Storseth's bill may be debated in the House of Commons as soon as November.

In 2005, the Canadian Human Rights Tribunal forced Tomasz Winnicki, a white nationalist, to pay $11,500 in penalties and damages after he wrote racist comments in an online forum. The tribunal found him responsible under Section 13 of the Canadian Human Rights Act. Winnicki was later sentenced to nine months in jail under provisions of the Criminal Code for violating a cease-and-desist order on posting hate speech.

A private member's bill dubbed C-304 being put forward by Conservative MP Brian Storseth would eliminate Section 13 and leave only the criminal courts to deal with hate speech in the future. The bill had its first reading on Sept. 30 and is only 15th on the list of these private members' motions to be debated, meaning the bill may be brought before the House again as soon as early November.

“It’s encouraging that this is introduced,” says Cara Zwibel, a director with the Canadian Civil Liberties Association. The CCLA has long opposed the hate speech provisions in the Human Rights Act, arguing that they are too subjective and are thus unconstitutional to prosecute.

“It’s important when a tribunal is arguing [against discrimination] that they approach the idea of equality in a very broad way,” says Zwibel. She says "broad" in reference to the wide range of speech that can be classified as discriminatory. “But then when it comes to freedom of speech, it’s important that they interpret things fairly narrowly so they don’t capture expressions of opinion.”

Besides, she argues, “there are already Criminal Code provisions that deal with hate speech.”

Multimedia Multimedia: Case Files High profile cases that have reached the Canadian Human Rights Tribunal.

How the CHRA differs from the Criminal Code

The criminal code provisions in question are sections 318 and 319. The former defines the criminal act of "advocating genocide" as any support or arguments for the killing of members of an identifiable group based on colour, race, religion, ethnic origin or sexual orientation. The latter section deals with public statements (including broadcasting or the Internet) that incite hatred and will likely lead to a breach of the peace.

Unlike these criminal provisions, Section 13 of the CHRA can rule a matter is hateful if it’s found “likely to expose a person or persons to hatred or contempt," so long as those people are members of an identifiable group. The provisions are structured so that complainants can remain anonymous and any legal fees they incur throughout the tribunal process will be paid by the state. Truth and expression in good faith are valid defences for the criminal code. Neither are acceptable under Section 13.

The rationale when the provisions were created in the CHRA in 1977 was that they would be able to close an existing loophole in criminal law that allowed hate speech to be disseminated over “private communications” such as the telephone. Today, the Criminal Code covers communication over media, but Section 13 (which was expanded in 2001 to include the Internet) continued to be relied on until 2007 when it was used against conservative commentator Mark Steyn over an article he published in Maclean’s magazine. The allegations of hate speech brought by the Canadian Islamic Congress against Steyn were heard by the CHRC and eventually dismissed.   and the commission has been hesitant to hear cases since then.

“There are already criminal code provisions that deal with hate speech.”

Once hate speech has been determined, the tribunal may order that a penalty up to $10,000 be paid, the communication cease, compensation up to $20,000 be paid to a victim, or a combination of some or all of these solutions. Decisions are reviewable by the courts starting at the Federal Court of Canada.

CHRC Commissioner speaks out

Despite the implications of Storseth’s bill, CHRC spokespeople have said little other than that they are “following the bill with interest.” On Oct. 18, however, CHRC Commissioner David Langtry wrote in a National Post editorial that he supported the mandate of the commission to target and eliminate discrimination. However, he seemed unwilling to wholeheartedly defend Section 13. Instead, he argued the existing Criminal Code provisions are not adequate to lead to convictions and that Parliament should make it easier for police to lay charges where there’s evidence of hate.

“If the Canadian Human Rights Act is not the best vehicle to counter hate speech, Parliament should ensure the Criminal Code is up to the job” Langtry says.

Storseth is arguing the Criminal Code already is the best vehicle. Besides, he says, his bill isn’t really about the need to prosecute hate speech.

“This really is about freedom of speech in our country and pushing back on the tyrannical bureaucracy need to censor speech,” Storseth said in an interview with Sun News.

It’s a familiar argument to anyone who’s studied the controversy surrounding Section 13. In 2008, Liberal MP Keith Martin introduced a private member’s motion calling on government to repeal Section 13, arguing its provisions allowing the CHRC to hear complaints of hate speech were suppressive and unnecessary. The motion was widely supported by civil liberties groups, free speech advocates and even right-wing commentators who put partisan issues aside to voice their support.

Nevertheless, it failed to pass into law.

Optimistic outlook for Storseth's bill

Storsteth's arguments against the Section 13 provisions, mainly that they are restrictive of free speech and overlap the Criminal Code, are almost exactly those made three years ago by Martin.

“It’s not just a symbolic private member's bill as so many are.”

Storseth says he is confident his bill will be able to rally the political support Martin’s motion didn’t.

"Freedom of speech is such a precious right. Those who hold odious views have the right to express them... hiding those views creates a more destructive environment," says Martin.

Lawyer and Sun News commentator Ezra Levant is familiar with Section 13 and supported Martin and his motion three years ago. His position remains the same today. Levant says he believes there is good probability the bill will pass.

“It’s not just a symbolic private member's bill as so many are,” he says.

Levant says Storseth was likely working with the Prime Minister’s Office in putting the bill forward and that one of the reasons it is being proposed as a private member's bill is to keep it at arm’s-length from the PMO.

"Even though Brian Storseth probably won't acknowledge it, this has been done in consultation with and approval by the PMO," says Levant.

One hate speech complaint involving a similar provision of the Saskatchewan Human Rights Commission made it to the Supreme Court of Canada on October 12^th. Bill Whatcott is a social activist who was ordered by the SHRC in 2005 to pay $17,500 to complainants after he disseminated pamphlets denouncing homosexuality. He has since paid many thousands more in legal fees fighting the decision through appeals courts.

The Saskatchewan commission would remain untouched should Storseth’s bill pass and the Whatcott decision may not directly impact the CHRC. But should both Parliament and the courts find themselves opposed to civil law hate speech verdicts it may spell the beginning of the end for hate speech tribunals both federally and provincially.

Case Files

Section 13 states it is a discriminatory practice to publish or relay hate messages by phone or on the Internet.  The controversial clause has garnered a lot of attention because of the number of high profile cases it has seen.  Take a look at some of the cases by clicking on the tabs on the folder.