Monday, December 31, 2007

Happy 2008

This is it, folks - our last post of 2007. Happy New Year and all the best in the year ahead.

We'll bring in 2008 the traditional way, with an assortment of versions of Auld Lang Syne.


Let us begin our musical journey with the sentimental stylings of Kenny G (audio only):


For something a bit lighter, here is the quirky Leon Redbone with Johnny Carson and Merv Griffin, from the Tonight Show:


Billy Preston and Aretha Franklin, with an inspired and soulful take:


Live from Times Square on December 31, 1976, here is the classic interpretation that I grew up with each New Year's Eve, by Guy Lombardo and His Royal Canadians:


And last, here's New Jersey's own Rabbi Sol, who clearly defies description altogether:


Finally, if you've ever wondered what, exactly, those elusive lyrics are, wonder no more:

Words adapated from a traditional song by Rabbie Burns (1759-96)

Should auld acquaintance be forgot,

And never brought to mind?

Should auld acquaintance be forgot,

And auld lang syne?


For auld lang syne, my dear,

For auld lang syne,

We'll tak a cup of kindness yet,

For auld lang syne!

And surely ye'll be your pint-stowp,

And surely I'll be mine,

And we'll tak a cup o kindness yet,

For auld lang syne!

We twa hae run about the braes,

And pou'd the gowans fine,

But we've wander'd monie a weary fit,

Sin auld lang syne.

We twa hae paid l'd in the burn

Frae morning sun till dine,

But seas between us braid hae roar'd

Sin auld lang syne.

And there's a hand my trusty fiere,

And gie's a hand o thine,

And we'll tak a right guid-willie waught,

For auld lang syne

Again... Happy New Year!

- Garry J. Wise, Toronto

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New Bhutto Video Shows Gunman, Shooting

New video of the assassination of Benazir Bhutto casts doubt on the Pakistani government's "official" explanation that Mrs. Bhutto was killed when she hit her head on a sunroof lever.

CNN reports that a lawyer on the Board of the hospital where Mrs. Bhutto died says doctors were prevented by Pakistani police from performing an autopsy of the slain leader:

It was a violation of Pakistani criminal law and prevented a medical conclusion about what killed the former prime minister, said Athar Minallah, who serves on the board that manages Rawalpindi General Hospital.

- Garry J. Wise, Toronto

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Mark Steyn - Washington Times Article

I am briefly quoted in today's Washington Times by writer Barry Brown, as he takes on the Mark Steyn issue in Muslim group irked by columnist's book.

The article provides a largely balanced overview of the human rights complaints pending against Mr. Steyn and the controversy over the implications these proceedings have for freedom of expression in Canada:

TORONTO — A Muslim group is suing Canada's leading national newsweekly for the right of rebuttal because it published excerpts warning of high Muslim birthrates in the book "America Alone," by syndicated columnist Mark Steyn.

The Canadian Islamic Congress filed complaints earlier this month against Maclean's magazine with Canada's national human rights commission and provincial rights commissions in Ontario and British Columbia, charging that Mr. Steyn's writings promote hatred and contempt against Canada's estimated 750,000 Muslims.

The commission in British Columbia accepted the case and has scheduled a hearing for early June.

Mr. Steyn, whose syndicated columns appear in The Washington Times, writes that rising birthrates in Muslim countries and the declining number of babies in Christian and Westernized countries represent a long-term security threat.

Mr. Steyn, in the excerpts used by Maclean's, compared Muslims to Indians in the Old West infiltrating "the white cities" and suggested many Muslims are "hot for jihad" and favor a "bloody" war against the West.

We've written quite a bit on the complaints against Mark Steyn over recent weeks and will be following up in the short future with a more detailed look at freedom of expression in Canada and the U.S.

I have a brief elaboration on the comments attributed to me in Mr. Brown's article:

Toronto lawyer Garry Wise said Mr. Steyn's writings are not hate speech. In 1990, Canada's Supreme Court moved to prevent human rights tribunals from stepping into areas of free speech by requiring the offending material show an "extreme" amount of hatred allowing for "no redeeming qualities" in the targeted individual or group. But if one of the human rights panels does rule in favor of the Islamic council, "this case could end up in the Supreme Court."

