If you’ve been reading this blog for a while, you may have noticed that it’s basically become, well, all me.

That was never the intent. I’m not THE social justice librarian, I’m just A social justice librarian.

I’d prefer that this blog have multiple voices, with different perspectives and interests. However, my former partners in crime have moved on to other adventures in their lives and aren’t sure if or when they’ll be back.

Which brings me to the question…do YOU want to write for the SJL blog? Are you a social justice librarian, archivist, or other information professional type?

Can you add coverage of topics I don’t discuss much? Or a perspective that is different from mine? Ideally (but not necessarily), you do something other than health librarianship and live somewhere other than Western Canada.

If you’re keen, drop me a line to discuss your interest. If it seems like a fit, I’d love to expand the author list here again.

-Greyson

I’ve been wanting to say something about the ICANN non-Latin script domain approval move for a bit now, but found myself unsure of what to say. “Yay,” seemed trite, and “It’s about time,” is just more of my usual snark.

I think it’s a no-brainer for people with any sence of global justice issues to agree that the US government should not be “running” or “ruling” the Internet. The details get a little hairy, but really, this is the Internet folks. The world wide web made possible approzimately a gazillion-and-eight things no one thought were possible before, so pretending that figuring out how to make right-to-left and left-to-right scripts play together is beyond all the world’s geeks today is rather silly.

Further, fretting that you might have to actually learn some multilingual skills just makes you look like an ignorant American, so please just stop embarrassing us both. (as I did grow up as an ignorant American and am now an only-slightly-less-ignorant Canadian-American trying to foster a considerably-less-ignorant next generation)

I’m optimistic about the (slightly) increased distance between the US government and ICANN. I’m really interested to see where this goes, and what kind of representation non-Eurpoean countries (besides Japan) end up getting.

Finally, if you missed it, Xeni from Boing Boing did a great brief interview on this topic (the ICANN non-Latin domain ruling) on the Rachel Maddow show, and I encourage you to watch it (and not just b/c Maddow is my smarter, slicker twin!). You can link to it from this boing boing post.

-Greyson

I have two blue travel mugs, both conference giveaways. One is from the NLM and the other is from the CHN.

The NLM mug stinks. I hate to say it, but it has never sealed tightly. It leaks soffee subtly down one’s front while you’re sitting in a meeting trying to be professional.

The CHN mug, on the other hand, is lovely. Simple, no handle to fall off or anything, the top is one of the best travel mug tops ever. No leaking, no whistling, nada.

Of course, the CHN was shut down a year and a half ago. And the NLM apparently god some extramural funding boost in Obama’s stimulus plan.

I’ve been searching for a metaphor for months now…did CHN pay attention to the wrong details? Is NLM somehow “leaky”?

I’ve come to the conclusion that there is no metaphor here. Sometimes, a mug is just a mug.

Now I can finally toss that lousy NLM mug and enjoy sipping from my CHN mug while I browse the new PubMed. *sigh*

-Greyson

And here it is.

I won’t have time to fully parse the policy decision till tonight, but my initial impression is that it’s a feeble gesture in the right direction (that being net neutrality), clad in nationalist bombast (“Canada is the first country to develop and implement a comprehensive approach to internet traffic management practices”).

At a glance, it seems that ISPs are still allowed to “traffic shape” but out and out throttling is discouraged unless the ISP feels it’s really necessary. Consumers are now supposed to be informed if their ISP is going to change traffic shaping practices, and consumers can complain, which will then possible trigger an investigation that will ask the ISP to explain what and why. There are also some new privacy guidelines for deep packet inspection.

So ISPs are still allowed to throttle, and to conduct deep packet inspection, but they have to jump through a few more hoops to do so now than they did before. There are also some new restrictions about wholesale ISP services, which I hope will help small ISPs remain competitive and viable.

Any other thoughts on the ruling would be very welcome.

Some initial coverage:

CBC coverage here (CBC’s been hot on the NN file since the throttling of Next Great Prime Mnister).
Excerpt:

“Big telecommunications companies such as Bell and Rogers can interfere with internet traffic only as a last resort, the CRTC says. Instead, they should use “economic measures” such as new investment and usage limits to combat congestion on their networks.”

