I was initially going to pick out some of the more outrageous assertions and claims in the Attorney General’s 50-page legal brief filed against Marc Lemire’s constitutional challenge to section 13(1) of the Canadian Human Rights Act. However, for the sake of brevity, I simply want to hone in on a few of them. Here goes.
37. Mr. Lemire complains that the prohibition against disseminating hatred via the Internet is not accompanied by the defences of truth and fair comment that are available to the traditional news media in torts ranging from defamation to seditious libel. This argument is misleading. The defences of truth and fair comment remain available to torts such as defamation and seditious libel, regardless of the medium in which they occur. However, none of the traditional media can avail themselves of these defences in cases of alleged hate propaganda, whether the communication appears in print, on television or on a website. As the Federal Court has explained, defences that may be available in tort actions are not available in cases of hate propaganda because the prohibition on discrimination is concerned with adverse effects, not with intent.
Similar reasoning was applied by the Supreme Court of Canada in Taylor. …
I am of the view that the Charter does not mandate an exception for truthful statements in the context of s. 13(1) of the Canadian Human Rights Act…
Clearly, an intention to expose others to hatred or contempt on the basis of race or religion is not required in s. 13(1). As I have just explained, however, s. 13(1) operates within the context of a human rights statute. Accordingly, the importance of isolating effects (and hence ignoring intent) justifies this absence of a mens rea requirement. I also reiterate the point that the impact of the impugned section is less confrontational than would be the case with a criminal prohibition, the legislative framework encouraging a conciliatory settlement and forbidding the imposition of imprisonment unless an individual intentionally acts in a manner prohibited by an order registered with the Federal Court ….
40. The nature of the remedies that may be imposed under s. 54 have also informed the Supreme Court’s analysis of why truth is not a defence to a complaint under s. 13 of the CHRA.
I simply cannot fathom how the highest government legal body in the land, the Attorney General’s office, supported by the Supreme Court, can state that the truth is not a defence in S. 13 cases.
It really does boggle the mind.
I was under the silly impression that truth is a defence anywhere at anytime. Can you imagine running a society on a principle where truth was not a required prerequisite in adjudicating between disputes? Whether that’s in a criminal court, a civil court, a political forum, in family relations or social relations – indeed in every day life, truth is something so basic and fundamental that its abandonment can only lead a society into complete and utter ruin. The truth is required because it is the lens that let’s us see reality. And if we no longer want to deal in reality, then we aren’t dealing in the real world. And if we aren’t dealing in the real world, we’ll soon be out of the real world – as in, we’ll no longer be around.
The Attorney General’s office wants to ghettoize the truth and restrict its reach only to criminal cases. It doesn’t want to allow it to reach into S.13 of the CHRA. That says as much about the CHRA as it does about the Attorney General’s office. In fact, it officially cements the CHRA and its Star Chamber Tribunals as honest-to-goodness kangaroo kourts. In these types of kourts, of course, truth is no defence either.
In fact, the implications of jettisoning the truth for adjudicating disputes shows a very ominous sign for our country. If the truth is no longer the means by which we try to convince our opponents of the validity of our position, then there really is no more need of debate either. The whole idea of discussion and debate is that both sides attempt to get at the truth of an issue. But if searching for that truth has been removed as a necessity, then debate itself has ended too, and so, for that matter, has the need for free speech. What good is free speech if you cannot debate? And what is the point of debate if truth is no longer a requirement for a decision?
And what has replaced the truth as the new adjudicator? Hurt feelings, basically. The thing about hurt feelings, though, is that anyone can have them. Both parties in a dispute can have hurt feelings. One party might have been “hurt” more. But what if that “hurt” concerns a legitimate criticism, something that’s objectively true? And what if, God forbid, the criticism is so important that it requires the State to act on it in order to preserve itself? According to the Attorney General’s office, such trifles are not important. What’s important is that someone was offended.
42. The Supreme Court of Canada held in Taylor that the restrictions imposed by s. 13 of the CHRA constitute justifiable limits on expression in a free and democratic society. While this provision restricts non-violent attempts to convey meaning, and is therefore contrary to s. 2(b) of the Charter, it is nevertheless justifiable because: (a) hate propaganda lies far from the core values of the search for truth, democratic participation and self-fulfillment which underlie freedom of expression, making the restriction more easily justifiable;
Now, here’s something to note: “hate propaganda lies far from the core values of the search for truth“.
Wait a minute.
But the truth was something they just banished above as a defence! So, just so that I’m following this along correctly. The CHRA does not permit truth as a defence, but it holds the “search for truth” as a “core value”? Have I got that right?
These people must be on heavy, heavy drugs.
Aren’t we all comforted to know that our laws are in the hands of such capable people with such coherent views?
I know I am.