The Supreme Court of Canada's 1990 ruling in Canada (Human Rights Commission) v. Taylor, establishes that by virtue of Section 2 of the Charter, Canadian courts and human rights commissions may not limit freedom of expression unless a communication exposes others to an "ardent and extreme" level of hatred or contempt.

The Court drew a hard line between the rare instances of abject hatred and contempt where restriction on expression may be permitted, and occurrences of mere, subjectively offensive speech, which is constitutionally protected and plainly may not be limited by Canada's human rights commissions, courts or legislators.

According to Taylor, human rights commissions may intervene to sanction an impugned communication only in the case of "unusually strong and deep-felt emotions of detestation, calumny and vilification."

This is an extremely high bar. In my view, the Steyn book does not rise anywhere near that level.

- Garry J. Wise, Toronto

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Slate's "Legal Fictions"

Slate has an interesting twist today on the inevitable onslaught of December 31st top-ten lists.

See its Legal Fictions: The Bush administration's dumbest legal arguments of the year.

These are the issues that make writer Dahlia Lithwick's final cut:

1. The United States does not torture.

2. State secrets.

3. Alberto Gonzales.

4. Nine U.S. attorneys were fired by nobody, but for good reason.

5. Everyone who has ever spoken to the president about anything is barred from congressional testimony by executive privilege.

6. Water-boarding may not be torture.

7. The Guantanamo Bay detainees enjoy more legal rights than any prisoners of war in history

8. The vice president's office is not a part of the executive branch.

9. Scooter Libby's sentence was commuted because it was excessive.

10. The NSA's eavesdropping was limited in scope.

In a similar vein, see TPM's Great List of Scandalized Administration Officials from Talking Points Memo.

- Garry J. Wise, Toronto

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Our Blogroll Has Been Updated

It's an overdue bit of housekeeeping, but I have finally updated our Blogroll. It will continue to be available on this blog's right hand column, below our news feeds.

I'm glad to recommend the list below, a mix of what I consider to be some of the better news, political and legal blogs (and blawgs) in Canada and the U.S.

So, without further fanfare, here it is - our new Blogroll:

Aidan Maconachy
BigCityLib Strikes Back
Blogging Canadians
Blogs Canada: E-Group
Calgary Grit
Canada, eh?
Cathie from Canada
Cavanagh Williams
Connie Crosby Law Librarian Blog
Engaged Spectator
Lisa Hutch - The Trials
Library Boy
Michael Geist's Blog
Peace, Order and Good Government, Eh
Peterborough Politics
Progressive Bloggers
Red Tory
Rosensweig Writing & Ideas Blog
Rule of Law
Scott's DiaTribes
Section 15
The Court
The Galloping Beaver

ABA Journal Top Stories
Robert Ambrogi's LawSites
America Blog
Andrew Sullivan

Balloon Juice
Crooks and Liars

Daily Kos
Glen Greenwald
PointOfLaw Forum
Seeing the Forest
Settle It Now Negotiation Blog
Talking Points Memo
Taylor Marsh
The Raw Story
The Volokh Conspiracy
Think Progress
Truthdig Law Blog
James Wolcott - Vanity Fair

As always, suggestions are welcome. If you have another blog to recommend, leave us a comment.

- Garry J. Wise, Toronto

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Sunday, December 30, 2007

Canada: Among World's Best in Privacy Protection

Privacy International, a London-based privacy watchdog, has cited Canada and Greece as the world's leading nations in the protection of individual privacy. Nonetheless, the group considers Canadian privacy protection to be subject to increasing, downward pressure.

Its report highlights the following points of concern:

    • Privacy not mentioned in Charter of Rights and Freedoms, but courts have recognised the right to a reasonable expectation of privacy
    • Statutory rules at the federal level (public and private sectors) and provincial laws apply to sectors and governments
    • Federal commission is widely recognised as lacking in powers such as order-marking powers, and ability to regulate trans-border data flows
    • Variety of provincial privacy commissioners have made privacy-enhancing decisions and taken cases through the courts over the past year (particularly Ontario)
    • Court orders required for interception and there is no reasonable alternative method of investigation
    • Video surveillance is spreading despite guidelines from privacy commissioners
    • Highly controversial no-fly list, lacking legal mandate
    • Continues to threaten new policy on online surveillance
    • Increased calls for biometric documents to cater for U.S. pressure, while plans are still unclear for biometric passports

Simon Davies, Privacy International's Director, commented in this CTV report:

"The general trend is that privacy is being extinguished in country after country,'' said Simon Davies, director of Privacy International. "Even those countries where we expected ongoing strong privacy protection, like Germany and Canada, are sinking into the mire.