Michael Geist’s take is here (Geist obviously knew some things I didn’t know about what was coming down the pipe on this one!  <–Unsurprising):

Impressively optimistic excerpt:

“The CRTC’s net neutrality (aka traffic management) decision is out and though it does not go as far as some advocates might hope, it unquestionably advances the ball forward on several important fronts…Today’s CRTC decision signifies that traffic management is not a free-for-all and the days of ISPs arguing that they can do whatever they please on their networks is over.  That said, it also guarantees that traffic management practices such as throttling will continue and it is going to take more complaints to concretely address the issue.”

More to come, after I’ve had a chance to read & digest more.

-Greyson

My province, British Columbia, is one of many jurisdictions currently in the process of implementing eHealth, which is basically a large scale, provincially-coordinated  implementation of the Electronic Medical Record (EMR).

And I’m gonna come out and say it: I’m a privacy advocate who is pretty much in favour of government-administrated EMRs.

(Of course, there is a catch…)

I work with health data. I mean, I don’t actually lay my own grubby librarian hands on most of it, but I work in a data-rich environment and with researchers who are analyzing lots of health system data. This stuff is highly privacy sensitive. There are parts of my office I’m not even allowed in without an escort, passing a security cam, and signing a log. And that is how it should be.

I sincerely appreciate the tension between

a) the researchers who want data access and linking in order to do good research and improve health and healthcare, and

b) data stewards and privacy officers who want to protect our privacy first and foremost.

Sometimes the privacy laws and regulations make it harder to do good research, but that’s part of the process.

For example: here, we’re not allowed to identify subpopulations with particularly diagnoses anymore, to survey them, because that’s considered invasive of their privacy. Fair enough – I wouldn’t necessarily want to be subject to lots of survey requests from people who somehow found out I had disease X. However, this also understandably makes it harder to research disease X, when we can’t just pull a representative sample (or all patients) to survey/study.

Both sides – the research/access and the privacy protection side – need good advocates in order to find the best (or at least an appropriate) balance. And I do believe in that balance.

It’s kind of like how in domestic violence shelters there’s often a staff member advocating for a mother who is in shelter, and another staff members advocating for the mother’s child. Usually what’s best for mum (the primary shelter client) is best for the whole family, and there’s no apparent need for the child’s advocate. But sometimes that’s not the case, and both mum and child deserve a strong advocate who is primarily concerned with their welfare, in order to strike a balance and find a solution that is in the best interest of most people.

I’m not a perfect privacy advocate.  I do not believe the government having any information on me is necessarily a bad thing. Sure, there are days when I dream of living off the grid and having babies who never get social insurance/social security numbers. Mostly, though, I think of myself as a realist whose goal is to help the government find an appropriate balance of privacy and data.

Why? Well, because I do have some faith in evidence based practice, despite the somewhat flawed way that medical evidence (the EBP “gold standard”) has been implemented. So I do want the government to have some data on me, because I certainly don’t trust private companies more than I do public institutions, and without data, there is no evidence.

So, when I think of EMR, I think first of the good that can come of it.

Yes, there is the clinical potential: possibly reducing adverse drug reactions/interactions, and the like. Yes, likely improving communication between docs working with the same patient. But beyond those (mostly unproven) claims of the potential of the EMR, the potential for research is phenomenal, really. Even the potential for a patient to finally have access to their own, fairly complete, medical records is pretty awesome.

THEN come the “buts”: the caveats, the necessary policies and procedures to ensure optimal stewardship of this type of linkable – and in some cases already linked – data.

I have to say, up front, that there is absolutely the risk of significant breach of privacy with EMRs.

BUT most of this risk already exists. We already carry electronic data. Several existing individual databases that will combine to form the EMR in this province are already personally identifiable and potentially incriminating. Take PharmaNet, for example. PharmaNet tracks every prescription dispensed in the province. It’s made possible some research in BC that hasn’t been done anywhere else (e.g., this cool stuff that some of my colleagues are doing). However, there is certainly a need for good data stewardship, as there’s a chockload of sensitive information in that database (and there have been some noted breaches – e.g. in this .doc from FIPA).

Combining multiple database may raise the ease of identification, and give more information, but what my real concern is isn’t the linking and interoperabilityof the datasets (because, really, if PharmaNet shows an AZT script, does anyone really need corroborating doctor records to out you as HIV+?), but the privacy and security policies and procedures of the data stewards. This is the same concern today as it will be once the EMR is implemented in my province.

