Monday, January 14, 2008

Ezra's Law - The Levant File

It may have amused certain of his cronies to see good ol' boy Ezra Levant ambush, bully and harangue the very unfortunate woman assigned by the Alberta Human Rights and Citizenship Commission to investigate the complaints advanced against him.

He did not amuse me.

It offended me as a fellow Canadian.

And as a fellow lawyer.

And as a fellow Jew.

Speaking first as a fellow Canadian, I have learned at least something from the racial enmity my own family endured nearly a century ago, upon arriving in Canada.

The host culture will always produce some whose ignorance and fear will cause them to impede and stereotype new immigrants with lofty and heated pronouncements as to all the imagined evils these newcomers bring with them. While their scripts may change over time, the characters remain the same.

I am glad Canada now provides a legal remedy against egregiously discriminatory provocation and insult.

We do, indeed, protect freedom of speech in Canada as one of our fundamental rights.

By Canadian law, however, as opposed to Ezra's Law, we also enshrine the right to be free from religious discrimination and racial harassment - spoken, written, drawn or carved in rocks.

It is quite unfortunate that Mr. Levant has graduated from being the grandson of immigrants who no doubt struggled through such wrongs to someone who now unrepentantly delivers his own bad-tasting medicine to a modern generation of newcomers.

Why would he do so?

As he put it, he did it because he wanted to. Because he can. To make a point. And because he accepts no law to the contrary.

We published those cartoons for the intention and purpose of exercising our inalienable right as freeborn Albertans to publish whatever the hell we want, no matter what the hell you say... the only thing I have to say to the government is that it's my bloody right to do so. It is my right to do so for reasonable purposes or for unreasonable purposes.

I reserve the right to publish the cartoons to do every offensive thing that [the complainants] claim was in my heart... I have the full right to do everything in here that they accuse me of.

That, apparently is Ezra's Law.

Ezra Levant, one nation unto himself. Under Ezra.

There is nothing new about the hard time that has been afforded Muslim immigrants to Canada by these self-appointed "protectors of the nation." Virtually every immigrant group to this nation has been subjected to some variation of it in its early history.

At long last, in this generation we have decided as a matter of law and public policy it is better to just say "welcome," establish legal boundaries against hatred, and see what we can learn from each other.

It is not necessarily a smooth path. But it is the right path.

........

As a fellow lawyer, I must say that Mr. Levant's conduct before a representative of a statutory legal commission was nothing short of embarrassing.

I understand he was of course, not in the role of counsel in his movie debut.

It is also unclear to me whether he continues to practice law at all.

Nonetheless, after noting Mr. Levant:

I felt it would be useful to review The Law Society of Alberta Code of Professional Conduct.

The Rules below were of interest to me:

Rule 3 A lawyer must not act in a manner that might weaken public respect for the law or justice system or interfere with its fair administration.

Commentary - Rule 3 Society expects that the legal profession will play a leading role in protecting the integrity of the justice system and ensuring that it functions properly. A lawyer's behaviour is incompatible with this role if it encourages
public disdain or disregard for the administration of justice. Examples are deliberate flouting of the law or other flagrant disrespect for an aspect of the justice system; irresponsible or unjustified allegations of corruption or partiality; criticism that is ill-considered or malicious; disrupting judicial or administrative proceedings; and suggesting to a client or other person that evasion of the law is acceptable.

Rule 8. Except under extraordinary circumstances, a lawyer must not record a conversation with anyone, nor enable a third party to hear the conversation, without first obtaining the consent of the person to whom the lawyer is speaking.

Rule 9. A lawyer must not harass any person or discriminate against any person on the basis of race, language, creed, colour, national or ethnic origin, gender, religion, marital status, sexual orientation, age, mental disability or physical disability or otherwise or on the basis of any similar personal attribute.

Commentary: ... Harassment may encompass conduct which:

(a) undermines another person’s dignity by causing embarrassment, discomfort or humiliation;
(b) creates an intimidating or hostile environment for the recipient of the harassment...

...Personal harassment is disrespectful and degrading conduct generally that is not specifically focused within the prohibited grounds. It includes conduct that is rude, insulting, belittling or vindictive (see also Rules #2, #6 and #7 in this chapter and related commentaries). The key in determining whether conduct is harassment is the impact the conduct has had on the complainant, not the intent with which it was done. Harassment is different from offending a person; it involves undermining
another person's personal integrity.

