We (ok, I) often think of Canada as our more enlightened sister to the north. But, Canada accepts the premise that multiculturalism is a justification for limiting free expression. R. v. Keegstra, [1990] 3 S.C.R. 697. Further, R. v. Butler, [1992] 1 S.C.R. 452 cuts against the expression-protection beauty of American Booksellers v. Hudnut, 771 F.2d 323 (7th Cir. 1985).
And now, the authorities are prosecuting a filmmaker for obscenity based on a horror flick. (source)
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The Legal Satyricon 
What is (or at least what was) obscene in the great white north is weird. For example, a person voluntarily licking a boot is obscene, but not if they are being forced.
The fun of making laws on the theories of Dvorak and McKinnon.
Unlike the U.S. where constitutional interpretation says “technical violation” of any right means “hands off” by government, the Canadian Charter of Rights and Freedoms says there are times where infringing rights can be justified…the test is “high” but not draconian. So, a forced confession would obviously not be justified, but a small typo on a warrant won’t void a search. It’s more of a balanced approach than “yes/no”.
In this case, there are obscenity laws, just as there are in Hollywood — and just because you dress it up and call it art, doesn’t necessarily make it so. There are also anti-racism laws — so you don’t get to spread racist propaganda or libelous statements, call it freedom of speech, and walk away.
While lots of people want to wave an American flag as the vanguard of protecting democracy, you cannot deny that sometimes those same laws create huge perversions of the original intent, which was to create a free exchange of ideas, not a commercial excuse to distribute filth and snuff films.
Will this one result in two women saying it’s art? Possibly — but even art has limits. A painting of a black man being hung or burned might have artistic merit, doesn’t mean you get to promote your business with it.
We don’t always get the balance right, but it generally avoids the perversions that draconian “yes / no” discussions tend to produce…
PolyWogg
PolyWogg,
I hope you didn’t interpret my post as disrespectful of the Canadian protections for civil liberties. I am actually studying Canadian constitutional law right now, and I’m generally impressed by the protections it grants and the relative balances that are struck up there. Of course, I find the opinions to be way too damn wordy!
I disagree with this part of your comment:
While lots of people want to wave an American flag as the vanguard of protecting democracy, you cannot deny that sometimes those same laws create huge perversions of the original intent, which was to create a free exchange of ideas, not a commercial excuse to distribute filth and snuff films.
It actually is the intent. The intent is that no idea is per se excluded from the marketplace of ideas. We are not to be hamstrung by what would have been culturally acceptable in 1789.
I went to the International Copwatch Conference last year, which was in Winnipeg. I thought the protections seemed to be pretty crummy, actually, especially for taking your body and stopping you from taking pictures. And because the police are nationalized, there’s no DoJ equivalent, beholden to a separate sovereign, to investigate departments.
There were only a few lawyers and law students at the conference, admittedly. I was not impressed, particularly by the remedy that the government offers for civil rights violations. But I’d be interested in hearing more about why you are impressed in other blog posts.
Hidey ho, again,
I think that “all ideas” is one interpretation of the original founders intent, but it is hard to actually prove. Most of the literature from the time showed a healthy disrespect for UK overlords, but it also showed a fear of certain commercial interests too. It was a fear of oppressive undemocratic government (tax without rep) that framed much of the discussion — but democratic doesn’t mean chaos and complete openness. It does reflect that sometimes in a democracy, you may lose — just as we have elections to see who will rule instead of allowing individuals to secede from a state. I understand the arguers who frame “forefathers” having complete openness in mind, but I don’t find the arguments persuasive, particularly when there were Puritan influences wafting through some States.
For Canada, we have a small advantage (or disadvantage) in that our Charter is relatively new — so we don’t have to go quite so far back to figure out our intents in the framing. :-) Not sure what Mario means with his comments on nationalized, etc. That’s a bit of a mischaracterization actually — we have three levels of police, just as most countries as large as Canada / U.S. do. There are “federal”, “provincial/state” and “municipal”. In some provinces though, in an effort to save money, they contract out the provincial policing to the federal RCMP. Which means our federal RCMP looks a lot like FBI in some areas of the country and in others looks a lot like state troopers. Most municipalities still have local cops though, unless they’re so small as to make sheriff/cops too expensive. In terms of DoJ, we have both provincial and federal DoJs — unlike U.S., criminal law is federal / national, so provinces set civil law (property, marriage) and transportation/regulations/etc. (non-criminal, less than 2 years for “crimes”).
I think on HRts violations we have a relatively mixed history, with seven “vanguard” events that you’ll see in your constitutional class.
We have three “criminal miscarriages” — generally involving poor defendants, two of which were Aboriginal, charged with rape/murders of women. In two of the cases, the “alibis” offered were outright lies; in the third, it was partially true, but fell apart really early. In all three cases, the convictions were based largely on circumstantial evidence, not a lot of extra investigating, and unfortunately, enough societal bias against the defendants that the investigative and prosecutorial bar wasn’t probably as high as it should have been. Eventually proved innocent, and large cheques were written (by Cdn standards), but what was mind-blowing for some people was that when two judges in two different cases pointed out that the defendants partially contributed to their own convictions by providing completely false alibis, the judicial system freaked out and benchslapped the judges. They hadn’t said the defendants were responsible, they said they didn’t help themselves either — but that was deemed to be too much like blaming the victim.
