Ezra breaks down the top four things the Supreme Court of Canada got wrong on Whatcott ruling:
Canuckistan kills last hope for free speech:
Truth is no defense: it is impermissible even to state demonstrable facts if, in the authorities’ estimation, those facts might spark enmity toward a group:
“Limits to free speech don’t just have to be reasonable. They have to be “demonstrably justified.”
- That sound you hear is Voltaire rolling over in his grave.Â (Bruce Bawer)
If we accept the bedrock premise of a free society, that government is its servant and not its master, then it is up to the state, always, to ask the citizens’ permission before it intrudes on their liberty, and to prove its necessity: it is never the citizen’s obligation to show why he may remain unmolested. That spirit is lamentably absent from the Court’s reasoning. (thanks to BCF for the tip)
The very first line in the Supreme Court’s calamitous decision in the case ofÂ Saskatchewan (Human Rights Commission) v. WhatcottÂ gives a clue to where it is going. “All rights guaranteed under the Canadian Charter of Rights and Freedoms,” it declares, “are subject to reasonable limitations.”
This is a legal truism, but as always it is as important what the Court did not say. It did not choose to begin a ruling on an important freedom of speech case with a ringing affirmation of the importance of free speech, or what an extraordinary thing it is to place restrictions upon it.
Indeed, in its haste to get on with the limiting, it did not even pause to properly quote the section of the Charter that grants the state such authority. The Charter “guarantees” the rights set out in it, Section 1 declares, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The limits don’t just have to be reasonable. They have to be “demonstrably justified.”
Where the Court’s view of such limits is expansive and approving, the Charter is grudging (“only”) and cautious (“demonstrably”). That’s as it should be. If we accept the bedrock premise of a free society, that government is its servant and not its master, then it is up to the state, always, to ask the citizens’ permission before it intrudes on their liberty, and to prove its necessity: it is never the citizen’s obligation to show why he may remain unmolested. That spirit is lamentably absent from the Court’s reasoning.
Well, it gets one thing right. It is not enough, the Court writes, that material such as the flyers distributed by William Whatcott, a Saskatoon Christian activist, in contravention of the Saskatchewan Human Rights Code, is offensive or repugnant. Rather, it must involve some harm to others. But look at how loosely the Court defines “harm.”
The code itself outlaws material that “exposes orÂ tends to exposeÂ to hatred” any person or group, on the usual list of prohibited grounds. It is not necessary, that is, to show the material in question actually exposes anyone to hatred â€” only that it might. The Court then upholds the ban on the grounds that the hatred to which individuals might or might not be exposed might in turn lead others to believe things that might cause them to act in certain unspecified but clearly prejudicial ways: it “has the potentialÂ to incite or inspire discriminatory treatment,” or “risks” doing so, or is “likely” to, or at any rate “can.”
After all, the Court reasons, “when people are vilified as blameworthy or undeserving, it is easier to justify discriminatory treatment.” Perhaps it is: but does such discriminatory treatment in fact result? Can the Court draw any causal link between speech that “tends to” expose to hatred, for example among the dozens of people who may have received Whatcott’s fevered tracts, and any actual increase in prejudice, let alone acts of discrimination? No it cannot, and what is more it does not care to.
As it has in the past, the Court argues that the state’s inability to demonstrate the harmful effects of hate speech, far from weakening its case, only confirms it: it is a sign of the “particularly insidious” nature of hate speech that it works its harm in ways not visible to hundreds of human rights investigators. Rather, it is sufficient that “Canadians presume” such hateful expression “may lead to harm.” So: from demonstrably justified to presumably justified.
If the Court is inclined to wink at the state’s traditional need to prove its case, it is not so indulgent of the defendant. As anyone who follows the workings of human rights tribunals can attest, they are a strange parody of ordinary criminal courts. Not only is it no defence that the accused had an honest belief in what he said: it is not even a defence that it is factually true. Here, too, the Court is at peace. As the decision primly advises, “truth may be used for widely disparate ends.” I cannot quite believe I am reading these words, even now.
