Steve Karmazenuk: From the Mouths of My Cannons

Category: Writing About Writing

  • Section 2(b) – Freedom of expression

    I have studied this section of the Canadian Charter of Rights and Freedoms since I began writing.

    Posting about my situation in the face of the Quebec Youth Protection machine, this is the only venue available to me to discuss my truth; the truth the DPJ and the Family courts so conveniently ignore: that I was abused, that my ex-wife took advantage of the DPJ to help complete her long-standing goal of cutting me off from my children altogether.

    No court order will prevent me from speaking my truth on this, my private website. I am a Canadian content creator, this website is the primary venue for my content, which is a personal reportage and public diary of what I have suffered and survived.

    It is the only place, the one and only place, where people can hear my side of the story. As such, no court order, no judge, no one will keep me silent, anymore

    I will go to jail to protect my Freedom of Expression as guaranteed under Canadian Charter law.

    And here is the text that I will use to say as much:

    Section 2(b) – Freedom of expression

    Provision

    2. Everyone has the following fundamental freedoms:

    • freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

    Similar provisions

    Similar provisions may be found in the following Canadian laws and international instruments binding on Canada: sections 1(d) and (f) of the Canadian Bill of Rights; article 19 of the International Covenant on Civil and Political Rights; article 13 of the Convention on the Rights of the Child; article 5(d)(viii) of the Convention on the Elimination of All Forms of Racial Discrimination; article 21 of the Convention on the Rights of Persons with Disabilities; article IV of the American Declaration of the Rights and Duties of Man

    See also the following international, regional and comparative law instruments that are not binding on Canada but include similar provisions: article 19 of the Universal Declaration of Human Rights; article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; article 13 of the American Convention on Human Rights; the First Amendment of the American Constitution.

    Purpose

    The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression (Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 at page 976; Ford v. Quebec, [1988] 2 S.C.R. 712 at pages 765-766)

    The Supreme Court of Canada has maintained that the connection between freedom of expression and the political process is “perhaps the linchpin” of section 2(b) protection (R. v. Keegstra, [1990] 3 S.C.R. 697; Thomson Newspapers Co. v. Canada (A.G.), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827). Free expression is valued above all as being instrumental to democratic governance. The two other rationales for protecting freedom of expression — encouraging the search for truth through the open exchange of ideas, and fostering individual self-actualization, thus directly engaging individual human dignity — are also key values that animate section 2(b) analysis.

    Analysis

    Canadian courts have interpreted section 2(b) very broadly, often finding a prima facie breach easily

    The Supreme Court has adopted the following three-part test for analyzing section 2(b): 1) Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?; 2) Does the method or location of this expression remove that protection?; and 3) If the expression is protected by section 2(b), does the government action in question infringe that protection, either in purpose or effect? (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 (“Canadian Broadcasting Corp.”); Montréal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; Irwin Toy Ltd., supra.)

    1. Does the activity in question have expressive content, thereby bringing it within section 2(b) protection?

    Expression protected by section 2(b) has been defined as “any activity or communication that conveys or attempts to convey meaning” (Thomson Newspapers Co., supra; Irwin Toy Ltd., supra). The courts have applied the principle of content neutrality in defining the scope of section 2(b), such that the content of expression, no matter how offensive, unpopular or disturbing, cannot deprive it of section 2(b) protection (Keegstra, supra). Being content-neutral, the Charter also protects the expression of both truths and falsehoods (Canada (Attorney General) v. JTI-Macdonald Corp., [2007] 2 S.C.R. 610 at paragraph 60; R. v. Zundel, [1992] 2 S.C.R. 731 at paragraph 36; R. v. Lucas, [1998] 1 S.C.R. 439 at paragraph 25)

    Freedom of expression includes more than the right to express beliefs and opinions. It protects both speakers and listeners (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326). “Expression” may include all phases of the communication, from maker or originator through supplier, distributor, retailer, renter or exhibitor to receiver, whether listener or viewer (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Irwin Toy Ltd., supra; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Videoflicks (1984), 14 D.L.R. (4th) 10).

    Protected expression has been found to include:

    • “music, art, dance, postering, physical movements, marching with banners, etc.” (Weisfeld v. Canada, [1995] 1 F.C. 68 (F.C.A.), CanLII – 1994 CanLII 9276 (FCA) at paragraph 30 (F.C.A.);
    • commercial advertising (R. v. Guignard, [2002] 1 S.C.R. 472; Ford, supra; Irwin Toy Ltd., supra; Rocket, supra; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; JTI-Macdonald Corp., supra);
    • posters on utility poles (Ramsden, supra);
    • peace camps (Weisfeld (F.C.A.), supra);
    • signs and billboards (Guignard, supra; Vann Niagara Ltd. v. Oakville (Town), [2003] 3 S.C.R. 158);
    • picketing (R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages, [2002] 1 S.C.R. 156; Dolphin Delivery Ltd. v. R.W.D.S.U. Local 580, [1986] 2 S.C.R. 573; B.C.G.E.U v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Dieleman v. Attorney General of Ontario (1994), 20 O.R. (3d) 229 (Ont. Gen. Div.); Morasse v. Nadeau-Dubois; 2016 SCC 44);
    • handing out leaflets (U.F.C.W, Local 1518 v. Kmart Canada Ltd., [1999] 2 S.C.R. 1083; Allsco Building Products Ltd. v. U.F.C.W. Local 1288 P, [1999] 2 S.C.R. 1136);
    • expressing oneself in the language of choice (Ford, supra);
    • hate speech (Keegstra, supra; R. v. Zundel, supra; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467; Ross v. New Brunswick School Board (No. 15), [1996] 1 S.C.R. 825; Taylor v. Canada (Human Rights Commission), [1990] 3 S.C.R. 892);
    • pornography (R. v. Butler, [1992] 1 S.C.R. 452; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120);
    • child pornography (Sharpe, supra; R v. Barabash, 2015 SCC 29);
    • communication for the purpose of prostitution (Reference re: section 193 and paragraph 195.1(1)(c) of the Criminal Code (Manitoba),[1990] 1 S.C.R. 1123);
    • noise being emitted by a loudspeaker from inside a club onto the street (Montréal (City), supra, at paragraph 58);
    • importation of literature or pictorial material (Little Sisters, supra);
    • defamatory libel (R. v. Lucas, supra at paragraph 25-27);
    • voting (Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6 at paragraph 41; Haig v. Canada, [1993] 2 S.C.R. 995);
    • running as a candidate for election (Baier v. Alberta, [2007] 2 S.C.R. 673);
    • spending in election and referendum campaigns (Harper, supra; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; B.C. Freedom of Information and Privacy Association v. British Columbia (Attorney General), 2017 SCC 6);
    • broadcasting of election results (R. v. Bryan, [2007] 1 S.C.R. 527);
    • engaging in work for a political party or candidate (Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69);
    • publication of polling information and opinion surveys (Thomson Newspapers Co., supra);
    • monetary contributions to a fund may constitute expression, for example, donations to a candidate or political party in the electoral context (Osborne, supra), though not where the expenditure of funds would be regarded as the expressive conduct of the union as a corporate entity (Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211) and
    • political advertising on public transit vehicles (Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, [2009] 2 S.C.R. 295 “GVTA”).

