Follow Up Connections: Human Rights, Science, and Literature

As this blog is about connecting ideas, this follow up post will do just that: provide some interesting connections between human rights, science, and literature.

As discussed yesterday, International Human Rights Day, celebrated yearly on December 10, recognizes the anniversary of the most influential human rights document: the Universal Declaration of Human Rights. For more on this, read yesterday's posting here.

December 10, is also the day in which the Nobel Prize Laureates receive their Prize in a ceremony fraught with history and solemnity. This year, the Nobel Peace Prize recipients are three courageous women: Ellen Johnson Sirleaf, Leymah Gbowee, Tawakkol Karmen. According to the Nobel Committee, these three women won "for their non-violent struggle for the safety of women and for women’s rights to full participation in peace-building work". How apt these women received this prize on International Human Rights Day. Their inspiring lectures are a constant reminder that the struggle for human rights is ongoing, even though the Universal Decleration of Human Rights has been enacted for 63 years.

Yesterday was also exceptional for the lunar eclipse seen throughout many parts of the world. Historically, both solar and lunar eclipses, as an omen of fate, stopped wars, or, as in the case of the Peloponnesian War, changed the course of history. Thus, the lunar eclipse as a harbinger of peace, is a meaningful event on a day we celebrate human dignity.

Finally, December 10 was the birth date of a poet, who understood the power of words to express love and hate. Emily Dickinson was a shy and retiring poet, who wrote astoundingly simple yet breathtakingly beautiful poetry. In her 8 line poem from Part One: Life, Emily reminds us where our priorities lie:

I HAD no time to hate, because
The grave would hinder me,
And life was not so ample I
Could finish enmity.
Nor had I time to love; but since
Some industry must be,
The little toil of love, I thought,
Was large enough for me.

Blog Update: The Limits Of Expression

In the November 19 blog entitled A Message Of Tolerance, I discussed the most recent decision by Alberta Provincial Court Judge Bascom to quash a University of Calgary trespass notice against William Whatcott for handing out anti-gay literature on campus. This case is an intersection of two current controversies surrounding freedom of expression: expression on campus and hate speech. 

Although wilfully promoting hatred under s. 319 of the Criminal Code infringes s.2(b) freedom of expression rights under the Charter, it is a justifiable infringement under s.1. In both the Keegstra case and the Zundel case, the Supreme Court of Canada recognized the expressive content of hate speech, albeit repugnant. It is under the s.1 analysis, wherein the Court determines if limiting the expression in a particular instance is justified, where the balancing of expression against Charter values of multiculturalism, equality, and human dignity occur. In this context, expression can and has been limited, particularly where such expression reaches criminal proportions.

However, it is in the non-criminal arena of human rights codes where the line between protection and limitation is not clearly drawn. Criminal hate offences require proof of a high level of subjective mens rea or fault element. Hate speech violations under the human rights codes do not require such a high level of intent, which is at the core of the issue in the other Whatcott case, now under reserve at the Supreme Court of Canada.

Similarly, the Boission v. Lund case, set to be heard at the Alberta Court of Appeal on December 7, raises the spectre of hate speech and limits to expression. There too the extent to which non-criminal hate speech can be restricted by human rights codes will be considered.

The other issue of interest, freedom of expression on campus, I have discussed in two previous postings: the November 8 blog on The Pridgen Case and Freedom Of Expression On Campus and the November 9 blog on Freedom of Expression in the Classroom. The Alberta Court of Appeal has reserved decision on the Pridgen case.

However, the ability of a University to restrict free expression, no matter how ugly, is a current issue, with Campus Pro-Life groups across Canada fighting against university prohibitions of their graphic anti-abortion campaigns. Currently, the Calgary group has a judicial review pending in the Alberta Queens Bench as of April 2011. Calgary, Carleton, Victoria and Guelph have all banned the clubs on campus.

Even university marching bands are not immune as the Queen's University marching band's explicitly discriminatory material against women has resulted in a suspension of the band's activities.

Although the intersection of expression and intolerance is not surprising, what is of interest is the locus operandi or the commonality of place, of this intersection: the university campus. As a result, how the Courts will determine expression limits on campus has just become even more complex.

FYI: Three Updates For A Sunday

Below are three updates of issues discussed over the past thirty days:

1. October 11: Is "Innocent Nudity" Expression? My follow-up blog referred to the case of Gwen Jacobs, who was charged with an indecent act under s.173 of the Criminal Code for appearing topless in downtown Guelph on a hot summer day. She was later acquitted by the Ontario Court of Appeal on the basis that her act was not committed in a sexual context, which was a required element of the offence. At the time, she was hailed as a fearless advocate for the rights movement. Today Gwen is still an activist and on Friday she appeared with her daughter at Occupy Toronto to lend her support. For those wondering, yes, she did have her shirt on - it was cold out! However, thanks to Gwen, breastfeeding at that public event or really anywhere now is acceptable.

2. October 18: Wristbands Are In Effect: The "Keep A Breast" Campaign. Doing a quick Google search reveals this story has received a lot of attention. Commentators on websites, journalists, and bloggers alike all seem to be against the ban. Some comments even set the campaign side by side with Movember, the prostate cancer "grow a moustache" fundraiser. One online article is particularly moving as it reveals some girls wear the wristbands in honour of a loved one who had breast cancer. This becomes particularly meaningful considering, on average, 64 Canadian women a day are diagnosed with breast cancer and 14 women are dying daily of the disease. If you are unable to find the wristbands for purchase, you can go here to post a virtual wristband on your Facebook page or Twitter account.

