Taube: Why the ruling against Your Ward News hurts free speech in Canada
Freedom of speech has always been on shaky ground in Canada. While many people claim to support this important right, they often smother it with stringent conditions and restrictions that makes speech anything but free.
In fact, a recent Ontario court ruling produced one of the most damaging blows to free speech ever seen in this country.
On Jan. 24, Judge Richard Blouin ruled that James Sears and Leroy St. Germaine – the editor-in-chief and publisher, respectively, of the controversial free newspaper Your Ward News (YWN) – were guilty of promoting hatred against Jews and women. Although the two men claimed their publication was nothing more than a satirical endeavour, the judge disagreed. “YWN repeatedly and consistently dehumanized Jews and women,” Bouin argued, and the paper’s proprietors “were fully aware of the unrelenting promotion of hate.”
The people who had been pushing for Sears and St. Germaine to be prosecuted, which included Liberal strategists Warren and Lisa Kinsella and Canada Anti-Hate Network chair Bernie Farber, were understandably elated. Farber, in fact, said this was the “kind of verdict that Canadians are going to rejoice in.”
No, they won’t – and they shouldn’t.
To be clear, I agree that Your Ward News is an awful publication. I’ve read it twice and I found the things written about the Kinsellas and others offensive at best.
My main concern, however, is the serious blow to free speech in Canada caused by using the Criminal Code to prosecute real or perceived hate speech.
As I’ve written before, free speech is the defence of ideas that are either objective or objectionable. We must be willing to support views that appear right to us, and tolerate views that seem wrong. This doesn’t mean we’re required to agree with different points of view, but we must always defend a person’s right to make their views heard in a non-violent manner.
Hate speech has always followed the same principle, long before the removal of Sec. 13 of the Canadian Human Rights Act – which, in my view, was something to cheer about if you truly support free speech.
People living in a liberal democracy are free to hate, whether we like it or not. The laws of our land cannot, should not and must not forbid any individual or group from feeling differently than, or even loathing, another individual or group.
This doesn’t mean we have to agree with other people’s views. We have every right to object to them, but we have to accept that they have the right to speak their minds.
Hence, people are allowed to hold the most vile and repulsive beliefs about any religious, racial or gender group in Canada and beyond. And yes, this includes Jews and women.
The one notable exception is when hate speech evolves from offensive words and personal beliefs, to the act of physical violence. It’s one thing to hate a person or group, but quite another to wish them bodily harm.
This fine line played a role in the first case against Sears and St. Germaine in December. It was based on a passage in the Summer 2017 issue of YWN, which read, in part, “there was the chance that some hothead who cares deeply about me and my family would lose it and do something illegal, like bludgeon the Kinsella’s to death.”
Judge Dan Moore ruled against the Kinsellas because the “plain and ordinary meaning of the words” didn’t constitute a death threat. With respect to the theory of reasonable doubt, Moore correctly said that, “Having considered all of the evidence I am unable to find that the threat to kill interpretation … is even the most likely interpretation, let alone the only reasonable interpretation.”
Hence, the recent court case against Sears and St. Germaine proved a salient point: critiques of hate speech are just as wrong-headed as critiques of free speech. This doesn’t a constitute victory, ladies and gentlemen. Rather, it’s an enormous loss to our personal rights and freedoms.
A TRAVESTY OF FAIRNESS: YOUR WARD NEWS, CANADA POST, AND THE CPCA REVIEW BOARD
BY JAMIE CAMERON
Senseless and grotesque
Your Ward News (YWN) is a publication of unremitting offensiveness – in truth it is little more than a senseless and grotesque cartoon. Yet that is largely beside the point under the Charter. Though it took time and a concerted campaign by those offended by YWN’s existence, the law’s force was eventually brought to bear on its publishers. On May 26, 2016, the Minister of Public Works issued an Interim Prohibitory Order (IPO) under s.43(1) of the Canada Post Corporation Act (CPCA). This order banned YWN’s publishers, James Sears and Laurence Ste. Germaine, from using Canada’s postal service for all purposes, including the likes of letters to an MP, bill paying, and holiday cards. On January 24, 2019 – some 2½ years later – Sears and Ste. Germaine were convicted under the Criminal Codeon two counts of promoting hatred, respectively, against women and Jews.