    Freedom of expression also protects the right not to express oneself. “[F]reedom of expression necessarily entails the right to say nothing or the right not to say certain things. Silence is in itself a form of expression which in some circumstances can express something more clearly than words could do” (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at page 1080). Thus, forced or compelled expression can constitute a restriction of section 2(b) (Slaight Communications, supra; RJR-MacDonald Inc., supra; National Bank of Canada v. Retail Clerks’ International Union, [1984] 1 S.C.R. 269). The Ontario Court of Appeal held that the requirement to recite an oath to the Queen at citizenship ceremonies does not infringe freedom of expression (McAteer v. Canada (Attorney General), 2014 ONCA 578, leave to appeal to the SCC denied 26 February 2015). Caution should be exercised when citing McAteer, supra, as this case seems to be inconsistent with the Supreme Court’s broad interpretation of section 2(b) of the Charter.

    A regulatory requirement to file information and reports may amount to a restriction on freedom of expression where failure to comply is backed by sanctions such as fines or imprisonment (Harper, supra, paragraphs 138-139). The act of complying with the law is not the same as being compelled to express support for the law (Rosen v. Ontario (Attorney General) 131 D.L.R. (4th) 708 (Ont. C.A.)). Similarly, the compelled payment of taxes to government for use in funding legislative initiatives (e.g., public subsidies to election candidates to cover their campaign expenses) does not necessarily imply an expression of support for those initiatives (MacKay v. Manitoba, [1989] 2 S.C.R. 357; Lavigne, supra).

    It is not necessary that an expression be received and subjectively understood for it to be protected expression under section 2(b) (Weisfeld (F.C.A.), supra; R. v. A.N. Koskolos Realty Ltd., (1995), 141 N.S.R. (2d) 309 (N.S.Prov.Ct.)).

    The physical sale of a non-expressive product (cigarettes) has been found not to be a form of expression (Rosen, (Ont. C.A.)). The yellow colouring of margarine has been found not to be a form of expression (UL Canada Inc. v. Quebec (Attorney General), [2005] 1 S.C.R. 143, at paragraph 1).

    2. Does the method or location of this expression remove that protection?

    The Supreme Court has stated that the method or location of the conveyance of a message will be excluded from 2(b) protection if this method or location conflicts with the values underlying the provision, namely: self-fulfillment, democratic discourse and truth finding (Canadian Broadcasting Corp., supra at paragraph 37; Montreal (City), supra at paragraph 72). In practice, however, this test is usually just applied to an analysis of the location of expression; the method of expression is generally considered to be within section 2(b) protection unless it takes the form of violence or threats of violence.

    (i) Method of expression

    Expression that takes the form of violence is not protected by the Charter (Irwin Toy Ltd., supra at pages 969-70). The Supreme Court has held that whether or not physical violence is expressive, it will not be protected by section 2(b) (Keegstra, supra; Zundel (1992), supra; Irwin Toy Ltd., supra). Threats of violence also fall outside the scope of section 2(b) protection (Greater Vancouver Transportation Authority, supra at paragraph 28; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraphs 107-108; R v Khawaja, 2012 SCC 69 at paragraph 70). In other respects, the form or medium used to convey a message is generally considered part and parcel of the message and included within section 2(b) protection (Weisfeld (F.C.A.), supra).

    (ii) Location of expression

    Section 2(b) protection does not extend to all places. Private property, for example, will fall outside the protected sphere of section 2(b) absent state-imposed limits on expression, since state action is necessary to implicate the Charter. Certain lower court cases have suggested that freedom of expression does not encompass the infringement of copyright. This finding is justified on the basis that freedom of expression does not encompass the freedom to use someone else’s private property (e.g., their copyrighted material) for the purposes of expression (see Compagnie générale des établissements Michelin v. C.A.W. Canada, [1997] 2 F.C. 306 (T.D.)). It should be noted, however, that this interpretation of 2(b) seems to be inconsistent with the Supreme Court’s broad interpretation of the provision.

    The application of section 2(b) is not automatic by the mere fact of government ownership of the place in question. There must be a further enquiry to determine if this is the type of public property which attracts section 2(b) protection (Montréal (City), supra, at paragraphs 62 and 71; Committee for the Commonwealth of Canada, supra). In Montréal (City), the majority of the Supreme Court set out the current test for the application of section 2(b) to public property (see also GVTA, supra). The onus of satisfying this test rests on the claimant (paragraph 73). The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which section 2(b) is intended to serve, namely (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:

    • The historical or actual function of the place; and
    • Whether other aspects of the place suggest that expression within it would undermine the values underlying free expression. (Montréal (City), paragraphs 73, 74).

    The Supreme Court has highlighted that the ultimate question is the second factor (Montréal (City) at paragraph 77). In Canadian Broadcasting Corp, supra, the court added that analysis of the second factor should focus on the essential expressive activity as opposed to the “excesses” that would be incidental to this activity. In that particular case, the essential expressive activity, a journalist’s ability to gather news at a courthouse to inform the public about court proceedings, was held to engage section 2(b), despite the incidental excesses of this expression (“…crowds, pushing and shoving, and pursuing possible subjects in order to interview, film or photograph them…”) (paragraphs 43, 45).

    Other relevant questions that that may guide the analysis of whether expression in a particular location is protected under 2(b) are: whether the space is one in which free expression has traditionally occurred; whether the space is in fact essentially private, despite being government-owned, or public; whether the function of the space is compatible with open public expression, or whether the activity is one that requires privacy and limited access; whether an open right to intrude and present one’s message by word or action would be consistent with what is done in the space, or whether it would hamper the activity (Montréal (City), paragraph 76). There is some flexibility in the analysis and allowing public expression in a particular government-property location does not commit the government to such use indefinitely (GVTA, paragraph 44).

    3. Does the law or government action at issue, in purpose or effect, restrict freedom of expression?

    (i) Purpose

    Where the purpose of a government action is to restrict the content of expression, to control access to a certain message, or to limit the ability of a person who attempts to convey a message to express themselves, that purpose will infringe section 2(b) (Irwin Toy Ltd., supra; Keegstra, supra).

    (ii) Effect

    Even if a purpose is compatible with section 2(b), an individual may be able to demonstrate that the effect of the government action infringes their section 2(b) right. In this situation, the individual must show that their expression advances one or more of the values underlying section 2(b), e.g., participation in social and political decision making, the search for truth and individual self-fulfillment (Irwin Toy Ltd., supra; Ramsden, supra). While more recent Supreme Court decisions still refer to this principle of showing the effect of government action, the Court does not appear to apply with a great deal of vigor the requirement that an individual show an advancement of values, tending instead to easily find a restriction of section 2(b).

    If a court concludes that the government action, in either purpose or effect, infringes section 2(b), it will then consider whether the limit on free expression is justifiable under section 1.

    Selected issues

    1. Section 2(b) – A requirement for positive government action?

    Freedom of expression generally imposes on government a negative obligation not to interfere with expression, that is to say it is freedom from government legislation or action suppressing an expressive activity in which people would otherwise be free to engage (Haig v. Canada, [1993] 2 S.C.R. 995 at page 1035; Baier v. Alberta, [2007] 2 S.C.R. 673 at paragraph 20; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34 at paragraph 16). “The traditional view, in colloquial terms, is that the freedom of expression contained in section 2(b) prohibits gags, but does not compel the distribution of megaphones” (Haig, supra at page 1035). In general, it is up to the government to determine which forms of expression are entitled to special support; where the government chooses to provide a platform for expression it must do so in a manner consistent with the Charter, including section 15 (Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Siemens, supra at paragraph 43; NWAC v. Canada, [1994] 3 S.C.R. 627).

