“I’ll also have to agree with Mr. Simard–possibly for the first time ever–…”

Nice KC. But I thought we shared somewhat similar views when it comes to the striking support staff at York University.

I think this is the crux of my concern. One of the chief arguments in favour of having Human Rights Commissions adjudicate speech is that prosecutions under the criminal code are too difficult.

As a soon to be lawyer commited to due process I say “boo hoo”. Frankly this argument doesnt sound much different from arguments in favour of military tribunals, security certificates, etc.–that fundamental liberal principles like the presumption of innocence, proof beyond a reasonable doubt, etc. can be lightly discarded when its “too hard” to prosecute.

The same illiberal premise populates discourse about prosecution of drunk driving. ‘Its ok to eliminate defenses that might allow an accused to raise a reasonable doubt because its too hard to prosecute and we cant have folks getting away with it’.

The moderate, centrist position is yes, there is some expression that needs to be addressed because it is harmful to social cohesion and civil peace. I dont think that many people dispute that other than Ezra Levant and his wingnut friends. But the mechanisms in place to do so should be used sparingly, and accuseds should be entitled to the same due process as would be received in a criminal court.

The argument that the traditional court structure is not amenable to this type of ‘dispute’ is similarily unpersuasive. If you want negotiations have prosecutors bring people in to talk things out. Prosecutors have wide discretion. Bring in a mediator if you need to. If the penalties are too harsh, reduce them.

This is not an administrative law issue, and shouldnt be dealt like one. Only a court can take away your freedom and put you in jail (for long at least) and only a court should have the power to limit expression. It is too fundamental a right, even if it has its limits.

I’ll also have to agree with Mr. Simard–possibly for the first time ever–in that I dont think the legal outcome was as certain as others have suggested. The law as written in so wide open, and employs such a low standard that a ‘conviction’ was certainly possible. I’m glad the tribunal and commissions exercised restraint, but a different outcome was certainly possible.

My hope is that the SCC revisits the narrow 4-3 Taylor decision and bats this issue back to the criminal courts, or the Conservatives ‘grow a pair’ and bring the issue back to Parliament. Assuming the Liberals don’t “whip the vote” I think they have the numbers they need.

“From a strict legal perspective, the tribunal was correct, as was the Ontario Human Rights Commission, to toss out the case against Maclean’s brought by a Muslim group over an article written by Mark Steyn”

Regarding the BC case, many, including myself have argued that this was a political victory and not a legal determination http://lawiscool.com/2008/10/28/closure-to-the-free-speech-debate/.