which prohibits inciting to riot already exists and is the sort of speech leading to violence directly, clear immediate cause and effect, which can more legitimately be punished.]

In summary, the provisions prohibit discrimination because of the usual laundry list, including homosexuality (“orientation”). Here is a summary list of the important provisions, as I see them.

5. Can’t refuse to sell

6. Can’t refuse to rent

7. Can’t refuse to employ (This doesn’t work justly of course when the party who is refusing is trying to protect children in a school or prevent abortion facilitators from employment in a Catholic hospital, to name two situations that have risen in the US.)

8. Can’t ask about this kind of thing on an employment application or in a job interview

9. Binds unions and the benevolent order of police, etc.

10. Punishes a conspiracy to discriminate

11. Can’t practice wage discrimination based on sex, except where it is justified on the basis of skill, etc., which isn’t sex

12. Can’t display notices or placards containing discriminatory language

13. (And here is the provision that Mark Steyn ran afoul of.) Can’t use the Internet to distribute hateful views. (“Telephonically,” so I suppose that includes telephone speech too. But exempted are radio and TV broadcasters!!!!!) But it must mean, through some language of interpretation, printed matter also, since the publication charged was McLean’s magazine. I am not looking further into this at this time. I just assume it is all types of publication.

14. Can’t harass people and in particular sexually harass women

15. The Canadian Human Rights Commission gets to decide what is reasonable. (Here is an opportunity for the ideological perversion of a law.) Subsection (8). “This section applies in respect of a practice regardless of whether it results in direct discrimination or adverse effect discrimination.” [How many pancakes does it take to shingle a dog house?]

Skipping down through all the exemptions for insurance companies, etc, we get to the commission’s catchall power:

27 (2). The Commission may, on application or on its own initiative, by order, issue a guideline setting out the extent to which and the manner in which, in the opinion of the Commission, any provision of this Act applies in a class of cases described in the guideline.

And here is the tentacles clause for the octopus:

28 (2). Subject to the approval of the Governor in Council, the Commission may enter into agreements with similar bodies or authorities in the provinces providing for the performance by the Commission on behalf of those bodies or authorities of duties or functions specified in the agreements or for the performance by those bodies or authorities on behalf of the Commission of duties or functions so specified.” [Strapped budget? No problem, let us help you out.]

Skipping past commission powers, meeting rules, terms of office, etc.

40. Anyone offended can file a complaint. But if business is slow, the Commission can initiate its own investigations.

(5). [Here is a strange blend of subject matter and personal jurisdiction]:

No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission that constitutes the practice

(a) occurred in Canada and the victim of the practice was at the time of the act or omission either lawfully present in Canada or, if temporarily absent from Canada, entitled to return to Canada;

(b) occurred in Canada and was a discriminatory practice within the meaning of section 5, 8, 10, 12 or 13 in respect of which no particular individual is identifiable as the victim; or

(c) occurred outside Canada and the victim of the practice was at the time of the act or omission a Canadian citizen or an individual lawfully admitted to Canada for permanent residence.

Don’t try to speak your mind with regard to Islamic expansionism from the US if you are a Canadian. They’ll get you anyway!! This would apply probably to anyone bound by the laws of Canada. So an American visiting Canada is just as liable as is a Canadian citizen. But even worse: An act could be committed by an American in the United States who, upon entering Canada, can be served with process. This is what is called a “long-arm” statute. I repeat: An American who criticizes Canadians from the US can be charged upon entry to Canada!

43. Commission has authority to search premises and seize records on application ex parte to a federal judge.

48. Establishes a special court, the Human Rights Tribunal, to try the cases raised by the commission. The Minister of Justice gets to veto further proceedings, apparently, or select which proceeding to be followed.

48.8 The tribunal can hire its own experts.
The judge is not bound by the rules of evidence. [Hmm. Like that?]

48.9 The defendant must expect to pay a lawyer through all the tortuous meanderings of this special tribunal: (a) the giving of notices to parties;(b) the addition of parties and interested persons to the proceedings; (c) the summoning of witnesses;(d) the production and service of documents;(e) discovery proceedings; (f) pre-hearing conferences;(g) the introduction of evidence;(i) awards of interest. [It occurs to me that the last time I saw “tribunal” in print it was the Nuremberg Tribunal. One must wonder if the drafters of this act were equating their endeavor with Nuremberg. I suspect they might have been.]