So no, I don’t want to Opt Out. Call me deluded, but I want all health care professionals who treat me to have access to appropriate data on my health history. I want the ER staff, when I arrive on a stretcher the day a crazy drive finally plows into my bicycle, to know about my life-threatening medication allergies ASAP.

And I’m not alone. Heck, there are people who want an EMR badly enough that they are trusting companies like Google and Microsoft with their medical information! I certainly can’t claim to fully trust my government, but I’ll take the Ministry of Health over a publicly traded company any day, when it comes to my health care and private information!

HOWEVER, I do want a Real Dialogue and some transparency about the handling of the EMR, as well as other government data. Because while I’m not signing on the Opt Out bandwagon, I do think the concerns about:

• lack of government transparency,
• lack of a publicly-available privacy policy governing EMR data sharing,
• selection of a US based company managing/holding the information,
• and lack of clarity regarding who will have access to which modules/portions of the EMR

are very valid and legitimately alarming.

We have some pretty good models of data stewardship here. Let’s learn from them, and listen to our privacy advocates and commissioners, as we move toward the inevitable EMR.

-Greyson

Before you read this post, go here and read Mark Rabnett’s blog post, ““For academic librarians what’s hard to reach is time for research.”

I started leaving a comment there, but soon realised that my comment was likely to challenge the original post in length. Thus, I figured I’d just post a response here and link back. What follows is my more fullsome response to Mark’s post. Feel free to join the conversation either in comments below, or on your own blog, linking back.

Mark, since I first read this post, it has kept coming back to the front of my mind. Very timely.

As you probably know, I don’t have faculty status, in my unconventional, embedded-librarian job. Ironically one of my hesitations when I consider applying for other, more traditional academic library type positions, is that I know that in order to obtain faculty status I will likely lose the research time I currently enjoy.

You really hit the faculty-status-but-not-really-faculty nail on the head when you point to the conflicting expectations on academic librarians to keep specific hours, far beyond what other faculty are obliged to do, like office staff, yet also produce independent research (some types of which necessarily take one out of the office).

I’m sure the degree of autonomy varies greatly among libraries, and perhaps even among individuals at the same library system, of course. I wonder, though, how many academic librarians have as few time-bound duties as a typical “teaching” faculty member (i.e. regular office hours, regular class times, but beyond that whatever you need to get the job done goes).

I would add to your post a degree of despair at the quality and amount of actual research training and experience I have seen library school and library jobs naturally providing. If we are to be a more evidence-based profession, the quality of research training and mentorship really must improve. In my opinion, that – not more workplace policies to look over our shoulders – is what will improve librarians’ research.

I’m sure you are aware of this, but Manitoba’s policy of 12 “research days” seems generous compared with many university libraries. I recently asked a high-level administrator from a university library acclaimed for reinventing their librarian jobs where research fell in the scheme of things (since conducting research was not apparent in the new job descriptions). Said administrator told me that while it was a critical part of T&P, librarians’ research would typically be conducted outside a normal 40-hour work week. She likened this to academic faculty who are not limited to a 40 hour work week, but as you point out these academic faculty do not typically have a prescribed 40-hour week at all.

I know there are librarians who do not want strict requirements to do research, and do not think it’s necessary to conduct research in order to be a good academic librarian. My own experience has been that unless I do research, faculty certainly do not see me as a peer, and that collaborating on research has helped me create valuable relationships with faculty members.

As far as academic freedom is concerned, apparently this is not just a Canadian issue, as John Buschman has just published an article on this very topic – the watering down of academic freedom for academic librarians – in the AAUP’s “Academe Online: (link here – which I should say I only know about from a tip on the Library Juice Press blog).

-Greyson

“Fake” Journals

In late April, when the Scientist broke the “Merck/Elsevier fake journal” story, my initial reaction was cynical surprise that this story was getting so much attention.

Honestly, we see “fake” (i.e. sponsored) journals and “fake” (i.e. ghostwritten) articles all the time. Every week.

And that’s not even mentioning the articles that are “merely” subject to gigantic conflicts of interest (disclosed or undisclosed). This is so prevalent that I can’t even really bring myself to call this literature “fake” (without disclaimer quotation marks) because it’s out there, every day, not limited to one publisher/imprint or one (or six) journal(s), or one drug company.

