The fate of hate

Yelling fire in a crowded theatre for no reason is one thing you just can't say. But not all illegal speech will trigger a stampede and an angry mob once the moviegoers realize there is no fire. A foggier realm of unlawful speech is managed by Section 13 of the Human Rights Act.

This codified conundrum prohibits the online distribution of hateful messages. It's a law that has come under high-profile fire from provocative journalists to the prime minister for defining hate speech too broadly and for the investigative and punitive mandate given to its governing body, the Canadian Human Rights Commission. Section 13 has been constitutionally challenged, upheld by the Supreme Court, recently challenged again, and is now at the bench once more in Federal Court.

“I think there needs to be real victims of hate speech before there are prosecutions. There must be a group that has actually suffered harm.” — Brent Rathgeber, Conservative MP

The legal hot potato is also the subject of an expansive parliamentary review. Two key testimonials are scheduled to be heard next week. 

The decision won't be easy or clean because even critics are divided on what the problem is, says Joe Comartin, NDP MP for Windsor-Tecumseh and a member of the Standing Committee on Justice and Human Rights (JUST), the parliamentary authority over the future of the provision. Some want Section 13 repealed because they argue hate speech doesn't belong in the hands of civil law, while others would be happy with a narrower definition of what constitutes hate.

Section 13 calls it a discriminatory practice to "communicate telephonically [which includes the Internet] ... any matter that is likely to expose a person or persons to hatred or contempt."

Mark Steyn is a journalist for Maclean's Magazine who in 2007 was the subject of a CHRC probe after being accused of Islamophobia.

"It's been a problematic section because of problematic interpretations," says Brent Rathgeber, Conservative MP for Edmonton-St. Albert and member of the JUST Committee.

The committee will hear from Richard Moon, a law professor at the University of Windsor, and Jennifer Lynch, the chief commissioner of the CHRC, on two overall options: amend Section 13 or throw it out.

A competition of rights

Stephen Harper has called the control over hate speech by human rights commissions “totalitarianism.” Section 13 has been called many other names but the insults boil down to a core criticism that it unduly limits freedom of expression. 

Supporters of keeping the provision, such as Bernie Farber, CEO of the Canadian Jewish Congress, say it’s a necessary limit on free speech because the intent is to curb discrimination.

“Don’t throw it out,” says Farber.

He points to a 1990 Supreme Court of Canada ruling that upheld Section 13 as a justified limit on expression.  The decision was in response to an appeal of a lower court ruling that found John Ross Taylor of the Western Guard Party in contravention for having pre-recorded hate messages on an answering machine.

One intimate acquaintance of this law, Ezra Levant, says expression is violated. Levant is a former publisher of the conservative, then-print magazine the Western Standard, and is a harsh Section 13 critic. In 2006 he was investigated by the Alberta Human Rights and Citizen Commission for re-publishing controversial cartoons of the prophet Muhammad that first appeared in a Danish newspaper. Levant says the law is a problem because of “the obscene censorship” and limits on expression that its broad definition of hate allows.

“It’s not really about stopping hate, it’s about political correctness,” says Levant. “It’s about silencing certain views.”

Fellow critic Mark Steyn says “Section 13 has no friends.” Steyn, a journalist for Maclean’s Magazine, faced the Ontario Human Rights Commission and the CHRC in 2007 because of a discrimination complaint lodged by the Canadian Islamic Congress. Steyn wrote many of the 18 Maclean's articles accused of being Islamophobic.

Steyn criticizes censorship in general and Section 13 in particular because of how broadly it defines hate speech as “likely” to expose a person to hatred or contempt.

Steyn says the civil law is much more far-reaching and imposes more limits on expression than the hate speech legislation in the Criminal Code. He also thinks the CHRC has “abused the very narrow constitutional reading of Section 13” made in the 1990 Taylor case that tried to rein in legal interpretation to target extreme hate only.

Rathgeber agrees Section 13 makes too sweeping a definition of hate and says "the deletion of the word 'likely' is absolutely necessary."

“I think there needs to be real victims of hate speech before there are prosecutions,” he says, adding that causing offence to someone is not enough and that violence must be promoted. “There must be a group that has actually suffered harm.”

Both Steyn and Levant testified before the JUST Committee on Oct. 5.

Left alone in civil or left lone in criminal

The multilayered mess is further bogged down in the dispute over whether hate speech should remain in civil law or belong only in criminal law, where the burden of proof is not only higher but investigations are left to police and not a body like the CHRC. Hate speech provisions are currently found in both the HRA and the Criminal Code.

"Retention with changes is not a sufficient answer," says Moon, who is also the author of a report on regulating hate speech on the Internet, assigned by the CHRC and delivered in October 2008. He says he will present the options he tabled last year, which are to either keep Section 13 in the act and amend it or — his preferred alternative — to abolish it altogether.

“If you fixed these procedural abuses, you would have a court. And why would we have a parallel court system?” — Ezra Levant, former publisher of the Western Standard magazine

Moon will advise that the provision be repealed because he says the CHRC is not equipped to deal with extreme hate speech. And there are too many procedural problems, he says, like the unfair burden on a complainant to carry a case through the Canadian Human Rights Tribunal, the independent adjudicating body partner to the CHRC. In a criminal case, that job goes to Crown lawyers.

The different procedural standards in civil law are why Levant too opts to keep hate speech in criminal law only.

“They’re kangaroo courts,” says Levant of the CHRC, pointing to what he calls illegal investigations and the poor standard of proof that neither requires intent by a hate speech offender nor accepts truth of the alleged hateful statements as a defence.

Such lax legal procedures are not the fault of the CHRC, cautions Comartin. He says the commission is playing fair by the rules it's been given by Parliament, but the rules do leave too many holes and are "woefully inadequate."

“But If you fixed these procedural abuses, you would have a court. And why would we have a parallel court system?” asks Levant.

Farber wants a fix instead of a repeal because keeping hate speech in civil law actually softens the blow for offenders.

Some critics of Section 13 argue the broad definition of hate curbs freedom of expression.

“Civil remedies are far better than the criminal,” says Farber, because the civil order is to cease and desist with a potential fine whereas “a criminal finding leaves you with a record for the rest of your life.”

Chief Commissioner Lynch will be speaking on behalf of the CHRC on Oct. 26 to give recommendations to the JUST Committee. The CHRC drafted its own report on Section 13 in June 2009 with recommendations for amendments only, and not for a full repeal. It is unclear if that position has changed. Lynch was unavailable for comment.

The roaming discourse

While there are heated opinions on both sides about Section 13, Ed Fast, Conservative MP for Abbotsford and chair of the JUST Committee, says his members are so far undecided, which is why the committee voted unanimously to review the section.

“If there were very passionate views either way one would expect that some members of committee would have opposed the motion,” he says. “I’ve looked forward to hearing what all the witnesses have to say.”

But Moon says he will warn members against being too open to testimonials. He points to what he says are dramatic claims made by Levant and Steyn that falsely accuse the CHRC of “corruption and injustice.”

“It wipes away any of the complexity of the issue and any meaningful discussion of policy options.”

Karen Mosher, secretary general of the CHRC, is equally skeptical of the allegations made by Levant and Steyn.

“It’s not our view that their observations fall into the category of constructive,” says Mosher.

“Participate in a serious debate,” Moon says he will tell the committee. “If you repeal Section 13 don’t be misled by all these claims, do it for the right reasons.” 

The evolution of hate speech in Canada: when and why we banned it.