52. [Star Chamber] The Tribunal may take evidence in secret if it feels it is necessary. [I’m not kidding]: “(c) there is a real and substantial risk that the disclosure of personal or other matters will cause undue hardship to the persons involved such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; ” [That is elastic, like allowing abortion for the “emotional health” of a woman!]

53. Up to $20,000.00 award for emotional distress. Further, up to $20,000.00 punitive damages.

54. An extra $10,000.00 if it was hateful (Para 13 violation).

59. If someone feels you have intimidated them after they have filed a complaint, you may have committed a crime. The fine if convicted may run up to $50,000.00.
This is one of the more Orwellian laws I have examined. It is grotesque. It is inexplicable in terms of the Charter principles. A special agency to investigate and prosecute supposed thought and speech offenses, and a special court, under the Minister of Justice existing only to try these offenses, whether committed inside or outside Canada, by Canadians or foreigners, in severe derogation of the absolute principles in the fundamental law.

The rest of the prohibitions in the law are more or less defensible but I think not the special prosecutorial machinery. [I once opposed a special assistant attorney general given the statutory office of “public intervenor.” He could select any case dealing with the environment and become a party. Is this bad? Yes, because he had no client! He consulted his own navel to decide when to litigate and when to quit. He wasn’t restrained by an employer or a client. He was free to instigate and quit at will. Same thing here. No accountability. Only the weight of public opinion (politics) to give one pause.]

Are the Canadian legislators jurisprudential (or perhaps juridical) infants? Is there an enormous amount of political stupidity rampant in Canada? Is there a cultural amnesia that dwarfs the supposed vulgarity of residents to the south? In fairness, I realize now that this whole business has been a hot topic on the Canadian internet for many months. One might ask whether the Canadian lawgivers are devising a remedy for the ill thought-out provisions of this law.

I just ran across this in a June 2008 online article by Mark Hemmingway, a colleague of Mark Steyn at National Review:

“In 1999, a Christian printer was fined $5,000 for refusing to print a series of pro-pedophilia essays. He spent $40,000 in legal fees trying to defend himself. In 2005, the Knights of Columbus of Port Coquitlam, B.C., were fined for refusing to rent their hall for a lesbian wedding. There’s simply no point in naming all of the clergy that have been brought up on charges for preaching against homosexuality. Suffice to say it’s more than a few.”

“In 2002, the Saskatchewan Human Rights Commission ordered the Saskatoon Star Phoenix and Hugh Owens each to pay $1,500 to three complainants for running an ad that quoted Bible verses condemning homosexuality. The decision was overturned by an appeal court . . . four years later.”

“In January of this year, Ezra Levant, publisher of Canadian conservative magazine The Western Standard, was brought up on charges for publishing the infamous Danish Muhammad cartoons as a matter of informing his readers what all the fuss was about. Since then another unrelated complaint has been lodged against him  and, as near as I can tell, the entire conservative Canadian blogosphere  by none other than serial crank Richard Warman.”

“This kind of nonsense on stilts is now the accepted norm in human-rights tribunals. With Steyn and Maclean’s involved, supposedly enlightened liberal Canadians, who needs free speech when we have socialized medicine?!  We may not be able to dismiss the victims of the injustice this time around as merely neo-Nazis or those backward Christians. Steyn’s fame precedes him, and Maclean’s is a beloved national institution in Canada, with ample resources.”

“In fact, according to Andrew Coyne of Maclean’s they’re hoping to lose the case in Vancouver this week so they can bring it to a real court of law, and possibly set a precedent that could be the beginning of the end of Canadian “human rights” tribunals. Here’s hoping.”

Early on in this article you will have seen that the complaint was dismissed on June 28 by the Commission so there is no possibility of court review in this case.

Sorry to go on so long. The old fire station horse smells smoke and gets excited.