The rule against harassment is a pervasive rule. It applies to lawyers' relations with clients, other lawyers, others who work in the justice system (judges, court officials and staff, the police and prison guards, etc.) and members of the general public.

........

I was perhaps most offended as a fellow Jew whose community was invoked by Mr. Levant in a bizarre, rambling effort to rationalize his own questionable behaviour as harmless by reference to criminal vandalism against the Edmonton synagogue he claims as his own.

There are people out there who do awful things to our synagogues, Mr. Levant. Do I really need to say that this unfortunate reality does not grant us license or in any way immunize us from the consequences of our own hateful acts?

I do not know any Jewish-Canadians (except the one governed by Ezra's Law), who would even consider proposing such an offensive argument.

A synagogue attack by one Muslim does not justify hatred of all Muslims. It justifies criminal proceedings against the perpetrators.

Do what you must Mr. Levant, but do not purport to drag Canada's Jewish community with you into this.

We are a tolerant people, living in a tolerant country. And want to keep it that way.

....

Which brings me to back to a remark I left dangling last week.

..let us not confuse who the "good guys" are here

"Who are the good guys, then Mr. Wise?" one commenter asked.

The good guys, of course, are the thousands of hard-working and determined Islamic immigrants who have come to Canada and America to make a better lives for themselves and their children, as did my forebears.

They have come to escape war or oppression or limited opportunity at home. As did my grandparents.

They are the ones who lived quiet, normal, and largely apolitical lives in their neighbourhoods, did their jobs, prayed in their mosques, and communed with their families and friends.

Until September 11, 2001.

The day our world went crazy. The day some among us decided they were all suspects. The day law enforcement was let loose on them.

Some theorists have gone so far as to suggest Islamic immigrants have arrived, armed with a master plan to convert Canada and America into Islamic outposts under Sharia law, without even noting that most Islamic-Canadian immigrants left their host nations precisely to get away from that form of excess.

So who are the good guys?

They are the ordinary people, the Islamic-Canadian citizens who contend daily with the discrimination and harassment that comes with the pervasive, but false notion that they are somehow, by definition, all aligned with the worst of the worst who happen to share their religion.

To put it more bluntly, they are the victims of guilt by association. One will easily note from a review of the video that in Ezra's World, any wrong committed by any individual Muslim quite naturally must lead to unchecked national hatred of all Muslims. It is all their fault, according to Ezra.

In my view, they need legal protection against discrimination and harassment.

I am relieved to be in a Canada that provides it as a matter of law.

......

Fortunately, the news is not all bad:

Celebrating Canada's multiculturalism

... It is often overlooked that Canada has the highest immigration rate on the planet. However, it was only in the 1960s that Canada abandoned its racist immigration policies and began admitting newcomers according to their skills and qualifications rather than their nations of origin.

...Much has been achieved over time. Once it seemed likely that Canada could never aspire to genuine equality for newcomers, let alone achieve it. How things have changed.

It is noteworthy that 80 per cent of recent immigrants after four years in the country say that if they had to do it again they would make the same decision and come to Canada.

What about Muslims as immigrants? Today they are about 2.5 per cent of the total population, numbering about 850,000. It is the fastest growing religion in the country. The median age of Canadian Muslims is about a decade lower than the median age of the population at large.

Among foreign-born Muslims, about half have come to Canada in the last 10 years. Thirty per cent have been in Canada from 11 to 19 years, and 17 per cent have been in this country for two decades or longer. About 60 per cent of them live in Ontario, 20 per cent in Quebec.

Despite widespread unfavourable comment and some irresponsible alarm, it is clear, says the author, according to his research, that they tend to share important traits with other newcomers to Canada: optimism, enthusiasm for their adopted country, a desire to improve their lives and the wish to be treated fairly.

....


A tidbit from Toronto history will be illuminating as to how Canadian governments have typically responded to racial provocation.

