Goodbye Section 13

Editorial

Goodbye to Section 13 and good riddance. The section of the Canadian Human Rights Act was removed in a vote of Parliament this month, and represents a giant leap for free expression in Canada.

Canada has walked a different path than our neighbors to the south, where almost completely unfettered freedom of expression is enshrined constitutionally and, in some ways, this has helped to define us. Canada has acknowledged that groups have rights to be free from vilification that can supersede the rights of individuals to express themselves freely in ways that may offend others. But Section 13 and the extensive human rights apparatus that developed around it at the federal level, and which has been replicated at the provincial level, went too far.

The section deemed as “a discriminatory practice” to communicate electronically anything that “is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” In these days when nearly every magazine and newspaper publishes both electronically and in traditional format, the differentiation between electronic or other transmission of information is effectively moot.

Does the repeal of Section 13 leave hatemongers free to hate freely? No. Speech that genuinely promotes hatred and could incite violence will now be dealt with under criminal law, as it should be. Criminal law has a much heavier burden of proof than the tribunals and commissions that have been dealing with these issues – and, again, this is as it should be.

But perhaps the best potential consequence of this change is what it tells Canadians as individuals.

Canadians have known for years that human rights affronts will be addressed by the range of human-rights bodies active at the federal and provincial levels. It may be that many of us thought that our responsibility to participate in the marketplace of ideas, to speak out against racism or hatred and in favor of tolerance and celebration of difference, was obviated because these agencies were ensuring that the worst of the worst would be dealt with.

More recently, though, the more well-informed and fair-minded among us have come to the conclusion that this human rights apparatus was so absorbed by frivolous cases that it was in fact diminishing the very idea of human rights. The litany of ridiculous cases and judgments are legendary, outlined to hilarious effect by activist-journalist Ezra Levant. A turning point was undoubtedly when Levant himself was dragged before such a tribunal for publishing the notorious Danish cartoons of the Muslim prophet. Then, Maclean’s magazine and author Mark Steyn were hauled before the B.C. Human Rights Tribunal for publishing (and, in Steyn’s case, writing) an article about Muslim immigration to Europe and some of its impact on demographics and society.

The Maclean’s case took place under the auspices of B.C.’s provincial legislation, not Section 13, and Levant’s case was brought before an Alberta commission, not a federal one, but the provincial human rights bodies are little siblings of the federal body, and a Saskatchewan court decision likely headed for the Supreme Court of Canada may strike down similar laws at the provincial level.

Time was, Jewish communal organizations were among the staunchest defenders of the hate laws. Now, some are acknowledging that the time has come to dispense with Section 13, although some, including former Canadian Jewish Congress head Bernie Farber defended it. He noted in a piece in the Huffington Post that any vexatious claims brought before the federal tribunal were dispatched through negotiation or dismissal. Fair enough. But the point remains: if a racist, antisemitic, homophobic or other incitement is egregious enough for a human rights tribunal, it should be egregious enough for a criminal case.

Section 13 and the broader human rights apparatus that it supported were a statement of goodwill and the finest intentions. But, in practice, it was an atrocity that became bogged down by minor offences, or potential offences, or potential slights, or slight offences.

It is true that the elimination of Section 13 creates an abyss, of sorts. Between free expression and outright illegal incitement to violence, there is no longer a quasi-judicial recourse. So, what should fill that chasm? The very thing that should have been the first resort all along: individual Canadians standing up to hate speech and declaring more loudly than the haters that this is a country of acceptance and celebration of difference. For truly criminal expression, we have the criminal code. For anything less, we have the voices of good people.

Happy Canada Day!

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