This was a long post and I want people to read it outside of the one thread in which it originally appeared. Thankfully, I'm a conceited bastard who makes no bones about slammin' my awesome shit all over the place.
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Okay, firstly, let's not take the inherent wisdom of a retard wearing headphones while not listening to anything.
I watched his video and noted the following problems with his argument, which is based, apparently, on the superficial reading of Sections 318, 319 and 718.2(a) of the Criminal Code and Section 2(b) of the Charter. From this, he drafts a conclusion that the enforcement of Ss 318 & 319 are thought crimes.
He begins with a superficial reading of S. 2(b) of the Charter of Rights and Freedoms; in it, the right to freedom of expression is included.
And there he stops with his Constitutional analysis. Whoops.
He fails to instruct anybody about S. 1 of the Charter;
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable imits prescribed by law as can be demonstrably justified in a free and democratic society.
Already, his argument fails to include the concept that nothing in Canada is absolute and S. 2(b) can be infringed upon when necessary.
Does he include any acknowledgement of
Iwrin Toy Ltd v. Quebec (Attorney General)? None. This is the seminal case which defined the limits of government interference in S. 2(b) of the Charter.
Chief Justice Dickson wrote:
Quote:
When faced with an alleged violation of the guarantee of freedom of expression, the first step is to determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee. Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression, or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct. If the activity falls within the protected sphere of conduct, the second step is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. If the government's purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government's action was to restrict her expression. To make this claim, the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing.
Here we see a key test in determining a reasonable limitation on S. 2(b); the
physical consequences.
Thus, his superficial glossing of the Charter has already punched holes in his argument. The government is well within it's right to limit expression as it relates to physical consequences. Those Criminal Code sections we're going to examine are codified embodiments of such a principle.
Also, he doesn't understand that S. 2 of the Charter needs to be read with the egalitarian urge in S. 15 of the Charter; Equality Before and Under Law and Equal Protection and Benefit of Law. Therefore, the appeal to the United State's 1st Amendment falls on deaf ears in Canada; it's a Libertarian approach that Canada does not have.
He next errs by a superficial reading of S. 318 and then embarks on a comparison between genocide and "general incitement of violence" and simply errs in the following ways:
1. Genocide is defined in S. 318. It's the advocacy of killing, in whole or in part, members of an
identifiable group directly or indirectly. "General incitement of violence" isn't a crime per se. He's plucked a concept out of his ass and mislabelled it. S. 22(1), parties to the offence is the actual concept to which he refers.
2. He makes no mention of Canada's international treaty obligations. Canada is a signatory to: The Convention on the Prevention and Punishment of the Crime of Genocide, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of all Forms of Racial Discrimination.
3. His argument with the neighbour falls completely flat. Comparisons to Darfur, Rwanda and the Holocaust is what the legislation is about, not petty bickering with a neighbour.
However, he makes his most serious errors when he attempts to tackle S. 319 without so much as a lick of understanding. His errors include:
1. Believes that hair colour and eye colour are as valid as religion for the identifiable groups. Nonsense. IF a person were inciting public hatred of brown-eyed people, there's certainly racial connotations AND colour. His argument fails.
2. Physical disability. While not included on the list of identifiable public groups, inciting hatred against handicapped people would undoubtedly be argued under S. 15 of the Charter.
3. Doesn't understand identifiable group. Inciting public hatred of Windows Users doesn't fly as Windows Users aren't an identifiable public group.
4. Makes no mention of actual cases prosecuted under 319, specifically the defining case, R v. Keegstra. In this case, the Supreme Court held that
Quote:
Section 319(2) of the Code constitutes a reasonable limit upon freedom of expression. Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom. Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament's objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred.
Well, what exactly was Keegstra doing in his class? Also from R v. Keegstra:
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Mr. Keegstra's teachings attributed various evil qualities to Jews. He thus described Jews to his pupils as "treacherous", "subversive", "sadistic", "money-loving", "power hungry" and "child killers". He taught his classes that Jewish people seek to destroy Christianity and are responsible for depressions, anarchy, chaos, wars and revolution. According to Mr. Keegstra, Jews "created the Holocaust to gain sympathy" and, in contrast to the open and honest Christians, were said to be deceptive, secretive and inherently evil. Mr. Keegstra expected his students to reproduce his teachings in class and on exams. If they failed to do so, their marks suffered.
As can be seen, this section isn't invoked over trivial matters. However, what also isn't told to the viewer is that the following protections apply to people, such that the section can't be used as a sword (or thought control for you Orweillian types).
1. The Attorney General must consent to the prosecution. Here's where the first layer of protection of S. 2(b) appears in the legislation.
2. The legislation doesn't apply if:
a. It's true.
b. In good faith, the person was making a religious argument. (You Christians can continue to have your homosexual hating Bible read in Churches)
c. The communications were for the public benefit and the communicator had
reasonable grounds to believe it was true.
d. The communicator made those statements in private conversation.
e. The communicator made those statements in a private place; being a place to which the public's access is restricted or null.
Failing this, he further fails by not addressing the word "wilfully" in S. 319(2). In R v. Buzzanga and DeRocher, the Supreme Court held that "wilfully" is
Quote:
namely, that this mental element is satisfied only where an accused either: i) subjectively desires the promotion of hatred against an identifiable group; or ii) foresees such a consequence as certain or morally certain to result from the distribution of the material.
Thus, the public is afforded an extra-protection against S. 319.
So, why have these sections at all? Despite the guy's numerous errors, is it worth it to have these sections at all?
Yes.
By having such legislation in effect, it shows the government's committment to the Charter; that is, there is one clear messasge that hateful propaganda will not be tolereted in Canada. Without effective consequence, hate-mongers would be free to ply their trade in Canada's public squares. As is, they are certainly not deterred by public ostracism.
For each publicly communicated piece of hatred, each person subject to the hatred is devalued, whether or not it happens to them directly. Each time a Muslim is called a sand-nigger out in public, the zeitgeist in Canada shifts towards intolerance; each Muslim in Canada feels an increase in unwelcome attitudes. Is YouTubing a fag-drag any more heinous than just dragging some random person behind a car? After all, both are insidious acts of violence. S. 718(2)(a)(i) says that a Judge, upon guilty conviction, should consider hate-crime for a lengthier sentence, but this doesn't mean it WILL be a lengthier sentence. Some bucko who drags people behind cars for sheer shits and giggles can be sentenced longer than someone who is motivated by homosexual bigotry.
Canada is a welcome and open place; Sections 318 and 319 are certainly not the chilling end to free thought in Canada; rather, they enhance and uphold our image as jurisprudent and fair.
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