The criminal prosecution and IPO directly engaged the constitutional rights of YWN’s publishers under s.2(b) of the Charter of Rights and Freedoms. While procedural protections are embedded in the criminal process, the CPCA provides little more than gossamer fairness to anyone who challenges an IPO. Quite apart from the ban itself, the s.2(b) rights of Sears and Ste. Germaine were severely compromised by the CPCA process of review.
In principle, s.2(b) protects all expressive activity, no matter how offensive or repulsive, as the very concept of freedom would be meaningless under any other view. Yet s.2(b) is too often a guarantee in name only: in practice, Canada’s democratic community shows scant tolerance for those who hold objectionable views and spread objectionable messages. Ironically, the community’s intolerance of such views fundamentally reflects an intolerance of freedom itself.
Instead, freedom demands and rests on an ethic of democratic humility, which can be thought of as a form of resistance to righteousness and a willingness to let unpopular others think, speak, and challenge, even and especially in radical ways or tones of voice. Regrettably, this virtue – both historically and at present – is in short supply. Rather, those who are feared or disliked are marginalized and their freedom placed in jeopardy.
In all this a vital point in discourse on expressive freedom can sometimes be missed – that freedom is as profoundly threatened by a defective process as by a prior restraint or criminal conviction. The point is well illustrated by the CPCA process.
A chronology of delay
In authorizing the Minister to issue prohibitory orders banning access to Canada Post, the CPCA pays minimal attention to process values. In this instance, neither the Minister nor the YWN Review Board was under any statutory imperative to comply with standards for a fair and timely process. As the Board put it somewhat backwardly, stating that “[t]here is nothing” in the legislation “which would compel the Minister to disregard Charter values when issuing an IPO”.
A person who is subject to an IPO (“affected person”) can request a review of the Minister’s order. Under s. 44 the Minister has a duty to appoint a review board, though not to do so in any fair, timely, or expeditious manner. Here the Minister did not fulfill this duty until December 9, 2016, did not inform Sears and Ste. Germaine of the appointments, and did not announce the Board until January 9, 2017. The Minister never explained to the Board or the affected persons why it took more than 6 months simply to appoint a panel.
The YWN Review Board held its first hearing on April 25, 2017, about 5 months after being appointed and almost one year after the IPO was issued. The Review Board did not make a decision on preliminary issues until November 2017, did not hear submissions on the IPO until January 2018, and did not submit its Report to the Minister until August 29, 2018. All told, the Board’s review of the Minister’s IPO took almost 21 months to complete.
During this period, YWN’s publishers were under an interim ban not to use Canada’s national public service for any purpose, including those that were indisputably innocent. In addition, Sears and Ste. Germaine were put to the expense of appearing at and defending their constitutional rights in an extended process that granted YWN’s opponents full rights of participation.
Almost 30 months passed from the time the IPO was issued, on May 26, 2016, to November 15, 2018, when the Minister released the Review Board’s Report and issued a Final Prohibitory Order (FPO) banning the publishers from distributing YWN through Canada Post.The key signposts in this chronology of delay are:
May 26, 2016 Minister’s IPO
June 6 & 9, 2016 Sears and Ste. Germaine request a review of the IPO
December 9, 2016 Minister appoints a Review Board
December 16, 2016 Sears and Ste. Germaine contact the Minister
January 9, 2017 Minister announces the Review Board
April 25, 2017 Review Board’s first hearing
August 9 & 10, 2017 Review Board’s hearing on preliminary issues
November 2, 2017 Review Board’s decision on preliminary issues
Jan 3, 22-26; Feb 26 2018 Review Board hearings
August 29, 2018 Review Board Report to Minister
November 15, 2018 Minister releases Report and issues FPO
The YWN Review Board was handicapped from the start. Section 44(1) of the CPCA sets no criteria for panel membership, except to specify that one of three of its members must be a lawyer. Given the gravity of the issues at stake and level of public interest, the panel required expertise or experience in one or more of regulatory decision-making, the criminal law, and Charter of Rights and Freedoms. At the very least, the panel should have been assisted by counsel; had counsel been retained, the YWN Board might have avoided a protracted process and conducted a review that stood on firmer legal and constitutional ground.