In any given sub-field, it’s rarely that difficult to know which journals are “sponsored” by parties with vested interests, and which take an approach which is more classically considered to be “scholarly.”

So when Exerpta Medica claims, on their website:

“Does EM publish fake journals?
No. EM currently publishes scientific journals

…

Does EM publish sponsored journals?
Yes, one currently – Insulin”

They have a point. Is Insulin more egregious than many other sponsored journals out there? Perhaps, but perhaps it’s better, since at least now they are being transparent about the sponsorship.

I mean, anyone who knows much of anything about medical publishing will recognize Excerpta Medica for a propaganda machine. But they don’t really try to hide it (although parent company Elsevier cannot necessarily claim the same), stating right on their homepage:

“Excerpta Medica is a strategic medical communications agency. We partner with our clients in the pharmaceutical and biotech industries to educate the global health care community and enable them to make well informed decisions regarding treatment options.”

The role of librarians

Back to the “Elseveier fake journal” story, though…

When I looked at the scanned PDFs (here and here) of issues of the Australasian Journal of Bone and Joint Medicine, posted online by the Scientist, the question I asked myself, as a  health librarian, was:

Would I know, just by looking at this journal, that it was not “real”?

I felt relieved to be able to say “yes,” despite the lack of disclosures of a number of conflicts of interest, largely because of the “Honorary Editorial Board” listed in the front matter of the journal. Like every other librarian not at the State Library of New South Wales, I would never have subscribed to this virtually unheard-of journal that didn’t even have a real editorial board.

However, assuming I wouldn’t have this journal in my collection, it’s entirely possible that my researchers would request an article via ILL. Deprived of it’s context – as so much information is these days, from music tracks without album packaging to articles without journal front matter – would I have flagged one of these articles as “fake” and warned the patron who ordered it? Honestly, I would probably have passed it along without a thought to the matter.

This thought has been nagging at me all summer.

No, it’s not always a librarian’s job to give a critical appraisal of the info s/he’s passing along to researchers. When it is appropriate, however, we should be careful to do a good job. And in light of raised public awareness of “fake”/unethical medical publishing, perhaps this very type of critical appraisal is something we should be marketing.

CMAJ article

Fortunately the CMAJ just put out a nice little article based on interviews with several awesome Canadian health librarians, which highlights several things for all of us to keep in mind when assessing journals. It’s short; go read it.

If you can’t even spare the time to read a shirt article on the topic, here’s my list of things they identify as red flags for possible “fakeness” in journals:

Things you don’t need the journal in hand to assess:

• Not being indexed, anywhere
• Not having a journal website
• Not having an editorial board
• Not having submission instructions for authors
• Not having an ISSN
• Not having an impact factor (<- I don’t really agree with this one, particularly if you’re talking about non-US content, as many of our “real” Canadian journals are not ISI-indexed)

Things you can assess with a look at an article/journal:

• Are the researchers prominent people (<- I also quibble with this one, as ghostwriting often uses prominent individuals as “authors”)
• Do the same authors appear too frequently (how frequently is too much depends a bit on discipline, but it can get ridiculous)
• Are the article citations largely to the same journal, or to obscure websites

I think these items are a great beginning for a pamphlet or something to warn/educate researchers about “fake” journals…and maybe to market the skills of health librarians in cutting through the chaff of sponsored scientific publications to the actual scholarly kernels in the literature.

Anything else you would add to the above lists?

-Greyson

Jumping on the blogger bandwagon, I am posting the text of my copyright consultation submission here. Nothing much here that others haven’t said better already, but it seems like this type of public recording may be a good idea.

-Greyson

To Whom it May Concern,

Thank you for providing this special opportunity for Canadians to make our voices heard by our lawmakers. Please find below my responses to the questions posed on the Copyright eConsultation Website:

1. How do Canada’s copyright laws affect you? How should existing laws be modernized?

As a librarian, university instructor, researcher, writer, musician and parent to an avid young media consumer, copyright affects me in multiple ways, every day.

As a librarian I frequently instruct others on legal use and re-use of books, articles, music, video, and other media. One thing I notice all the time is how confusing and unclear copyright is to the average person. People need to be able to understand the basics of copyright; no one should need a law degree to understand if they are acting within the law while watching a video or photocopying a poem.

