Within the Armpit, er, Ambit of Section 13

We can rail all we want against the Human Rights Commissions and their busy-body approach to sterilizing our society. We can complain until the cows come home about our freedoms being curtailed and political correctness running amok. The fact remains that the censors of the Human Rights Commission are enabled by legislation. Therefore, any criticism they take can be deflected to parliament which enables that legislation. For example, when Jennifer Lynch comes under criticism, she routinely describes herself as a servant of our elected parliament.

In other words, “the schmucks you elected put me here, so shut up.”

She’s correct. She was appointed by Stephen Harper. But let’s not neglect to mention how Lynch feels she is entitled to tell parliament what to do.

Lately, many of our elected parliamentarians are beginning to wake up to the cries of their constituents with regards to the Commissions, and especially Section 13. As a result, her six-figure salary, under-reported luxurious junkets, and censorship gig are, for the first time, being examined by the only body with the power to change her mandate – parliament. Specifically, a parliamentary justice committee is looking at Section 13, the hate-speech clause.

Now Lynch is scared. The speechniks are finally getting to her through parliament. The only way to preserve her empire is to make s.13 appear as palatable as possible, and therefore as politically risky as possible to repeal. So she came out on Tuesday with a Policy on the Application of Section 13.

Where do I begin? Let’s start with point 3.3, where she tries to define “hatred and contempt” (my emphasis added):

The words “hatred or contempt” in section 13 have been defined by the Supreme Court of Canada…

From what I’ve read, the SCOC did not “define” hatred or contempt in Taylor. Instead, they refused to overturn the definitions currently in use by the Canadian Human Rights Tribunal. From Taylor:

According to the reading of the Tribunal, s. 13(1) thus refers to unusually strong and deep-felt emotions of detestation, calumny and vilification, and I do not find this interpretation to be particularly expansive.

Let’s go on. Point 3.4 begins:

Section 13 strikes a balance between the fundamental rights of equality and freedom of expression…

I can’t believe that nobody else ever calls Lynch out on this. Freedom of expression is clearly categorized in our charter as a fundamental right. There is no mention anywhere of a fundamental right to equality. The only equality provision is s.15(1), which is limited to equality under the law. Even Justice Dickson acknowledges this in Taylor. In eleven references to equality, he repeatedly defines it as an idea or a value, not a right. The only time he refers to it as a right is when he is talking about s.15(1) of the Charter. He does, however, clearly label freedom of expression as a right.

So I challenge Lynch to define s.13 as the SCOC has defined it – an infringement upon our fundamental human rights that has been found to be a justified (by a narrow 4 to 3 margin) legislative measure in the manner that it was being implemented. In 1990.

h/t Scaramouche. More to come.

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