The Minister delayed the process by not appointing a Review Board in a timely way and was responsible for other delays and deficiencies. Though required to do so under s.43(1) of the CPCA, at no time did the Minister provide reasons for the IPO. The May 26, 2016 order simply stated that the Minister had reasonable grounds to believe that Sears and Ste. Germaine were using Canada Post to commit criminal offences (i.e. hate propaganda and defamatory libel). The Minister never provided the particulars of YWN issues or content that provided grounds for the IPO.
The Board’s Ruling on Preliminary Issues found that the Minister violated her statutory duty to provide reasons and held that the breach of duty was not cured. At that point, the panel should have terminated the hearing, advised the Minister that her IPO was in breach of the CPCA, and informed her that the order could not legally be sustained.The Board chose instead to deflect the problem, citing fairness to the interested parties – “participants would be denied a voice on topics about which many feel strongly”– and faulting counsel for Sears and Ste. Germaine for changing her position.The Ruling stated that the IPO is a serious matter, noted that the affected persons “are not given any opportunity to address the complaint except under this review process”, and acknowledged that that for the process to be meaningful they should be informed of the particulars of the Minister’s reasonable grounds. Having made those findings, the Board stated that the process would continue nonetheless, because the failure to provide reasons could be dealt with in the final report and recommendations.
From that point on, Sears and Ste, Germaine could not receive a fair hearing. In the absence of reasons, there was no evidence of the grounds the Minister relied on in issuing the postal ban.This made it impossible for the Board to reviewher decision and divine what grounds she could or might have had for ordering the IPO. Parenthetically, the Minister’s failure to provide reasons strongly suggests that she gave no consideration to the constitutional rights of Sears and Ste. Germaine, as she was required to do.
In the absence of reasons or evidence from the Minister, the Review Board allowed interested parties to fill the gap. The Minister’s case for the IPO was made by others who were granted standing to support the IPO, and provided extensive written and oral evidence and submissions throughout. The Report plainly and explicitly relied on that work in concluding that the Ministerhad reasonable grounds to order the IPO.
This unusual turn of events followed from the Review Board’s decision to recognize and grant standing to 16 individuals, 15 interested persons, and 10 community organizations and public interest groups. In this way, a review of the Minister’s decision was transformed into an open forum for YWN’s opponents to dominate the proceedings.
This “big tent” approach to CPCA review contributed to an unwieldy and protracted process. In practice, it imposed a burden on Sears and Ste. Germaine to respond to multiple parties and their interpretation of the criminal law – a burden that would never be imposed on them in a criminal setting. More fundamentally, the Board turned the process on its head, transforming a review of the Minister’s IPO for the benefit of the affected persons into an opportunity for YWN’s opponents to advance their interpretation of the Code’s hate propaganda and defamatory libel provisions.
Absolute ban and prior restraint
Throughout, the scope and gravity of the postal ban was minimized by the Attorney General and third party organizations who maintained that the IPO was not a prior restraint. Their logic was that because YWN could be distributed by other means the Minister’s IPO was not a restraint and did not violate the Charter. Such a claim misunderstands the nature and seriousness of a prior restraint.
Prior restraint is an egregious form of censorship that occurs when the state halts expressive activity, in advance, and to prevent it being communicated. In other words, the exercise of a right is pre-empted or blocked before it can be known whether or not the material – when published or distributed – will be constitutionally innocent or transgressive. The gravamen of prior restraint is an act of censorship by the state, which is exactly what the Minister’s IPO did by prohibiting Sears and Ste. Germaine from all use of the postal service. As a matter of law it was therefore irrelevant that YWN might be distributed elsewhere, like on Malta, the internet, or Mars.
The definition of a prior restraint is well established in law and the issue should not have been contentious. In the absence of expertise, the Board struggled with it and ultimately hedged, finding that s.43(1) “might” authorize a prior restraint and providing a muffled conclusion that, in the “narrow” context of the postal service, the standard was rigorous to ensure that IPOs are not issued “capriciously”.Note, however, that the legislation presupposes the Minister’s compliance to give reasons.
