Richard Warman is a superhero.
He's not a superhero who fights crime, or rescues innocents, or crusades for justice. No, Richard Warman fights speech he doesn't like, rescues people from words that offend them, and crusades for Richard Warman. He's a postmodern, conflicted, noir sort of superhero. Richard Warman is Spiderman, if Spiderman were a censorious thuggish self-promoting douche whose weapons were not webs and moxie but bureaucracy, libel suits, and impenetrable self-regard. His domain is not the skyline of Gotham, but the drafty edifice that is Canada's feeble, cringing, and apologetic right of freedom of expression.
Warman Is Sadly Familiar
We've discussed Warman before here. Patrick talked about Warman's censorious crusades and advocacy of "Maximum Disruption" of his enemies. I blogged about how Canada's legal system is his playground, as it empowers him to censor for a living while suing people for libel if they call him a censor — and winning. Why must we raise this unpleasant subject again? Well, Warman has made good on a recent threat — he has sued an array of Canadian bloggers, forum sites, and a newspaper — all conservative, all vocal critics of him. One of the defendants is Ezra Levant, discussed in Patrick's post. This is Warman's latest charge in his crusade, a crusade fought under the banner of the notion that Warman, and people like him, should be able to decide what people in Canada can say.
Warman's Weapon Against Free Expression — Section 13.1
To understand Warman, you have to understand the formidable weapons that Canada's broken system of governance offers to him. Warman's chief weapon is Section 13.1 of Canada's Human Rights Act which prohibits expression in various circumstances — including on the internet — when that expression "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination." The prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted. You read that right. If Bush pardons Scooter Libby, and I say "Scooter Libby is a scumbag who got away with perjury, and he ought to be held in contempt just like all of those crooks Clinton pardoned," I had better not say it in Canada, because that would be a violation of the Human Rights Act. And Canadian overbearing mothers, better be very careful with those "when are you going to get married" comments.
There is no requirement that a speaker urge imminent or lawless action, let alone imminent and lawless action, as American law would require. It's enough that I've said something about a group or a member thereof that is "likely" to expose them to hatred or contempt. There is no requirement that anyone prove that the "victim" has been placed in anything but theoretical danger, and indeed no requirement of proving actual harm.
Richard Warman's Vehicle for Censorship: The Canadian Human Rights Commission
The Canadian Human Rights Commission is empowered to investigate violations of Section 13.1. Its investigators are empowered to do a rather frightening array of things considering that they are upjumped speech cops: they can obtain warrants from judges based merely on a showing that "there are reasonable grounds to believe that there is in any premises any evidence relevant to the investigation of a complaint" (as opposed to probable cause to believe that there is evidence of the commission of a crime, the standard for a search warrant here), and may demand that any person on such premises produce any books or documents the investigator deems relevant to his or her inquiry.
If the Commission decides that prosecution is warranted, it can refer the matter to a Canadian Human Rights Tribunal — which is made up of political appointees who (as far as I can tell) are not subjected to a vote by any representative body and are not required to stand for election or re-election. The Tribunal can compel witnesses to attend and answer questions and may decide to hold secret proceedings under a confidentiality order if a Tribunal members thinks that publicity might "risk the fairness" of the inquiry or cause "undue hardship" to anyone involved.
And the penalties? After deciding all questions of fact and law, the Tribunal can find a person guilty of violating Section 13.1 by speaking in a way likely to expose someone to hatred and contempt and order a penalty of up to $10,000, not to mention compensation of up to $20,000 to the "victim" and forbid future speech in violation of Section 13.1 — an order the violation of which can be punished criminally.
Now, Warman doesn't have to sit around and wait for the Commission to start cases. He doesn't even have to wait for "victims" to complain. Warman was once a member of the Commission, but is no longer. Now he's in private practice. But if anything that's made him a more prolific censor. Under the Human Rights Act, "concerned" individuals who are neither members of the Commission nor victims of any alleged illegal speech may bring complaints before the Commission accusing others of violating Section 13.1. This is apparently what Warman has done — more than half of the Section 13.1 cases referred to the Tribunals were brought by Warman — he makes money off of it.
Feeble Canadian Free Expression Protections Are No Barrier To Richard Warman
American readers will generally assume that Warman can't get away with much, because surely a civilization as advanced as Canada must have a First Amendment analogue. Well, sort of. The problem is that the Canadian equivalent is a weak sister, a jurisprudential pushover that yields to any competing value — like the right not to be offended.
The Canadian Charter of Rights and Freedoms enumerates certain rights — including the right (set forth in Article 2(a)) to "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication." Now, most constitutional rights in any nation have exceptions grafted on by operation of the common law. Canada's charter is rather odd to an American eye in that the enumerated rights are explicitly qualified in article 1: the rights are explicitly "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." If you think that's the exception that swallowed the rule, you're not the only one.
