The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50807
opinion BACK PA G E BY EZRA LEVANT A terrifically whimsical mission D o you think that a man should to go to jail for having a telephone answering machine with this mes- sage on it? "Where large groups of different races mix in all phases of daily contact, race mixing or miscegenation is inevitable. Compared to race mixing, an Atomic War with near total destruction is preferable as race mixing is permanent destruction of the higher values of each race whereas Atomic War will leave a remnant however small that can rebuild but a race-mixed society is forever doomed." It's a creepy message. It's racist, though it doesn't target any race in particular. There is even an undertone of respect for different races in it — the "higher values of each race" part. It's racial separatism, like Malcolm X preached. But should that message be a crime to utter? Thomas Jefferson, a complex man who owned slaves but was an advocate for the abolition of slavery, had similar things to say, though when he wrote them in 1821, political norms were quite different: "Nothing is more certainly written in the book of fate than that these people are to be free. Nor is it less certain that the two races, equally free, cannot live in the same government. Nature, habit, opinion has drawn indelible lines of distinction between them." It's no surprise that only the first sentence is engraved on Jefferson's memorial in Washington, D.C. Jefferson was a great president. The man who left the kooky answering mes- sage in 1977 was an unreformed fascist named John Taylor, one of the few old- stock Canadians interned in the Second World War for supporting the Nazis. Taylor was prosecuted for this phone ing the defence of truth. Hate propaganda, says the CHRC memo, "can never be true and therefore the justice system should not give hate-mongers a platform to make this argument in a criminal trial." The logic there is brilliant: hate speech message and similar ones under the censorship provisions of the Canadian Human Rights Act. He was the human rights law's first pros- ecution, with the Canadian Human Rights Commission ruling he had to remove the message. Taylor appealed the constitution- ality of it all the way to the Supreme Court of Canada. In 1990, the court voted 4-3 to confirm the ruling, by which time Taylor was 80 years old. He was so stubborn, he continued to refuse to take the offending messages down, and served nine months in jail for contempt. In the 32 years the CHRA has been on the books, not a single person prosecuted under it has been acquitted. That's not sur- prising given that truth and fair comment are not legal defences. To be convicted under the CHRA, the government need only find that words were "likely to expose a person . . . to hatred or contempt." It's a very vague standard. Still, the CHRC is not satisfied. In an unsolicited memo to Parliament in June, the CHRC suggested the Criminal Code provisions against hate propaganda be made more like the CHRA — remov- can never be true, therefore we need to change the law to ensure that no one can have a chance in court to prove it's true.Had he been around in 1977, Jefferson's mus- ings on race wouldn't have been charged under the CHRA, because the law applied to telephone messages, not books. But other human rights commissions, such as Alberta's, cover books, and in 2001, the CHRA was amended to include the Internet, too. The CHRC's punishment of choice is an order for the offending web sites to be taken down — the 21st century equivalent of a government-ordered book burning. The notion that offensive ideas can be censored in the Internet era is a perfect mission for a government bureaucracy: an impossible task that is a pretext for endless budgets and ever-expanding legal powers. It's a job that can never be accomplished — perfect as a make-work program for lawyers. And it's also a terrifically whimsi- cal mission, where to merely prosecute someone is to guarantee conviction. So it's a satisfying job for bullies. It's a national disgrace that Canada has a "human rights" law in which it is against the law to say something that is true or an honestly held opinion. Do we really want to follow the CHRC's advice, and get the police in on that action, too? Ezra Levant is a Calgary lawyer. He can be reached at ezra@ezralevant.com McKellar. The first choice for structured settlements. No controversy. The McKellar Structured Settlement™ GUELPH 1-800-265-8381 46 A UGUST 2009 www. C ANADIAN Law ye rmag.com Untitled-4 1 EDMONTON 780-420-0897 HALIFAX 1-800-565-0695 USA 1-800-265-2789 www.mckellar.com 7/9/09 12:48:24 PM SCOTT PAGE