“Cyber Safety” in Nova Scotia

This province’s new Cyber Safety Act, drafted after the horrible Rehteah Parsons case came to light, officially took effect yesterday.

The law firm of Stewart McKelvey published this brief summary of the new law:

Cyberbullying is defined in the Act as:

any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way.

A person who subjects another person to cyberbullying commits the tort and can be liable for general, special, aggravated and punitive damages and be subject to an injunction.


If the person committing the tort of cyberbullying is under the age of 19, his or her parent(s) or guardian(s) will be jointly and severally liable, unless they can convince the court that they:

a.) Were exercising reasonable supervision over the child at the time the child engaged in the activity that caused the loss or damage; and

b.) Made reasonable efforts to prevent or discourage the child from engaging in the kind of activity that resulted in the loss or damage.

Factors the court will consider in making this assessment include:

– The age of the child;

– The prior conduct of the child;

– The physical and mental capacity of the child, including any psychological or other medical disorders of the child;

– Whether the child used an electronic device supplied by the parent, for the activity;

– Any conditions imposed by the parent on the use by the child of an electronic device;

– Whether the child was under the direct supervision of the parent at the time when he or she engaged in the activity; and

– Whether the parent acted unreasonably in failing to make reasonable arrangements for the supervision of the defendant.

My time in Junior High was hellish enough without the internet and camera phones, so I shudder to think what it must be like today for those who don’t fit in.

But I also have little faith in the government’s ability to fundamentally understand, much less police, what happens online.  And legislation hastily drafted in response to a moral outrage inevitably has serious problems.

Freedom of expression is not absolute.  That’s why we have the tort of defamation, and laws against criminal harassment and “hate speech.”  But not everything that might disturb you, or hurt your self-esteem, should be considered “bullying.”  (I’m often accused of taking my political views way too seriously, and there’s no shortage of commentators who can get my back up almost every day.  But does that harm my “emotional well-being,” or do I just need to lighten up?)

And in an age where, in most households, both parents are working, there is only so far a parent can go in supervising their children’s internet usage.  It’s easy to delete your browser history (or turn on “private browsing”), so even the most diligent parent will not know everything that their son or daughter is posting.  And even if they don’t have home internet access at all, the youngster can just go to any public library.

I don’t want children being bullied online (or offline, for that matter), but there are other societal values – especially freedom of expression, and people not being held legally responsible for things they didn’t know about – which should be kept in mind. If the Cyber Safety Act survives Charter scrutiny at all, here’s hoping the courts keep these principles in mind.

Update: Jesse Brown, technology columnist for Maclean’s, savages the new legislation:

…Rape, assault, harassment: these are crimes with established parameters. All of them could also be called “bullying.” They could also be described as “mean,” and I suppose we could enact a law against being mean. But I’d rather have laws against specific crimes, rather than against vast swaths of vaguely defined human behaviour. Ultimately, bullying is in the eye of the bullied. For many, cyberbullying is equal to a negative thing said about them on the Internet. I’ve met restaurant owners who feel they’re being cyberbullied by Chowhound critics.

The problems with anti-cyberbullying laws don’t end there. Once a law establishes some flawed definition, it moves on to enforcement. Here’s how Nova Scotia’s new Cyber Safety Act, which went into effect yesterday, will go about stopping online abuse:

Someone feels that you’re cyberbullying them. They visit or phone the court and request a protection order against you (minors , or some reason, cannot do so, only adults). A judge decides if their claim meets the law’s definition. The definition of cyberbullying, in this particular bill, includes “any electronic communication” that ”ought reasonably be expected” to “humiliate” another person, or harm their “emotional well-being, self-esteem or reputation.”

If this is the standard, I don’t know a person who isn’t a cyberbully.

It’s dirty work (and lawyers get to do it)

Canadian Lawyer‘s Gail Cohen praises the late Doug Christie for representing people many lawyers wouldn’t touch:

Christie, often called The Battling Barrister or Counsel for the Damned, became notorious for his defence of some of the most reviled hatemongers in the country. His clients included holocaust denier Ernst Zundel, former Nazi guard Michael Seifert, fascist John Ross Taylor, and white supremacist Paul Fromm. Christie studied law at the University of British Columbia and rose to prominence in the mid-1980s defending James Keegstra, a schoolteacher fined $5,000 for willfully promoting hatred against Jews by teaching his students the Holocaust never happened and that a Jewish conspiracy controlled world affairs.

