The Great Canadian Compromise

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Nutty .jpgIt really doesn’t get stupider than this. Only the benighted Conservatives could have dreamed it up.

No word as yet whether the vet with a glass eye still has to take annual vision tests to prove he can’t see out of it.

[Ht/ Alberta Rabbit]

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Baglow v. Smith et al.

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“But what good came of it at last?”
Quoth little Peterkin.
“Why, that I cannot tell,” said he,
“But ‘twas a famous victory.”

The judgement is in. Bottom line: I lost my defamation action against the Free Dominioneers.

Like defamation law itself, however, the judgement is anything but black and white. There is enough in it, I think, to give all parties pause.

Madam Justice Heidi Polowin’s text contains many twists and turns, and for the most part is clearly written. She found that I had, in fact, proven defamation. In addition, the spurious charge by Connie Fournier that I had destroyed evidence was slapped down—hard. Finally, the Fourniers were found to be the publishers of the material in question, not merely, as they argued, the passive owners of a kind of community notice board. That, according to Madam Justice Polowin, was “disingenuous and ignores reality.”

But the case eventually turned on the axis of “fair comment,” and existing law. Reasonableness is not a legal test when it comes to public utterances: all that a successful defence requires to defeat a defamation action is to show that a statement constituted comment, not fact; had a basis in fact (without itself having to be accurate or factual); and concerned a matter of public interest.

Madam Justice Polowin considered the claim of my alleged support for the Taliban—the cause of my action—to be mere opinion, therefore comment and not, despite how it looked, a statement of fact. My longstanding support for the legal and human rights of Omar Khadr might be construed, she said, as some kind of objective support for the Taliban, even if that is unreasonable on its face. And obviously there was and is much public interest where Omar Khadr is concerned.

The plaintiff and the defendants, she said, were each successful and unsuccessful. And for that reason—she awarded no costs. It was evident that she did not feel my bringing the action had been unreasonable.

So, after all the Sturm und Drang, this is what we are left with:

  • A Pyrrhic victory for Roger Smith and the Fourniers. After two unsuccessful preliminary motions by the defendants, one overturned on appeal and the other (to remove my lawyer from the case) kicked smartly out the courtroom door without our side even having to be heard, I collected $18,000 in costs. Madam Justice Polowin’s decision not to assign costs cannot be welcome news. The Fourniers lost a case last year against my friend Richard Warman, and were assessed damages and costs of $127,000. They are presently trying to muster an appeal, which will not come cheap.

  • The Fourniers are publishers. This case clarifies that those who run message boards like Free Dominion are legally liable for the content that appears there. This requires serious vetting of that material, not a hands-off approach.

  • No brave new world for the Speech Warriors™. Speechies should stifle their cheers a little: the floodgates have not been opened by this ruling. Defamation is still a thing, as the Fourniers and Roger Smith know from the Warman case, and as Ezra Levant recently learned to his substantial cost once again.

  • Indeed, there was no precedent-setting at all. Madam Justice Polowin, when all is said and done, simply built upon current jurisprudence. No new law was created here, no bold new path was set, history was not made. Instead, the case was decided by applying existing law to the facts of this case. The blogosphere is not something separate and apart from other forms of mass communication, a space where conventional rules do not apply. They do.

Obviously I would have liked to win! But there are losses and then there are losses. And so, as the other side begins its ritual pelting with vegetables, I stand like Caesar, constant as the northern star. :)

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An illustrative note on Bill C-51

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Courtesy of the Harper government, we now have confirmation that its new “anti-terror” Bill is intended to be used against peaceful protesters engaging in civil disobedience, which is lumped in with organized crime and foreign intelligence-gathering (see above).

The workbook from which this page is taken is used as course material by the Canada School of Public Service.

Really, need more be said?

[H/t @softgrasswalker]

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Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger. ~Hermann Goering

Item: Angus Reid poll: 82% of Canadians support Harper’s anti-“terrorism” Bill C-51.