An elderly uncle of mine still speaks with pride of his role in defending the Jews of Toronto in 1933 by being part of the fabled Christie Pits riots. The event is documented online by the Plaque Project as follow:

In 1933, shortly after Adolph Hitler was elected to power in Germany, newspaper articles reached Toronto bringing with them news of the atrocities the Nazis were carrying out against Jews there. Toronto’s anti-Semites became inspired by what they read, and began adopting the swastika symbol. In July of that year a group of residents from the Beaches neighbourhood formed the Balmy Beach Swastika Club. They complained about the crowding, litter and ‘vulgarity’ at the beach, which they attributed to the large number of ‘obnoxious visitors’ who were riding the street cars out to the beach that summer. Many of these visitors were Jewish, and anti-Semitism seemed to be a cornerstone of the Swastika Club; they wore and posted swastikas and they attempted to have Jews and other ‘foreiners’ banned them from the beach. Even though the beach was a public park Beaches residents including the Swastika Club saw it as very much their own, and private. All of this outraged the Jewish community.

...On August 14th huge crowds gathered at Christie Pits for a baseball game, the first game of a tournament between the St. Peters’ team and the predominately Jewish Harbord Playground team. The game took place in a neighbourhood that Jews had just started moving into, and racial animosities were running high. The Harbord Playground team won the game despite the taunting from the crowd and the flying of a swastika banner. The next morning there was a giant swastika and large lettering that read Heil Hitler painted on the top of the Christie Pits clubhouse. This increased tensions and brought even more people out to the next game on August 16th. During that game a group of St. Peters’ supporters raised a white bed sheet with a swastika painted on it. A group of Jews went to tear it down. This ignited a fight, and soon the thousands of spectators had joined the brawl. The two sides violently clashed, battling each other and fighting for the bed sheet. Many residents in the area who were not involved in the baseball game “ came out of their houses with bats and sticks because they were after the Jews”. One Jewish boy was hit on the head and needed to be rushed to hospital, but rumour spread that he had been killed. As news of the riot hit the Jewish areas many more Jews (along with their Italian allies) headed north to join the massive brawl. Metal pipes and baseball bats were wielded as weapons. Pitch battles continued late into the night and spread to neighbouring streets and alleys as police closed down the park.

Only two days after the riot fears of further violence forced city council to ban the Swastika symbol from Toronto’s streets.

Even in 1933, Canadian sensibilities favoured legislation prohibiting the public display of incendiary symbols, as a measure to avoid the foment of racial discord and violence.

Apparently, it worked then.

I do not note any slippery slope toward totalitarianism that has followed.

......

The notion that human rights commissions are somehow "liberal" is worthy of passing comment. Alberta has had Progressive Conseratives in power continuously since 1971. Alberta's first human rights legislation was enacted in 1972. Do the math.

......

America has Skokie. We have Human Rights Commissions.

Either approach works. But I'll stick with ours, thanks.

.....

Finally, I do not see the complaints against Mr. Levant as anywhere near as frivolous as those against Mark Steyn. Mark Steyn may offend some with his theories, but that is clearly not his objective, nor is offense the inevitable result of his work.

Mr. Levant chose, knowingly, to publish and republish deeply offensive cartoons that he was well aware had led to serious upset, outrage and violence after prior publications overseas.

Let us not conflate Mark Steyn and Ezra Levant. These are very different cases.

Mark Steyn is a serious, talented writer. We do not have to agree with his views to at least recognize his highly researched, if controversial, efforts to analyze and address the key issues of our times. I have repeatedly stated my view that the complaints against Mr. Steyn are dubious and unlikely to succeed. His conclusions may be debatable, but his freedom to express them should never be.

By contrast, in the impugned publication, Mr. Levant has created nothing. His "big stand" involved copying and pasting. He published a series of inflammatory comic drawings that most of the Western media wisely saw fit to avoid, after observing the great offense taken to them by the Islamic world.

Mr. Levant knew exactly what he was doing. He cries foul, but his is the cry of one who makes the fatal mistake of pretending to be above the law.

Did Mr. Levant cross a legal line by publishing the offending cartoons, or by republishing them earlier this week? Did any of his comments before the Commission, now published on YouTube for the world to see, cross any lines?

Maybe. Maybe not.

That, as a matter of law, is now up to the Commission, and perhaps, appellate courts to decide.

As always, the Commission will fulfil its legislated mandate. That is its statutory role. Some readers get angry with me for noting that reality, but I will note it again, nonetheless.

Let's be clear - the Commission is not on trial here.

