Blasphemy is a crime in Canada

Not because we’re living under the Stephen Harper Christofascist dictatorship, though. (Sorry, Michael Harris.)  It’s actually a law that hasn’t been enforced successfully since 1935, but remains part of the Criminal Code of Canada:

Section 296 of the Criminal Code makes “blasphemous libel” punishable by up to two years in jail in Canada.

No one been prosecuted under the law since 1935. As late as 1980, the law was used to charge the Canadian distributor of Monty Python’s film Life of Brian; the charges were later dropped.

Only last month, the heads of Humanist Canada and the Centre for Inquiry, a national organization that promotes “skeptical, secular rational and humanistic inquiry,” met with Ambassador Andrew Bennett, head of the federal government’s Office of Religious Freedom, to note the law’s inconsistency with Canada’s policy of supporting religious freedom abroad.


Derek From, a lawyer for the Calgary-based Canadian Constitution Foundation warns that while the law may be dormant, it is not dead. Britain’s blasphemy law, for example, was considered “dead” until it resurfaced in 1977 when a pornographic magazine was charged with the offence for publishing gay poetry about Jesus.

“It is an open question whether the Charter’s guarantee of freedom of expression will offer any protection,” Mr. From wrote in a 2013 letter to Calgary-area MP and Minister of State for Finance Kevin Sorenson. “This is a constitutional question that has never been tested.”

“The conservative right gets bents out of shape about hate speech provisions because they see it as an unconstitutional restriction of their freedom of expression. But that’s exactly what people who are [irreligious] would say about the blasphemy prohibitions — that they cannot say what they want without freedom of prosecution,” Mr. From said.

There’s no way the offence of “blasphemous libel” is compatible with a modern, democratic society, or constitutional under the Charter of Rights and Freedoms.  That said, if threats of violence will keep people and media outlets from publishing material some people find blasphemous, what difference does it really make?

(Note: needless to say, an image of “Piss-Christ” was easily found on the CBC website.)

Je suis Charlie


“If a large enough group of someones is willing to kill you for saying something, then it’s something that almost certainly needs to be said, because otherwise the violent have veto power over liberal civilization, and when that scenario obtains it isn’t really a liberal civilization any more. ” – Ross Douthat

Mark Steyn’s self-destructive streak

As a longtime fan of Steyn’s writing, I’m disappointed to see him doing pretty much everything you should never do when you’re the defendant in a defamation suit:

In 2012—after writers for National Review and a prominent conservative think tank accused him of fraud and compared him to serial child molester Jerry Sandusky—climate scientist Michael Mann took the bold step of filing a defamation suit. The defendants moved to have the case thrown out, citing a Washington, DC, law that shields journalists from frivolous litigation. But on Wednesday, DC Superior Court Judge Frederick Weisberg rejected the motion, opening the way for a trial.


Weisberg’s order is just the latest in a string of setbacks that have left the climate change skeptics’ case in disarray. Earlier this month, Steptoe & Johnson, the law firm representing National Review and its writer, Mark Steyn, withdrew as Steyn’s counsel. According to two sources with inside knowledge, it also plans to drop National Review as a client.

The lawyers’ withdrawal came shortly after Steyn—a prominent conservative pundit who regularly fills in as host of Rush Limbaugh’s radio show—publicly attacked the former judge in the case, Natalia Combs Greene, accusing her of “stupidity” and “staggering” incompetence. Mann’s attorney, John B. Williams, suspects this is no coincidence. “Any lawyer would be taken aback if their client said such things about the judge,” he says. “That may well be why Steptoe withdrew.”

Steyn’s manager, Melissa Howes, acknowledged that his commentary “did not go over well.”But Steyn maintains it was his decision to part ways with his attorneys.


…on Christmas Eve, Steyn published his blog post, railing against Combs Greene and her ruling, which contained typographical errors and mixed up the defendants:

Among her many staggering incompetences, DC Superior Court judge Natalia Combs-Greene…denied NR’s motion to dismiss the fraudulent complaint while simultaneously permitting Mann’s lawyers to file an amended complaint.

The appellate judges have now tossed out anything relating to Mann’s original fraudulent complaint, including Judge Combs-Greene’s unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene’s name on it has now been flushed down the toilet of history.

When asked about these comments, Steyn made no apologies. “I spent the first months attempting to conceal my contempt for Judge Combs Greene’s court,” he said in an email to Mother Jones. “But really, it’s not worth the effort.” Wednesday’s ruling affirms the thrust of Combs Greene’s order, however. It also concludes that “a reasonable jury is likely to find the statement that Dr. Mann ‘molested and tortured data’ was false, and published with knowledge of its falsity or reckless disregard for whether it was false or not.”

Steyn, meanwhile, appears to be paying a price for his brazenness. He still has no legal representation. (“My check from the Koch brothers seems to have been lost in the mail or intercepted by the NSA,” he wrote. “So for the moment I am representing myself.”) And since his Christmas Eve diatribe, the conservative pundit—who had been writing near-daily posts for National Review Online—hasn’t written a single item. Neither he nor the magazine’s publisher, Jack Fowler, would say why. But Steyn hinted at the reasons in a post on his website: “As readers may have deduced from my absence at National Review Online and my termination of our joint representation, there have been a few differences between me and the rest of the team.”

The future of National Review itself could now be in jeopardy because of this lawsuit.  There appear to be conflicting stories about whether Steyn fired his lawyers or whether they withdrew from the case, but I know that if my client insisted on talking about the case at all – much less writing a blog post insulting the judge – I’d be advising him to seek other legal counsel immediately.