There are long passages like this in the ruling, wherein the Court reels off, without supporting evidence, the many harmful effects it supposes hate speech is likely to cause. It “opposes the targeted group’s ability to find self-fulfillment.” It “impacts on that group’s ability to respond to the substantive ideas under debate.” It “acts to cut off any path of reply by the group under attack.” It is “an effort to marginalize individuals” based on their membership in a group, to “silence” their “voice,” and so on.
It might be interesting to know whether any of this is true â€” have Jews, for example, the most persistent target of hate speech through the ages, been “silenced”? â€” but apparently it does not matter: the government is not required to prove its case is true, and the defendant is not saved if his case is. At one point the Court muses that a failure to ban hate speech, in so far as it “silences” the targeted groups, may be “more rather than less damaging to freedom of expression.”
From which we may conclude that any government that relaxed such restrictions would soon find itself condemned by the Court â€” as a threat to free speech.
The bottom line here is that the Canadian Supreme Court, in the name of justice, has struck a blow against freedom and promulgated a pack of lies – among them, first, the lie that free speech can and should be “balanced” against other worthy social objectives; second, the lie that it is possible for government officials to make “objective” determinations as to the possible consequences of a given speech act and as to the exact location of the boundary between hate and lesser emotions; and, third, the lie that “hate speech,” in some way, silences its targets. No, “hate speech” doesn’t silence – the prosecution of “hate speech” does. Yes, the Court’s decision may well be used to suppress the vigorous expression of religious people’s opinions – or, more specifically, the opinions of people who agree with Bill Whatcott. But does anyone honestly think that, say, Canadian imams who preach core Islamic tenets – such as the obligation to punish gays, apostates, and adulteresses with death – are henceforth in serious peril of prosecution? Or has the Court, instead, handed the “objective” instruments of Canadian justice a fresh new club with which to bludgeon the few brave souls in that nation who dare to tell the truth about the Religion of Peace?
Babette’sÂ article thanks to Vickie:
I am guessing that most of the writers contributing to this series will be writing about legislation, especially following former Attorney-General Nicola Roxon’s foray into “enhancing” our freedoms with her draft exposure Bill consolidating five anti-discrimination laws into one mammoth Bill. This Bill, which makes it illegal to offend or insult anyone, would, if enacted, effectively corral all Australians into one thought-control stockyard like cattle up for auction. Even the RSPCA might protest on our behalf.
The Institute of Public Affairs struck a major blow for freedom when it recommended abolishing the Australian Human Rights Commission, although they backtracked somewhat when they suggested, as an alternative, appointing five Commissioners to deal with freedom issues to balance the Commissioners dealing with “rights” issues. My view is that more bureaucrats, no matter how well-intentioned, almost invariably diminish freedom if only because they require money to maintain their empires, and thus taxpayers have less opportunity for discretionary spending, or even essential spending. If the tax-payer funded AHRC were abolished, it would leave us free to spend a little more of our own earnings instead of having them taken away to finance Roxon’s ambitious proposal denying Australians the fun of offending and insulting. Think of all the fun at Aussie Rules matches as insults are hurled at Collingwood players – “Drongo” comes to mind.
However, the battle for freedom is not quite won yet, because a majority of Labor and Green Senators on the Legal and Constitutional Affairs Legislation Committee has recommended that religious organisations providing schools and health and aged care services should lose exemptions from anti-discrimination laws which allow them to discriminate against individuals who did not share the moral and ethical principles of their employer. (Coalition Senators on the Legal and Constitutional Affairs Legislation Committee presented a dissenting minority report.)
Australian Association of Christian Schools executive officer, Robert Johnstone, strongly opposed the removal of the exemptions, and demanded a “robust provision for the protection of the freedom of religion”. Australian Catholic Bishops Conference general secretary, Father Brian Lucas, said the Senate recommendations would undermine religious freedom and have an impact on services in aged care, health and schools. Current Attorney General, Mark Dreyfus, is Jewish. His comment on the majority Senate report was that “This is a complex project and I want to ensure the final consolidation carefully balances the two objectives of defending free speech while protecting Australians from discrimination.” I look forward to a stoush between him and Jewish school providers when young Ali or Ahmed, newly arrived jihadists from Pakistan, apply for gardening jobs at Jewish schools.