Christie was strongly criticized by anti-racists, had rocks thrown at him, and his office windows were smashed so many times he had to board them up. Once, someone drove a truck through his office. He was a polarizing figure, there’s no doubt. Christie, along with Ottawa lawyer Richard Warman, were the subjects of Canadian Lawyer’s March 2009 cover story “War of the Words,” which looked at the battle between the free speech advocate and the push for laws outlawing hate. Warman would not consent to have his photograph taken with Christie, going as far as insisting we note in the article that the two men had been photographed separately.

Many of his critics insisted Christie held the same repugnant beliefs of those he defended in the courts but other than his desire to separate the Western provinces from the rest of Canada, his personal beliefs were never really out there on display. Until the end, Christie insisted he was defending those who others wouldn’t. In one of the last interviews he gave before passing away, he told Canadian Lawyer writer Jean Sorensen, “I take cases on principal – I don’t care how long they take or if it costs me.”


Even the professional regulator saw that Christie was willing to do what most other lawyers weren’t. When the B.C. lawyer got into trouble with the Law Society of British Columbia over some questionable subpoenas, his contribution to society was recognized. Christie was found guilty of professional misconduct but in assessing costs, the hearing panel tried to keep them as low as possible so it didn’t affect Christie’s ability to practise. “The Panel recognizes the Respondent’s valuable contribution to our free society and wants to enable him to continue with his work, which he has often done pro bono or for greatly reduced fees.”

Whether you agreed with Christie or not, he played a pivotal role in the free speech debate in Canada. There have to be lawyers who are willing and able to fight for those no one wants to fight for. It’s the essence of a free and tolerant society. Who, now, will rise up to take his place and defend those people, even if it means possibly being on the wrong end of a thrown rock?

Actually, there’s not much doubt that Christie did indeed support the causes promoted by his extreme-right client base.  But he did what a lawyer is supposed to do: stand up against the power of the state when that state threatens to infringe upon someone’s liberty.

In most cases, this is precisely what lawyers are doing when they take on clients who have engaged in particularly repugnant behavior.  Another example: the Ohio attorneys trying to keep convicted killer Steven Smith from being executed for an undeniably appalling crime.

Condemned killer Steven Smith’s argument for mercy isn’t an easy one. Smith acknowledges he intended to rape his girlfriend’s 6-month-old daughter but says he never intended to kill the baby.

The girl, Autumn Carter, died because Smith was too drunk to realize his assault was killing her, Smith’s attorneys argued in court filings with the Ohio Parole Board, which heard the case Tuesday. And Ohio law is clear, they say: A death sentence requires an intent to kill the victim.

“The evidence suggests that Autumn’s death was a horrible accident,” Smith’s attorneys, Joseph Wilhelm and Tyson Fleming, said in a written argument prepared for the board.

They continued: “Despite the shocking nature of this crime, Steve’s death sentence should be commuted because genuine doubts exist whether he even committed a capital offense.”

Smith, 46, was never charged with rape, meaning the jury’s only choice was to convict or acquit him of aggravated murder, his attorneys say.

However, rape was included in the indictment against Smith as one of the factors making him eligible for the death penalty. Under Ohio law, an aggravated murder committed in the course of another crime — such as burglary, robbery, arson or the killing of a police officer or child — is an element that can make someone eligible for capital punishment.

The Richland County prosecutor said Smith continues to hide behind alcohol as an excuse and calls Smith’s actions “the purposeful murder of a helpless baby girl.”

I’m opposed to the death penalty because of the possibility – make that certainty – that innocent people will be executed.  That doesn’t mean some people don’t deserve to be put to death, however, and it’s hard to imagine what other punishment would suffice for a scumbag like Steven Smith.

