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“This is how words work”

It’s not every day you get called a misogynist and a white supremacist by another lawyer, but I guess we should probably get used to the fact that social media is the best solvent for rational discussion since the invention of road rage.

It all began innocently enough — as these things do — with a rather curious Twitter post from Atrisha Lewis (@atrishalewis), a bencher of the Ontario Law Society, apparently complaining about how hard it is to be a bencher when others have other views than you do (see below).

What surprised me about this Tweet was the nonsensical idea that your role in an organization (such as a law society) should in any way be more difficult just because others have a different view of some issues than you do. This is even more surprising when that person is a lawyer. Last I checked, lawyers are supposed to disagree. That’s kind of our job.

So I asked the question.

I thought this was fair. Rather mild, perhaps. Certainly not offensive or rude.

She didn’t respond. But apparently this rather innocuous comment was sufficiently provocative to encourage Ontario lawyer Jennifer Mathers McHenry to spring into action. You can see how that unfolds below.

Well that escalated quickly, as they say. But let’s examine this dialogue carefully.

We start with McHenry’s equating social science with actual science and arguing that not all opinions have equal validity. There are numerous flaws in that “logic”, but let’s just identify two: first, who gets to decide what is “valid”? We’re not talking about a falsifiable scientific fact that can be proven, after all. You can’t run a DNA test to determine whether something or someone is racist or sexist.

Even scientific “facts” are simply the latest hypothesis which has not been disproven. The impact hypothesis (which postulated the sudden extinction of dinosaurs due to meteor impact) was ridiculed for years until being accepted as “fact”.

Second, even if someone has a different view of the “facts”, how does that make them prima facie unacceptable, offensive or unpalatable to work with in the context of a large organization like a law society? Is it really the case that everyone has to share your specific beliefs before you feel comfortable working with them? I could see this working well in a Trudeau government, but in most places where people are actually encouraged to think, this seems rather short-sighted. This was the sub-text of my original, un-answered question to Ms. Lewis.

But McHenry is either oblivious to the points I’m trying to make, or doesn’t care. I suspect it’s both. Because she quickly concludes that I am apparently a white supremacist and a misogynist. Why? Because I disagree with her. Obviously if I disagree with her on the “fact” of systemic discrimination, there simply is no other option: I must be a woman-hating racist.

I’m sure my wife will be surprised to hear that. Not to mention my mother, my sister, my co-workers, and other lawyers (both male and female) with whom I have a good working relationship.

I must be a woman-hating racist. I’m sure my wife will be surprised to hear that.

I attempt to point out to McHenry that I’m neither a racist nor a misogynist, but to no avail. She unpacks her straw man and proceeds to attack it with abandon. Apparently I now believe that “white dudes are naturally better” (pretty sure I didn’t say this). She also — regretfully — informs me that she hates to “throw labels on you”, but (and this is my favourite part) “that’s what those words mean and how words work”.

And there you have it, one of the most illogical twitter broadsides since the invention of both Twitter and illogic. Apparently McHenry believes she is my superior in scientific facts, words, and how words work. Thus endeth the lesson.

In fairness, I must confess I did not take “how words work” in Law School. I tended towards the core studies like contracts and torts. But fair enough, I will take McHenry’s admonition to heart and google “words and how they work” at my next opportunity. Alas, I will not consult Twitter. I don’t think it would help.

In fairness, I must confess I did not take “how words work” in Law School. I tended towards the core studies like contracts and torts.

There are serious points to be made here, however.

The first is that ideology is no replacement for thought. My initial tweet was a real attempt to understand why a difference of opinion between individuals should be a barrier to working together. If social justice advocates really want to effect positive change, they should be focusing on engagement, not censure.

The second is that name calling is the least persuasive strategy one can pursue. Did McHenry honestly think that by implying I was a racist she could convince me to agree with her? This is a common backfire effect from the Left: they just can’t help calling other people names. You must either agree with them entirely, or be branded a racist, a sexist, a homophobe — whatever the epithet of the day may be. In 2016 I didn’t understand how a buffoon like Trump could possibly be elected. But I understand it now.

