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April 10, 2004

A matter of justice


Posted by Ghost of a flea at April 10, 2004 12:00 PM

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? Easter morning coffee and blogs. from Welcome to Castle Argghhh! The Home Of One Of Jonah's Military Guys.
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Tracked on April 11, 2004 07:53 AM

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According to John Leo, it will soon be a crime to state negative opinions about homosexuality: Bill C-250, a repressive, anti-free-speech measure that is on the brink of becoming law in Canada. It would add "sexual orientation" to the Canadian... [Read More]

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Comments

If I was waivering about C-250 on religious grounds or on some issue of whether or not sexual orientation should be included as a potential class of hate crime, this wonderfully argued post would have convinced me.

Of course, my objection to C-250 is all about the idea of whether beating somebody because they are, or oppear to be, homosexual should make the crime worse. I don't think it does.

Intent in criminal law goes to the question of, to use your example, manslaughter and first degree murder. In one death was not intentional but was forseeable when you swung that pool cue. In the other you marched into the bar with your pool cue fully intending to kill your wife's lover.

But, to stretch the example, if your wife's lover happens to be a woman, it should not change the nature of the offence you have committed.

Of course, if one were to accept the idea that a law against hate crimes against specfic targeted groups is a good idea then I agree that equity demands that gays be included.

Posted by: Jay Currie at April 11, 2004 01:51 AM

Thanks, Jay. We are in agreement once again about the abstract issues at hand. And that pool cue example is excellent! Two other legal puzzles that could be thrown at Canada's hate laws concern the effects of speech (yelling "fire" at the theatre) or the concept of incitement (stepping into an Irish pub wearing green/orange and saying scurrilous things about the Pope/Queen). I wonder how these long enshrined aspects of Canadian criminal law reflect or differ from hate legislation.

I have two further observations.

The first concerns genocide, the other half of Canada's hate legislation that has thus far been left out of the debate over at the Shotgun and elsewhere. A thoroughgoing opposition to considering the identity of victims of crime in the mind of the perp(s) would have to include this aspect of the intent of the Nazi Einsatzgruppen and later death camps. Such a position would hold that the Nazi's stated intent and specific targeting of people with disabilities, Gypsies, "homosexuals", Jews and on and on should not matter in assessing the criminality of their acts. We would be left with millions of counts of murder but we would also be missing a crucial aspect of the crime as a whole.

I have to say I am not certain what I think about such a proposition but I think the concept of genocide in Canadian criminal law also needs to be discussed. I would appreciate everyone's thoughts on the matter.

My second observation concerns the political pragmatics of this discussion. We are both opposed to laws limiting freedom of speech in principle and share a concern for the equitable application of Canada's hate laws. We have already seen that Evangelical Christians can expect less protection from the courts than other religious minorities. This surely reflects prejudice against Evangelicals. We have also seen Canadian lesbian/gay booksellers have been the primary target of Canadian law regulating pornographic representations. I can only see this as the result of prejudice on the part of Canada Customs. It is difficult to imagine a world where laws against prejudice would be applied in anything but a prejudiced manner.

It is that last line of your comment that sums up our point of agreement in principle and, perhaps, our disagreement in practice. I think a libertarian opposition to Bill C-250 puts us in the smallest of minority political positions on the subject. Meantime, most people opposed to the bill do not appear to oppose hate laws per se, only laws preventing them from continuing to incite hatred against people they regard as manifestations of existential evil. There are people who would like to have Jews removed as a protected group under Canada's hate laws under exactly the same logic ("they are greedy/diseased/not an ethnic group/not a religious group/guilty of crimes/pedophiles/engage in strange rituals/etc. etc." basically, the same charges levelled against gay people). Sadly, we do not have to wander far on "the internet" to find such sentiments of continuing anti-semitism. The difference is those bigots either do not have the money to run adds in major Canadian newspapers to make their case or are biding their time until they can stop expressing their venom in coded language at anti-globalization rallies or the United Nations. And the difference is Jews have that protection to be taken away while Canadian law does not yet provide fully that protection to gay people. Give me a petition against Canada's hate laws and I will consider signing it. Give me a petition against the inclusion of a particular group who continue to suffer from incitement to hatred and murder and I will not.

Posted by: Flea at April 11, 2004 09:38 AM

As distasteful as some of the company on that side of the debate may be, I still have no doubt the bill has to be opposed forcefully.

Intent is important in evaluating a criminal act, but only in respect to *whether* harm was intended, not *why* it was intended. The latter is nothing less than an attempt to punish people for holding certain views. I say let people hold their reprehensible views, and when they act on those ideas, bring the full force of law to bear *for the actions* alone. The principle of the government taking into account, even a little bit, a person's ideology when punishing him is the thin edge of a very scary wedge.

Posted by: Mark at April 11, 2004 09:54 AM

Hi Mark. Thanks for your thoughts as well. Here is the bad news. The thin edge of that wedge arrived in 1970 when Canada's Criminal Code was changed to include hate legislation. While the debate amongst we few happy libertarians (and fellow travellers) is about infringements on liberty the Bill in question is not. Unless there is a broader political strategy here I cannot see how the failure of Bill C-250 helps our views gain the upper hand. A victory for opponents of the bill does nothing to remove the rest of Canadian hate and genocide law from the books. In practice, it bolsters the idea that some groups are worthy of protection under the law while it is legitimate to scandalize others. This is perhaps an inevitable effect of having implemented hate laws in the first place but failing the removal of those laws in their entirety that is the context in which we find ourselves.