As a university instructor I experience the frustration of my students as they face long waits for inter-library loans that their friends at U.S. schools do not experience, and when they cannot access materials that would benefit their work. My students and I need to be able to access various types of media for educational use and re-use. Copyright law should encourage open dissemination of scholarly research and fair dealing for educational use of media.

As a researcher and writer I publish both scholarly and creative works. These works are very different in terms of my copyright needs as a creator, as my scholarly works benefit me not by paying me royalties for copies sold, but rather by raising my reputation and profile in the scholarly community; thus as a scholarly writer I aim for maximum dissemination, not maximum profit.

As a media consumer and parent to a burgeoning media consumer, I am wary of legal threats by large recording companies, and at the same time wary of wasting money purchasing media that will become obsolete or unusable at some point in the future (due to DRM/TPM/digital “locks” that restrict legal use of media). I am also quite concerned about threats to our family’s privacy that are inherent in some technological protection measure. I recoil in horror at the stories from the US about single mums, teens and college students being targeted by lawsuits brought by large media companies because of non-commercial online music sharing, and would hate to see Canada brought down this same ridiculous path.

2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

Copyright law should be based on strong basic principles, not complicated exceptions and loopholes. It should distinguish between commercial and non-commercial infringement, and promote legal re-use and re-mixing of Canadian material.

People accused of infringement should be presumed innocent until proven guilty, and third party companies such as Internet service providers (ISPs) should not be asked to enforce the law.

Strong fair dealing provisions protecting library/archive/educational use of media are crucial to preserving Canadian national heritage.

In order to encourage use and dissemination of Canadian resources, government publications should be public domain, not subject to restrictive Crown Copyright licenses.

Copyright law should acknowledge that people own a device or copy of media once they pay for it, and any legal use of that media/device is legal, regardless of the technology they use to play or read it.

Finally, in order to stand the test of time, copyright changes should remain technology neutral as much as possible  — For example: while a decade ago we used to exchange “mix CDs” with friends to share and promote our favourite music, today’s youth naturally and natively communicate via the Internet; our old-fashioned understanding of media use should not criminalise our children’s same use of materials using different technology. One element of this involves the “blank media levy” from the late 1990’s, which is inconsistently applied to today’s technologies and should either be expanded as the Canadian solution to dealing with right-to-copy or taken off the books all together.

3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

In order to best foster innovation and creativity in Canada, we should put public (government) publications into the hands of the people by publishing all Canadian government publications directly into the public domain (as in the US), rather than publishing them under Crown Copyright. Similarly, the Berne Convention standard term of life of the author plus 50 years is a sufficiently long copyright period to stimulate new creative works, while keeping them out of the public domain for longer (as some countries have chosen to so) inhibits creativity that can spring from derivative works.

Canada should broaden “fair dealing” to include parody and satire (as in the US), in order to encourage free expression.

Copyright law should allow all legal use of media, without laws specifically targeting DRM/TPM circumvention.  If someone is circumventing digital locks for criminal purposes, that criminal use is already illegal. Criminalizing DRM/TPM circumvention is akin to criminalizing physical lock-picking, even if the lock-picker is merely trying to enter their own house.

Canada should explicitly support a diversity of licensing options, to allow fine-tuning of rights management (I personally like to publish under Creative commons licenses, whenever possible) so creators can freely allow certain uses of their works.

4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?

Copyright law should maintain a “notice and notice” rather than “notice and takedown” (or 3-strikes) rule for potential copyright infringement. Putting ISPs in charge of policing users’ content not only changes the ISPs’ role, making them deal inappropriately with content rather than focusing on infrastructure, but also creates a hostile environment to creativity, innovation, and free expression, discouraging investment and competition in Canada.

Remaining technology-neutral, and basing policy on over-arching principles of copyright, encourages innovation, competition and investment. Specifying particular formats and technologies such as VHS, mp3, or PVRs in copyright law not only makes a law become obsolete very quickly in today’s world, it discourages future innovative use and development of these and other technologies.