Lastly, I think Twitter should be renamed “Mixed Feelings”, because I don’t know anyone on Twitter who doesn’t have mixed feelings about the platform. It’s equal parts cesspool and electronic brain-trust. In the long run I expect many will tire of the casual abuse by those with little to say other than repeat tribal mantras. For Twitter, as with most social media, curation is the name of the game.

Social media is the ultimate car window: a thin pane of glass that emboldens us to insult strangers. But unlike shouting at other drivers who may or may not be able to hear us, social media records and amplifies our messages, perhaps in ways we didn’t intend or did not foresee. And as soon as your message is sent or posted, you may not like the ultimate result.

Ultimately, that is how words work.

Case comment Funny or absurd Law

Funny, Not Funny

The Quebec Court of Appeal decides that hurt feelings are now a human right

Mike Ward, seen here wondering why judges seem to hate him

Hot on the heels of BC’s Jessica Yaniv case, another instance of human rights abuse — that is, the use of human rights legislation to punish others — comes to us courtesy of the Quebec Court of Appeal. In Ward v. Human Rights Commission released November 28, 2019, two of three appeal judges upheld a human rights commission award against the comedian for $35,000 for “moral and punitive damages”, to be paid to Jeremy Gabriel, who suffers from congenital conditions which cause facial deformities and will likely limit his lifespan.

Gabriel became something of a running joke in Ward’s comedy act, with Ward referring to Gabriel’s condition and joking that since Gabriel did not appear to be dying after all, Ward had tried to drown him. Tasteless? Maybe. Offensive? Possibly. But the jokes became the subject of serious legal analysis when Gabriel (and his mother) brought a complaint against Ward in the Quebec Human Rights Commission, where both were awarded money for compensatory and punitive damages totalling $35,000 for Gabriel and $7,000 for his mother. 

On appeal the QCA reversed the award to Gabriel’s mother, but upheld the award to Gabriel on the basis that Ward’s jokes had compromised Gabriel’s dignity. The majority, while noting the importance of freedom of expression, found that artistic freedom is limited — and that limit is apparently exceeded when one individual is offended by your jokes.

It’s important to note that the Province of Quebec sometimes departs from conventional Classical Liberal traditions that inform English, Canadian, US and Australian common-law. As a predominantly French-speaking Province within Canada with a chip on its shoulder the size of Newfoundland, Quebec identifies more with the principles of the French Revolution (Liberty, Equality, Fraternity) rather than John Stuart Mill and the commitment to freedom of speech as expressed in On Liberty. The result are important differences in the way human rights are recognized and enforced. In the Ward case, the QCA was considering the balancing of interests between human rights and freedom of speech as contained in Quebec’s Charter of Human Rights. That Charter (unlike Canada’s Charter of Rights and Freedoms) lists familiar grounds of discrimination as one would see in provincial human rights legislation, but includes protection against an individual having any distinction drawn which has the effect of jeopardizing one’s right to full equality and the recognition of one’s right to dignity, honour and reputation.

In other words, the Quebec Charter protects not only protected groups from actual discrimination, but from commentary which draws attention to any physical or other difference that person may have and which hurts that person’s feelings.

I’m simplifying the analysis somewhat, but not by much. The real problem here is not that Ward made a joke at someone else’s expense. The problem is that he made a joke which referred to Gabriel’s medical condition, therefore bringing his comments within the scope of human rights legislation. Presumably, if Gabriel was completely healthy, but just a bad singer, Ward could have devoted his entire act to joking at Gabriel’s expense. And here is where we encounter the problem — human rights legislation certainly has its place in discouraging or punishing actual acts of discrimination against certain individuals. But when “discrimination” is equated with “offence”, we’re no longer protecting someone’s fundamental human rights — we’re protecting their feelings. 

Say goodbye to Juste pour Rire and say hello to Juste pour Silence

If the new standard in Quebec is that comedians (or anyone else) who speaks in public is required to determine whether anyone within listening range is a member of a protected group, and then ensure those individuals are not offended, say goodbye to Juste pour Rire and say hello to Juste pour Silence. Self-censorship rarely leads to a good comedy bit.

