One good crime reform

As bad as the Conservative government's crime reform agenda is and has been, there is one bright spot that I think should be noted. The Conservatives are planning on altering the criminal code to allow greater discretion for the individual to defend himself or herself against an aggressor.

As things stand now it is deeply ambiguous who would get in more trouble. The person that tried to rob you, or you for punching out the person who tried to rob you. Correcting this, and freeing the individual to defend his or her own self and property is an important positive move.

Gay rights & hate crimes

The case of William Whatcott has been heard by the Supreme Court, and the justices have reserved judgement on whether Mr. Whatcott committed a hate crime by distributing home-made pamphlets denouncing homosexual behaviour. They will release a written decision in the near future on whether to overturn the Saskatchewan Court of Appeal's acquittal of his conviction by the Saskatchewan Human Rights Tribunal for "hate speech".

The Supreme Court's decision will be scrutinized by both sides in the case; free speech advocates who believe that Mr. Whatcott's right to freely express his religious opinions have been violated, and gay rights groups who see his prosecution as necessary to protect homosexuals from harassment.

Mr. Whatcott's opinions are truly offensive, and I cringe when I read them:

Mr. Whatcott, 43, was judged by a tribunal to have violated Saskatchewan's hate-speech law by distributing pamphlets, beginning 10 years ago, claiming a homosexual conspiracy to corrupt young people in Saskatchewan schools.

"Our children will pay the price in disease, death, abuse and ultimately eternal judgment if we do not say no to the sodomite desire to socialize your children into accepting something that is clearly wrong," said one flyer. In another, he photocopied a classified ad: "I'm 28, 160#, searching for boys/men for penpals, friendship, exchanging video, pics, magazines & anything more. Your age, look & nationality is not so relevant." Above it, he wrote, quoting the Bible, "If you cause one of these little ones to stumble, it would be better that a millstone was tied around your neck and you were cast into the sea."

That being said, I think John Carpay of the Justice Centre for Constitutional Freedoms has it exactly right when he writes in an op-ed in the National Post that the right to be rude must be protected in a free democracy, and that no one has the right to not be offended:

After many years - and tens of thousands of dollars in legal costs - the Saskatchewan Court of Appeal ruled that Whatcott had not violated the human rights law prohibiting speech which "exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons." The commission appealed to the Supreme Court, which will rule on Whatcott's guilt or innocence, as well as the constitutional validity of this restriction on free speech.

Banning hate speech to protect the vulnerable might be a good idea if anyone could explain the difference between hate and strong dislike. The commission and its allies argued that rude, offensive, unpopular, controversial and hurtful speech is OK, but "hateful" speech is not. According to the commission, Whatcott is fully entitled to express his opinion that homosexual behaviour is sinful and unhealthy, but he must deliver this message in a way that does not come across as "hateful" to any of his listeners. Even the Supreme Court's definition of "hate" in its 1990 decision in Taylor is subjective, depending largely (if not entirely) on the feelings and mindset of the listener, and on unverifiable guesses as to the feelings of the speaker.

Speech that should be banned - such as advocating genocide and counselling a criminal offence - is already prohibited by the Criminal Code. Further restrictions on speech in human rights legislation cast a chill on every citizen's freedom to express opinions on issues important to them. The fact that Maclean's magazine, Calgary Catholic Bishop Fred Henry, Western Standard publisher Ezra Levant and Red Deer pastor Stephen Boissoin were eventually found innocent of violating human rights speech codes is cold comfort to the average citizen. Criminal Code restrictions against certain forms of speech are pretty clear. But citizens have no certainty in knowing what may or may not trigger a human rights prosecution against them.

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A legal right not to be offended is incompatible with a free and democratic society. The right to express oneself, to participate in democracy, and to seek truth through debate and argument, is a right possessed by all people, regardless of their level of education or their income. Not everyone uses the kind of language that one hears at a dinner party in Rosedale. The issues that matter most to us as citizens are often the issues that produce the most heated and polemical exchanges.

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The state should criminalize speech that advocates or justifies the use of violence. Beyond that, the state should not be in the business of censoring speech, or choosing victim groups. The Whatcott case presents the Supreme Court with a unique opportunity to reject the vague and subjective language - and the chilling effect on free speech - of human rights laws.

I am offended by Mr. Whatcott's writing and by his implication that because I am gay I am a diseased pedophile and that in the good old days I would have had a millstone tied around my neck and been cast into the sea. But, in a free society we must tolerate all kinds of speech that don't actually incite violence or provoke criminal activity. The best response to offensive speech is to expose it in the public square for what it is. Otherwise, legitimate free speech is stifled and offensive ideas are driven underground, which is even worse. Regulating offensive speech implies that functionaries of the government will decide what type of speech is deemed out-of-bounds and thus prohibited - that to me is a much more offensive proposition.

Mandatory minimums and plea bargains

Perhaps the most frustrating aspect of the Conservative's crime bill is the unwillingness to learn from what has happened in the United States. Plenty of evidence regarding the negative consequence of mandatory minimums. Just two days ago the New York Times took a look at how mandatory minimums have influenced plea bargain negotiations.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

The justice system should not be set up in a way that discourages people from trying to prove their innocence. It should be about finding the truth not locking up as many people for as long as possible.