    However, section 2(b) may, in certain circumstances, impose positive obligations on government to facilitate expression by legislating or otherwise acting to provide persons with a platform for expression (Baier v. Alberta, supra; Toronto (City), supra at paragraphs 17-19). To determine whether a claim is for a “positive right”, one must question whether the claim would require the government to act in order to support or enable an expressive activity, in contrast to a negative right that would require the government to refrain from restricting the content or meaning of expression or from acting in other ways (Baier, supra at paragraph 35; Toronto (City) at paragraph 20). A positive claim does not become a claim for a negative right where the government reduces access to a platform for expression to which the claimants previously had access (Baier, supra at paragraph 36; Toronto (City), supra at paragraph 19).

    A positive claim  will be determined pursuant to the “single core question” set out in Toronto (City) (supra at paragraph 25): “is the claim grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression?” In this context “a substantial interference with freedom of expression occurs where lack of access to a statutory platform has the effect of radically frustrating expression to such an extent that meaningful expression is ‘effectively preclude[d]’” (Toronto (City), supra at paragraph 27).

    2. Does section 2(b) protect a broader right of access to information?

    Section 2(b) guarantees freedom of expression, not access to information, and therefore does not guarantee access to all documents in government hands. Access to documents in government hands is constitutionally protected only where, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded (Ontario (Public Safety and Security) v. Criminal Lawyers’ Association (2010), 319 D.L.R. (4th) 385; 2010 SCC 23). Where a claimant demonstrates that the denial of access effectively precludes meaningful commentary, there is a prima facie case for the production of the documents in question (Criminal Lawyers Association, supra, at paragraphs 33, 37).

    However, even where a prima facie case is established, the section 2(b) claim may be defeated by countervailing considerations inconsistent with production (Criminal Lawyers Association at paragraphs 33, 38). These considerations include privileges, such as solicitor-client privilege and other well-established common-law privileges (Criminal Lawyers Association at paragraph 39). They also include “functional constraints” — e.g., assessment of whether a particular government function is incompatible with access to certain documents. Certain types of documents — such as Cabinet confidences — may remain exempt from disclosure because disclosure would impact the proper functioning of affected institutions (Criminal Lawyers Association at paragraph 40).

    3. The open court principle

    Section 2(b) protects the “open court principle”, a strong presumption in favour of open courts that allows the public and the press to attend hearings, to consult court files, and to inquire into and comment on the workings of the courts (Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21 at paragraphs 27-32; Sherman Estate v. Donovan, 2021 SCC 25). The open court principle is embedded in the common law tradition and is protected by section 2(b) because it promotes the full and fair discussion of public institutions, which is vital to any democracy (Sherman Estate, supra at paragraph 30; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3  at paragraph 53; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at paragraph 23; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at pages 1339-40; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. MacIntyre, [1982] 1 S.C.R. 175) In particular, open courts discourage mischief and ensure confidence in the administration of justice through transparency (Sherman Estate, supra at paragraphs 39, 44).

    The open court principle is also protected as appropriate under the right to a fair and public trial pursuant to section 7 and section 11(d).

    The open court principle protects the freedom of the press to access and report on court proceedings, since the press serves as “the eyes and ears” of the public (Sherman Estate, supra at paragraphs 1, 30, 39; Re Vancouver Sun, [2004] 2 S.C.R. 332 at paragraph 26). In exceptional circumstances, competing interests may justify restrictions on court openness (see below).

    The open court principle applies to all judicial proceedings, whatever their nature (Sherman Estate, supra at paragraph 44). This entails a presumption of access to both criminal and civil hearings, and also, for example, to pretrial proceedings (Re Vancouver Sun, supra at paragraph 27), probate proceedings (Sherman Estate, supra at paragraphs. 44-45), and court exhibits (Canadian Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65 at paragraph 12; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130). Court openness would be limited by, for example, sealing orders, publication bans, orders excluding the public from a hearing, or redaction orders (Sherman Estate, supra at paragraph 38).

    Legislative enactments that automatically limit court openness require justification under s. 1 of the Charter following the Oakes test (Toronto Star Newspapers Ltd. v. Canada, [2010] 1 S.C.R. 721 at paragraph 18). Some legislative limits have been found to be justifiable; for example, a mandatory publication ban on the evidence and representations made at bail hearings was justified because it helped to safeguard the right to a fair trial and to ensure expeditious bail hearings thus avoiding unnecessary detention (Toronto Star Newspapers Ltd., supra). Where the legislation gives the judge discretion whether to limit court openness, the legislation itself will be consistent with section 2(b) because it allows for a case-by-case balancing of interests analogous to the Oakes test (Sherman Estate, supra at paragraph 40; Toronto Star Newspapers Ltd., supra at paragraph 18).

    A person asking a court to exercise discretion in a way that limits court openness must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this risk because reasonably alternative measures will not prevent the risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. This test applies to all discretionary limits on court openness. (Sherman Estate, supra at paragraph 38; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522; R. v. Mentuck, [2001] 3 S.C.R. 442; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835.)

    For the first condition, the recognized scope of important public interests that may justify a discretionary exception to court openness has broadened over time (Sherman Estate, supra at paragraph 41) and includes trial fairness (Dagenais, supra at page 878), the proper administration of justice (Mentuck, supra at paragraph 32), the commercial interest of preserving confidential information (Sierra Club, supra at paragraph 55), and privacy (Sherman Estate, supra at paragraphs 46-85). Some loss of privacy is inevitable in open courts and may cause discomfort, embarrassment, or distress, which are insufficient to overcome the presumption of openness; the relevant public interest that may justify a discretionary exception to court openness is more specifically the personal dignity that is damaged by a loss of control over intimate or personal details (fundamental, or core information) and of one’s ability to present these aspects of oneself to others in a selective manner (Sherman Estate, supra at paragraphs 56-78). Whether court openness poses a serious risk to any important public interest depends on the facts in context and thus must be determined on the basis of evidence (Sherman Estate, supra at paragraph 42).

    The second condition in the test for discretionary limits on court openness—that the order be necessary—requires the court to consider whether there are alternatives to the order sought and to restrict the order as much as reasonably possible to prevent the serious risk to the important public interest (Sherman Estate, supra at paragraph 105; Sierra Club, supra at paragraph 57). The third condition—proportionality—requires the court to consider whether the benefits of any order that is necessary to prevent the serious risk outweighs the harmful effects of the order, including the negative impact on the open court principle (Sherman Estate, supra at paragraph 106; Sierra Club, supra at paragraph 53). For example, when balancing privacy interests against the open court principle, courts are to consider whether the information that the order seeks to protect is peripheral or central to the judicial process (Sherman Estate, supra at paragraph 106; A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 567 at paragraphs 28-29).

    4. Access to legislative proceedings

    Parliamentary privileges are constitutional and therefore a legislative assembly can regulate access to its proceedings pursuant to its privileges, even if doing so limits the freedom of the press to report on such proceedings (N.B. Broadcasting Co. v. Nova Scotia (Speaker of the House Assembly), [1993] 1 S.C.R. 319; Zundel v. Boudria, et al. (1999), 46 O.R. (3d) 410 (Ont. C.A.)).