"I'm afraid that Canada has kind of lost the plot a plot a little bit this year and hence its move downwards,'' Davies told the Canadian Press in comments about Canada.
He cites the CIA's accessing the banking records of Canadians through the SWIFT banking information system, the Canadian no-fly list, and the Toronto Transit Commission's installation of security cameras as examples of the erosion of privacy rights.

He also decried the increasing number of programs involving the United States, which he said unfortunately has no federal privacy law.

"What's happening, is that Canadian information, sensitive information, is flowing across the border in increasing volumes,'' Davies said.

"Frankly, that's the sort of situation where government should put pressure on the U.S. government to protect that information legally,'' he said, "But it's not doing so.''

Matt at Think Progress comments on the group's ranking of the U.S. in its least favourable category as an "endemic surveillance" country:

In the recently released annual survey of worldwide privacy rights by Privacy International and EPIC, the United States has been downgraded from “Extensive Surveillance Society” to “Endemic Surveillance Society.” As Glenn Greenwald notes, this is “the worst possible category there is for privacy protections, the category also occupied by countries such as China, Russia, Singapore and Malaysia.” In general, “the 2007 rankings indicate an overall worsening of privacy protection across the world, reflecting an increase in surveillance and a declining performance of privacy safeguards.”

The report cites the following concerns regarding America:


  • No right to privacy in constitution, though search and seizure protections exist in 4th Amendment; case law on government searches has considered new technology
  • No comprehensive privacy law, many sectoral laws; though tort of privacy
  • FTC continues to give inadequate attention to privacy issues, though issued self-regulating privacy guidelines on advertising in 2007
  • State-level data breach legislation has proven to be useful in identifying faults in security
  • REAL-ID and biometric identification programs continue to spread without adequate oversight, research, and funding structures
  • Extensive data-sharing programs across federal government and with private sector
  • Spreading use of CCTV
  • Congress approved presidential program of spying on foreign communications over U.S. networks, e.g. Gmail, Hotmail, etc.; and now considering immunity for telephone companies, while government claims secrecy, thus barring any legal action
  • No data retention law as yet, but equally no data protection law
    World leading in border surveillance, mandating trans-border data flows
    Weak protections of financial and medical privacy; plans spread for 'rings of steel' around cities to monitor movements of individuals
  • Democratic safeguards tend to be strong but new Congress and political dynamics show that immigration and terrorism continue to leave politicians scared and without principle
  • Lack of action on data breach legislation on the federal level while REAL-ID is still compelled upon states has shown that states can make informed decisions
  • Recent news regarding FBI biometric database raises particular concerns as this could lead to the largest database of biometrics around the world that is not protected by strong privacy law

- Garry J. Wise, Toronto

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It's Year-End List Time Again

And where better to start than The Beast's 50 Most Loathesome Americans of 2007.

Its number 1 position goes to...:

... You can practically hear the whole nation holding its breath, hoping this guy will just ... leave come January '09 and not declare martial law. Only supporters left are the ones who would worship a... turnip if it promised to kill foreigners. Is so clearly not in charge of his own White House that his feeble attempts to define himself as "decider" or "commander guy" are the equivalent of a five-year-old kid sitting on his dad's Harley and saying "vroom vroom!" Has lost so many disgusted staffers that all he's left with are the kids from Jesus Camp. The first president who is so visibly stupid he can say "I didn't know what was in the National Intelligence Estimate until last week" and sound plausible...

Dick Cheney comes in at number 2 on the list, charged with being "the worst president ever."

In true non-partisan spirit, Democratic leaders Nancy Pelosi and Harry Reid jointy score high at number 5, with Hillary Clinton ranking in at a mere, middling number 17.

- Garry J. Wise, Toronto

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Saturday, December 29, 2007

Dry Cleaners in Judge's "Pants Suit" Speak

While some have dismissed the video below as anti-trial lawyer "propaganda" by the Institute for Legal Reform, it nonetheless has a story worth telling:

C&L addresses a point not raised in the video:

The Chungs withdrew their motion to recover their own costs and impose sanctions when they recovered their money through fund-raising efforts by benefactors.

