{"id":2435,"date":"2018-07-25T03:48:16","date_gmt":"2018-07-25T07:48:16","guid":{"rendered":"http:\/\/cafe.nfshost.com\/?p=2435"},"modified":"2018-07-25T20:49:58","modified_gmt":"2018-07-26T00:49:58","slug":"the-ontario-civil-liberties-association-calls-on-ontario-attorney-general-to-revoke-consent-for-hate-charges-against-dr-sears-kevin-j-johnston-bill","status":"publish","type":"post","link":"https:\/\/cafe.nfshost.com\/?p=2435","title":{"rendered":"The Ontario Civil Liberties Association Calls on Ontario Attorney General to Revoke Consent for\u00a0‘Hate’ Charges Against Dr. Sears & Leroy St. Germaine (YOUR WARD NEWS); Kevin J. Johnston & Bill\u00a0Whatcott"},"content":{"rendered":"
The Ontario Civil Liberties Association Calls on Ontario Attorney General to Revoke Consent for\u00a0‘Hate’ Charges Against Dr. Sears & Leroy St. Germaine (YOUR WARD NEWS); Kevin J. Johnston & Bill\u00a0Whatcott<\/strong><\/span><\/div>\n
<\/div>\n
http:\/\/ocla.ca\/wp-content\/uploads\/2018\/07\/2018-07-24-Letter-OCLA-to-AG-Ontario-Mulroney.pdf\u00a0<\/strong><\/div>\n
<\/div>\n
\n
Media Release:<\/b>\u00a0<\/span><\/div>\n
T<\/b>he Ontario Civil Liberties Association (OCLA) has sent a letter to Ontario’s new<\/span>\u00a0<\/b><\/span><\/div>\n
Attorney General Caroline Mulroney, re: Criminal code censorship prosecutions in Ontario.<\/span><\/b><\/div>\n
<\/div>\n
The letter is available at the following link:\u00a0http:\/\/ocla.ca\/wp-content\/uploads\/2018\/07\/2018-07-24-Letter-OCLA-to-AG-Ontario-Mulroney.pdf<\/a><\/div>\n
<\/div>\n
<\/div>\n
By Email<\/b><\/div>\n
\u00a0<\/b><\/div>\n
July 24, 2018<\/b><\/div>\n

 <\/p>\n

Hon. Caroline Mulroney<\/div>\n
Attorney General of Ontario<\/div>\n
Ontario, Canada<\/div>\n
attorneygeneral@ontario.ca<\/a><\/div>\n
caroline.mulroney@pc.ola.org<\/a><\/div>\n
<\/div>\n
Dear Attorney General Mulroney:<\/div>\n
\u00a0<\/b><\/div>\n
Re:\u00a0 Criminal Code censorship prosecutions in Ontario<\/b><\/div>\n

 <\/p>\n

The Ontario Civil Liberties Association (OCLA) advocates for civil and human rights, including the fundamental human right of individual expression, opinion and belief.<\/div>\n
<\/div>\n
We write to ask you to refrain during your mandate from consenting to any prosecutions based on the censorship provisions of the\u00a0Criminal Code<\/i>, because the said provisions categorically violate the\u00a0International Covenant on Civil and Political Rights<\/i>\u00a0(the \u201cCovenant<\/i>\u201d) ratified by Canada in 1976.<\/div>\n
<\/div>\n
The impugned sections of the\u00a0Criminal Code<\/i>\u00a0are:<\/div>\n

 <\/p>\n

LIBEL<\/div>\n
\u00b7 \u00a0 S. 296 – Blasphemous libel<\/div>\n
\u00b7 \u00a0 Ss. 297 to 317 – Defamatory libel<\/div>\n

 <\/p>\n

HATE PROPAGANDA<\/div>\n
\u00b7 \u00a0 S. 318 – Advocating genocide<\/div>\n
\u00b7 \u00a0 S. 319 – Public incitement of hatred \/ Wilful promotion of hatred<\/div>\n
\u00b7 \u00a0 Ss. 320 to 320.1 – Warrant of seizure<\/div>\n

 <\/p>\n

Our point is not that expression cannot be criminal. For example:\u00a0 ss. 22 and 464 of the\u00a0Criminal Code<\/i>, which apply to valid provisions of the\u00a0Criminal Code<\/i>.<\/div>\n
<\/div>\n
Our point is that Canada and the provinces are obligated under international law not to enact and use laws that violate fundamental human rights.<\/div>\n
<\/div>\n
The \u201cblasphemous libel\u201d (s. 296) and \u201cdefamatory libel\u201d (ss. 297 to 317) provisions are squarely contrary to international law,[1]<\/sup><\/a>\u00a0and opposite to all the relevant joint statements of international rapporteurs on human rights.[2]<\/sup><\/a>,<\/sup>[3]<\/sup><\/a>,<\/sup>[4]<\/sup><\/a>\u00a0In particular, the said provisions prescribe imprisonment, whereas international law expressly disallows imprisonment as a penalty for any type of defamation, whether characterized as \u201ccriminal\u201d or not.[5]<\/sup><\/a><\/div>\n