Item: RCMP warns of outside agitators—a movie many of us have seen before. Foreign-funded radicals are a clear and present danger. No, not ISIS—environmentalists.

Item: Neo-nazi cultists who planned a mass murder in Halifax are “not terrorists,” says Minister of Justice Peter MacKay. What is terrorism, then? “Look it up,” he says.

Oh, we have, Minister, we have.

Cooler heads are not prevailing at this point. Panic always wins in the short term. Unscrupulous politicians (in this case the Conservatives and their red wing, the Justin Trudeau Liberals) have invariably stoked that fire. History repeats itself—and not necessarily as farce.

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climate change.jpg

[In the interests of provoking discussion, I am publishing this post from frequent commenter Peter1. Have at it! —DD]

Over the past roughly ten years, the climate change establishment, also known as the scientific consensus, has become more and more consistent and confident in its assertion that anthropogenic climate change is a real, ongoing phenomenon and that we face very serious consequences if dramatic remedial steps aren’t taken as a global priority. Temperature recordings from remote and inaccessible places confirm this dependably, and weather patterns are said to both reflect progressive warming and offer harbingers of disasters to come. Whether climate change can ever be said to be “a fact” or “settled science” in the formal epistemological sense, in a practical sense it seems to be more so today than it was in even the very recent past.

In the face of this, the general public is more skeptical or sanguine than it was ten years ago when doomsday scenarios abounded in the public square, polls showed climate change was the number one worry for many and the issue was front and center on the national political agenda. (Remember when Conservative MPs all wore green ties during an uncommonly mild December to assure us they were deeply concerned?) While many people will still say they are worried about the environment in a general sense, increasingly there seems to be a rote “Mom and apple pie” flavour to their protestations. It is clearly not the public priority it was, and those who have become outrightly suspicious are growing in numbers. It is as if the scientific establishment and much of the public are on separate trains headed in opposite directions.

Is this paradox best explained by:

a) The influence of a relatively small number of dissidents within the climate change community who are either contrarian, eccentric or have had their objectivity compromised by support from the oil industry or other corporate interests;

b) Right-wing political forces, mainly in the United States, which can be described broadly as “science-denying”, such as religious conservatives, talk show hosts, Tea Party ideologues, etc.;

c) A feckless and easily distracted general public that simply cannot be expected to sustain interest in such a complex long term problem. Democracy itself is an impediment to needed remedial action;

d) The Boy Who Cried Wolf syndrome. The IPCC and other members of the climate change consensus succumbed to reckless fear-mongering and have fared so poorly with their short and medium term predictions (and have amended their long term predictions so frequently), they have compromised public confidence in whether they really understand what they are saying and doing; or

e) The fact that, after thirty years of intensive media and other public exposure to the issue, the vast majority of the global population cannot detect any change in the climate patterns where they live?

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Sunday floating signifier

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Flag Cda.png

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Uncultured terror in Halifax

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The attack does not appear to have been culturally motivated, therefore not linked to terrorism. ~Peter MacKay

Justice Minister Peter MacKay has finally let the cat out of the bag. If you shoot up a crowd, and you’re white, you’re a “murderous misfit.” If you do it with a “cultural motive,” though, then you’re a terrorist. The beliefs and motives of white people aren’t “cultural”—they’re the natural order of things. Only the Other (see illustration, above) has a “culture”: we white folks are blessed with “neutral ethnicity.”

Perhaps it’s time for an anthropological SWAT team to go in and sort these folks out. I mean that metaphorically, of course.

Consider Stephen Harper’s recent use of the pronoun “we,” when referring to wearing the niqab while taking the oath of citizenship. “That’s not how we do things here,” he says, and he goes on to opine: “I believe, and I think most Canadians believe that it is…offensive that someone would hide their identity at the very moment where they are committing to join the Canadian family.”

Where does one begin? Some Canadian citizens already wear niqab—a diminishing number, I suspect, but they’re a part of the “Canadian family.” The real hilarity, however, lies in Harper’s comment about hiding one’s identity. To a niqabi, of course, this attire is an expression of identity. Removing it, in fact, would be to hide her identity, as a small handful of women in France and Belgium know: they are legally not permitted to set foot outside their homes unless they venture forth in secular disguise.

