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Where's the line of hate speech?

9/23/2013

The Supreme Court of Canada has drawn the line between what counts as 'hate speech' - and is therefore prohibited - and what is protected 'free speech'. In Saskatchewan v Whatcott, Whatcott had circulated pamphlets saying things like "Keep Homosexuals out of schools" and "Keep Sodomites Out of Schools".
The court said that free speech, including free speech about political issues, and freedom of religion are protected rights -- but subject to the limitation that it not be hate speech.
How do you tell if speech is hate speech? The court said that the test is an objective one: Would a reasonable person, aware of the relevant context and circumstances, find the speech to expose or likely to expose people to detestation and vilification. Speech which merely ridicules someone is not hate speech. Speech in private is not hate speech; and speech directed personally at an individual is not hate speech.

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Remember the Charter of Rights? Not so fast...

9/14/2013

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The Canadian Charter of Rights and Freedoms, enacted in 1982, has become a cultural touchstone, guaranteeing that Canada is a place of freedom, respect, and equality.
Right?
Two events this week underscore the Charter's weaknesses. The first is an . underreported court case in Ontario, Tanudjaja v Canada. In that case, a coalition including B.C.'s Pivot Legal Services argued that the Charter imposed an obligation on the federal and provincial government to ensure that affordable, adquate and accessible housing is available for all Ontarians and Canadians. The coalition argued that section 7 of the Charter, a guarantee of of "life, liberty, or security of the person" imposed that obligation.
The case was thrown out as soon as it was filed, before any evidence was heard. The court said that the Charter imposes no positive obligation on governments to do anything. If the government gets into the affordable housing business, it must do so in compliance with the Charter which among other things guarantees equality. But the government has no obligation to get into the affordable housing business if it doesn't want to.
So your 'right' as a Canadian to "life...and security of the person" doesn't include the right to eat, or be sheltered.

The second event - this one all over the news - is Quebec's intention to introduce a "Charter of Values" which would prohibit the wearing of some religious symbols (all except Catholic crucifixes, in fact) if you work in the public sector - government, hospitals, educational institutions.

This law does contradicts the guarantee of 'freedom of religion' and the guarantee of 'freedom of expression' in both the Canadian Charter of Rights and Freedoms and Quebec's own Charter of Rights and Freedoms.

Courts have consistently upheld the rights of religious minorities: for example in Multani, a affirming that Sikh boys could wear kirpans (a religious symbolic metal knife worn under clothing) to school; and in Amselem, permitting Jews to erect succah, a small ritual dwelling, on their balconies notwithstanding a rue of the luxury condo where they lived that prohibited balcony structures.

Queers have objected, unsuccessfully, that 'freedom of religion' should not be a licence to discriminate against queers just because they 'sincerely believe' that being queer is a sin. In Trinity Western, for example, queers lost an argument that the Christian College should be refused accreditation as a teacher's college because it required all students to sign a contract agreeing not to engage in sexual 'sins' including homosexuality.

So it seems obvious that Quebec's 'Charter of Values' would be thrown out because it contravenes the Charter of Rights. Because the Charter of Rights is part of the Constitution of the country any other law that conflicts with it can be declared null and void.

Right?

Not necessarily.

The Quebec government can throw in a 'notwithstanding' clause. Any government is permitted to enact a law which they know contradicts the Charter of Rights if they include a section that says the law is valid notwithstanding the Charter. If the 'notwithstanding' clause is included, the Quebec Charter of Values would be good for five years, after which it would have to be reenacted. Governments have to think twice about using the notwithstanding clause, because they know that every five years they will have to pay the political cost of enacting a Charter -violating law.

We queers must stand firmly with the religious minorities in Quebec, even though 'religious freedom' is often pitted against queer rights. Because what is at stake is our country's very soul. Unless we all recognize that conflicts among rights - religious freedom and queer rights, or any other conflict - must be settled by the courts, we will inevitably end up with the shameful spectacle of governments enacting legislation designed to hurt minorities just to get votes. And when that day comes, we will be among the minorities targeted for legislated bigotry.

The Canadian Charter of Rights and Freedoms is deeply flawed because it does not even pretend to address the worst inequalities among Canadians - the inequalities created and perpetuated by poverty. And the Charter is fragile: if ever it becomes politically acceptable to tack the 'notwithstanding' clause onto any piece of legislation which is currently in favour, all of our Charter rights will succomb.

But, as minorities of any kind - sexual, racial, religious, disabled, immigrant, women (though not a minority!) the Charter is all we've got.

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That's not funny! Or is it?

8/13/2013

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What do you think?Should the comedian at Zesty's Restaurant be permitted to harangue a lesbian in the audience by directing homophobic and sexist comments at her?
Is that "freedom of expression" for the comedian, or "freedom from harassment" for the audience member?
The B.C. Human Rights Tribunal that the comedian, Earle, had violated the Human Rights Code when he included homophobic and sexist zingers in his role as the MC of an open-mic night at Zesty's Restaurant on Commercial Drive in Vancouver. That decision was recently upheld by the B.C. Supreme Court. Earle and Zesty's were ordered to pay damage totalling $22,500.
The court held that, while Earle's freedom of expression was infringed, the infringement to protect against harassment on the basis of sex and sexual orientation was legally justifiable.
The case has been a controversial one with many commentators - including for example the queer magazine Xtra - taking the position that the complainants should get a life and find something more important to complain about.
What do you think?

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Malaysian transsexuals lose court case

11/2/2012

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The BBC reports today that four Malaysian transsexual women have lost their challenge to a Sharia law making it an offence to wear women's clothes. The four had all been arrested several times for wearing women's clothes. They had gone to a secular court to have the Sharia law overturned, on the ground that it offended freedom of expression and gender protection. But their application was refused.

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Is it slander to call someone gay?

5/31/2012

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According to a New York appeals court, it is no longer slander to call someone gay - because there is no longer any stigma to being gay.
Formerly, if someone called a person gay or lesbian, that person could sue for money damages because it was a slur on their reputation.
There are no recent Canadian cases on the topic; but I suspect the result would be the same here if someone tried to sue for being called gay (even if they weren't).

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University must permit anti-gay leafletting

5/11/2012

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Whatcott went to the University of Calgary to distribute anti-gay leaflets. The University charged him with trespassing. Whatcott argued successfully that the university cannot charge him with trespassing in those circumstances, because his right to distribute anti-gay leaflets is protected by the guarantee of freedom of expression in the Charter of Rights.
For the complete decision: R v Whatcott
http://www.canlii.org/eliisa/highlight.do?text=whatcott&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ab/abqb/doc/2012/2012abqb231/2012abqb231.html

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Where's the line of hate speech?

Remember the Charter of Rights? Not so fast...

That's not funny! Or is it?

Malaysian transsexuals lose court case

Is it slander to call someone gay?

University must permit anti-gay leafletting

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