RSS FeedWorld Institute for Research and Publication (WIRP) Presentations
I presented a couple papers this morning at the Annual Meeting of the World Institute for Research and Publication – Law. You can read more about the conference over at Slaw.
The presentations, with audio and complete papers, are available on the WIRP site, or on SlideShare below:
Full Paper: Media Narratives in Times of Turmoil: Depictions of Minorities in Canada Post 9/11
Full Paper: Admissibility of Alcohol and Gaming Commission of Ontario Reports
Don’t hate, U of O Provost warns U.S. pundit
When the University of Ottawa Campus Conservatives invited U.S. political pundit, Ann Coulter, to speak, they had to know she would attract attention. Coulter has always been outspokenly controversial with her political positions. But it’s unlikely that she, nor the Campus Conservatives, expected that her anticipated visit would provoke words of warning from the University of Ottawa Provost.
In a letter to Coulter, Vice President Academic and Provost François Houle wrote the following:
I understand that you have been invited by University of Ottawa Campus Conservatives to speak at the University of Ottawa this coming Tuesday. We are, of course, always delighted to welcome speakers on our campus and hope that they will contribute positively to the meaningful exchange of ideas that is the hallmark of a great university campus. We have a great respect for freedom of expression in Canada, as well as on our campus, and view it as a fundamental freedom, as recognized by our Canadian Charter of Rights and Freedoms.
I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or “free speech”) in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.
You will realize that Canadian law puts reasonable limits on the freedom of expression. For example, promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges. Outside of the criminal realm, Canadian defamation laws also limit freedom of expression and may differ somewhat from those to which you are accustomed. I therefore ask you, while you are a guest on our campus, to weigh your words with respect and civility in mind.
There is a strong tradition in Canada, including at this University, of restraint, respect and consideration in expressing even provocative and controversial opinions and urge you to respect that Canadian tradition while on our campus. Hopefully, you will understand and agree that what may, at first glance, seem like unnecessary restrictions to freedom of expression do, in fact, lead not only to a more civilized discussion, but to a more meaningful, reasoned and intelligent one as well.
I hope you will enjoy your stay in our beautiful country, city and campus.
Sincerely,
François Houle
Vice-recteur aux études / Vice-President Academic and Provost
Université d’Ottawa / University of Ottawa
Given Coulter’s colourful history, I would think she would be grateful to learn more about a foreign country. However, even in Canada, some have been quick to criticize the letter. And in the National Post, Prof. Ed Morgan reminds us that, as far as hate speech goes in Canada, we criminalize only words conveying “emotions that belie rationality.” After all, even in Canada, we wouldn’t want to approach anything resembling censorship, now would we?
Media, free speech, and human rights
Media aren’t the best friends of human rights
Max Yalden was an Official Languages Commissioner in 1977-84 and the head of the Canadian Human Rights Commission in 1987-96. Recalling the Maclean’s case and other contentious issues of free speech versus human rights, Haroon Siddiqui reviews Yalden’s just-published memoir:
Yalden’s central message is that Canada’s human rights regime works reasonably well, notwithstanding the media’s hissy fit.
In Defense of Free Speech…
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.
While I am not a fan of Mark Steyn’s “neoconservative” ideology, as a self-described left-of-center civil libertarian I am certainly a fan of freedom of expression. Even if you do not agree with his arguments, he should have the right to express them without remaining worryingly susceptible to the retributive power of the state.
In fact, if it is held necessary that a body is to rule on the acceptability of certain speech, in order to protect vulnerable groups, the bar should be set exceedingly high. And according to previous rulings, the Supreme Court agrees. From the recent Maclean’s decision:
“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] 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.”
From Taylor:
“The guarantee of freedom of expression is not unduly impaired by s. 13(1). The section is not overbroad or excessively vague. Its terms, in particular the phrase “hatred or contempt”, are sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament’s objective. The phrase “hatred or contempt” in the context of s. 13(1) refers only to unusually strong and deep‑felt emotions of detestation, calumny and vilification…”
The test was whether Steyn’s writings were so extreme and malicious in nature as to elicit hatred or contempt against the subjects:
“The court interpreted ‘hatred’ to mean a feeling of extreme ill-will that allows for no redeeming qualities in the person towards whom it is directed while ‘contempt’ “encompassed looking down upon or treating as inferior the object of one’s feelings.”
In an earlier related case referred to in the decision, Warman v. Kouba, it is made clear as to what type of material is considered to warrant intervention and censorship. Steyn’s writings certainly do not meet this benchmark. Hence, the commission concluded that the views expressed in the article:
“when considered as a whole and in context, are not of an extreme nature, as defined by the Supreme Court.”
A decision is pending from the BC commission.
Freedom of hate speech
The following piece has been reproduced with the permission of the author. Law is Cool does not necessarily advocate or promote the views contained within.
A Country Run by the Mob(osphere)
When “free speechers” publish letters by lawyers or put legal proceedings online, they themselves are attacking free speech by attempting to intimidate legal proceedings [same applies for when their supporters attack websites].
That’s what John W. Dozier claims, in his American piece on Copyright Rights and Free Speech,
The first intended use is for it to chill the rights of businesses to speak without fear of a mob attack. It is often published to incite an overwhelming force to attack a business in many ways, both legal and illegal, and to intimidate businesses into submission. The publication itself, in this context, is an attack on our free speech rights. Chilling effect is an understatement. The second is even more obvious. If the business decides to move forward, the recipient uses the threat of posting it to gain an advantage in the legal dispute. The threat is not one founded upon the public’s right to know. It is founded upon a belief that the threat of publication of the cease and desist letter will get the recipient a better “financial settlement”, which is often a nice way of saying that “if you pay me off I will stop the attacks and remove the postings about your company, and if not, well, you’ll have to suffer the consequences “. That, my friends, smells of extortion. But it happens every day. These public interest and free speech groups know it…
Dozier terms such collectives as the “mobosphere,” and provides services to clients who are attacked by these organized groups.