We've covered this frivolous litigation in these previous posts:

- Garry J. Wise, Toronto

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Ohio Entrapment?

A Columbus, Ohio firefighter is appealing his conviction on indecent exposure charges that arose after he exposed himself in an Ohio park - at the request of a topless, female sunbather.

She turned out to be a police officer.

ABC News reports on this case and other recent, U.S. cases in which defendants have alleged they were entrapped:

Robin Garrison, an off-duty 42-year-old firefighter, was walking in Berliner Park in Columbus, Ohio, in May when he saw a woman sunbathing topless under a tree.

He approached her and they started talking and getting comfortable, the woman smiling and resting her foot on his shoulder at one point.

Eventually, she asked to see Garrison's penis; he unzipped his pants and complied. Seconds later, undercover police officers pulled up in a van and arrested Garrison; he was later charged with public indecency, a misdemeanor, based on video footage taken by cops... While topless sunbathing is legal in the city's parks, exposing more than that is against the law.

...The case is just one of the more extreme examples of police stings aimed at luring people into committing crimes, a tactic that has resulted in hundreds of arrests, many convictions and plenty of controversy.

Law enforcement officials say that such sting operations are an extremely effective means of lowering crime rates and stopping the criminally minded before they commit worse offenses... But such operations veer dangerously close to entrapment, say lawyers, civil libertarians and defendants who've been caught in sting operations.

(h/t - Canada, Eh)

- Garry J. Wise, Toronto


Update March 26, 2009:

It has come to our attention that there may be less to this story than we originally reported.

Readers' attention is directed to comments posted today by a reader identifying himself as Detective Jeff Ackley of the Columbus Police force:

Your story is completely wrong. The female was not a cop and or associated with the police in any way. The defense attorney stated that for the benefit of his client. 
There was no police sting. The area (Berliner Park) is known to be frequented by men who come there to have sex with each other in public. UC detectives were working the area, spotted the female sunbathing topless close to the main road. Police requested that she move to a different part of the park as to not cause an accident on the main road next to the park. She complied (Though she did not have to). 

While conducting there regular investigations in the park, the female was approached by the fireman. For her safety, police kept an eye on her because she was doing nothing illegal. The male exposed himself and was placed under arrest as is routinely done anywhere else in the city.

If you doubt anything I wrote, research the case. The (High profile) defense attorney appealed the case and lost.

The story got twisted in the media due to the high profile attorney misrepresenting the facts before trial to turn public opinion on his side. He failed.

I'll also link to the following clarification found at Outside the Beltway

UPDATE: According to the Columbus Dispatchs account of the story (via an update to and comments in DRJ’s piece, linked above) the woman was not a police officer, making entrapment a harder sell. At the same time, however, she was apparently attracting — and happily encouraging — quite a bit of lewd attention:

Detective Dick Elias said vice officers had set up the video because they were targeting men who were having sex or masturbating in the park — not men who had come to see her.

The woman had been sunbathing topless near the front of the park for days, he said, and “had become a spectacle” with men driving by to watch.

It is legal for women to be topless in Columbus.

So Elias asked the woman to move to the rear of the park, which she did. But men still drove by to see her. Another man, whose name wasn’t mentioned, was charged the same afternoon as Garrison for exposing himself to the woman.

Essentially, this was the equivalent of a speed trap: A situation existed where lawbreaking was quite likely and the police were there hoping to make arrests.

- Garry J. Wise


E-Discovery Resources

Robert Ambrogi has republished two articles that summarize American e-discovery resources online.

Part 1 is here. Part 2 is here.

These posts are a good place to start for Canadian law firms seeking orientation on this emerging area of U.S. civil litigation practice, and well worth bookmarking.

I'll also make mention in this context of our November post, An Introduction to E-Discovery in Ontario.

- Garry J. Wise, Toronto

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Toronto Catches Up With New York, London as Most Diverse City

According to a Reuters report, Toronto "may be pushing past New York and London as the world's most diverse city, with half its residents born outside of Canada:"

"Certainly there's no doubt Toronto is one of the world's most multicultural cities. It's catching up to New York and London, but it's still the younger one," said Michael Doucet, geography professor at Ryerson University in Toronto.