That said, his lawyers have a point.  Murder is a crime requiring specific intent – the killer must intend to kill, not just harm, his victim.  Impairment by alcohol is not a defence to most criminal charges, but if Smith was so intoxicated that he couldn’t have formed the intent to kill, then under Ohio law he shouldn’t be on death row.

The state shouldn’t have the power to kill.  But if it does, at the very least it’s the lawyer’s job to ensure that this power is only carried out in the limited circumstances allowed.  Steven Smith might be the most loathsome defendant imaginable, but next time it could be someone someone more sympathetic – or innocent.

Book review: A Cruel Arithmetic: Inside the Case Against Polygamy by Craig Jones

[Originally posted at Canadian Lawyer]

When s. 293 of the Criminal Code of Canada was referred to the British Columbia Supreme Court, I wrote that I believed the law was clearly unconstitutional in its current form:

If this case was about legal recognition of polygamy — with massive implications for family law and even immigration policy — it would be much more challenging.

At issue, however, is whether a polygamy should be a criminal offence. Federal and provincial governments, and many interest groups, argue that the Criminal Code provision is necessary to protect women and children coerced into abusive relationships.

Such activity is already illegal, however, and the way s. 293 is written criminalizes all polygamous relationships, even those involving consenting adults. I would be very surprised if the B.C. Supreme Court — and, ultimately, the Supreme Court of Canada — does not find that the section is overly broad and therefore unconstitutional.

The Supreme Court of B.C., of course, did uphold the constitutionality of s. 293. (This is why you shouldn’t take my stock market or fantasy football predictions, either.) But the debate isn’t over, and the anti-criminalization arguments summarized in my blog post will still be forcefully made by religious and pro-polyamory activists.

Craig Jones, who represented the British Columbia Department of Justice in the Polygamy Reference, could not disagree with these arguments more strongly. A longtime civil libertarian, Jones was confident the constitutionality of s. 293 would be upheld, but he initially did not personally take a strong position against the practice.

By the time the matter made it to court, however, he was convinced polygamy is an inherently harmful practice that should not be tolerated in a modern society. He explains his evolution, and the case against polygamy, in his fascinating book A Cruel Arithmetic: Inside the Case Against Polygamy.

In a polygamous society like Bountiful, B.C. — a mysterious, secretive colony populated by members of the Fundamentalist Church of Latter-Day Saints, the breakaway Mormon sect which practises “plural marriage” — this “cruel arithmetic” inevitably manifests itself in two ways. Every time a man takes an additional wife (polyandry, the taking of multiple husbands by a woman, is almost unknown) another man in the community is left with no one to marry. And as the adult females are married off, younger and younger wives are taken. The results: child trafficking, sexual exploitation of minors, and “lost boys,” who are marginalized and even expelled from their homes:According to Jones, it is not enough for the state to take action against only “bad” polygamy involving young children or coercion and abuse:

Again and again, the discussion circled back to the fact that academic writers seemed to consider only harm arising in polygamous marriages, not polygamous societies [emphasis added]. The focus was entirely on how to accommodate polygamous unions while minimizing or addressing possible harms to co-wives and children. The commentators concluded that banning polygamy was unconstitutional because the law could be written to apply only to “bad” polygamy, or the state could simply scrutinize polygamous marriages looking for abuse and crimes. But the “cruel arithmetic” effect on the targeting of girls, like the increased criminality of men in the polygynous society, would be felt everywhere, and this was so even if every polygynous marriage was harmless, egalitarian, and restricted to fully consenting adults.

One of Jones’s expert witnesses, Dr. Joe Henrich, forcefully made the case that a “nontrivial” increase in polygamy would result in higher rates of crime and anti-social behaviour from the growing number of unmarried males (this has been the experience in China, where the “one-child” policy has led to an imbalance in the number of males and females).

But surely if polygamy were decriminalized, very few Canadians would take up the practice, right? Jones isn’t willing to take that risk. He devotes a lengthy chapter to the findings of historians and evolutionary psychologists, who note monogamous societies are a relatively new development. And, of course, there are still many nations where polygamy is legal and/or widespread, and it’s not hard to believe immigrants from these societies would be attracted to Canada — multiple wives in tow.