The Board also found that IPOs are meant to be temporary – though that is not the way s.46’s statutory presumption works – and are subject to comprehensive review – but only when review is requested within 10 days and the Minister sees fit to appoint a panel. Despite those problems, the Board readily concluded that an absolute ban is not unconstitutional as an interim measure, adding that in any case the affected persons could have asked the Minister to consent to exceptions.This, it bears noting, is the same Minister who did not provide reasons, delayed appointment of the review board, and failed to advise the affected persons when a panel was appointed.
Also minimized during the hearing was the severity of the interference with constitutional rights. The Minister’s IPO gratuitously banned Sears and Ste. Germaine from using Canada Post for personal and business purposes unrelated to YWN. Curiously, this issue was deflected to a side discussion of whether the CPCA granted the Minister discretion to narrow the order.Actually, the point does not matter so much. If she had discretion, the IPO gratuitously violated the rights of Sears and Ste. Germaine by denying them all access to Canada Post for almost 30 months. And if not, the IPO was just as damning because the Minister issued an absolute ban without reasons and without apparent regard for the constitutional rights at stake. Either way the Minister’s IPO was seriously in breach of s.2(b) of the Charter.
More important than a ban on the use of Canada Post was the shabby process that began on May 26, 2016 and did not end until November 15, 2018. This chronology of delay and irregularity is compelling demonstration that, without procedural fairness, the Charter’s guarantee of expressive freedom is little more than a façade or shell. Quite apart from the ban itself, the process surrounding the IPO was a travesty of fairness.
To the Review Board’s credit
The Review Board called attention to the Minister’s unexplained delay in appointing a panel but defended its own process as being beyond reproach.As discussed, the Board made choices and decisions that extended and distorted the review process to the disadvantage of Sears and Ste. Germaine.
To the Board’s credit, the Report recommended that the CPCA be amended or regulations enacted to address some of the statute’s deficiencies. The Review Board’s action items include the time limit for the appointment of a review board, standards of proof (i.e., who has the onus at such hearings), and the remedial powers of the Minister under s.43(1) and 45(3).
A mandate for change
While helpful, the Board’s recommendations reveal a limited grasp of what went wrong in this process.
A primary concern arises from the framework for IPO and FPOs. By statutory presumption, the Minister’s order becomes final ten days after notice of an IPO is sent, without any further steps or process (s.46). In other words, the Minister can conclusively ban – or censor – a person from Canada Post simply by giving notice of the order. There is no right of appeal 10 days after a FPO is issued. Meanwhile, where an “affected person” requests a review of the IPO, the Minister is not required to appoint a review board in a timely manner or within any time frame whatsoever. At a minimum, the statute should require appointment of a review board within a specified time period, and should provide a means of appeal from a FPO.
Problematically, the CPCA provides little or no framework for the review process, leaving it largely to the discretion of an ad hoc panel that might not have adjudicative or subject matter expertise. In appropriate circumstances, it may be necessary and justifiable for the Minister of Public Works to issue an IPO or FPO. Yet the exercise of this rare and draconian power must comply with the rule of law, including standards of procedural fairness. For the Review Board to excuse the Minister’s failure to provide reasons and proceed anyway, granting multiple parties standing to address the core issues, and then decide those issues without evidence from the decision-maker, was manifestly unfair to Sears and Ste. Germaine. Though interim and final prohibitory orders are relatively infrequent under the CPCA, the YWN hearing showed how a process can go awry when an inexperienced panel is required to manage a complex process in the absence of procedural framework or direction.
The CPCA’s provisions on prohibitory orders have not been amended since the Charter was enactedin 1982. These provisions are grossly deficient to manage the administrative and constitutional elements of a review process that in many cases will affect constitutional rights. Tinkering and modest reforms will not be sufficient; what is called for, instead, is an overhaul of the CPCA’s provisions for making prohibitory orders.
On March 21, 2017, the AG provided the names of individuals who might have been the subject of defamatory libel, and on January 3., 2018, almost 20 months after the IPO, the Attorney General advised that the alleged hate propaganda was against Jews.
The author and CFE took the position throughout that the Minister’s failure to give reasons was a fatal defect and determinative of the proceedings; in the circumstances, we nonetheless participated in the hearing on the constitutional issues.