Toronto has about a third the population of either London or New York, but beats both of them in terms of the percentage of foreign-born residents, according to the government statistics, which were released this month.

...Because diversity is up for interpretation, there could be other contenders too. Paris, Los Angeles and a handful of other cities could also have a strong claim to be the world's most diverse, officials say.

Toronto, London and New York all have laws on multiculturalism, race relations, or immigrant health and safety as ways to ensure that the cultural mix doesn't become an explosive one.

- Garry J. Wise, Toronto

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Bhutto Assassination

In Pakistan news, the fallout continues in the aftermath of the assassination of Benazir Bhutto:

- Garry J. Wise, Toronto

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Friday, December 28, 2007

Benazir Bhutto

Tarek Fatah has written a moving and personal tribute for Pakistan's slain leader-in-waiting. I am excerpting quite a bit of it:


She died as her father did: bravely

By Tarek Fatah

It was the summer of 1966. We were mere teenagers meeting Zulfikar Ali Bhutto, who had just resigned as Pakistan's foreign minister and was about to launch a new left-wing political movement, the Pakistan Peoples Party.

Sitting in the front yard of his sprawling Karachi mansion, he engaged us in a lively discussion about Islam, democracy and socialism, while chewing on a cigar. That was the day I first saw Benazir Bhutto. She came in, had a brief chat with her dad and then left, as we debated how best to oust Pakistan's then military dictator, Ayub Khan.

Pinky, as Benazir was then known, barely nodded at us. The articulate young girl did not participate in the discussion about democracy, nor did she hear her father talk about the cancer of dictatorships, but she would not have to wait too long to discover that herself. None of us could have imagined how the disease, strengthened by Islamic extremism, would wipe out almost the entire Bhutto family. Within 40 years, Benazir, her father and her two brothers would all be victims of political assassination.

...While Benazir represented modernity and a quest for gender equality, the Islamist establishment and the Army's Inter-Services Intelligence - that Islamists have so effectively penetrated - wanted to turn back the clock of history and permanently exclude women from the corridors of power.

When the first suicide bombings killed more than a hundred of her followers in October, on the day she returned to Pakistan after years in exile, Benazir's naysayers claimed she had staged the attack herself. The Islamists and the left mocked her, labelling her as the poodle of George W. Bush. The cruelty of the slander was matched by her resolve.

Why did they have to kill her? If she was as corrupt as her critics claim, couldn't they have bought her loyalties? Her killers, however, knew that the woman who spent years in jail, lived in exile for a decade, had one thing on her mind: the end of Islamic extremism in Pakistan. For that, and for the fact that she was a woman, she had to be eliminated.

...In Pakistan, the forces of progress and enlightenment are lined up against darkness and death. How can we in Canada ensure that Benazir Bhutto's quest for progress and democracy is not buried with her?

...We need to stop dealing with military dictators who imprison court judges, rewrite constitutions, harbour Islamic militants and then present themselves as the saviours of the West. We need to say to these men: As long as you harbour merchants of death and purveyors of hate, we will consider you as persona non-grata and that our doors are closed for you, your ambassadors and your messages of medievalism.

Tarek Fatah's complete article is online at the Globe and Mail.

- Garry J. Wise, Toronto

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Thursday, December 27, 2007

Snark Du Jour

Crooks and Liars:

Phrases international heads of state should not use together: “Dalai Lama” and “call girl”.

... We at C&L Late Night were trying to figure out if George W. Bush had said something stupider, but then again “The Dalai Lama is not a call girl” IS factually correct.

As Reuters reported on December 21, 2007:

"I met the Dalai Lama in my office but I meet everyone in my office. I don't know why I would sneak off to a hotel room just to meet the Dalai Lama. You know, he's not a call girl," Harper told OMNI television.

Cathy suggests that Mr. Harper was simply catching himself as he almost blurted out the name of Karlheinz Schreiber, a man whose hotel visits with another Canadian Prime Minister have been in the news lately.

- Garry J. Wise, Toronto

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Wednesday, December 26, 2007

Steyn, Steyn, Steyn...

I referenced Vox Day's article "Heil Canada" a few posts ago.