    5. Journalistic immunity

    Section 2(b) does not protect all techniques of “news gathering”. Freedom of expression and freedom of the press do not encompass a broad immunity for journalists from either the production of physical evidence relevant to a criminal offence or against disclosure of confidential sources. Therefore, a judicial order to compel disclosure of a secret source would not in general limit section 2(b), whether in a criminal trial (R. v. National Post, supra at paragraphs 37-41) or in the context of civil litigation (Globe and Mail, supra at paragraphs 20-22). A qualified journalist-source privilege exists in the common law and a test that is informed by Charter values is used to determine the existence of privilege on a case by case basis (R. v. National Post, supra, paragraphs 50-55; Globe and Mail, supra at paragraphs 53-57). On an application for a production order against the media, the authorizing judge should apply to the facts of the case a specific analysis that balances the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news (R. v. Vice Media Canada Inc., 2018 SCC 53 at paragraph 82).

    6. Application of section 2(b) in private litigation

    While a private law case is not governed directly by the Charter, the evolution of the common law is to be informed and guided by Charter values (Grant v. Torstar Corp., [2009] 3 S.C.R. 640 at paragraph 44; Quan v. Cusson, [2009] 3 S.C.R. 712; Hill v. Church of Scientology of Toronto, supra at paragraph 97; WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420 at paragraph 2 re: defamation actions). Courts should, from time to time, re-evaluate the consistency of the common law with “evolving societal expectations through the lens of Charter values” (Grant v. Torstar Corp., supra at paragraph 46). The values underlying section 2(b) of the Charter have been the basis for recent changes to the common law of defamation, which created a new defence of “responsible communication on matters of public interest” (Grant v. Torstar Corp.; Quan v. Cusson).

    Section 2(b) does not create a privilege in journalists’ notes in the context of private litigation (Bank of B.C. v. Canada Broadcasting Corp. (1995), 126 D.L.R. (4th) 644 (B.C.C.A.)). Private broadcasters are not required to provide a forum for particular messages (NWAC, supra; Haig, supra; New Brunswick Broadcasting Co. v. CRTC, [1984] 2 F.C. 410 (F.C.A.), Trieger v. Canada Broadcasting Corp. (1988), 66 O.R. (2d) 273 (Ont. H.C.J, 1988 CanLII 4568 (ON SC)); Natural Law Party v. Canada Broadcasting Corp., [1994] 1 F.C. 580 (T.D.)). The CBC, at least in its role as an independent newscaster, is not subject to the Charter (Trieger, supra; Natural Law Party, supra). Where judges must implement Charter values in the exercise of their discretion in particular situations, it is not necessary that a party who argues how those Charter values should be applied give constitutional notice (Bank of B.C., supra).

    Although the Charter applies to the common law, and although judges should develop the common law in a manner consistent with Charter values (R.W.D.S.U. v. Pepsi-Cola, supra), section 2(b) will not protect persons engaged in private litigation where the limit on the freedom of expression is found in the common law (e.g., inducement to breach contract) and where there is no significant government action involved (Dolphin Delivery, supra; Hill, supra).

    7. Expression by public servants

    For public servants, freedom to express public criticism of government policies is restricted by a common law duty of loyalty to their employer (Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455 the leading case on this issue although it was technically not decided under section 2(b); see also Haydon et. al. v. Canada, [2001] 2 F.C. 82 (F.C.T.D.); Haydon v. Canada (Treasury Board), 2004 FC 749 at paragraph 43 (F.C.)). The purpose of the duty, to promote an impartial and effective public service, has been found to be a pressing and substantial objective (Haydon (2001), supra at paragraphs 69 to 75; Haydon (2004), supra at paragraph 45 (F.C.); Osborne, supra). The duty should restrict freedom of expression minimally and does not demand absolute silence from public servants (Osborne, supra; Haydon (2001), supra at paragraph 86). To ensure minimal impairment and proportionality between effect and objective, there is a need to balance the duty of loyalty and the value of freedom of expression (Fraser, supra; Haydon (2001), supra at paragraph 67; Haydon (2004), supra at paragraph 45;  Alberta Union of Provincial Employees (A.U.P.E.) v. Alberta, 2002 ABCA 202, 218 (4th) D.L.R. 16 at paragraph 29).

    Generally, it has been found that where an issue embraces matters of public concern, such as where the government engages in illegal acts, where government policies jeopardize the life, health or safety of others, or if the criticism has no impact on public servants’ ability to perform their duties effectively or on the public perception of that ability, the public interest outweighs the objective of an impartial and effective public service (Haydon (2001), supra at paragraphs 82-83; Haydon (2004), supra at paragraph 45; Stenhouse v. Canada (Attorney General), 2004 FC 375 (F.C.) at paragraph 32).

    8. Standard for interlocutory injunctions

    For the purposes of granting an interlocutory injunction in cases of defamation or hate speech, the courts will apply a different test than in Cyanamid (American Cyanamid Co. v. Ethicare Ltd., [1975] A.C. 396 (H.L), approved in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 at pages 128-129). The harm test in Cyanamid is inappropriate in this context (CHRC v. Canadian Liberty Net, [1998] 1 S.C.R. 626).

    9. Freedom of expression as a Charter value in discretionary administrative decision making

    Freedom of expression is also a “Charter value” and administrative decision makers must properly balance the relevant statutory objectives with this value when exercising their discretion under a statute. In Doré, the Supreme Court found that professional disciplinary bodies like the Barreau du Québec may have to tolerate a “degree of discordant criticism” of the judiciary because of the value of freedom of expression. However, the decision of the Barreau’s Disciplinary Council to reprimand Mr. Doré in this particular case was justified because of “the excessive degree of vituperation” in the tone of his letter to a judge. The Court held that civility requirements for lawyers must be balanced with the benefits of “open, and even forceful, criticism of our public institutions.” (Doré v. Barreau du Québec, [2012] 1 S.C.R. 395).

    Section 1 considerations particular to this section

    The broad scope of section 2(b) means that in most cases the constitutionality of the legislation or the government action will depend on the section 1 analysis. Generally speaking, because of the importance of the right to free expression, “any attempt to restrict the right must be subjected to the most careful scrutiny” (Sharpe, supra at paragraph 22). However, the “degree of constitutional protection may vary depending on the nature of the expression at issue…the low value of the expression may be more easily outweighed by the government objective” (Thomson Newspapers Co., supra at paragraph 91; JTI-Macdonald Corp., supra; Lucas, supra at paragraphs 116 and 121; Sharpe, supra at paragraph 181; Whatcott, supra at paragraphs 147-148; Butler, supra at page 150). For example, limits are easier to justify where the expressive activity only tenuously furthers section 2(b) values, such as in the case of hate speech, pornography or marketing of a harmful product (Keegstra, supra; Whatcott, supra; Rocket, supra; JTI-Macdonald Corp., supra). Limits on political speech will generally be the most difficult to justify (Thomson Newspapers Co., supra; Harper, supra). Restrictions will also be more difficult to justify where they capture expression that furthers artistic, scientific, educational or other useful social purposes (Butler, supra).

    Whether the limit minimally impairs the right to freedom of expression is often the deciding factor in section 2(b) cases. A total prohibition on a form of expression will be more difficult to justify than a partial prohibition (RJR-MacDonald Inc., supra; JTI-Macdonald Corp., supra; Ruby, supra; Thomson Newspapers Co., supra; Toronto Star Newspapers Ltd., supra). A restriction on expression backed by a civil penalty rather than a criminal sanction such as imprisonment will be considered a less impairing alternative (Zundel (1992), supra; Taylor, supra)

    Where the limit on freedom of expression is minimal, the court may, in certain circumstances like elections advertising, accept section 1 justifications for this limit based on logic and reason without supporting social science evidence (B.C. Freedom of Information, supra).