A Cruel Arithmetic makes a very strong case against polygamy, but does it make a strong case for criminalizing the practice? I find Jones’ arguments compelling (as did the British Columbia Supreme Court, obviously) but I still believe consenting adults have an inalienable right to enter into whatever arrangements they want.

Indeed, adults can enter into polyamorous relationships, provided they don’t go through anything like a marriage ceremony. Once the relationship becomes a “marriage,” though, it becomes a crime. As the distinction between even monogamous marriage and common-law relationships becomes less clear, I believe this becomes increasingly hard to justify. Even Jones has a difficult time pulling it off, in my opinion:

There may be harms that attached to some “polyamorous” relationships that weren’t marriages. But in my view, there was something about marriage, about the invocation of some external authority with (even notional) powers of enforcement, that permitted polygamy “take” a spread. . . . Who knows, if polyamory really does take off, and if it caused the same problems as polygamy, perhaps the law would have to be changed to accommodate that new reality. But line drawing, as we would urge the Court, is Parliament’s business, and when dealing with a spectrum of risks and harms the line has to be drawn somewhere.

Jones puts forward evidence that polygamy leads to societal harms that justify infringement upon some individual rights. But we have to be careful about where that line of thinking can lead us (would an abortion ban be justifiable if social science research showed harm arising from a declining birth rate?).

There’s also the fact Canada has tolerated the practice of polygamy in Bountiful for decades. There might be a Criminal Code section that makes polygamy a criminal offence, but it hasn’t stopped a polygamous community of 1,000 people from developing in the B.C. interior. We’ve known what’s been going on there for years, but nothing was done about it. And the longer it takes, the harder it becomes to suddenly start prosecuting it.

Moreover, Canadians know the anti-polygamy law is almost never enforced, but that certainly hasn’t led to many more “plural marriages.” If anything, the existence of Bountiful — a closed, cultish community that feels like a throwback to the 19th century — has probably made polygamy less attractive to mainstream Canadians. Who wants to live like those guys?

The case against officially recognizing polygamous unions, however, is much more strong (if anything, A Cruel Arithmetic is useful for rebutting the argument made by anti-gay-marriage activists, that recognizing same-sex marriage will lead to a slippery slope toward officially sanctioning polygamy). We can respectfully disagree as to whether it should be a crime, but we can agree that polygamy is a very troubling practice.

More importantly, A Cruel Arithmetic describes this major Canadian constitutional argument in more detail than I’ve seen in any other book. The duelling lawyers and their personalities, the clashes within the civil service, the preparation and cross-examination of witnesses — it’s all here. And it is absolutely riveting, especially when Jones describes the dismantling of dubious “expert” witnesses trying to make the case that polygamy is not so harmful. I’d go so far as to say every law student should read it, and many practising lawyers could learn a lot from it, too. I certainly did.

Book review: “From the Closet to the Altar”

[Originally posted at Canadian Lawyer]

In 1957, a prominent American group denounced homosexuality as “socially heretical or deviant,” and determined that laws against it posed no constitutional problems. That organization: the American Civil Liberties Union. For years thereafter, “sodomy” was a criminal offence in every state.

In 2012, the president of the United States spoke out in favor of same-sex marriage, and his party endorsed it in its official platform. Gay marriage is legal in six states and Washington, D.C., and many other American states have allowed “civil unions” — marriage in all but name — for same-sex couples. One of the year’s biggest controversies came when the president of a fast-food restaurant chain reaffirmed his company’s support for anti-gay-marriage groups, leading to boycotts (and counter-boycotts) across the country.

Gays and lesbians in the United States have come a long way in a short time (yet are still well behind Canada and many other nations). But with progress, there has been a massive backlash from conservative, religious Americans, who consider homosexuality sinful and officially recognized same-sex unions as a threat to the institution of marriage itself.