Canadian journalist, Mark Steyn, the protagonist in a festering soap opera featuring his "epic" clash with Canada's human rights commissions, nonetheless sees fit today to honour Mr. Day as his "Reader of the Day."

As I noted in a recent response to a reader's email, I walked somewhat unsuspectingly into the Steyn issue last weekend, after simply noting the strident, anti-Canadian tone of the American take on it, as evidenced in one conservative law blog.

As I have learned, that tone has since echoed rather loudly throughout the conservative media and blogosphere.

It has been a bit of an eye opener to see the passions this issue raises, here in Canada and south of the border.

(It has also been a bit of fun, I acknowledge, to be called all kinds of nasty names by the National Review crowd that flocked to this blog in the hundreds for several days last week, virtually all of whom apparently failed to notice I largely agree with them that human rights complaints against Mark Steyn appear weak and unsustainable.)

The complainants' National Post article last Thursday, All we want is a chance to respond, did little to add substance to their contentions against Steyn.

My views, nonetheless, are not as critical of the various Canadian human rights commissions as are those of some writers. Canada's human rights tribunals do very important work in the realms of disability rights and employment law, among other areas.

This is but one case, in early stages and not yet adjudicated.

To indict Canada's human rights codes as a whole over the Steyn matter makes about as much sense at trashing the entire U.S. Constitution over any of the countless, frivolous civil rights lawsuits that regularly find their way to dismissal (and success) in America's courts.

Having reviewed much of what has been written, including Ezra Levant's summary of recent tribunal decisions in the National Post, my impression, however, is that our human rights tribunals have at times been inconsistent and unduly restrictive in deciding freedom of expression cases.

That is probably as much due to the absence of any genuine guidance from the Supreme Court of Canada since 1990's Canada (Human Rights Commission) v. Taylor, as any other factor.

There is a proper, but narrow role for human rights tribunals in dealing with the strongest and most noxious instances of hate speech, as originally intended. That is the law in Canada, as resolved by Taylor, and as a matter of public policy, I believe it to be a justifiable limit, to be employed in extreme, rare cases.

The human rights commissions' terms of reference badly require clarification by the courts to redefine their functions in a modern, internet-based communications universe. The primacy of the Charter of Rights in freedom of expression cases that come before the tribunals would benefit from judicial restatement.

It may well be that the current complaints against Steyn and Macleans feature powerful enough litigants to weather the costs of tribunals and appeals, and at the end of the day generate stronger, binding legal authority from the higher courts as to when and how human rights commissions may (and may not ) assume jurisdiction.

At the conclusion of this process, I expect that protections for free speech in Canada are likely to be stronger and better defined.

I have little doubt that Mr. Steyn, however, would reject such a vision as polyannic and naive.

For Mark Steyn, it is the process itself that is illegitimate - this is nothing short of his political battle to abolish Canada's human rights commissions altogether:

I have been opposed to the HRCs in principle my entire adult life and a two-minute Lexis Nexis search will turn up any number of quotes. So if contempt for the process is likely to increase "the Tribunal"'s "sympathy" to the complainants, it's way too late.

Second, it's worth considering the logic of that lawyer's advice. He's saying that, if we make nice, we might get a fair trial and be acquitted. Sorry, that would be the worst possible outcome. It would legitimate the process, and the usual pussies at The Toronto Star et al would say: See, it proves there's no threat to freedom of speech from the HRC shtick. After all, if a notorious hatemonger like Steyn can get a fair shake, what's the problem?

Here's my bottom line: I don't accept that free-born Canadian citizens need the permission of the Canadian state to read my columns. What's offensive is not the accusations of Dr Elmasry and his pals, but the willingness of Canada's pseudo-courts to take them seriously. So I couldn't care less about the verdict - except insofar as an acquittal would be more likely to bolster the cause of those who think it's entirely reasonable for the state to serve as editor-in-chief of privately owned magazines. As David Warren put it, the punishment is not the verdict but the process. To spend gazillions of dollars to get a win on points would do nothing for the cause of freedom of speech: It would signal to newspaper editors and book publishers and store owners that it's more trouble than it's worth publishing and printing and distributing and displaying anything on this subject, and so it would contribute to the shriveling of freedom in Canada.