  • WRITING LESSON: A Starving Artist is ALWAYS Hungry

    WRITING LESSON: A Starving Artist is ALWAYS Hungry

    Hello, Acolytes and welcome back to another one of our irregular classes on How to Get an Indie Book Published (We’ve finally gotten a course title workshopped – goes in for market testing next week!)

    This week I teach you what I learned, this week, about cover art. Without further Ado, let’s jump in:

    The above block was written over two weeks ago. That’s just how hungry starving artists are. Allow me now to explain:

    If you are thinking about self-publishing (or Indie Publishing as it’s called now – and a better name it is,) which is probably the best way to go unless you have a nepotism entry into publishing.

    If you do have a nepo entry into publishing, fuck off; this guide on How to get an Indie Book Published (It cleared market testing and drop-testing before I got back to writing this post) is for Indie Writers: the anonymous many, who don’t use a journalism major as a slow-track into ghostwriting for Simon and Schuster’s author stable.

    Now, where was I? Oh yes: You know how I keep saying it’s about having a holistic presence on social media, and that it’s all who you know? Nepos already know who they need to; the rest of us have to try and get over our crippling social anxiety and go out and interact with human people.

    Well a couple of weeks back, over on BlueSky, I posted to #BookSky that I was looking for a cover illustrator. I had interested parties DM me with their emails, then sent out my query: I showed them the old cover art, as well as the Generative AI “mock-up” I made to give the cover artist to give them an idea of what I wanted.

    I wanted to give the artist I hired an idea of what I envisioned (An updated/alternate version of the original cover, more in line with what I’d pictured) I used the mock up concept cover art I’d made for my own motivation and told them that was what I was looking for, in terms of art.

    ALERT! INCOMING TANGENTIAL TIRADE ALERT!

    Wait; why didn’t I just use a Gen AI cover? Because I’m opposed to plagiarism, and the way LLMs connected to creative tools work is that it copies from other artists, specifically by reproducing images according to scores given to the words you used to describe your project. Gen AI sucks, Gen AI is painfully obvious, and Gen AI is plagiarism.

    The ONLY proper use of Generative AI in the creation of a cover for your book is to use it to create a concept mock-up for an artist YOU FUCKING PAY MONEY TO CREATE. Indie Artists support Indie Artists; we’re all partners, not competitors.

    Now, as to writing, the only use Generative AI has in the writing process is if everyone you know is dead and you need someone to spitball your ideas to – not to SUGGEST ideas to you, but to help you clarify your thoughts. REMEMBER: EVERYONE YOU KNOW AND LOVE MUST BE DEAD BEFORE RESORTING TO THIS OPTION.

    Likewise, using LLM/GenAI to “write” your book is not only lazy, it is an irrefutable demonstration that you lack talent and imagination. All you have is an idea, and, honestly, ideas are a dime a fucking dozen. If you don’t have the talent to turn that idea into a story, either learn the fuck to write, or get the fuck outta the way of those of us who know how.

    TANGENTIAL RANT ENDS! TANGENTIAL RANT ENDS!

    So, what happened?

    I got a shit-ton of offers. All of them were great, and a couple of them had the kind of style I wanted for the cover, and ultimately I went with the person whose art style I preferred most. But I had to reply to a fuckton of emails, look at a metric fuckton of artistic portfolios, and sift through all of it to find the artist who was right for me.

    It was Administrative Hell, because it took several hours over several days to get through, and no matter how awesome pictures are, spend the day looking at them eventually you get bored. But one artist’s portfolio stuck out, and I decided to hire them.

    I had a price range in mind, based on my budget. Astonishingly, what I thought would be too little money wound up being the average asking price.

    So if you can only scrape together $150-$200 you can get an amazing artist to do fantastic work.

    And the bigger your budget, the more Indie Artists become available to you: I had offers asking $300, $500, someone even wanted $800, and their work was great, but way outside my price range – I didn’t waste their time other than to tell them they were out of my price range and they’re best sticking with the clientele they were making bank on.

    Why the cost? Because you’re paying them for all the YEARS they have invested, both learning and doing, to hone their craft to the point that they make work WORTH that money. That is not to besmirch lower-costing artists; I was fucking relieved to find such talent in my price range. Some Indie Artists are still in school, others, this IS their only gig; they charge based on their rep, so lift them up and they will lift you up in return.

    Indie Artists jump at tenders; remember the title of this Blog Post/Online Class Session, dear Acolytes.

    Now that you’ve scrolled up and back down, note that while I’ve touched on my plans for a fundraising campaign, I am not fundraising to pay the artist; I’m paying them out of pocket. Their work will be the first thing people see, when they see any visuals for the Author’s Edition of They Came in Peace. It’s literally the book’s ambassador. And the cover is probably the most important investment in your book you make, because people DO judge books by the cover, no matter the aphorism.

    The cover will be front and center of the fundraising campaign, and, if the campaign is successful, it will be front and center of the marketing campaign, launch, etc. It’s very important to carefully pick the cover artist – and for the love of your book, DO NOT DO IT YOURSELF NO MATTER HOW GOOD YOU THINK YOU ARE.

    Unless you are a professional, leave it to the pros.

    And having a trusting relationship, an honest relationship even if it’s only over email/text/chat/videoconference. The more you can tell your artist, the better.

    Okay; keep an eye for new posts; they’re announced on my BlueSky whenever they infrequently go up, but they are here.

  • WRITING LESSON: Executive Dysfunction

    WRITING LESSON: Executive Dysfunction

    Okay; so here I am, galley finally put together and done…I wanna make a final pass before I get it printed, but in the meantime, I am coming up with a fundraising campaign, prior to the book’s launch.

    I’ve already got stretch goals set up; well, written down on a list…and I’ve even got targets and an ultimate goal; but now, dear Acolytes, you accompany me into my first foray into the unknown territory of crowdsourcing and fundraising.

    This is one that I didn’t expect to be on the lesson plan; because the first thing I have, is a bunch of fucking questions I don’t know how to answer. Well, more precisely, questions whose answers I will have to research.

    QUESTION ONE: Okay…how do I create buzz around this book?

    Doesn’t that look all fancy and official?

    Okay; so driving buzz does require having some form of social media presence; like I said, I’ve migrated to BlueSky, and I cannot endorse such flaming piles of shit like the Website Formerly Known as Twitter, or the Facebook. However, I can’t recommend Tumblr enough for aspiring writers and artists. I used to be on there, but there was drama and well…you young’uns probably know more social media sites than I’ve listed; like Discord, Reddit, Threads, Oingo-Boingo, Talking Heads…oh wait; those last two are bands from the 1980s New Wave era.

    So if you have an established SM presence, you simply join the groups/chats/whatever about writing, or creativity in general, and then you post there and to your own followers about your work. That’s the first stage.

    Second stage buzz-creating: Drive them from your Social Media to your weblog, by having a link in your bio, and dropping the occasional post to your followers and mutuals to get them to go have a look.

    It also helps if you play with the #WritingPrompts hashtag on those sites, to create quick and clever microstories (Character-Limit long.)

    Put some content on your social media; put the same content on your blog. Now you’re cooking. You should, once you’ve made friends with readers, writers and other creatives start seeing more aggregation of like-minded people following you; follow back! Initiate follows.