Even if one is to be charitable, and interpret Harper’s notion of “identity” as merely a bureaucratic one—that is, the person taking the oath needs to be provably the same person as the one who applied for citizenship in the first place—it is difficult to understand his objection. Nothing prevents the citizenship court from requiring that suitable ID be produced and confirmed. Nor (and I can state this from experience, having has a niqabi in a class I once taught) is there any impediment to court officials determining if the oath is actually being spoken, a normal requirement of the ceremony.

And now, Halifax. Chris Selley of the National Post thinks “cultural” is good shorthand for the definition of terrorism in the Criminal Code. He is referring to Section 83.01.1, wherein “terrorist activity” is defined as being motivated, in whole or in part, for “a political, religious or ideological purpose, objective or cause.”

He’s dead wrong. It isn’t shorthand at all. It’s a dogwhistle.

Whoever those “murderous misfits” in the Halifax area turn out to be, they had their own motives and beliefs, which were obviously “cultural” in the general sense of the term. But MacKay is implicitly including them as part of the “Us” side, not the “Them” side.

The Criminal Code definition of “terrorism,” as we are becoming increasingly aware, can mean just about anything that those in authority want it to mean. The “murderous misfits” in Halifax clearly wanted to make some sort of statement. It really doesn’t matter whether or not some explicit doctrine lay behind it: the personal is also political. The Halifax police and the Justice Minister have decided, however, that they are not “terrorists”—even though their planned activity would certainly have terrorized.

These are dangerous waters. Invented categories like “terrorism” inevitably take on a kind of objective existence. It’s important, one might think, to be clear on who is excluded and who is included in that semantic dragnet, but its arbitrary use has already made that virtually impossible. “Terrorism” is a construct that attaches to some violence but not to other, similar violence. Its deployment is entirely political.

As students of Michel Foucault would understand, a proliferating taxonomy of “terrorism” is already in evidence: its forms and sub-forms are rapidly appearing in the literature. The signifier isn’t merely floating, but soaring. Today it will land on “culturally” motivated violence—that is, violence by the Other. Tomorrow, almost inevitably, it will adhere to the actions of additional perceived enemies—environmentalists, unionists, aboriginal rights activists, and so on. Their activities can already be accommodated within the generously wide definition of “terrorism” in the Criminal Code, and now they can be more easily suppressed by Canada’s new secret police.

The bottom line is this: using their current powers and techniques, the Halifax police apparently nipped a planned mass murder in the bud. Our Justice Minister, however, used his press conference on that subject to plug Bill C-51, which will provide new law-breaking powers to the Canadian Security Intelligence Service, while making the advocacy of “terrorism in general,” whatever that means, a crime. (A devastating analysis of the Bill, by Craig Forcese and Kent Roach, may be found here.) At the same time, as noted, he and the Halifax police are loath to describe the actual suspects, who were planning a violent attack on the public, as terrorists.

I am not arguing that they should be so labelled. Just the opposite, in fact: I oppose that label in the first place. The arbitrary and frankly racist manner in which it is currently being applied should surely be a sufficient demonstration of its dangers. But we continue to stumble and slide down this increasingly slippery slope, as though in a dream.

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Sun down.

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Blocked on Twitter!

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The recent Twitter hashtag #BlockedByMallick brings to the fore a minor irritant that the Twitter “community” lives with—abuse of the blocking function.

In fairness, I’d immediately qualify that: “abuse” is far too strong a word. People do have the unfettered right to be cyber-recluses—as Toronto Star columnist @HeatherMallick now appears to be—or to associate with some but not with others. Very often a block will be imposed for perfectly legitimate reasons—why suffer the noxious effluvium of trolls, racists and so on? But there’s a book or two to be written on the management of personal Twitter timelines, nonetheless.