While the Democratic Party has become more accommodating of same-sex marriage, most of the Republican Party (with a few surprising exceptions like Dick Cheney) is adamantly opposed. While some states have legalized same-sex marriage, even more have adopted constitutional amendments defining marriage as between a man and a woman. While gay-rights activists have had some success in state courts and legislatures, voters have shot down the idea of same-sex marriage every time it has been put to a popular referendum — even in progressive California.

In this engrossing book, Harvard law professor Michael J. Klarman tells the history of the legal and political campaigns for same-sex marriage. But he also examines the tactics used by some gay-rights activists and organizations in pressing for equal marriage, and whether the resulting backlash has slowed progress toward gay and lesbian equality in other key areas.

The idea that gay and lesbian couples should be allowed to legally marry, with all of the state-sponsored benefits flowing therefrom, seemed like fantasy just 20 years ago. Gay Americans only began leaving the closet and demanding equality in the ’60s and ’70s, and during the ’80s and early ’90s they focused their attention on pressing issues like non-discrimination laws and the fight against AIDS.

That’s why a 1993 Hawaii Supreme Court decision, Baehr v. Lewin, caused an uproar. Baehrheld that the limitation of marriage to a man and a woman was discriminatory, and as a result Hawaii became the first jurisdiction in the world where same-sex marriages were officially recognized. The backlash was almost instantaneous, as even liberal Hawaiians were not ready to take this massive step forward. After years of legal and political wrangling, the state constitution was amended to limit marriage to opposite-sex couples. Other states made similar moves, and prominent gay-rights organizations (who had not supported the Baehr litigation, correctly determining it would be too much too soon) feared they were worse off than when they started.

The floodgates had opened, however. State courts in Vermont and Massachusetts also ruled that bans on same-sex marriage were unconstitutional, though the Green Mountain State ultimately settled on civil unions. Then came other New England states. Then came California. All the while, as ordinary Americans got to know more of their gay and lesbian neighbours, friends, and relatives, support for same-sex marriage continued to grow. Support for civil unions, once a radical idea in its own right, became a fallback position for conservatives (even Rush Limbaugh!) who continued to oppose gay marriage. Earlier this year, President Barack Obama finally determined that it was the right time to come out publicly in support of marriage equality — a development Klarman deemed unlikely before the next election.

Still, it continued to be two steps forward, one step back for the marriage equality movement. Voters in Maine and California chose to amend their state constitutions to ban gay marriage in response to controversial court rulings. Three Iowan supreme court judges who ruled a same-sex marriage ban unconstitutional were recalled. There is no doubt which way things are going, especially considering that younger Americans overwhelmingly support giving gays and lesbians the right to marry, but the fight isn’t close to over yet.

There is no doubt that Klarman supports same-sex marriage, but to his credit, Klarman resists the temptation to demonize its opponents. From the Closet to the Altar makes its points clearly and dispassionately, and is all the more persuasive as a result. Republicans who broke with their party to support same-sex marriage, such as the New York state legislators who voted with the Democrats to legalize it, are given their due, and divisions within the gay-rights movement are discussed in great detail.

Indeed, the point of From the Closet to the Altar is to determine whether gay and lesbian Americans are better off today, after years of emphasizing same-sex marriage, than they would have been if more incremental change had been sought. He determined that, on balance, they are — but that some serious setbacks have come about:

“On balance, litigation has probably advanced the cause of gay marriage more than it has retarded it. But such litigation has also probably impeded the realization of other objectives of the gay rights movement, and it has had significant collateral effects on politics. Because of the litigation, U.S. Senate candidates have lost their bids, state judges have lost their jobs, and the outcome of a presidential election may have been affected, which in turn has influenced the composition of the U.S. Supreme Court.”

Heading into the 2012 elections, voters in Maryland and Washington will decide whether same-sex marriage will become legal in their respective states. The people of Maine may soon revisit their decision to ban it, too. This issue isn’t going away, and From the Closet to the Altar is essential reading for anyone who wants to catch up on the subject heading into polling season.

This November, Americans will choose between Obama, who supports the right of gays and lesbians to marry, and challenger Mitt Romney, who does not. It’s not an issue Romney and the Republicans are keen to bring up on the campaign trail, however. A few years ago, it was an effective wedge issue. Now, it’s almost an embarrassment. And that should tell you which side has the momentum.