In another case, we have our SprayPec (APEC with pepper spray) incident from the late 90s. After the Seattle debacle where there were outright riots, the approach to Vancouver was relatively calm. In Philippines the year before, they solved the problem of security and NGO risk by going around and locking anyone up for a year if they looked like they were subversive. In Canada, the govt provided $$ for the NGOs and protestors to be there (i.e. paid for them to self-organize, gave them $$ for travel, provided drafts of communiques and background materials, etc.). Then Canada gave them access to a Native ceremonial site that the the leaders would visit later in the week so they could show themselves protesting actually “on-site” — and the protestors paid their respect to the “important historical site”, before throwing paint all over the inside. No worries, they were still given the parade routes, suggestions for the best places to stand for maximum press coverage and where the leaders would see them, etc. Not telling them they had to stand there, just suggesting some sites that could be good venues…the govt WANTED their issues raised, so they could use it as an excuse to bring it up themselves in meetings with other delegations. But after 1963 Dallas, there is one universal rule to motorcades — they don’t stop. Ever. So when the protestors blocked the route and were told they had to move, the police held back as long as they could, couldn’t reroute, etc., and coming down the road were Clinton followed by Suharto, two highly possible targets. Guess what? The police pepper sprayed a bunch of the NGOs and got them off the street. Many countries would have used batons and beat the crap out of the people. Ours? We used pepper spray, then gave the protestors more $$ to self-organize, paid for their lawyers to sue the government, organized a huge investigatory commission, and then paid the protestors for their damages. Ah, democracy. Not exactly the model most countries would want to follow for remedies though.
After those four, we have a few others:
– Mavis Baker, an immigrant who lived illegally in Canada for about ten years before applying for citizenship, had a couple of kids with different men (four with three, as I recall), was denied, and applied for refugee status, etc. Long story short, the original immigration officer wrote some pretty offensive notes in her file after meeting with her, led to a lawsuit, and eventual decision on how elaborate our due process must be for any administrative tribunal that basically affects rights (starts to look a lot like a judicial process in terms of evidentiary rules, written decisions, etc. and higher than most countries offer in similar situations);
– one of four OECD countries that have an active immigration program, when most countries only accept those with money or high skills, or nobody at all; and,
– G8 meetings in Toronto last year that resulted in “bad behaviour” by Canadian standards (like most cop/protestor situations, it’s hard to narrow it down to those in a group who are the troublemakers so when trouble starts, cops tend to arrest everyone — resulting in tear gas use, some bumps and bruises, nothing long-term serious). By international standards, it was a white collar mugging in the financial district; by Canadian standards, our NGOs called it a police state.
The ironic thing is that when our civil society tries to drum up passion for the injustices in Canada, including 1%/99% protests, a lot of the population have the same reaction that international development folk have — “Seriously? You want to complain about your life in Canada? Turn on CNN for a couple of hours — there are real abuses to worry about.”
Unfortunately, that complaceny translates to a long history of certain types of violations — like how our history of inclusion and assimilation of Aboriginals is about as bad as the U.S. and Australia where they were pretty much obliterated. We created residential schools at a time when people thought the “magic bullet” was to get them the same schooling as everyone else — which ripped them out of their culture, away from their family, and put them in situations they hated, and often included physical abuse, mental abuse, sometimes even sexual abuse. The country is caught still in this situation — a long-standing “commitment” to respecting self-determination = attempts to be “hands-off” and then a reservation gains press a month or two ago because their citizens are basically dying from neglect, despite millions of $$ having been given to the group over the years (with no indication of what the $$ was ACTUALLY used for). Some of their conditions make Haiti look good. And we really don’t, as a society, know what we should do for the long run.
But you know, other than THAT, we’re doing great. :)
Verbosely yours,
PolyWogg
Hello Polywogg,
Thanks for your thoughtful and detailed reply. I really appreciated it.
Perhaps my confusion is in how the RMCP seems like local cops in parts of the country. If they are the arm that investigates municipal PDs, then what independent agency investigates them when they are the local PD?
At the conference, three major problems I heard about were (1) the ability for the government to seize you for up to 24 hours under a “breach of peace” theory, and I was told there is essentially no remedy available; (2) a general lack of effective civil remedies for civil rights abuses by the government, at least as compared to US statutes like 42 USC 1983 and 1988; and (3) lots of complaints about a dearth of police accountability.
Some other folks complained that the president sometimes ignores the Canadian Supreme Court.
I don’t pretend to be very knowledgeable, but I welcome having my ignorance corrected.
Canada doesn’t have real multiculturalism, and hasn’t for 50 years. What they have is a left-slanted, counterfeit multiculturalism, where politically favored cultures (for instance, the LGBT community) are celebrated, but unfavored ones (such as churches that want to exclude the LGBTs) are criminalized or at least compelled, not only to shut up, but to participate in the cultures they oppose. For instance, priests have been jailed for refusing to perform gay weddings. Thus the unfavored cultures now have to take orders from their opponents, much like the “dhimmi” rules Moslem countries impose on other religions there.
This goes for languages, too. Canada has always fully accommodated the language rights of its French speaking minority. But about 1970, they decided to further “protect” that minority by thuggishly bullying another one: Quebec’s English-speaking minority are no longer allowed to have their children taught in English unless they move to another province.
As these examples show, when you don’t have true equality under the law, you don’t have real diversity: you have a fraud that looks like diversity only to shallow observers. A society where no group is allowed to exclude anyone is a society that has no private life, and therefore no freedom.
“priests have been jailed for refusing to perform gay weddings”
Really? Do you have a link?
I’d like to see those links too, if they exist.