    Don’t go looking for free advice from big authors like Stephen King or…you know, I don’t know of any other big authors on social media that I follow. I mean, they MUST be out there…but anyway, they’ve been exhausted by advice-seekers their whole career. At best, you’ll get ignored. The best people to talk to are your fellow indies; we, like you, have had to do the whole thing ourselves – and now you can benefit by avoiding the mistakes WE made and make entirely new and original mistakes all your own! As you well know, there’s nothing a writer loves more than talking about their work and themselves. Writing is a very narcissistic process, and indies are hungry for coverage and sales. We’ll talk your ear off, blog your eyes dry, etc.

    But yeah, indie writers? We’re a dime a dozen, yeah, but the Indie Publishing industry is actually fairly solid, and hungry; as long as your books are properly edited (don’t do it yourself) and formatted (Submission guidelines are HOLY SCRIPTURE,) you’re bound to make connections. Don’t half-ass it by trying to edit and design your cover yourself; I’ve done that, and it ends up making something you love into an embarrassment.

    Places like Fiverr and other Gig Posters are a great place to find people who are studying editing and writing to work on your book – and there are countless illustrators online; even if it means you have to wait and put money aside to pay for proper editing and a proper book cover, you want to use their help, and give them credit in your book’s acknowledgements and make sure to include “Cover Art copyright [NAME] used with permission” line, because it IS their work and you paid for permission to use it, and, they want to make money off their work so if you give them credit, somebody else might use them for their book jacket. Same thing goes for reviews, but you DON’T EVER NOT EVEN ONCE pay for a review: there are people who will review your work – FOR FREE – because they can actually MAKE A LIVING reviewing indie books for their webpages or something.

    But, I’m getting ahead of myself; you’re not looking for reviews – yet – your book isn’t even ready to roll.

    You’ve got the galley edited and ready, cover art is commissioned (Best let them design it, although you can have input; the cover of They Came in Peace was inspired by a view of the occultation line between night and day taken from the International Space Station, and the artist liked my idea and ran with it) you already know that Draft to Digital is the best game in town for self-publishing, and you’re nearly ready to roll. You’ve got your followers, mutuals, and you’ve got people who will occasionally see your posts in your feed. Okay. Level One-A accomplished.

    Thing is, if you publish your book now? Chances are good it’s gonna fail. Pimping a book out requires a minimum amount of marketing money. Oh, fuck; you’re broke as hell and it already hurt to save up and take time to pay for editing and a cover! Now you have to pay for MARKETING?

    Yup!

    And THAT’S why you don’t want to publish, yet. I mean yes, it’s always a good idea to have the .epub ready to go, but you can generate a book on D2D without “launching” it right away.

    QUESTION TWO: So how the fuck do I pay for marketing?

    You don’t: You get other people to pay for it, for you.

    Wait; what?

    Did I stutter? Your first marketing campaign is to FUNDRAISE for your book launch. There’s Kickstarter, Gofundme, Co-fee or something…there are many available options. All you need to do is come up with some reasonable push-goals; for example, a digitally signed copy of the ebook, early edition or pr eorders, or if they donate enough an autographed physical copy of the book, online meet and greets, etc. The goal of each goal of your fundraising campaign is to pay for the NEXT goal, and the next, and then, when you’ve hit your final target, you have the money to pay for marketing.

    Okay, so where do I go to pay for marketing?

    Wow; you want everything on a silver platter, don’t you?

    Hey, this post was your idea, not mine; you took my nickel, I paid for the ride.

    You realize you’re just talking to yourself right now, right?

    Do you?

    Okay, so there are myriad online publicity agencies. An ad run or marketing run could cost you a few hundred or a few thousand dollars; how much money you raise will determine how big your campaign will be.

    So you start looking at marketing before you start fundraising. You’ll want to check out as many online marketing agencies as you can. You’ll want to filter out anyone who isn’t specialized in books or other creative endeavors. You’ll want to talk to people who will know where your ads are going to be the most effective. You’ll want to avoid being put in a pop-up, and you’ll want your ad to be tailored to a specific client, namely, people who would be interested in reading your book.

    Next you gotta check and see if these agencies are actually worth the money, who’s used them, what they’re known for…and you might want to filter it down to the genre or even subgenre if they specialize in that sort of thing. You want the ad campaign to be tailored to you as much as possible; a preplanned package might not be what you’re looking for, so don’t be afraid to express that; right now you’re just trying to test the waters, so you can answer my questions three:

    1-How much money do you think you can reasonably fundraise?

    2-How much money do you want to spend on advertising?

    3-How much do money you want to keep for yourself, up-front?

    The first two questions are simple arithmetic. The third one depends on how much you think your time is worth given everything you’ve done up to this point, from coming up with the idea, to writing, rewriting, beta-reading, editing, etc. The Rule of Thirds works well: Two thirds of what you raise should be for your campaign. The last third is yours.

    A lot to take in, right? Because now we have to talk about SCHEDULING. Because, you don’t want to make your book available until it’s been hyped and buzzed, right?

    Timetables are going to be based on how long it takes you to fundraise, how much you fundraise, and how big your campaign is.

    Patience is the key; your book’s ready. It’s not going anywhere. There’s no expiry date on when it can launch.

    And, guess what else:

    You’re going to want to research book launch dates.

    You guessed! Yep; you’re going to want to have a look at what books released when, going back a couple of years, just to see what time the tide comes in for your genre.

    Yeah, you might have wanted to launch sooner rather than later – believe me, I know the feeling. Had my book been launched six months to a year earlier, it would have had a better chance, given I was at the time with a small press. But right after it launched, we went into lockdown. COViD killed They Came in Peace.

    So, I’ve taken the intervening time to rest, recuperate, and try writing other things. But, I’ve kept getting drawn back here, to this book; and honestly, given the times we’re currently living through? I’d rather put it out there yesterday.

    But without the right hype, it won’t have the legs to run.

    Tune in next time for an exciting new episode!

  • Ten Years…

    Ten Years…

    It’s actually been a little longer than 10 years, but, I have been working on They Came in Peace, in one form or another, for most of the last decade.

    It was a difficult ten years: after I separated from her, I struggled with PTSD from living with a controlling, emotionally and psychologically abusive ex-wife; self-medicating with alcohol, dealing with an undiagnosed behavioral disorder I was desperately trying to get help for…and my world continued getting worse as I struggled with myself, with nightmares and with behaviors I couldn’t control.

    I watched as the people I love left me: friends, one by one, either ghosting me or getting fed up of my shit. I ended up alienated from so many people; but honestly, but for a small few, the only people I miss are my children. The only relationships I long to rebuild are the ones I had with my children. My ex-wife did all she could to keep them from me, but she wasn’t doing this to protect them; just to hurt me, because she knew that the greatest joy and privilege of my life is being a father. And in those dark years, the only thing that ever brought me a sense of joy, a sense of peace, was when I could see my children. I was always loving, nurturing positive and happy when I was with them. I only ever tried to be the best person I could when they were in my life.

    In the end, all I had left were my nightmares and my solitude. In those early years, those nightmares were tamed when I put them to page in cogent form, creating They Came in Peace: I’ve written about how that book is the only thing that stopped my nightmares; it’s also the only thing that kept me going, when I wasn’t allowed to see my children, when I didn’t even have a friend in the world to talk to.

    Writing is cold comfort compared to the loving warmth of family and friends, but this book is important to me, and I think the messages within, both implicit and explicit, are timely and, frighteningly, urgently need to be expressed.

    I’m down to the last twenty or so chapters of the trade galley rebuild, then I’m going to take one more pass – just to make sure I didn’t miss anything, and then it’s going to print; well, eprint, I guess. Twenty chapters is a LOT fewer than it sounds; I’ll have this thing ready to download by spring.