The proof is the treatment of Section 13.1 violations. Generally, the Tribunal finds that the right of freedom of expression yields to interests in equality and the "promotion of equality"
Although freedom of expression is an important fundamental value, we in Canada value just as much the equality rights of all individuals. Equality means a respect for the inherent dignity of all human beings whatever their colour, race, language, sex or religion. Freedom to express one's idea ceases to be freedom of expression or opinion when it is used to stand in the way of the promotion of equality. Freedom of expression ceases to be a fundamental characteristic of democratic values when it becomes a vehicle for the promotion of hate. (See Canada (Human Rights Commission) v. Canadian Liberty Net,  3 F.C. 155, at para. 60)
Note the two key concepts: (1) it is not merely prohibited to stand in the way of equality; it is also prohibited to stand in the way of the promotion of equality, and (2) expression is no longer a fundamental democratic value when it becomes a "vehicle for the promotion of hate."
Other Tribunal decisions have no freedom of expression analysis at all, as if it were not relevant, such as this case in which Warman won a decision against a 21-year-old salesclerk who lived with her parents and posted racist and contemptible posts on a message board for like-minded people. It's a shame all racism in society isn't perpetrated by slackers in their parents' basements; Warman really would be the man for the job then.
There's always the courts. But Canadian courts are hardly better. That's what someone discovered when a Canadian court ruled that anti-homosexual Bible verses were hate speech and that the punishment thereof was a "reasonable restriction" on his freedom of expression.
All of this is why Commission investigator Richard Steacy was not exaggerating when he said this:
MS KULASZKA: Mr. Steacy, you were talking before about context and how important it is when you do your investigation. What value do you give freedom of speech when you investigate one of these complaints?
MR. STEACY: Freedom of speech is an American concept, so I don’t give it any value.
MS KULASZKA: Okay. That was a clear answer.
MR. STEACY: It’s not my job to give value to an American concept.
In short, in his crusade to censor, Richard Warman has nothing to fear from the Charter of Rights and Freedoms. In fact, that's why he won his last libel suit against someone calling him a censor — because Canadian law allows, and even encourages, him to use the mechanisms of the Commission to go about telling other people what to say.
The Enemy of My Enemy Is Not My Friend
Make no mistake — many (if not most) of the people Warman pursues through the Commission are racist vermin. They should be identified, condemned, shunned, excluded by decent people from participation in polite society. Likewise, some of his critics — including at least some of the ones he is pursuing now — are, at best, assholes. And on many subjects I am not on the same page with many rallying to his defense now.
But I'm going to go into detail about just how much his Section 13.1 targets are bigoted scum and his libel defendants are assclowns, because that is beside the point. Generally, affable people don't require the protection of a strong freedom of expression policy. If you stand against the notion that offensive speech should be suppressed, you're going to be standing in front of some scumbags. But no rational and honest witness can, in good faith, confuse that with support for said scumbags. Irrational, dishonest, and bad faith people will try to tar you with the brush of the people whose speech you are defending. That's part of the game. Their opinion should not detain us.
A Regrettable Number of Voices Cheer Richard Warman's Censorship
With Warman charging all about the landscape seeking to remove books from libraries, block web sites, and prosecute people from speech, you might expect bloggers and journalists to line up against him rather uniformly.
You would be wrong. This is not Sparta. This. Is. CANADA!
In fact, many voices in the blogosphere celebrate Warman's efforts and ridicule people like Ezra Levant who stand against him, lumping them in with the feckless neo-Nazis Warman sometimes prosecutes or engaging in concern trolling writ large about the critics' methods.
Take, for instance, Gary Wise of the Wise Law Blog. When Levant, as described by Patrick, threw defiance and contempt into the teeth of a Commission investigator examining him about his magazine's publication of the Muhammad cartoons, Wise got all pearl-clutchy and vaporish, seeing the key issue of the encounter not as the violation of freedom of expression but about how rude and unprofessional Levant was to this perfectly nice lady who just wanted to build a Section 13.1 case against him. One imagines that when he saw Al Pacino's "the whole SYSTEM is out of order!" speech in Justice for All he had to retreat into the lobby and breathe deeply into a paper bag. His priorities are simultaneously embarrassing and loathsome.
There's always the BigCityLib Strikes Back blog, long-term pom-pom-waivers for censorship and cat-callers to anyone who defies Warman. If you want someone more mainstream, there's commentator Warren Kinsella, who (between occasional meek quibbles about Section 13.1 enforcement) states boldly and proudly "I am a censor."
Now, the bloggers and journalists targeted for suppression by Warman do have some support. Prominent bloggers here and in Canada speak out for them and fund-raise for them. But no matter how many do so, Warman's libel suit is likely to be expensive, draining, inconvenient, and intimidating. And because he has succeeded in suing critics before, because the mechanism of the Commissions is so clearly his to guide as he wishes, and because Canada's protection for freedom of expression is so weak, many people will probably be silenced, unwilling to pay the potential price for speaking out against him.
That's vile. And forgive my bluntness, but it's a situation that continues to exist because of Canadian servility on such issues, their surrender to a system in which select elites decide what they can say. At what point will they decide they deserve better — that something better is an essential element of being a free people?
That may take more anti-speech antics by Richard Warman.
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Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
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