The Incredible Saga of Canada’s Human Rights Commissions: Over the next few days, I will be posting a 3 part series on the Canadian Human Rights Commission and “hate” speech cases. In my next post, I will talk about the cases of Ezra Levant (Western Standard) and Mark Steyn (Maclean’s).
By all accounts, last weekend’s 2008 Conservative party convention was supposed to be a bore. Yet on Friday November 14, astonishing news began to appear: the Conservative brain trust, including Justice Minister Rob Nicholson, voted to repeal portions of Section 13 of the Canadian Human Rights Act (CHRA), known as the “hate speech” provision.
If the Conservatives move forward with the motion, it would mark an intriguing plot twist in a recent legal and cultural saga.
For many Canadians, Section 13 is shorthand for a battle between Canadian free press and a rogue justice machine.
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What’s Section 13?
When the CHRA was passed by Parliament in 1977, the rationale was the defense of equal opportunity from employment to housing, regardless of religion, ability, or gender. To put the legislation into use, passing the CHRA meant creating the Canadian Human Rights Commission (CHRC) to investigate allegations of discrimination, as well as the Canadian Human Rights Tribunal (CHRT) to adjudicate the cases.
The CHRT differs in scope and operation from the courts. Basically, it’s ‘court lite,’ and used as a last resort for hearing a complaint. As far as powers go, the tribunal can levy small fines, refer decisions federal court, and imprison offenders who stand in contempt. While not as powerful as the courts, the CHRA is not bound to its standards of evidence, and is not run by judges.
Among its list of discriminatory practices, the CHRA included Section 13(1), which details “hate” speech:
13(1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
While the initial scope of this section was to address repeated dissemination of hate via recorded telephone messages, the broadness of its language (“likely to expose”) has meant the meaning of “hate” speech has broadened over the years. An amendment to Section 13 in December 2001 officially expanded “hate speech” to include content from the Internet. The amendment, Section 13(2), describes content that “is communicated by means of a computer or a group of interconnected or related computers, including the Internet.”
Critics point to several problems with CHRC investigations and Section 13(1) in particular: cases involve hearsay, the defense of truth is not available (unlike defamation law), and there are barriers between complainants and defendants (complainants don’t pay, don’t have to be affected by hate speech, and don’t have to answer to defendents). Still, the CHRC website notes that Section 13 complaints comprised only 2.2% of all signed complaints received by the CHRC between 2005 to 2007.
But what is hate? According to the Canada (Human Rights Commission) v. Taylor [1990] decision, hate is “unusually strong and deep‑felt emotions of detestation, calumny and vilification.” Precedent has clarified this definition somewhat, but “hate” (or its cousin, contempt) is an inherently vague concept.
The War Story of Free Speech and Section 13(1)
As far as plots go, the story almost writes itself: a journalist publishes a controversial opinion, a policing agency steps in to censor the opinion, and the journalist must fight a valiant battle for the right to speak.
In the past year, the story has played out twice in highly publicized “hate” speech cases. One involved Mark Steyn of Maclean’s, while the other featured Ezra Levant of the Western Standard. Even the particulars are remarkably similar: a bellicose pundit publishing an unflattering depiction of Islam goes before a provincial human rights body. Both Steyn and Levant have relished their roles as journalists cum martyrs, goading their opponents and openly daring commissions to rule against them.
Unlike its southern neighbours, Canada does not typically engage in culture wars. But in recent months, the makings of a “made in Canada” showdown have been set into motion. While Steyn and Levant escaped punishment, they certainly created (and continue to create) a ruckus. The prospect of future complaints has created alarm among the Canadian journalistic community, many of whom say it will only die down when Parliament or the Supreme Court of Canada steps in. The Conservative convention is the first sign that something like this might happen.
With a storyline like that, it isn’t surprising that scarcely any journalists have stood up in defense of human rights commissions. Among the brave few is Calgary Herald columnist Naomi Lakritz, who defends human rights commissions as invaluable tools for addressing injustice. Lakritz calls the commissions “a civilized outlet for making… complaints” when “racial or religious identity is under attack.”
The vast majority of pundits, however, have attacked the commissions as dangerous, quasi-judicial bodies, or less diplomatically, as kangaroo courts. The Canadian Association of Journalists openly decries the prospect of individuals using CHRC “to chill the speech of those they disagree with by entangling targets in a human rights bureaucracy,” without redress to the rules of court. Even CBC’s Rex Murphy has weighed in, calling the provincial and federal human rights commissions “capricious, agenda-riven, a great mishmash of political correctness and ‘right thinking’ bulldozing away at the basic freedoms of thought, speech and expression.
BrentWittmeier.com 