And that brings me to the “dhimmitude” and loss of freedom displayed in Australia during the recent visit of Dutch parliamentarian, Geert Wilders. Let me clarify that I do not share Wilders’ libertarian views on same-sex marriage and abortion rights, but I do agree with his analysis that Islam is not only a religion but a political ideology, totalitarian in nature. I also do not agree with Wilders that the Koran should be banned. On the contrary I think it should be compulsory reading especially for our politicians, it is only then that they might comprehend its profound incompatibility with a secular democracy. Islam allows for no separation between church and state. Its holy scripture, the Koran, cannot be reinterpreted in the light of modernism and the Enlightenment – it is the unalterable word of Allah.
Dhimmitude is the mindset of the dhimmi, i.e. someone who lives in fear of Islam but agrees that they will not resist political Islam, they will even support it. In return dhimmis can live safely. Today we see our politicians, journalists and intellectuals play the role of dhimmis. A dhimmi is a kafir (unbeliever) who lives in an Islamic country. The dhimmi was a unique invention by Mohammed. He created a new type of creature, a semi-slave. It started with what Mohammed did to the Jews. He took their land and then let them work the land and the dhimmis paid a tax, the jhizya, that was half of their income. The first dhimmis were the Jews, but Christians and others were added later.
Jews and Christians could still practice their religion but that had to be done in a private way. The laws were Islamic; the dress was dictated by Islamic law. A dhimmi was not really free. For instance a church couldn’t ring its bells because bells are a sign of Satan, according to Mohammed. A dhimmi couldn’t hold any job that made him a supervisor over Muslims. This limited rank in the military. If Christians wanted to repair their church, or Jews their synagogue, they had to get permission from the government. All of these laws established a second-class citizenship; the dhimmi did not have civil rights. A dhimmi couldn’t sue a Muslim or prosecute a crime by a Muslim. Dhimmis had no power and had to pay the Jhizya, according to the Koran.
The cancellation by venues that had contracted to host the Geert Wilders’ meetings in Melbourne, Perth and Sydney can be viewed as an example of dhimmitude. No doubt these venues paid the cancellation fees pertaining to the contracts for the hire of the halls, an equivalent to the Jhizya tax. No doubt also the venue owners were afraid of demonstrators and physical damage to their buildings, but the state governments should have stepped in and guaranteed a strong police presence to protect the sites. Although the Dutch government is probably unenthusiastic about Wilders’ message, it does guarantee his safety by providing round-the-clock police protection just as the British government did for Salman Rushdie, author of The Satanic Verses which so offended Islamic sensibilities.
Our governments, state and federal, should guarantee the safety of speakers who are controversial (but do not advocate violence) and should condemn the “fatwas” issued against them and the bounties offered for their assassinations. Conversely, Speakers who advocate violence should not be given entry to Australia. But failure to guarantee the safety of controversial speakers is in breach of governments’ responsibilities and diminishes our freedom. Furthermore, some Islamists seem to act in an unduly sensitive manner. I recall the theory that the flutter of a butterfly’s wings in the Amazon can eventually cause a tornado in Texas. I don’t know how valid this theory is, but it appears to apply to some Muslims. Ethiopian Muslims murdered a nun in their country because Pope Benedict made a speech in Regensburg, Germany, asking Muslims to combine faith with reason and avoid violence. An amateur video about Islam made in the USA resulted in the murder of the US Ambassador to Libya in Benghazi – or so President Obama and Hillary Clinton said. So the path of least resistance is to live in the mental state of dhimmitude and do nothing to provoke Islamist ire, but the consequence is a loss of freedom.
Foreign Minister Bob Carr’s decision, against the wishes of Prime Minister Julia Gillard, that Australia abstain rather than voting “No” on the resolution about giving Palestinians “Observer Status” at the UN was another example of dhimmitude. Some of the electorates in NSW have substantial Muslim populations and Australia’s abstention rather than opposing the resolution was an effort to placate them.
At the United Nations, the 57-member Organisation of Islamic Co-operation (OIC) is lobbying for a universal law against blasphemy – similar to the legislation which plagues Pakistan and has resulted in spurious charges of blasphemy against Christians, other minorities and even against Muslims themselves. Such a UN law, if passed, will diminish freedom around the world.