What is on trial is Ezra's Law.

........................

UPDATE: January 17, 2008

I appreciate the many comments to this post, many of which are quite thoughtful. I entirely agree with the many persuasive arguments raised in favour of treading very carefully, indeed, with respect to anything that purports to limit freedom of expression in Canada.

Many of the commenter' arguments raised are largely in line with the Supreme Court of Canada's 1990 decision in Canada (Human Rights Commission) v. Taylor, which, to some extent, defined the balancing of interests necessary in the consideration of these kinds of cases. I will again excerpt from the slim majority's ruling:

58 I find it helpful to address the question of whether s. 13(1) minimally impairs the freedom of expression by examining in turn the arguments marshalled by the appellants and the CCLA in support of striking down the section. One of the strongest of these arguments is the complaint that the phrase "hatred or contempt" used in s. 13(1) is overbroad and excessively vague. Specifically, it is said that the wide range of meanings available for both "hatred" and "contempt" extend the scope of the section to cover expression not causing the harm which Parliament seeks to prevent. Additionally, the appellants contend that the process of determining whether a particular communication is likely to expose persons to "hatred or contempt" is necessarily subjective, leaving open the possibility that in deciding whether a complaint is well-founded the Tribunal will fall into the error of censuring expression simply because it is felt to be offensive.

59 When considering the scope of the phrase "hatred or contempt", it is worthwhile mentioning that the nature of human rights legislation militates against an unduly narrow reading of s. 13(1). As was stated by Lamer J. in Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158, a human rights code "is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law". I therefore do not wish to transgress the well-established principle that the rights enumerated in such a code should be given their full recognition and effect through a fair, large and liberal interpretation. At the same time, however, the purposive definition to be given a human rights code cannot extend so far as to permit the limitation of a Charter right or freedom not otherwise justified under s. 1.
60 In my view, there is no conflict between providing a meaningful interpretation of s. 13(1) and protecting the s. 2(b) freedom of expression so long as the interpretation of the words "hatred" and "contempt" is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression. Such a perspective was employed by the Human Rights Tribunal in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, the most recent decision regarding s. 13(1), where it was noted, at p. D/6469, that: In defining "hatred" the Tribunal [in Taylor] applied the definition in the Oxford English Dictionary (1971 ed.) which reads (at p. 28):
active dislike, detestation, enmity, ill-will, malevolence.

The Tribunal drew on the same source for their definition of "contempt". It was characterized as the condition of being condemned or despised; dishonour or disgrace. As there is no definition of "hatred" or "contempt" within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With "hatred" the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings. This is captured by the dictionary definition relied on in Taylor ... in the use of the terms "despised", "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully coextensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be. [Emphasis added.]

61 The approach taken in Nealy gives full force and recognition to the purpose of the Canadian Human Rights Act while remaining consistent with the Charter. The reference to "hatred" in the above quotation speaks of "extreme" ill-will and an emotion which allows for "no redeeming qualities" in the person at whom it is directed. "Contempt" appears to be viewed as similarly extreme, though is felt by the Tribunal to describe more appropriately circumstances where the object of one's feelings is looked down upon. 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. To the extent that the section may impose a slightly broader limit upon freedom of expression than does s. 319(2) of the Criminal Code, however, I [page929] am of the view that the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision. 62 In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section. (emphasis added)

As I noted in my conclusion to this post, I do not know whether Mr. Levant has crossed any legal line. That will be for the tribunal to decide, if the case proceeds beyond this stage. If nothing else, Mr. Levant wishes to test or challenge this very area of law, and he now has his opportunity.

I also will reiterate my thought that Canada will benefit from further definition from the appellate Courts on how the Supreme Court of Canada's comments are to be interpreted in a modern, internet environment. I have said as much in prior posts:

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.

While much of the ongoing discussion of human rights commissions has been devisive and polarized, I continue to view our Human Rights tribunals and Courts as well able to handle the challenge of striking the appropriate balance.

Finally, it has come to my attention that a few writers have inaccurately characterized my comments in the above post as somehow "calling" for specific professional sanction againt Mr. Levant. My post did not take that position.

My comments did, however, underline my sincere view that there is nothing appropriate about calling a Human Rights Commission investigator a "thug" in the midst of an investigation.

- Garry J. Wise, Toronto

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