It is unclear whether the Board misunderstood counsel; even if it was aware of her position that the hearing should be limited to the constitutional issues, the Board would have heard the evidence and submissions on hate propaganda. As the Report declared, “the Board [was] not prepared to limit its report to constitutional issues only”. Report at 11.
See Report at 37 (stating that the absence of reasons was problematic, adding that the Board was not able to determine whether the Minister turned her mind to the issue of balancing Charter values and, if she did, whether she concluded that no balancing was required or intended the IPO to reflect a balancing exercise).
The author and CFE took the position that the IPO was a prior restraint and absolute ban; we did not participate in discussion of the Minister’s discretion to narrow the order and offered no view on the issue of statutory interpretation.
The Board incorrectly concluded that the duty to balance Charter values under Dorédid not apply to a blanket ban; the Minister had a duty under the Charter to balance constitutional values whether the IPO imposed an blanket or partial ban on access to postal services.
Your Ward News Permanently Banned from Canadian Mail live stream with Paul Fromm & Brian Ruhe
The federal government is making permanent an interim order preventing Canada Post from delivering Your Ward News, a quarterly publication whose content has prompted hate crimes charges.
Carla Qualtrough, the minister responsible for the national mail carrier, said that after considering the recommendations of an independent board of review, “I have decided to issue a final prohibitory order that will prevent the delivery of the publication Your Ward News, or any substantially similar material developed by its authors, through Canada Post’s unaddressed bulk mail. My decision is consistent with the applicable legislation and the government’s values and stance on inclusiveness and diversity.”
The post office has not delivered Your Ward News since May 26, 2016, when an interim prohibitory order was issued by the minister of public works and government services.
At the time, postal workers, along with many people who had received the tabloid in their mailboxes unbidden, were angry at the content of the paper, which they say crossed the line into pro-Nazi hate propaganda.
The minister’s decision prompted a request for a review by James Sears, editor-in-chief of Your Ward News, and Leroy St. Germaine, its publisher. An independent review board was convened. It held hearings, received submissions and considered the legal basis for denying mail service to the paper. The Centre for Israel and Jewish Affairs (CIJA), the League for Human Rights of B’nai Brith Canada and the Friends of the Simon Wiesenthal Center (FSWC), among others, were granted legal standing before the board and made written and oral submissions.
On Nov. 15, 2017, while the board was still considering the case, Sears and St. Germaine were charged with wilfully promoting hatred against Jews and women. The charges arose out of material published in Your Ward News. That trial is expected to get underway in the near future.
The board submitted its report to the minister on Aug. 28. It found that the process of denying mailing privileges to Your Ward News was not procedurally unfair, that “there were reasonable grounds to believe that the affected persons (Sears and St. Germaine) have, by means of mail, sent or caused to be sent items that include hate propaganda” and material that could be considered defamatory.
Jewish groups applauded the minister’s decision to impose a permanent ban on the delivery of Your Ward News.
“We commend Minister Qualtrough for her principled decision. Your Ward News promotes disgusting anti-Semitic conspiracy theories, misogyny, homophobia and racism,” said Noah Shack, CIJA’s vice-president for the Greater Toronto Area.
“Our taxpayer-funded mail service should not be used to distribute such hateful content to hundreds of thousands of households. It is shocking that such vile messages are being peddled here in Canada in 2018. Just think about a Holocaust survivor picking up their mail, only to find neo-Nazi propaganda on their doorstep. This is totally unacceptable.”
“Given the victimization of our community alongside its disrespect of women and most other communities, we are very pleased about this outcome. This is in addition to hate crime charges laid against the paper’s authors now underway,” said Avi Benlolo, FSWC’s president and CEO.
“However, the paper is still being published and distributed by hand and online. We are calling on continued Crown prosecution to the fullest extent of the law and on the federal government to reinstate Section 13 of the (Canadian Human Rights Act), which dealt with online hate speech.”
Not everyone applauded the minister’s decision. Paul Fromm, a long time supporter of white supremacist causes and director of the Canadian Association for Free Expression (CAFE), responded to the board’s findings on CAFE’s website.
“Your report takes Canada one sad further step into the swamp of a cultural Marxist police state. How can we wag our prissy preaching finger at Russia or Iran for suppressing criticism and free speech and do much the same thing here? You have joined a long list of humourless puritans (religious and otherwise) through the centuries (who were) unable to appreciate spirited satire, which pricked the pompous and privileged and supported the ignored and dispossessed,” Fromm wrote.