 <\/p>\n

Section 296 will be repealed by Bill C-51 (referred to committee on Senate second reading). The defamatory libel\u201d sections (ss. 297 to 317) are maintained, except that \u201cpublished\u201d cannot mean solely to the person who is defamed (s. 299(c)).<\/div>\n

 <\/p>\n

The \u201cadvocating genocide\u201d provision of the Criminal Code (s. 318), is noncompliant with the Covenant because it does not prescribe an onus on the state to establish a \u201cdirect and immediate connection\u201d to an actual \u201cthreat\u201d:[6]<\/div>\n

 <\/p>\n

When a State party invokes a legitimate ground for restriction of freedom of expression, it must demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat.<\/div>\n
\nA valid law prohibiting advocating genocide is required to prescribe that the \u201cadvocating\u201d must be credible and causally connected to a palpable threat.<\/div>\n
The \u201cpublic incitement of hatred \/ wilful promotion of hatred\u201d provisions (s. 319) violate the\u00a0Covenant<\/i>\u00a0because no actual harm to any specific person needs to be proven by the state; nor is the issue incitement of a crime, but rather incitement of \u201chatred\u201d (an emotion which is not in itself a crime) in unspecified persons at large.<\/div>\n
The court is asked to subjectively hypothesize an induced \u201chatred\u201d at large. The state need only wave the magic wand of \u201chatred\u201d, subjectively inferred from the impugned expression itself, to imprison an individual for up to two years.<\/div>\n
These are victimless crimes of hypothetically inducing emotions transmitted into the ether of society, which hypothetically cause unspecified harm to unspecified persons. No evidence of any kind is needed beyond the impugned expression itself and the context of the expression.<\/div>\n
The Supreme Court itself determined this statutory interpretation of prosecutions pursuant to ss. 319(1) and 319(2):[7]<\/a><\/div>\n
“The offence does not require proof that the communication caused actual hatred. … The risk of hatred caused by hate propaganda is very real.\u00a0\u00a0This is the harm that justifies prosecuting individuals under this section\u00a0[319] of the\u00a0Criminal Code<\/i>.\u00a0 In the\u00a0Media Case<\/i>, the ICTR said that \u2018[t]he denigration of persons on the basis of their ethnic identity or other group membership\u00a0in and of itself, as well as in its other consequences, can be an irreversible harm\u2019.”\u00a0 [Emphasis added]<\/div>\n
The proverbial slippery slope has now led us beyond this victimless crime \u2014 in which any effect or harm from the expression need not be proven and cannot be tested \u2014 to a place where \u201cholocaust denial\u201d is argued to automatically generate the said hatred at large. On the contrary, the\u00a0Covenant<\/i>\u00a0holds the state to an entirely different standard:[8]<\/a><\/div>\n

 <\/p>\n

Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression. The Covenant does not permit general prohibition of expressions of an erroneous opinion or an incorrect interpretation of past events.<\/div>\n

 <\/p>\n

The impugned\u00a0Criminal Code<\/i>\u00a0provisions include overt \u201cbook burning\u201d clauses (ss. 319(4), 320 and 320.1) for recorded materials that are subjectively hypothesized to induce \u201chatred\u201d in the reader, listener or viewer.<\/div>\n
Canada has an obligation to remove these laws,[9]<\/a>\u00a0an obligation that it appears to be largely disregarding despite our calls starting in February 2016.<\/div>\n
All prosecutions pursuant to the impugned provisions are fundamentally unjust towards the individual, extraordinarily wasteful of public resources, and harmful to democracy itself.<\/div>\n

 <\/p>\n

The \u201chate propaganda\u201d prosecutions are structurally political because they are made at the discretion of the Attorney General (ss. 318(3), 319(6) and 320(7)). They have a potential to be used as propaganda and societal manipulation, much as witch trials were used in the Reformation in competing for \u201creligious market share\u201d between Catholics and Protestants.[10]<\/a>\u00a0Those who seek censorship of a particular negative view are often partisans of a particular political party or ideology or may have a special interest they wish to advance. Reactions to views one finds repugnant are emotional vectors that can align, consolidate, increase or strengthen partisan affiliation when the issue is predictably mediatized through a controversial trial.<\/div>\n

 <\/p>\n

In addition, we ask you to retract the Attorney General\u2019s consent for all the ongoing such prosecutions, which were consented to by the previous Attorney General despite our requests.<\/div>\n

 <\/p>\n

We know of three current such prosecutions being pursued in Ontario:<\/div>\n