On Twitter, you find yourself in the midst of an almost infinitely diverse crush of humanity. You can’t speak with everyone, nor would you want to. You choose to interact with folks who have common interests, or those who are simply interesting, even people you might disagree with, and you exchange witty, but usually not-so-witty, 140-character observations. It’s your proverbial “25 words or less.” Doing that sort of thing well is an art, if a minor one. Once in a while starry heights are reached—the equivalent of “As Canadian as…possible under the circumstances.” Most Tweeting is, however, ephemeral. Listen to those voices in a real crowd, and you get the idea. Shouts and murmurs. Lunch plans. Cats.

Twitter is at its best when news is breaking: something happens and, literally a few seconds later, you can be in the loop. Try following the folks who live-Tweeted #Ferguson, for example, professional journos like @RadleyBalko and @WesleyLowery bumping elbows with gifted on-scene observers like @deraymckesson and anthropologist @SarahKendzior. You get the benefit of their eyes and ears. “You Are There,” indeed.

But anyone who burrows into this online culture quickly discovers that all is not well in Twitter City. It has its own slums, its rough parts of town, its “no-go” zones, its thugs. The most appalling forms of verbal vileness are right there before you. Perhaps worse in its way, though, is the ceaseless babble, the very epitome of Heidegger’s Gerede. Hence people choose whom they wish to follow, and those followed get to choose whether they want to be followed—which allows participants to carve out enclaves of order from this fecund jungle of words.

Blocking is one of the timeline sculptor’s tools. Unlike the ambiguous unfollow, it sends a clear, unequivocal message of rejection. In the right hands, it can delicately shave away the uncivil and the dull. But from personal experience I can attest that blocking is sometimes done for reasons that are completely opaque to the blockee. Twitter is a blunt-spoken kind of place, and rudeness can get you disappeared in a trice—I can understand that. (I don’t block for over-brusqueness, myself, but I’m not exactly a meadow-flower.) Sometimes, however, simple disagreement will suffice. @BobRae48 blocked me for differing with him on the expulsion of some Conservative Senators, for example. Charles Johnson (@Green_Footballs) and @AdamSerwer cast me out for over-enthusiastically defending @ggreenwald.

But then there are odd misunderstandings, or so they appear: Egyptian-American journalist @monaeltahawy threw me a block after she had complained about painful ears during an airplane descent. I suggested that she use the Valsava manoeuvre (works for me every time). She must have thought I was talking dirty. And @ScottGilmore, of Maclean’s: my only interaction with this gentleman was to agree with him, about the Tamar Rice shooting, in perfectly civil terms. I was immediately blocked. As they say on Twitter, * smh *.

It’s not much in the grand scheme, but this sort of thing can, despite one’s better judgement, set you a-wondering on occasion, just as when someone you’ve never met hairy-eyeballs you in a crowd. You find yourself reaching instinctively for a virtual breath mint, and fussing with your hair. Was it something I said?

In case readers get the wrong impression, by the way, it’s been my good fortune to follow—and be followed by—a lot of wise, thoughtful and erudite folks. I don’t often block or get blocked. My experience of Twitter has been overwhelmingly positive, if one sets aside its addictive properties when there’s real work to be done. I’ve developed strong friendships with people I’ve never met. Twitter is also profoundly democratic: a true agora, where intellectual aristocrats and commoners frequently converse.

At the same time, though, Twitter is more than a bit like high school. There are mean boys and girls there, and endless gossip, much of it spiteful. Shunning and snubbing is commonplace. Games are played. Subtweets are rife.

Blocking can be, and is, a part of that. Some folks can’t bear disagreement, preferring the mental safety of an echo-chamber. Others can’t take criticism, even civilly expressed. Still others seem to block preemptively. But that’s the real world too, isn’t it? Twitter mimics flesh-and-blood society, with all of its complex and often inexplicable interactions. It’s a gold mine for social scientists, and they’re busy digging.