3. October 21: Where The Wild Things Are. In this post on animal rights issues, I mention Lucy the Elephant in the Edmonton Zoo and the fight for her release. The matter is currently before the Supreme Court of Canada. But what of Lucy and her plight? Recently, the City of Edmonton has decided to take steps to winterize Lucy's enclosure at the zoo. Why now after Lucy has already spent umpteen winters in the Northern Alberta City? The move is after recommendations from a "third party specialist" who examined her. Although the renovation is welcomed by animal rights groups such as PETA, who are involved in advocating for Lucy's release, the gesture does not go far enough over fears she will not survive the harsh winter. As of November 7, both parties to the SCC action have filed their arguments at the Court. It is now a race against time but there is surprising evidence that Elephants can, in fact, run. Go Lucy go!

The Art and Science of Connections

While reviewing my posts, I began thinking of connections and how seemingly unconnected events can provide meaningful and sometimes surprising connections, which can then further enhance our understanding of the subject. Every Friday, I read Simon Fodden's Friday Fillip blog and yesterday he too was discussing connections in his Degrees Of Connections posting. As opposed to Steven Johnson's concept of mentally connecting ideas for innovation, Fodden offered a mechanical option through Wikipedia's Xefer site. This search engine, using Wikipedia articles, can connect any three words to come up with a search list of articles connecting those concepts through a visual "tree of knowledge."

I plugged in three concepts from my previous blogs, not obviously connected: inherit the wind, redemption, discrimination. The results are fascinating as Art and Science truly come together. 

Of course, this mechanical connecting encouraged a mental one and I started making connections between my blogs. Here is my first "six degrees of connections": October 12 Law, Literature, And Inherit The Wind to November 9 Freedom Of Expression In The Classroom to November 8 The Pridgen Case and Freedom Of Expression On Campus to October 18 Wristbands Are In Effect: The Keep A Breast Campaign to October 25 On The Road To The Supreme Court Of Canada to October 22 The Road Taken By The Supreme Court Of Canada which leads back to the October 12 blog. Whew.

How did they connect? I went from Inherit The Wind, the play involving the prosecution of Mr. Scopes, a teacher who taught evolution in the classroom which connects to freedom of speech in the classroom and the PEI case of Mr. Morin showing a controversial documentary in his grade 9 class which connects to freedom of expression by students on campus involving the Prigden case just heard before the Alberta Court of Appeal which connects to freedom of expression of students wearing breast cancer wristbands which connects to what cases have been heard before the Supreme Court of Canada and the Whatcott case involving freedom of expression issues intersecting with freedom of religion issues which connects to the case the SCC should hear on freedom to be free of religion in the classrooms as a result of Morinville, Alberta school and the Lord's Prayer which connects back to Inherit The Wind and the freedom to be free of religion.

How was that for a weekend brain twister? Try it and make either mechanical or mental connections. Who know where they might lead? 

Creating A Positive Out of A Negative

Today, we will journey from yesterday's Peace Camp to Victoria's Tent City and discuss the legal implications of protecting positive rights through the Charter.

Our Charter is generally a negative rights document protecting mostly civil and political rights. To protect these rights, the government is required to refrain from action, essentially to leave us, the right-holders, alone to enjoy rights such as freedom of religion (s.2(a)) and freedom of expression (s.2(a)).

The idea of positive rights in the human rights context is more problematic. These rights require the government to take action, to fulfill our entitlement to rights. They are typically socio-economic in nature and cover a wide array of social welfare issues such as the right to education or the right to health care. 

Traditionally, our Courts have been reluctant to find positive rights protection in the Charter : this would require the non-elected judiciary to step into the political fray by creating public policy. Despite this cautious approach, as Dylan would say (that's Bob, not Thomas), "the times they are a changin'." An example of this judicial trend into the positive rights arena, is the Supreme Court of Canada decision in the Chaouilli case, where Quebec legislation limiting timely access to health care was found to violate s.7 rights under the Charter.

Recently, further forays into the positive rights territory has produced interesting results. The 2009 Adams case, a particularly unique case from the British Columbia Court of Appeal (BCCA), highlights the lengths the Court will go to protect basic human rights, such as shelter. At the time of Adams, the City of Victoria was experiencing a severe shortage of shelter beds for the City's numerous homeless, resulting in a Tent City erected in a local public park. The Tent City housed 70 homeless people by the time the City of Victoria started legal steps to evict the people through the authority of the municipal bylaw. 

In a bold decision, the BCCA found the bylaw was overly broad and deprived the homeless people of their right to life, liberty and security of the person under s. 7 of the Charter by prohibiting the assembly of temporary overnight shelters by the homeless, who had no alternative accommodations. To require them to leave would negatively impact their personal integrity and diminish greatly their human dignity and self-worth.

As a result, the Court crafted a highly ingenious and singular remedy declaring the legislation inoperative when the number of homeless people exceeded the number of shelter beds available. The Court was sending a clear message to the City of Victoria: provide or accept the consequences.

The interesting aspect of this positive rights movement is how grounded it is in the basic minimal needs one requires in order to live; water, food, and shelter. And yet considering the origins, why is this such a unique foray? If indeed these rights are so basic, why are they not already "covered" by the Charter?

Perhaps the answer lies at the beginning of this post; with the meaning of positive rights. The government must act to fulfill these basic rights, which means big government spending big money. Not such a popular notion in a weakened economy. Another reason may be more subtle and may be found in the historical framework of our liberal democracy itself as epitomized by the laissez-faire or "hands off" government policies of the economist Adam Smith.

For whatever reason, it is clear the Courts have become more positive about our rights, which proves a positive can be created out of a negative.