Omar Khadr and the rule of law

Dan Gardner explains that the Khadr case is not about national security so much as it’s about holding the federal government to its obligations under the constitution:

In 2010, a federal court judge agreed that the involvement of Canadian officials in Khadr’s detention and interrogation brought the Charter of Rights and Freedoms into play and that Khadr’s Section 7 right to security of the person had been violated. It ordered the government to ask the American government to send Khadr back to Canada. The federal court of appeal agreed. So did the Supreme Court.


But then the Supreme Court balked.

Traditionally, courts have been very deferential to a government’s exercise of its prerogative power to direct foreign affairs. And for good reason. Courts have not the expertise, capacity, or mandate to conduct foreign affairs. But they do have the expertise, capacity, and mandate to uphold the Constitution, including the Charter of Rights and Freedoms — which had clearly been violated.

The Supreme Court tried to square the circle. “We conclude that the appropriate remedy is to declare that, on the record before the Court, Canada infringed Mr. Khadr’s s. 7 rights, and to leave it to the government to decide how best to respond to this judgment in light of current information, its responsibility for foreign affairs, and in conformity with the Charter.”

So the Supreme Court didn’t order the government to ask for Khadr’s return. It did not order the government to act at all. But given the gravity of the ruling, it clearly expected that the government would act.

Facing a grossly unfair trial, and life in Guantanamo if found guilty, Khadr accepted a plea bargain of eight more years in prison, with transfer to Canada after one. The government signed on. Does that honour the Supreme Court ruling? It’s hard to see how it does. But at least it’s something.

Or rather, it would have been something if the government had upheld the bargain. But it hasn’t. Instead, the government has pretended Omar Khadr doesn’t exist.

In doing so, the government has disregarded the Constitution and ignored the Supreme Court. Arguably, it has even been contemptuous of both.

Omar Khadr is a citizen of this country. What you think of him doesn’t matter. He is a citizen. And if the government can do this to him, it can do this to any citizen.

Roach v. The Queen

A Toronto lawyer is pursuing legal action against the requirement that new Canadian citizens swear an oath to the country’s formal Head of State:

Charles Roach estimates he has at least a year and a half left to live before brain cancer kills him.

The Toronto lawyer and activist has spent nearly 50 years in courtrooms, trying to win mostly human rights cases.

He wants one more victory before he takes his last breath.

Roach, who moved to Canada in 1955 from Trinidad and Tobago, wants to become a Canadian citizen. In the 1970s, he fulfilled the requirements to do just that.

But one thing got in the way of receiving his citizenship certificate.

He refuses to pledge allegiance to the Queen, something he has to do in an oath all citizenship candidates older than 14 must take to become Canadian.

“In my belief, the Queen represents or is the most important representation of inequality and racism. I cannot take an oath to a symbol of racism,” said Roach, referring to England’s colonial past. He believes that anybody, regardless of their family lineage, should be able to serve as head of state.


On June 18, the Ontario Superior Court gave Roach and three others the green light to continue to argue that the oath to the Queen is unconstitutional.

The four plaintiffs, half who aren’t Canadian and half who say they took the citizenship oath “under duress,” must each file individual applications to the court by Sept. 21.

The decision was a victory for the Roach camp, who hope to argue the case in the next six to eight months.

Anyone else think this is kind of like moving next to an airport, and then suing to shut it down because of all the noise from the planes?

Update: Dan Gardner on Canada’s historical ties to the monarchy, and whether we’re really prepared to throw it away:

There was a period, after the Second World War, when “new” meant plastic, Formica and all things shiny and wonderful. “Old” was simply in the way. The result was a wave of destruction as old buildings were reduced to rubble and replaced without the slightest consideration for what would be lost. We have regretted that mania ever since.

Today, it’s hard to imagine that mentality, at least in our built environment. We protect heritage architecture. We know that age has inherent value.

Anyone can see that by taking a careful look at the Stanley Cup. Donated by an English nobleman to the winner of the “Dominion Hockey Challenge,” everything about it is archaic, right down to its curlicue decorations, but its very visible age doesn’t diminish its value. It is its value. Its age makes it a symbol of continuity, stitching together decades and generations. It is the history of hockey in one object.