In any case, on Twitter as in real life we get to choose our friends but not always our enemies. Luckily—like most people, I suspect—I have many more of the former. And some of the latter I’ve come by honestly, it must be said. Others, however, present insoluble mini-mysteries, to perplex if not confound.

(Declaration of interest: I, too, am #BlockedByMallick.)

UPDATE: And…unblocked!

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C-51: a barn-burner of a bill

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Let me assert my firm belief that the only thing we have to fear is fear itself — nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance. In every dark hour of our national life a leadership of frankness and vigour has met with that understanding and support of the people themselves which is essential to victory. ~Franklin Delano Roosevelt

Brand-new anti-terrorism legislation is coming to keep us all safe. True, we’ll get a secret police with the power to break the law and our freedom of expression will contract. But it’s an election year and Stephen Harper has found his political wedge.

We’re facing a grisly enemy overseas (our troops over there are supposedly not “facing” it, but their mission doesn’t creep, it sprints). At home we’ve had a couple of murderers promoted to “terrorists” because they identified with that enemy. A few more terrorist wannabes have been intercepted and either tried or are awaiting trial. But this is under current laws.

Harper and his government, meanwhile, are having a field day. If ISIS fires on our troops, says our prime minister, “we’ll kill them.” Teenagers in their parents’ basements beaking off stupidly on Twitter or Facebook? “We can’t tolerate this,” he says. Jail them.

Will the Canadian Security Intelligence Service (CSIS) get additional oversight to go with its expanded powers? “We are not interested in creating needless red tape,” says Conservative MP Roxanne James.

That last needs a closer look. A chunk of oversight already disappeared when the government abolished the Office of the Inspector General of CSIS in 2012. The Security Intelligence Review Committee (SIRC), its other oversight body, was at one point headed up by Arthur Porter, a person with no relevant expertise whatsoever, now facing extradition and trial for fraud.

CSIS was castigated by SIRC just last year for “lack of candour” in one case and by a federal court for a “breach of the duty of candour” in another — lying, in a word, to its oversight body and to a judge. And this happened without expanded powers permitting CSIS to break the law and “disrupt” activities deemed a threat. Can SIRC rein in the new CSIS? We have a right to be skeptical.

CSIS was brought into being precisely because the RCMP Security Service had gone hog-wild, infiltrating “subversive” groups, barn-burning and burglarizing. We seem to have come nearly full circle.

C-51 will make it an offence to advocate or promote “the commission of terrorism offences in general.” The Criminal Code definition of “terrorism” (Section 83.1) refers to acts that are already illegal, but committed for “a political, religious or ideological purpose, objective or cause.”

Derail a train and kill people, you’re a murderer; shout “Allahu Akbar” at the same time, and you’re a terrorist instead. Such semantics don’t mean much in practical terms, of course, but they help to create a climate of fear. The important thing is that the perps, however labelled, be caught and punished, or, one hopes, stopped beforehand — as several have already been.

But the new law will extend further than that. Besides giving broad new powers to a lightly supervised CSIS, what is “terrorism in general?” An overly robust defence of suffering civilians in Gaza? (Its government, Hamas, has been listed as a terrorist organization by Canada.) Suggesting that the Tamil minority in Sri Lanka had a right to fight back against murderous oppression by the Sinhalese majority? (The organization that took on that role, the Tamil Tigers, is also on the list.) A favourable review of Frantz Fanon’s The Wretched of the Earth, perhaps?

“Those who would give up essential liberty, to purchase a little temporary safety,” Benjamin Franklin famously wrote, “deserve neither liberty nor safety.” But Stephen Harper is no Benjamin Franklin: “This is really what we get from our opposition, that every time we talk about security, they suggest that somehow our freedoms are threatened.”

Well, they are. But two of our soldiers were murdered right here at home, and ISIS is like something out of Grand Guignol. People are understandably frightened. What’s needed, however, for that very reason is “a leadership of frankness and vigour” — not a government that cynically surfs a panic wave for political ends.

If we have nothing to fear but fear itself, we should all be plenty terrified by now.

(This article previously appeared in the Toronto Star on February 9)

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