The typically American problem has slowly entered Canada by right-wing groups pursuing similar tactics.
But some lawyers are pushing back.
Richard Warman, the lawyer who has championed human rights against neo-Nazi groups before tribunals, is suing a whole slew of far-right blogs claiming they have libeled him.
But Warman has also named the National Post is his proceedings, demonstrating the complex and often incestuous relationship between some publications in Canada and the far-right.
A Far-Right Bias in Media?
Canadians have overwhelmingly suspected and complained of a strong right-wing media bias in our country.
But their concerns have in many ways been confirmed with the presence of Prime Minister Stephen Harper at a party celebrating CanWest Global‘s expansion, led by CEO Leonard Asper. They are now the country’s largest media company, and are even launching their own news wire service to compete with Canadian Press.
Lawrence Martin said in the Globe and Mail,
Their continued ascendancy is a major blow — tilt the message and you gradually tilt the mind — to the left and to moderates. The Aspers make no bones about their conservative bias.
The Aspers attempt to defend themselves by saying that a philosophical bias in no way means a conservative reporting bias. But some would beg to differ.
Robert Fisk of the Independant has raised concerns about bias in the American media. But these are nothing compared to what we see in Canada,
In Canada, the situation is even worse. Canwest, owned by Israel [Izzy] Asper [at the time], owns over 130 newspapers in Canada, including 14 city dailies and one of the country’s largest papers, the National Post. His “journalists” have attacked colleagues who have deviated from Mr Asper’s pro-Israel editorials. As Index on Censorship reported, Bill Marsden, an investigative reporter for the Montreal Gazette has been monitoring Canwest’s interference with its own papers. “They do not want any criticism of Israel,” he wrote. “We do not run in our newspaper op-ed pieces that express criticism of Israel and what it is doing in the Middle East…”
David Beers of The Tyee explains how the Aspers forced their papers to publish editorials from their headquarters, and fired journalists that disagreed with their positions.
Research has shown again and again that “those election issues covered prominently in the news media tend to be perceived by the public as the most important election issues. Items buried tend not to make it on the agenda for public discussion.” Edge says the message is clear: “While the media can not tell us what to think, they are very influential in telling us what to think about. The way these stories are covered not only tell us what to think about, but how we think about it.”
Balance Needed
A true democracy with real freedom of speech requires dialogue on both sides of any debate, what the courts have termed, “the marketplace of ideas.” But even this concept has its limitation, as stated in R v. Keegstra [1990] S.C.J. No. 131,
Freedom of expression is seen as a means of promoting a “marketplace of ideas”, in which competing ideas vie for supremacy to the end of attaining the truth. The “marketplace of ideas” metaphor was coined by Justice Oliver Wendell Holmes, in his famous dissent in Abrams v. United States, 250 U.S. 616 (1919). This approach, however, has been criticized on the ground that there is no guarantee that the free expression of ideas will in fact lead to the truth. Indeed, as history attests, it is quite possible that dangerous, destructive and inherently untrue ideas may prevail, at least in the short run.”
Courts have also recognized that when dealing with vulnerable minorities, an equal exchange may not always be possible. Irwin Toy Ltd. v. Quebec (Attorney General) examined the vulnerability of children, for example, at the hands of corporations,
The concern is for the protection of a group which is particularly vulnerable to the techniques of seduction and manipulation abundant in advertising…
Thus, in matching means to ends and asking whether rights or freedoms are impaired as little as possible, a legislature mediating between the claims of competing groups will be forced to strike a balance without the benefit of absolute certainty concerning how that balance is best struck. Vulnerable groups will claim the need for protection by the government whereas other groups and individuals will assert that the government should not intrude. In Edwards Books and Art Ltd., supra, Dickson C.J. expressed an important concern about the situation of vulnerable groups (at p. 779):
In interpreting and applying the Charter I believe that the courts must be cautious to ensure that it does not simply become an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.
A Dangerous Threat
Izzy Asper is the same individual who wanted to move the capital of Canada from Ottawa to his hometown Winipeg, obviously in complete disregard to the importance of Quebecois in Canadian society. He would strangely lobby from within the Liberal party, while making significant financial contributions to the Conservatives.
The company, now run by Izzy’s son, poses such a threat to Canadian society that some have written entire books on it. Marc Edge is the author of Asper Nation: Canada’s Most Dangerous Media Company.
Beers asks,
But even if CanWest owns dozens of newspaper across the nation along with Global TV and other television stations reaching 94 per cent of all Canadians, and even if CEO Leonard Asper has said he aims to make his company one of the top five media companies on the planet, how much torque can the Aspers really put on our democratic process?
Enough, it seems. What’s really scary is how these perspectives may change the fabric of Canada itself. Martin says,
You alter the character of a country by changing how it sees itself. You can change how it sees itself by changing the character of its media. Led by the Aspers, the character of Canadian media is changing.
Modern history has seen fascism, communism, brutal dictatorships, and liberal democracies. What exactly would we call a political system that is run by the media?
The 20th c. had the mafia and the mob. The 21st c. might just have the mobosphere, unless the public and politicians are alerted to this potential threat.