    [the sound of the universe laughing at me.]

    I’ve gotten more and more reflective of the past ten years as I’ve been finishing up the galley. I often find myself wishing that it were as easy to rebuild my life as it was rebuilding They Came in Peace. I went through ego death therapy; not the kind with mushrooms, but the kind where my psychotherapist literally prosecuted every thought and idea that I had, everything I had to say, and made me examine myself and see just how much vile, ugly shit I had encased myself in.

    I wanted to destroy, or at least confine the identity of the man I was; a cruel and vindictive bastard so similar to my father…by all accounts I’ve succeeded, and expect to soon have the legal documentation to prove it, though I still have some things to answer for.

    But even with the factory reset on my personality and identity, because I truly am a different person now than I was then, there are some things that I cannot change, some things I cannot fix.

    I have so many regrets. So many things I wish I could do over. So many people that I’ve lost.

    I can’t let go of this book; it may be the one good thing I’ve done with the last ten miserable years of my life.

  • Halfway Mark

    Halfway Mark

    So I came up for air, and realized I have made it to the halfway mark in my back-to-front edit/galley assembly, and it’s gone by so fast I didn’t have any real time to contemplate a post.

    So today, until I get this post done, I’m not working on They Came in Peace, Author’s Edition, only on this post. Which is annoying because honestly I hate the WordPress UI; it’s been a few years since I had this page active, and, frankly, the way it’s all set up now just annoys the SHIT out of me.

    Like having to hit [shift]+[enter] to start a new paragraph instead of just [enter] like a normal User Interface.

    Okay, enough stream-of-consciousness raving; I try to save that for social media. Well, a social medium.

    So, at the halfway mark of building my galley, we start with the first lesson from my So You’re Self-Destructive Enough to Want to be a Writer* quasi university class.

    Okay; you wanna be a writer when you grow up. Cool. So did I, so do a lot of people. When we’re young, when we’re kids, everybody dreams of Making It Big. The most ordinary thing in the world is to want to be extraordinary. I stole that line from some movie, honestly can’t remember which – that line was literally the best part.

    Here’s the thing: If you’ve ever so much as STARTED a poem, a story, a fucking BOOK REPORT, you’re already WRITING. The only question is, are you ready to go HARD?

    Because writing is a VERY solitary practice, and it WILL eat into your social life, and even sneak around your professional life, too. You have to let it become your obsession, your compulsion. I won’t try to teach you How To Write Good, because you either CAN or you CAN’T, and all the learned technical skills, books-to-read-to-sound-literate, books-to-read-to-be-literate, creative writing skills, parts of a god-damn sentence (this one is a run-on,) is all shit you have to learn ON YOUR OWN, from the guidance of teachers you trust, both in high school and college. Your friends and family can’t critique you, and you need to find someone who will legitimately tell you your writing sucks shit, and then tell you both how and why.

    The crisis you will be in immediately after is a state known as “Ego Death,” and believe me, it is very necessary. Everything you wrote in high school and grade school may be based on great ideas, fantastic concepts, but I promise you unless you are Wolfgang Amadeus Mozart-level exceptional, which you might be, I don’t know, your creative execution will most probably be utter shit.

    I’m not here to teach you a fucking creative writing class; those are available everywhere, and, frankly, other than technical skills, are completely fucking useless to waste money on outside of college/university. Even IN college or uni it’s questionable.

    Because the truth is, you don’t just want to be a writer and know how to write good, do you? No, the hours, days, months and years of accumulated solitude, self-doubt, lost sleep, ecstatic bursts of creative inspiration and long hours powered by imaginative disassociation alone, alienation, crippling self-doubt, the intellectually constipative misery of writer’s block, and ultimately fucking Making a Thing, you want to be READ, too, don’t you?

    Now, this is probably not an original thought, but I have believed since I was a kid just starting to write that there are only two kinds of writers: Those who want to see their work published and read, and fucking liars.

    So, what I’m trying to show you, in this lesson, is how to get published. And believe me, it’s a LOT more fucking complicated than you might think.

    Peruse the bestsellers and you’ll see that talent and literary creativity are not requirements to be at the front of the bookstore. The whole fucking thing really is nepotism; it’s about WHO YOU KNOW, and more importantly, WHO THEY KNOW.

    You have to network with other writers, socially both online and in skinspace; you have to make some kind of casual friendship with one or two of them; you should go to school with someone who has a parent in the trade and chum up to them. It is ALWAYS about Who You Know.

    You want to know how I got They Came in Peace published? Because of people I met on what is now recreational duck-rapist Mark Zuckerberg’s** Fascist Hellsite formerly known as Facebook.

    Back in the day before the Yeehadi Vanilla ISIS MAGA mungos shit all over the site like pigeons with irritable bowel syndrome, you could actually join groups of people interested in the same things as you without constantly being bombarded with lunatic intrusions from the politically insane who dare call other people deranged.

    Among the people I connected with were a few old greybeards I knew from the Revolutionsf.com website, and friends of theirs, and friends of THEIRS, including author Gary Mitchell (No relation to the fictional man-into-god Gary Mitchell of Star Trek fame,) and my future publisher, Sean Demory.

    I’d already at the time published the first two volumes of That Space Opera I Won’t Talk About (But whose copyright is available for licensing) and had a surprisingly existent fanbase of my own. And, as it turns out, among them were editors and graphic artists, and mainly people who stumbled over my work, and for some reason enjoyed it. (I’m sorry, I really am embarrassed by that pretentious bullshit I was writing. I needed to get the fuck over myself and just go for simple high-concept sci-fi and classic adventures like from seasons one and two, whatever the fuck that means…)

    So I had a built-in Beta Reader Rogue’s Gallery of volunteers, but I thought I’d ask Sean and Gary and a few other folks from the RevSF community if they’d like to dip their eyeballs in the ink.

    …except I thought Gary and Sean were Just Fellow Nerds/Geeks; unlike most creepoids, I don’t deep-dive internet search every name of every person that I interact with online. So, when I started turning the horrible alcohol-fueled nightmares that I’d been having into the narrative thread behind They Came in Peace, I thought to myself, “Well, who better to ask to beta-read my work, than my online nerd buddies?”

    A Beta-Read later, and I’ve got Sean telling me the story has legs, and he gives me his notes; as did everyone else I’d asked to beta-read, and with everybody’s notes/suggestions/comments/questions in hand, I wrote another draft of They Came in Peace, and sent it to the second-round volunteers for reading (Most of the same first-rounders, but fewer – TCiP gets a little heavy and hard-to-read in some places: It was literally the stuff of nightmares, so…yeah.)

    Sean comes back and tells me he’d like to be my agent, and try and sell They Came in Peace. But first, I needed to work with an editor. Then, I had to take out 20 000 words. Then work with the editor, again.

    And he pushed that book everywhere he could; see, he knew people; I didn’t know people, I knew a person; Sean. The problem was, despite “having legs” as Sean put it, nobody wanted to take a risk on a first-time author who isn’t writing the same safe formulaic crap they’re already churning out. I have the rejection slips to prove it. (At least I did until I moved and lost the hard copies to a coffee-in-a-drawer.) I still have the rejections-by-email I got from a LOT of small, medium and big publishers too cheap to reject you on stationary, like it should properly be done.

    Anyway, after two rounds of being put through the wringer of rejection like the shit I’d gone through when I was trying to date in high school and college, I’d had enough and was ready to just leave They Came in Peace in permanent storage.