Swift dissemination of information facilitates innovation, and encourages uptake and discovery of Canadian innovations in the marketplace. Supporting a diversity of licensing options to facilitate freer and more open communications and reuse of media, and putting government publications directly into the public domain, are ways to encourage openness and quick dissemination of innovations, supporting Canadian innovations.

5. What kinds of changes would best position Canada as a leader in the global, digital economy?

All of the above. To summarize, new Canadian Copyright law should maintain Canadian values and promote Canada as leader in the digital age by:

• Being comprehensible by “regular” people
• Limiting fines for non-commercial copyright infringement
• Being based on longstanding principles, not specific technologies
• Expanding “fair dealing” to include parody and satire, as well as strong educational/archival/library exemptions
• Eliminating Crown Copyright, making Canadian government publications public domain
• Avoiding anti-circumvention measures
• Avoiding “notice and takedown”/3-strikes measures, functioning rather with “notice-and-notice” provisions when infringement is alleged
• Supporting finely-tuned copyright options such as Creative Commons licenses, to allow creators to better manage their rights and encourage maximum legal reuse of media

Thank you for this opportunity to respond to these pressing questions via the Canadian Copyright e-Consultation, and for your consideration of all the responses.

(aka the blog post wherein I probably blow any and all future chances of working in government…)

Making the rounds of Canadian LIS (and presumably archives) listservs today has been Librarian and Archivist of Canada Dr. Daniel Caron’s “Message from the Librarian and Archivist of Canada: Modernization.”

As far as messages go, it’s kind of an odd one.

The message begins by promising to share the course for LAC he has charted, and ends by saying LAC should do what it was set up to do. Truly radical. Maybe some of this makes more sense to people with more inside knowledge of LAC? To me it sounds rather like the teacher from the Peanuts cartoons. (“Wa wah wa wa…”)

On my first skim through I was numbed by all the vague references to generally-unspecified issues, challenges, harmonizing and togetherness. The “today is the tomorrow you worried about yesterday” business in the middle was somewhat amusing, and the reiteration of LAC’s mandate (repeat after me: acquire, preserve, access; lather, rinse, repeat) and praise for LAC’s “brilliant past” were a nice acknowledgment.

On my second read through I realized that Dr Caron must be reeeally worried about LAC being seen as “relevant.” I mean, he mentions this concern no fewer than 4 times in the 9 paragraphs (which is, incidentally, the same amount of times he used the word “library” in the message):

1.      “Today, digital technology has radically changed our practices and expectations and, to remain relevant, we will need to tackle the issues, communicate and collaborate more than ever before with others who share our goals.” (para 1)

2.      “Our relevance in the medium and long term is also called into question in this new environment.” (para 3)

3.      “How do we remain relevant in an increasingly fragmented and to a certain extent uncontrollable environment?” (para 5)

4.      “…our relevance depends on our ability to implement the best work procedures and marshal the most effective and efficient combinations of available expertise.” (para 8 )

(all above emphasis mine)

What’s weird is that exactly the things he seems to see as threatening LAC’s relevance (digitization, preservation challenges, information overload, social media…) are the exact things that I see as making the case for the relevance of information professionals.

Nu? This is really the man in charge of our national library & archives?

I accept that I am of a different generation, cultural background, and academic discipline than Dr. Caron. I, for example, don’t feel “condemned to live in both worlds, analogue and digital, at the same time,” (<-emphasis mine; and I would say something more like privileged to live at this time of straddling the aforementioned worlds); nor do I feel especially burdened by the “daily challenges” of unspecified “social transformations” (unless by that he means corporate globalization? I do feel kind of daily challenged by neocolonialism, come to think of it…).

However, I do know a fair number of librarians and archivists from backgrounds pretty different from my own, and when they send me messages, I generally feel like I have a decent clue what they’re trying to communicate.

This, well, what can I say? It’s a totally weird message. Maybe Caron’s trying to prove that he really does get libraries and archives,  while just totally missing the mark?

…or at least that’s what I’d like to think, since the alternative would seem to be that he’s basically paving the road for privatization of LAC…

-Greyson

There’s been lots of press coverage this morning of a fairly confusing issue: The Canadian Human Right Tribunal has ruled that Section 13 of the Canadian Human Rights Act is unconstitutional, as it contravenes Section 2(b) of the Canadian Charter of Rights and Freedoms.

What does this mean?