With a lengthy dissenting judgment on his side, Ward has a good argument to convince the Supreme Court of Canada to take up this case. My guess is that the SCC will grant leave. In the meantime, the QCA has set a precedent that should worry everyone who cares about comedy — or free speech.


Funny or absurd Law

Where did the Human Rights Code go wrong?

Well that’s not too hard to identify, actually.

Jessica Yaniv

In August 2016, the B.C. government amended the Human Rights Code to add “gender identity or expression” to all aspects of the Code.

This was a significant departure. Prior to that time, these were the enumerated groups protected from human rights violations:

“race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation”

Okay, so what’s the difference? Well, these “protected grounds” were developed and recognized over time and they are, for the most part, immutable and objective characteristics of people going about their daily lives. Most of us can agree that it’s unfair to deprive a single mother of an apartment because you object to single mothers. And you’re either a single mother or you’re not. Same with race, colour, ancestry, place of origin, religion and the other protected grounds.

But what if the government had framed these protected grounds as subjective beliefs, untethered from objective reality? In other words, what if you believed yourself to be Jamaican when in fact you were Irish? What if you never went to church but just felt Catholic?

Pope Francis, Catholic

There’s the problem: once you define a human right or a protected group based on a subjective belief unconstrained by objective reality, biology, or fact, you are essentially opening the doors to everyone with a subjective view of their own reality. You must not only accept that reality, but the government can force you to act in a certain way based on another person’s subjective belief, no matter how absurd.

In the case of Yaniv, this led to five days of hearings, a 60-page judgment, and untold thousands of taxpayer dollars to entertain a complaint which the Tribunal member found to be not only without merit, but essentially in bad faith:

Taken together, the factors which I have identified above persuade me that Ms. Yaniv’s overriding purpose was to manufacture the conditions for human
rights complaints against unsophisticated and vulnerable respondents, in order to secure a financial settlement and punish individuals involved. In a majority of her cases, she also had the added motivation of punishing racialized and immigrant women whom she stereotypes as hostile to the interests of the LGBTQ+ community. Far from advancing the cause of LGBTQ+
people, Ms. Yaniv’s conduct would, if condoned, threaten this Tribunal’s integrity and its mission to foster an equitable, tolerant, and respectful society: Code, s. 3.

Apart from the introduction of a subjective metric for determining whether you are or are not a member of a “protected class” of persons, however, one can legitimately question whether the entire superstructure of human rights legislation has simply become a free-to-play kangaroo court for crackpots and lunatics, with the studious, taxpayer-funded bureaucracy happy to have some grist for the mill.

Take the case of Emotions Paradise Universe v. Burnaby General Hospital 2019 BCHRT 10 for instance.

Mr. Emotions Paradise Universe (birth name Osama Al Salami, and no, I’m not making either of these names up) complained that Burnaby Hospital discriminated against him on the basis of his race (Arabic) and his religion (Islam) after he checked into Emergency with back pain. All of this was denied by the hospital. In support of his allegations, the Tribunal member noted the following:

I pause to note that the Complainant’s submissions are often difficult to follow, unnecessarily long and repetitive (his response to the application to dismiss is 268 pages together with a four‐inch binder of affidavits, articles and a CD containing case authorities). I am confident that I have understood the gist of his submissions.

The Tribunal member proceeded to hear the evidence of various nurses and paramedics to the effect that Mr. Universe threatened to kill various hospital employees by chopping them into pieces. He was eventually arrested by RCMP and placed into a temporary psychiatric lockdown under the Mental Health Act, and having charges brought then stayed by the Crown.

The complaint was dismissed, but at tremendous cost in time, effort and (taxpayer) money. In summary, Mr. Universe managed to engage at least six different government agencies in this one incident — the hospital, the paramedics, the RCMP, the mental health system, the Crown prosecution service, and the human rights tribunal.

Human rights legislation has its place. But a barrier-free entry to a public tribunal system on the basis of subjective complaints destroys public confidence in such a system. And when a legitimate complaint arises, this broken system will almost certainly be too broken to serve its intended purpose.