    Sean insisted he’d publish it; he said he wanted it to see the light of day, and that it had the legs to sell. So, I promoted him from my agent to my publisher.

    The process was glacial – scheduling it for publication, trade galley reviews (more editing), the Cover Art Follies, but by September 2017 it was ready to roll, just had to wait for the opening on the roster.

    Waiting for your slot on the roster, if you’re fortunate enough to get published, will be the longest, most tedious experience of your writing career. Yes, worse than those six months you spent blocked and questioning if you were better off just geting some Joe Job.

    Spots on rosters are decided years in advance; my spot? April 2020.

    …anybody remember what happened in 2019?

    …anybody else notice that since 2020, it’s still been 2020?

    Three things happened to me in April 2020: 1) My firstborn son turned 10. 2) My mother died. 3) My book was published just as the economy collapsed.

    My mother did not pass from COVID, thankfully, but none of us got to be by her side when she died; that is going to live with me forever. Along with a lot of other unfair shit my mom had to deal with because of all the bastards in our family.

    I’d like to add that not one of my surviving uncles, nor any of my aunts (Not even her own sister,) cousins, or nieces offered my sister and I any condolences after our mother, who had spent her life giving to others in the family, even those far more well off than her, died. Not. A. Single. One.

    They couldn’t even be bothered to pull their heads out of their asses long enough to extend their regrets. The Forlinis, Gamboas, Williams, Gluteneys and Townsend families are all fucking garbage shitbirds, as far as I’m concerned. You bastards took advantage of my mom.

    Anyway…I can’t let that shit go, but I want to focus.

    Long story short, while the world went to shit the first time around in the ’20s, my the first edition of They Came in Peace died on the vine, after 14 sales.

    It got overlooked and withered. Once my contract with Sean was up, I asked him to take it down. He told me to get it back out there, and do good things with it.

    I’ve spent the last 5 years trying to write other stories; I have at least two per year that are in various stages of being abandoned during construction.

    Because, my mind kept turning to They Came in Peace; the work wasn’t done, and it might just be the one actual good novel I ever write. It’s become an albatross around my neck, constantly reminding me of the frustration of failure that about nine out of ten writers have to face, perpetually.

    Finally, I decided if it was the Last Good Thing I’d written, then I’d whittle away at it, carve it, polish it, and get it back out to market.

    While I’m halfway done working the trade galley ready to self-publish (In the age of print-on-demand and ebooks, the true democratization of literature) once I’m happy with it.

    After the trade galley is reassembled, I’m going to take another shot at removing 10 000 words from it; finish streamlining it.

    Now, self-publishing is going to be a WHOLE OTHER LESSON, so, stay tuned.

    But long story short, cultivate relationships with other people in “our field.”

    No matter how fucking good you are, if you don’t know the right people you won’t get published. Herman Mellville wouldn’t have gotten Moby Dick past the screener readers if he were publishing today. He’d have had to schmooze with the right people long before he wrote it.

    Honestly, of all the American literary giants of the 20th century and earlier, the only one I think would have an honest hope in hell of getting published today would be Samuel “Mark Twain” Clemens, and even then he’d likely be a Blogger.

    Okay; I don’t know what else to tell you in this lesson, so fuck off and get back to your writing. Or something else that needs doing; I don’t care. You don’t have to go home but you can’t stay here.

    I’ll be updating the blog again, soon. Adjacent.

    *Course title still has not been written in stone.
    **There is no evidence to suggest which specific kind of waterfowl Mark Zuckerberg is sexually abusing.

  • WRITING LESSON: From the End to the Beginning

    WRITING LESSON: From the End to the Beginning

    Okay, I need to take a break from editing/assembling the galley for They Came in Peace…If it weren’t for writer’s block, days of crippling self-doubt, the frustrated rage of having to start a chapter/project over from scratch because It Just Wasn’t Working, or eliminating a beloved character because They Are Superfluous, I’d say editing is the worst part of writing.

    So, thematically I should be putting this under “Writing Advice,” but the Acolytes aren’t there, yet; they’re still waiting on the first lesson. You see, I really want to talk today about a strange experience I’ve had today, while editing.

    The best way to describe it, is I was reading a book backwards, but knowing both what has happened and what will happen…and several times this morning I found myself unable to distinguish the book’s past from its future, because I knew both.

    So, clarification and context. My editor taught me that one of the best ways to edit a book (when not working with an editor) is to work with an editor. Failing that, edit the book in a series of passes: Front-to-Back, Asynchronously, and finally Back-to-Front as you assemble your final draft. Work chapter by chapter each time, keeping the chapter completely in its own context and not in the context of the overall story.

    In other words, do everything you can to detach yourself from the story.

    Now, I have TWO different edges when it comes to putting together the re-edited author’s edition: I already put in all the hard work for the first edition of They Came in Peace. First and foremost: Most of what I have to do now is just polishing up a few rough edges, and adding a few necessary details to give the story a little more cohesion.

    The second edge I have is this: I have, in one form or another, lived and breathed this story for more than a decade. The initial launch failed because it got killed by the COVID crisis; it never had the chance to get any traction and get read. Ever since, until I decided to relaunch it a couple of years back (the re-editing has taken a hot minute) I’ve been unable to write, unable to invest creative energy into anything. I even read and reread the complete book on my Kindle app…and don’t get me wrong, I’ve been told by my editor, my publisher, the few people who bought it and got back to me after reading, they all tell me what a great, thought-provoking story it is. The thing is, I am SICK of it.

    Ten years is a long time to go over a book that started with passionate inspiration and creative urgency which gradually turned into the cubicle-farm like feeling of rote that comes from making pass after pass after pass of the story to ensure that it is fully polished, as absolutely perfect and readable as possible. So after all that time, do I feel that what I wrote is as fantastic as everyone who’s read They Came in Peace say it is?

    Maybe; probably. I am fed up of the damn thing. I’m tired of it. I’ve turned it into a career project, and at this point honestly, I feel like I want to be done, put it out there, and finally, hopefully, see some return on all the work I’ve done. I’ve done a lot to create the best possible work I could; at this point I feel like I’ve been cooking, tasting, cooking, tasting, cooking, tasting all day and no longer want to have the big meal I’ve spent the day preparing.

    All that to say, while I did the Front-to-Back edit of the book, I skipped the “shuffle chapter” edit. I just took time off (several months) before assailing the Back-to-Front edit.

    This is the Ready-to-Publish edit; the second Ready-to-Publish edit, technically. Before that, back in 2017 all I had was a Ready-to-Sell edit. Yes, the Ready-to-Sell edit of a story is not the same animal as the Ready-to-Publish edit. In many ways with the Ready-to-Publish edit, you feel the loss of what was cut away, but in most ways you marvel at how streamlined your story has become.

    And, I’m digressing.

    I’m having this weird deja-vu feeling, as I work on the book, backwards. I know how it ends, I know how it begins, and here I have the characters in the middle of this, aware of their future but not their past, in spite of knowing both; as I edit backwards, what I read as already having happened has yet to occur for the characters.

    The closest feeling I’ve had would have been while watching Christopher Nolan’s Memento for the first time: You know what WILL happen, but not the steps that led to it. Until you step through them, backwards.

    It makes me want to take up the challenge of asynchronous storytelling: like Nolan, telling a story from back-to-front.

    Anyway, that’s all I wanted to share; just the weird feeling of deja vu all over again that I’ve been experiencing.

    Writing tip: A blog post is a great procrastinatory justification.