I wish Steyn and his (former?) magazine well, but it’s almost like he’s determined to lose.  What a pity.

Dieudonné and hate-speech laws

From a Guardian report about a French court decision upholding a ban on performances by anti-Semitic “comedian” Dieudonné M’Bala M’Bala:

Outside the Zénith hall, near the town of Nantes, where Dieudonné was to kick off his tour on Thursday, fans turned up – on the advice of the comedian – to sing La Marseillaise in support of “freedom of expression”. They also chanted “Valls resign” and “Dieudonné, Dieudonné”.

The show was reportedly a sell-out of all 6,000 tickets, costing up to €43 (£35).


Dieudonné has several convictions for inciting racial hatred through antisemitic jokes and comments, and claims to have invented the “quenelle”, a gesture that has been described as an inverted Nazi salute.

Might I suggest that this creep is selling out his shows in no small part because he has been repeatedly convicted of “inciting racial hatred”? And that this says a lot about how such laws not only fail to combat hatred, but actually make things worse?

“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.

Mom of the year

A New York court has ordered a woman to stop posting anything online about her children:

There’s not much to “like” about this woman’s Facebook habits.

A mean upstate mom who cyber-bullied her emotionally-disturbed 10-year-old son on Facebook by calling him an “a—–e” has been banned from posting anything about her kids online.

“Melody M.” told the court she wrote the insult about her son because that’s what “he is,” court documents said.

“Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child,” an upstate appeals court said Feb. 14.

The court barred Melody from “posting any communications to or about her children on any social network site.”

The court found that Melody used Facebook to “insult and demean the child,” calling him an a—–e, among other things.

Sometimes, there really is a fire

Whenever a free-speech controversy bubbles up, you can always count on apologists for censorship to declare that “there’s no right to shout fire in a crowded theatre.”

Ken at Popehat, in an absolutely devastating post, explains where that phrase comes from, and it’s not pretty:

In her Los Angeles Times opinion piece justifying prosecution of the author of the “Innocence of Muslims” video on YouTube, Sarah Chayes opens exactly the way I’ve come to expect:

“In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. ‘The most stringent protection,’ he wrote on behalf of a unanimous court, ‘would not protect a man in falsely shouting fire in a theater and causing a panic.'”

Holmes’ famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the “fire in a crowded theater” quote for two reasons, both bolstered by Holmes’ fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying “well, some speech is protected by the First Amendment” is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don’t have to rely on a 90-year-old rhetorical flourish to support your argument.

After Holmes’ opinions in the Schenck trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that “obstructed” conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the “fire in a theater” quote that people so love to brandish to justify censorship.

Sarah Chayes’ L.A. Times column demonstrates how Holmes’ rhetorical dodges can be employed in support of unprincipled and broad calls for censorship. Holmes blurred the line between what the government should be able to prevent (speakers urging listeners to imminent lawbreaking, like riots) and what it would merely like to prevent (loss of support for the war). Similarly, Chayes and her ilk blur the line between what the government should be able to prevent (speech intended to incite, and likely to incite, people to imminent lawbreaking), what it would like to prevent (violence by mobs, whether actually motivated by insulting videos or whether manipulated by forces using those videos) and what it should not be able to prevent (expressions of opinion which might offend someone and be used as an excuse for violence). Holmes accepted you shouldn’t be permitted to make the populace doubt the war efforts in wartime; Chayes and her ilk accept you shouldn’t be able to say things that can be used by distant mobs as justifications for rioting.

I suspect many of the people who want “Innocence of Muslims” banned marched enthusiastically against the wars in Iraq or Afghanistan. Whether they’re ignorant of what Justice Holmes meant or whether they’ve rationalized it somehow, only God knows.

“On this site in 1989, nothing happened”

China, the colossus that’s on the verge of becoming the most powerful country the world has ever known, the industrial powerhouse star-struck useful idiots like Tom Friedman say we must emulate, is terrified of a few digits:

Each year, the Communist Party’s censors go to remarkable lengths to prevent Chinese citizens from accessing, or spreading, their memories of what happened on June 4, 1989, when an unknown number of people were killed during a military crackdown on pro-democracy protests in the centre of Beijing. Since Sunday night, even simple numbers like 6 (the month of June), 4 (the date) and 89 have been banned search terms on Chinese social-networking sites.

And so all day today users in China got bizarre replies from their search engines. “According to the relevant laws and policies, the results of your search ‘89’ cannot be displayed,” was the head-shaker I just read on my own screen. Typing “Tiananmen Square” – in English or Chinese – gets the same answer on the popular Sina Weibo site, which boasts over 300 million users. Pity the poor tourist just trying to find the plaza in the middle of the Chinese capital.

Such farces would only multiply throughout Monday’s anniversary. As the day went on, even the stock market news – as well as the online memorial for the Chinese student who was murdered in Montreal – were caught in the censors’ ever-widening nets.

Eventually even “jintian” – the Chinese word for “today” – was a banned search term on such social networking sites, as the powers and weaknesses of those who rule China were simultaneously displayed.


The censors subsequently decided that even some non-words pose a threat, disabling a function on Sina Weibo that allowed users to post a tiny drawing (or “emoticon”) of a candle. Activist Hu Jia was arrested in 2004 after telling reporters he planned to go to Tiananmen Square and light a candle on the 15th anniversary of the crackdown. As of Sunday night, even lighting a virtual candle was impossible.

“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.