“We note the minister has adopted your key recommendations for censorship forever of a publication. Interestingly, people who actually commit vile acts like murder, as opposed to people who say offensive things about privileged minorities, do not face a lifetime penalty.”
CAFE Blasts Review Board’s Secrecy & Minister’s Decision to Ban YOUR WARD NEWS From Canada’s Mails
Canadian Association for Free Expression
Rexdale, Ontario, M9W 5L3
Ph: 289-674-4455; FAX: 289-674-4820
November 16, 2018
Dear Board Members:
After it was announced at the end of August that the Independent Board of Review had, after six months, finally completed its report to the Minister, CAFE, as an intervenor, asked for a copy.
Here is the insolent reply we received:
Dear Mr. Fromm,
Thank you for your organization’s participation in the process and your request. You will understand that under Section 45(3) of the Canada Post Corporation Act, the Board of Review is required to submit a report with its recommendations to the Minister. There are no provisions in the legislation for the Board of Review to disseminate or publicize the report.
As the matter is now with the Minister for deliberation, please refer any further inquiries about the report to TPSGC.Ministre-Minister.PWGSC@tpsgc-pwgsc.gc.ca
Yours very truly,
Independent Board of Review
With respect, CAFE is not the public but an ‘intervenor”. Our understanding is that the defendants/”interested parties” did not receive a copy either.
This secrecy prevented participants from reacting and making representations to the Minister, either to accept or reject your report.
Yesterday, we discovered your report on-line.
We have been foully treated.
Your report takes Canada one sad further step into the swamp of a Cultural Marxist police state. How can we wag our prissy preaching finger at Russia or Iran for suppressing criticism and free speech and do much the same thing here? You have joined a long list of humourless Puritans (religious and otherwise) through the centuries unable to appreciate spirited satire which pricked the pompous and privileged and supported the ignored and dispossessed.
We note the Minister has adopted your key recommendations.for censorship FOREVER of a publication. Interestingly people who actually commit vile acts like murder, as opposed to people who say offensive things about privileged minorities, do not face a lifetime penalty. The sentence for murder is “life” with parole after a given number of years.
Carla Qualtrough, the minister responsible for Canada Post, said: “My decision is consistent with the government’s values and stance on inclusiveness and diversity.” The mind boggles at her illogic and contradiction: banning distribution of a publication through the mails and this is part of inclusiveness” and “diversity.” Inclusiveness, but not of YOUR WARD NEWS satire; “diversity”, but not diversity of opinion.
You have laboured long and, I suspect, quite profitably and produced a report that is an affront to free men and women. Your report is a disgrace. No wonder you sought to keep it secret.
*Updates on the Alison Chabloz, & Monika & Alfred Schaefer
* Updates on Canadian cases — YOUR WARD NEWS, Bill Whatcott, now charged by the outgoing Pakistani, Moslem AG for “hate” & other
Subject: ROGERS TV – Debate for Ottawa Centre
From: “Stan Newton” <Stan.Newton@rci.rogers.com>
Date: Thu, May 10, 2018 17:41
We have a debate for Ottawa Centre next Tuesday, May 15th at our studio,
details are below. Could you please confirm your attendance, either way,
as soon as possible?
475 Richmond Rd.
Ottawa, ON K2A 3Y8
However, the next day he was un-invited for the most blatant political reasons. A Gavin Lumsden from Rogers informed him: ” It has come to our attention that you have made public statements and espoused views that are entirely inconsistent with the values of Rogers TV.”
From: “Gavin Lumsden” <Gavin.Lumsden@rci.rogers.com>
Date: Fri, May 11, 2018 18:43
I am writing to follow-up on earlier correspondence from my colleague Stan
Since the invitation to the Ottawa Centre Candidates’ Debate was issued to
you, it has come to our attention that you have made public statements and
espoused views that are entirely inconsistent with the values of Rogers
As a result, I am writing to inform you that you will not be permitted to
participate in Rogers TV’s English and French candidates’ debates for the
riding of Ottawa Centre on May 15th. Your invitation is hereby rescinded.