Your serve, gentlemen!

Posted by: Flea at April 11, 2004 10:00 AM

Yes, that point is the only one I find remotely convincing: the principle of government being legitimately concerned with my opinions having been already conceded, let's get everyone protected, not just a few select groups. Try as I might, though, I just can't work up any enthusiasm for this cause. At best it makes me want to wearily *not oppose* the bill rather than actively support it. A campaign for the repeal of the existing hate crimes laws would be better, even if, as you imply, it's a non-starter. Of course, what it really makes me want to do is move to the States.

(I know: they have hate crimes laws, too. But they are less "advanced" on this front, with less sweeping federal laws and a patchwork of state ones.)

Posted by: Mark at April 11, 2004 10:58 AM

Hi again, Mark. That just about sums it up. Especially the bit about moving to the States. I feel weary at Canadian politics and our political establishment. I was thinking about the prospect of a Conservative government and wondering what, if anything, would change. I imagine there would be more rhetorical support for the military but I doubt it would translate into anything substantive. I doubt a new Convervative Prime Minister would be any more likely to stand up to fascist China by welcoming the Dalai Lama than did Brian Mulroney. And I afraid you are right to infer from my post that I think doing away with restrictions on freedom of speech and expression is probably a non-starter in this country.

Posted by: Flea at April 11, 2004 11:34 AM

My concern in discussion over this law is that apparently straightforward definitions can easily get distorted over time.

Take "genocide." Since I've heard apparently earnest people refer to Christian arguments against acceptance of homosexuality as being "genocide" against gays (even if no actual killing is intended -- forcible conversion and brainwashing might arguably be considered much the same thing), that would seem to be of concern.

The second is the fuzzier "public incitement of hate." We go here beyond incitement to an act -- and I would agree that restrictions on incitement to riot and mayhem require some restriction -- and go to courts deciding whether a particular expression will "incite" people to "hate" gays. We thus end up with the state getting to both read the mind of the speaker and predict the mind of the listener, even if no further overt criminal action occurs. That strikes me as far too open to abuse.

The damnable thing, if you pardon my French (oops, is that an incitement?), is that it's for a good cause. I firmly believe, politically and morally, that gays should be treated with the respect and equality of any other group in society. I just find the danger of how this law could be applied -- both in the case of those who have profound moral reservations about homosexuality, as well as those who have similar convictions about other matters -- by the state in the future.

Posted by: *** Dave at April 13, 2004 09:26 AM

I think the tricky thing for many people approaching Bill C-250 is to quite fully take on board the fact these laws have been on the books in Canada since 1970. Now, whether or not this is a good thing, the only issue at hand in the current legislation is whether or not to include sexual preference/orientation as a protected category. That's it. So whether or not the bill does any of the things it is purported to by its opponents the fact is those things should have been evident in expression directed toward people on the basis of race, ethnicity or religious belief. Perhaps they have been. Perhaps they have not. My argument is that the selective exclusion of gay people from protection under the law is inequitable and unjust whatever the merits of the legislation as a whole.

Posted by: Flea at April 13, 2004 09:47 AM

I had been researching bill C-250 for some days. But oddly enough I didn't find this page in those searches. It was when I got to trying to find some actual definitions of "breech of the peace" in canada that somehow this page came up... coincidentally (but not very coincidentally) turning out to be about C-250.

The article was excellently written. The most thoughtful piece I've yet been able to find on the topic. I believe I would have admired it, and referred people to it even if it had not (surprisingly!) ended up coming out on the side I by that point had found myself leaning towards.

I had been trying to impress upon people I had discussed this with some of the points here: that it seemed to me the criminal code already has long contained all of this supposed "speech criminalising" wording, and that adding an item to the list of "identifiable groups" really not any significant change. You may be against the whole concept of the sections, but it is hard for me to understand people who are against the adding of any identifiable group to the list of the existing law, if the existing law is generally accepted.

So many of the arguments flying around out there are so hysterical and ignorant, it causes me frequently to dispair. I'm almost driven to hoping that the law does pass and turn out to be as oppressive and damaging to Christianity as so many of the loud Christians proclaim with dire certainty it will be.

Anyhow, I only today stumbled over the fact that the amendment did go through two days ago.

Honestly (sadly?) I don't care. If it had failed, i wouldn't have felt it mattered much. But, nevertheless, it passing is a good thing, i think (the law is there, and not going away; i'm not a fan of the cliches of homosexual behavior which tend in the media to be almost all of that group which comes to our attention... but it is clear that when a society has a special term which everyone recognises as being an act of physical abuse against a certain group, then that group needs special legal recognition and protection against hate crimes, if anyone does).

I come away from this whole issue just depressed and furious at all of the articles written by the self-proclaiming defenders of equality and freedom, predominantly of the religious variety, predominantly Christian, filled with smeers, half truths, apparently willfull blindness, absolute inability to see even the possibility of another side of the argument (beyond the ones containing paranoid conspiracy theories)... yeah, i'm glad this amendment passed... not, as it turns out, for truth, justice, or the sake of any oppressed group, but just to annoy and vex these self-righteous windbags (and outright liars---albeit seeming un-self-aware ones in most cases).

Anyhow, thanks for the article and research. (Sorry about lowing the tone of the discussion with my ranting---honestly I was calm and more-or-less impartial when i started reading and researching the topic earlier this week!)

Posted by: Tim at April 20, 2004 06:46 AM