Of course age alone does not place venerable things or institutions beyond all other considerations. Old trees are still cut, old buildings torn down. Change continues, as it must, always. The Stanley Cup has been reshaped and altered countless times. The monarchy itself is the product of a thousand years of constant revision.

But today we only make these changes after careful consideration of what would be gained and lost — with history weighing heavily on the latter side of the scales. That’s what’s missing in glib calls to junk Canada’s monarchy. There’s no appreciation that the monarchy is this nation’s oldest institution, no weight given to history, no respect for age.

“How About Defending Speech Because It’s Speech, Not Because You Agree With It?”

I want to print this post from Popehat, frame it and mount it on my wall.

…Say that someone sues, or threatens, or abuses someone whose ideas you despise, someone whose good faith you doubt, someone working for political or social ends you are struggling against. If that censor is successful in any measure, are you harmed? Yes. You are harmed because the next censor, the one gunning for you or someone you agree with — is emboldened. You are harmed because people, in general, are deterred from discussing controversial ideas. You are harmed because when censors are successful, censorship increasingly becomes the norm, and the populace’s already tenuous support of principles of free expression ebb a little more.

Andrew Coyne, not surprisingly, has the best take I’ve read on the anniversary of our Charter of Rights and Freedoms, and what the rule of law truly means:

That we have become a noticeably freer and fairer country in the 30 years since the Charter became law I do not dispute. But the changes it has wrought have as much to do with the system of law of which it is a part as with any particular provision of the Charter.

Indeed, the most common complaints about the Charter, that it has confined Parliament’s powers to make laws for the general good, while handing unelected judges the power to make law, are not only exaggerations: they could as well be said about the rule of law itself.

All laws, not just the Charter, bind the legislatures that pass them, at least until they are changed. All laws, not just the Charter, limit the discretion of governments. That is precisely their point. The purpose of law is not to restrain the citizens: governments can do that very well in its absence, as in any dictatorship. It is, rather, a restraint on government. We do not trust our leaders enough to permit them to rule by fiat. We make them put it in writing. We grant them this much power, and no more.

We insist their powers be defined in this way, not only to contain them within limits, but that we might better understand what they are — that they might be more predictable, more certain, more clear. We desire, at a minimum, that laws should mean the same thing from one day to the next, and be consistent with each other.

But for that we need an independent adjudicator. If the people who made the laws also had the power to interpret them — as kings have claimed, in ages past — the law would cease to perform its intended restraining role. Legislation would mean whatever was convenient in any given case. Only by dividing power between the legislative and judicial branches — one proposing, the other disposing — can we be protected, however imperfectly, from “arbitrary measures.”

All laws, then, not just the Charter, involve the judiciary in “making law.” The minute you given anyone the power to interpret the law, that inevitably impinges upon the legislative power to some degree, no matter how scrupulous they may be about original intent. That is an implication of the rule of law, not the Charter. (And not only written law: The common law that conservatives get all misty about is judge-made law in its purest form, consisting as it does entirely of jurisprudence).

Most criticism of the Charter has come from the right.  But certainly not all of it:

The Charter of Rights and Freedoms, the 30th anniversary of which falls today, is changing Canada for the worse — its emphasis on individual rights may trump the broader public good and even open the door to Americanization of medicare, says one of its architects, Roy Romanow, the former NDP premier of Saskatchewan.

A new generation of “Charter kids” and “Charter judges” is advancing individual rights and diluting the “communitarian impulses” of Canadians, he said in a telephone interview from Saskatoon, where he teaches at the University of Saskatchewan.