This is a political prosecution and it should be fought politically. The "plaintiffs" certainly understand that, ever since the day they went in to see Ken Whyte and demanded money from Maclean's. I want the constitutionality of this process overturned, so that Canadians are free to reach the same judgments about my writing as Americans and Britons and Australians and it stands or falls in the marketplace of ideas. The notion that a Norwegian imam can make a statement in Norway but if a Canadian magazine quotes that statement in Canada it's a "hate crime" should be deeply shaming to all Canadians.

This discussion will no doubt continue for quite some time.

In subsequent posts, we'll continue to take a closer look at how Canada's legislators, Courts and tribunals have addressed freedom of expression - and its limits - to date.



Mr. Day responds to us and others today with a new post, Canada Strikes Back. I will briefly comment.

As indicated, we do intend to discuss the limits on freedom of expression, here and in the U.S., in subsequent posts. It will be apparent by scrolling down a bit in this blog that we've already begun that process.

If that's too much trouble, consider this news report from CNN today:

Marine punished for talking to media, family says

A former Marine drill instructor convicted of abusing 23 recruits has been punished for giving a news interview from the brig, his family says.

Former Sgt. Jerrod Glass, 25, was stripped of his telephone privileges for 45 days for violating brig policy by talking to The Associated Press by phone earlier this month, according to his sister, Kim Chesnut.

Some might consider this restriction on Sgt. Glass' freedom of expression to be a reasonable limit that can be demonstrably justified in a free and democratic America. Others might not.

Irrespective of that debate, it is clear that this news report illustrates but one example of an apparently legitimized restriction on freedom of speech under American law.

One also want to look at this article detailing judicial misconduct proceedings pending against Massacheusetts Judge Ernest B. Murphy, over his allegedly "improper" letters to the publisher of the Boston Herald.

When discussing the Steyn matter, then, let us not buy into the fallacy that that First Amendment rights are absolute in America. They are not.

As in Canada, American freedom of expression is also subject to reasonable limits, as defined and refined from time to time.

More on that later, when we'll canvas the law around obscenity, sedition and national security, perjury, intellectual property, advertising, professional responsibility and political ethics, to name but a few areas where freedom of expression has typically been regulated or restricted, to a greater or lesser extent, in both nations, for good reason and bad.

Finally, if Mr. Day is to characterize my mention that Canada does, in fact, have constitutional protection for freedom of expression as "pulling a fast one," I am wondering how he anticipates readers might view his erroneous suggestion that Canada does not?

- Garry J. Wise, Toronto

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Tuesday, December 25, 2007


The greatest Christmas song ever:

Don't argue with me on this...

- Garry J. Wise, Toronto

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Alternative Holiday Cheer - Have Nagila (Baby Let's Dance)

The artist is Lauren Rose.

Our h/t to Volokh.

- Garry J. Wise, Toronto

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Merry Christmas Baby!

A major h/t to Jeralyn at Talk Left for this find.

- Garry J. Wise, Toronto

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Monday, December 24, 2007

The Nuts Have Cracked - More Hyperbole on Steyn, Free Speech and Canada's Human Rights Commissions

Just a thought...

It might be a whole lot easier to take the arguments of writers like Vox Day seriously if they didn't employ incendiary headlines like "Heil Canada."

Mr. Day's article in World Net Daily voices opposition to the human rights complaints pending against Mark Steyn and Macleans.

The debate is legitimate. The anti-Canada diatribes are not.

Regarding the article itself and a tiny point of accuracy, while Mr. Day's statement that "there is no Canadian First amendment" is technically true (as our free speech guarantees are not nested in a constitutional amendment), his readers should not be misled.

Section 2 of the Canadian Charter of Rights and Freedoms affords constitutional protection to freedom of expression in Canada:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.


UPDATE: More on Mr. Day here.

- Garry J. Wise, Toronto

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Sunday, December 23, 2007

Seasons's Greetings and Happy Holidays

Merry Christmas and happy holidays to our readers, clients, colleagues and friends in the blogosphere from all of us at Wise Law.

I'd also like to add my special thanks to Shashi, Annie, Diana, Justine, Bogdan and Ken for making 2007 a great year at Wise Law Office and Wise Law Blog.

All the best. Be safe and happy.

- Garry J. Wise, Toronto

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