Good question. In short, it means that the CHRT has declared that the Canadian Human Rights Commission can’t penalize people for hate speech, because that conflicts with the fundamental right to freedom of expression enshrined in the charter.

Now, since the CHRT doesn’t in and of itself have the power to strike down a federal law, I’m not exactly sure what this means in terms of the future of Sec 13 of CHRA.

Parliament, I believe, would have to change the law, and this (basically allowing hatemongers their right to spew hate) doesn’t seem like a really popular vote-winning issue in my mind. However, it does seem to indicate that any future prosecutions under Sec 13 are pretty much going nowhere. I’ll keep my eyes open for more informed analysis as they roll out in the coming day and beyond. (If you’ve got one, leave a comment with a link!)

This ruling came out of the ongoing legal wrangle between Richard Warman and Marc Lemire. Lemire is a white supremicist who has written a lot of really disgusting stuff and was extensively involved with the neo-Nazo group Heritage Front. Warman is a lawyer from Ottawa who has filed a whole lot of human rights complaints, often against hate groups who have published hate speech on their websites. And he wins, almost always. Warman has been incredibly successful in winning human rights rulings, with financial penalties attached, against Internet hate sites. Warman has also sued a bunch of people and organizations, ranging from David Icke (the lizard conspiracy book dude) to  a provincial library association (see para 23 in this article), for libel and/or defamation of character.

Suffice to say these are both polarizing characters here.

Anyway, Warman complained that Lemire has posted stuff that was “likely to expose identifiable groups to hatred or comtempt” and Lemire countered by challenging the law itself, and the upshot is that the trubunal decided that the law isn’t working the way it was intended anway (has become punitive rather then preventative, as it was apparently intended to be). So even on the one count on which he found in favour of Warman, tribunal chair Athanasios Hadjis did not levy fines.

My thoughts:

I have been fascinated with Canadian laws and legal record related to freedom of expression since I had the fortune to take Ann Curry’s class on intellectual freedom some years ago.

Unlike the US Government, with which I am more familiar due to having grown up south of the border, the Canadian govenment does not hold Freedom of Speech as quite so strong a core value (not that Free Speech is inalienable right in the US either). Canada also tends to be more paternalistic in approach, which has led to some odd case law (see R. v Butler, a somewhat misguided effort to protect women against the oppression of pornography, for example).

In general, I do subscribe to the idea that speech is speech, writing is words, and these are somehow different from actions. There is a grey area in there, though. When do words become actions? I used to work in domestic violence — when do words become abuse, for example?  How can we provide law courts with effective guidance on this? I have written before on the Westboro Baptist Church. When are their homophobic and racist rallies merely speech and what would it take to cross over into inciting a riot or other violence?

These are tough questions, and I find it quite interesting and challenging to consider things that are particularly abhorrent to me, for example holocaust denial, and think about whether I can maintain my free speech convictions in the face of that.

For me, a test of whether something is too restrictive of expression, is whether it seems too restrictive when I apply it to an issue I feel strongly the other way about.

For example, I argued that homophobic demonstrators should not be turned away at the Canadian border because god-hates-fags signs are visible in their car, because I would not want gay rights demonstrators heading to California to protest Prop 8 turned back at the American border because of their pro-gay-marriage signs.

Yeah, from some perspectives one of these is about hate and another about love, or one is about curtailing rights and another about expanding rights, but perspective is not universal. And I certainly cannot assume all lawmakers and border guards do or will share my perspective. It’s hard to think of one, but I’m sure there’s a way, now or in the future, that Internet sites I believe in could be charged as hate-promoting.

Back to Sec 13 of the Canadian Human Right Act, and the Tribunal’s decision that it’s unconstitutional. Is this a good ruling? I think so. Will it “stick”? I don’t know. It seems unlikely that parliament would repeal it. It seems unlikely that the Tribunal will enforce it? It also seems unlikely to me that Warman will just let it lie in limbo for too long. There is an “out,” an escape route of sorts, in the fact that there is criminal code (sec 318 & 319) that also outlaws hate propaganda, making the human rights code sec 13 somewhat redundant (although I think the barriers to criminal code prosecution may be higher). Maybe the politicians will be able to “eliminate redundancies” by removing sec 13(1) without looking like neo-nazi supporters?  Twill be interesting to see in the days to come…

-Greyson