Review: “You Can’t Read This Book” by Nick Cohen

(Originally posted, in slightly different form, at Canadian Lawyer)

Britain’s plaintiff-friendly libel laws are so infamous, they’ve even inspired a gag on South Park.  In the notorious “Trapped in the Closet” episode, young Stan Marsh – thought to be the reincarnation of Scientology founder L. Ron Hubbard – announces that the “religion” is a giant scam.  Scientologist Tom Cruise, furious at this gross insult to his faith, declares, “I’ll sue you – in England!
The real-life punchine: “Trapped in the Closet” did not air on British television, because of the very real possibility that Cruise would successfully sue any broadcaster who tried.
A 2002 Vanity Fair article about a legendary New York restaurant, Elaine’s, was neither written by a Brit nor published in Britain, but that didn’t stop film director Roman Polanski from successfully suing the magazine for an allegedly defamatory anecdote included in the piece. (Supposedly, he was trying to pick up women at Elaine’s shortly after the murder of his wife, Sharon Tate. A jury found that this was devastating to Polanski’s reputation, which had been completely unsullied until the magazine came out.)
And then there’s Saudi banker Khalid bin Mahfouz, who used the British courts to sue American author Rachel Ehrenfeld over allegations in her book about terrorism financing – which had never been published in Britain.  Or Holocaust-denying “historian” David Irving, who sued U.S. author Deborah Lipstadt for being labeled a Holocaust denier in one of her American-published  books.  Irving lost (in a court battle recounted in Lipstadt’s excellent book History on Trial) but it’s damning enough that the British legal system allowed him to think he had a case.
When it comes to the issue of defamation, Britain’s court system is overwhelmingly tilted toward plaintiffs, and in practice, these plaintiffs are usually much more wealthy and powerful than those who offended them so.  Things hit rock bottom when corporations and football stars started obtaining “super-injuctions” which not only prevent anyone from spreading the allegedly slanderous allegations, but even revealing the existence of the injunction itself.

In You Can’t Read This Book, Nick Cohen, a columnist for Britain’s Guardian and Observer newspapers, identifies today’s major threats to freedom of expression.  The British legal system, which affects defendants all over the world (like Ehrenfeld, whose connection to the UK was that a few British people bought her book through Amazon) is just one.  The idea that religious believers have a “right not to be offended” is another.
When the Ayatollah Khomeini issued his 1988 fatwa calling for the murder of Salman Rushdie, the Western media and literati – with a few dishonourable exceptions – rushed to his defence.  By 2006, when the Danish newspaper Jyllands-Posten came under fire for publishing cartoons of Mohammed, something had changed.  While the cartoonists were placed until armed guard, and angry mobs around the world attacked anything that even looked Danish, the consensus seemed to be that Jyllands-Posten – and, by extension, Denmark – had been asking for it.
The internet is hailed as a magnificent tool for fighting censorship and government or corporate control, and Cohen concedes that, in some cases, it’s worked.  Any Briton who wants to watch “Trapped in the Closet” or read about Roman Polanski’s dating adventures can easily find it online.
That’s a double-edged sword, of course: radicals and would-be censors have been adept at using the internet as well.  For example, the story of the “blasphemous” Danish cartoons went viral, with more embellishments added the further it spread.
Moreever, Cohen makes a point that internet enthusiasts tend to forget: the web is available to the oppressors, too.  Democracy activists may use Facebook and YouTube to spread their message, but dictators can use the same services to mass their supporters in response.  The loathsome governments of Belarus and Iran use the web to track dissidents. China has built the world’s most advanced internet “firewall,” with the help of Western technology companies.  Google withdrew from China rather than censor its search results.  Its competitors have not.
I take issue with Cohen’s condemnation of the U.S. Supreme Court’s Citizens United decision – which, people tend to forget, came about after a political documentary wasn’t allowed to air on television.  It’s too bad Canada didn’t rate so much as a mention, either, despite our own wrangling over the issues raised in You Can’t Read This Book.  (Among Canadian media outlets, for example, only Ezra Levant’s Western Standard magazine published the Danish Mohammed cartoons – and promptly found itself on the wrong end of a human-rights complaint.  I hear Levant doesn’t like to talk about it much.)
Otherwise, there is little to criticize about his important, enlightening and often infuriating book, which illustrates how freedom of expression remains under sustained attack in what should be the freest era in human history.  I recommend that you read You Can’t Read This Book while you still can, especially before the British legal system gets its hands on it.