{"id":2138,"date":"2017-12-28T00:07:21","date_gmt":"2017-12-28T05:07:21","guid":{"rendered":"http:\/\/cafe.nfshost.com\/?p=2138"},"modified":"2017-12-28T00:07:21","modified_gmt":"2017-12-28T05:07:21","slug":"cafes-submissions-in-support-of-bill-whatcotts-motion-to-dismiss-transgendered-ogers-complaint-of-discrimination-before-b-c-human-rights-tribunal","status":"publish","type":"post","link":"https:\/\/cafe.nfshost.com\/?p=2138","title":{"rendered":"CAFE’S SUBMISSIONS IN SUPPORT OF BILL WHATCOTT’S MOTION TO DISMISS TRANSGENDERED OGER’S COMPLAINT OF DISCRIMINATION BEFORE B.C. HUMAN RIGHTS TRIBUNAL"},"content":{"rendered":"

CAFE’S SUBMISSIONS\u00a0 IN SUPPORT OF BILL WHATCOTT’S MOTION TO DISMISS TRANSGENDERED\u00a0 OGER’S COMPLAINT OF DISCRIMINATION BEFORE B.C. HUMAN RIGHTS\u00a0 TRIBUNAL<\/b><\/span>
\n<\/span><\/p>\n

IN THE MATTER OF THE\u00a0HUMAN RIGHTS CODE<\/i><\/span><\/p>\n

R.S.B.C. 1996, c. 210 (as amended)<\/span><\/p>\n

AND IN THE MATTER of a complaint before<\/span><\/p>\n

the\u00a0British Columbia\u00a0Human Rights Tribunal<\/span><\/p>\n

BETWEEN:<\/span><\/p>\n

Morgane Oger<\/span><\/p>\n

COMPLAINANT<\/b><\/span><\/p>\n

AND:<\/span><\/p>\n

Bill Whatcott<\/span><\/p>\n

RESPONDENT<\/span><\/b><\/p>\n

\u00a0<\/b><\/p>\n

SUBMISSION BY INTERVENER CAF\u00c9 (CANADIAN ASSOCIATION FOR FREE EXPRESSION) ON RESPONDENT\u2019S APPLICATION FOR SUMMARY DISMISSAL<\/span><\/b><\/p>\n

$\"\"$ <\/a><\/p>\n

1.\u00a0\u00a0\u00a0\u00a0\u00a0The BCHRCode is narrow + specific as to what it covers, + doesn\u2019t allow tribunal leeway to invent or make up rules or concepts not specifically provided for.<\/span><\/span><\/p>\n

2.\u00a0\u00a0\u00a0\u00a0\u00a0The concept of \u201chatred\u201d or \u201chate\u201d has been narrowly defined by SCC in Whatcott v Sask. (HRC), [2013] SCJ no. 11. These passages from the SCC Whatcott decision confirm \u201ca Modified Definition of \u2018Hatred\u2019 \u201c: [56]\u00a0 First, courts are directed to apply the hate speech prohibitions\u00a0 objectively . In my view, the reference in\u00a0 Taylor\u00a0 to “unusually strong and deep-felt emotions” (at p. 928) should not be interpreted as imposing a subjective test or limiting the analysis to the intensity with which the author of the expression feels the emotion. The question courts must ask is whether a reasonable person, aware of the context and circumstances surrounding the expression, would view it as exposing the protected group to hatred. [57] \u00a0Second, the legislative term “hatred” or “hatred and contempt” is to be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects. [58]\u00a0 Third, tribunals must focus their analysis on the effect of the expression at issue. Is the expression likely to expose the targeted person or group to hatred by others? The repugnancy of the ideas being expressed is not, in itself, sufficient to justify restricting the expression. The prohibition of hate speech is not designed to censor ideas or to compel anyone to think “correctly”.<\/span><\/span><\/p>\n

In light of these three principles, where the term “hatred” is used in the context of a prohibition of expression in human rights legislation, it should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination. [85]…prohibiting…any representation which “ridicules, belittles or otherwise affronts the dignity of” any person or class of persons on the basis of a prohibited ground.<\/span><\/span><\/p>\n

3.\u00a0\u00a0\u00a0\u00a0\u00a0All Code-created prohibitions + offences can only be read + interpreted subject to the superior freedoms + rights enacted in the Charter, especially section 2(b) thereof, namely, \u201cfreedom of thought, belief, opinion + expression, including freedom of the press + other means of communication.<\/span><\/span><\/p>\n

4.\u00a0\u00a0\u00a0\u00a0\u00a0The Courts in Canada + USA have given paramount importance to freedom of expression in the context of elections, as evidenced in the Canadian SCC decisions of\u00a0Figueroa v Canada\u00a0<\/i>[2003] 1 SCR 912, + Thomson v Canada [1998] 1 SCR 877, + the USSC decision of Citizens United v FEC. Free expression must be given free rein in the vital matter of free democratic elections.<\/span><\/span><\/p>\n

5.\u00a0\u00a0\u00a0\u00a0\u00a0Any member of the public, any citizen, has the absolute right to raise any matter about an election candidate, including: fitness for office, good character, honesty + truthfulness, trustworthiness, faithfulness to others (including one\u2019s spouse and\/or children), lying about anything including about oneself, sexual misconduct, sanity (being free of mental disorder or delusion), political agenda (including candidate\u2019s desire, as here, to punish, harrass or bully citizens.<\/span><\/span><\/p>\n

6.\u00a0\u00a0\u00a0\u00a0\u00a0Nobody has a right not to be offended, to protection of so-called \u201cdignity\u201d, \u201cfeelings\u201d, \u201creputation\u201d or \u201cself-respect\u201d. These aren\u2019t in the Code, and no Tribunal has the right to make up or invent concepts from \u201cwhole cloth\u201d. It\u2019s not the purpose for which Code was initially enacted, to protect people from actual tangible + palpable harm from true discrimination in matters like employment, houding, + services offered to the public.<\/span><\/span><\/p>\n

7.\u00a0\u00a0\u00a0\u00a0\u00a0Each citizen has the right to express his\/her doubt or disbelief that any person has the right to claim any special privilege under the Code.<\/span><\/span><\/p>\n

8.\u00a0\u00a0\u00a0\u00a0\u00a0Each citizen has the right to question the validity of any claim by a person to be of a gender or sex that doesn\u2019t correspond to reality, & to question any demand by someone to be addressed as or referred to as being of a certain gender or sex, or to be referred to by certain pronouns if that does not correspond to reality.<\/span><\/span><\/p>\n

9.\u00a0\u00a0\u00a0\u00a0\u00a0It is submitted that any cases decided by BCHRT or any other tribunal, contrary to the charter or the Code, are wrongly decided + must not be followed. This would include the Browne, Sheridan, waters + dawson decisions. Alternatively, these cases must be distinguished on the basis the facts differed from those in the present case.<\/span><\/span><\/p>\n

\u00a0<\/span><\/span><\/p>\n

All of which is respectfully submitted by the Intervenor, the Canadian Association For Free Expression (CAF\u00c9), this 22^{nd<\/sup>\u00a0day of December, 2017.<\/span><\/p>\n}

\u00a0\u00a0Per:\u00a0 _______________________________<\/span><\/p>\n

Paul Fromm, Director<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"