On hatred and the law

Editorial

The section of the Canadian Human Rights Act (CHRA) that prohibits communications that are likely to expose an identifiable group to hatred or contempt should be repealed, according to a recommendation by a consultant hired by the Canadian Human Rights Commission.

The recommendation, included in a report released Monday, pleasantly surprised some observers, like the outspoken free speech advocate Ezra Levant, who has himself been targeted by complaints under such legislation. It has been rejected by Canadian Jewish Congress and B'nai Brith spokespeople.

The Canadian Human Rights Commission (CHRC) contracted University of Windsor law professor Richard Moon to review the efficacy of parts of the human rights legislation. Moon's unequivocal call for the repeal of section 13 of the CHRA "so that the censorship of Internet hate speech is dealt with exclusively by the criminal law" is a clear statement that such issues should be handled by criminal courts, not the quasi-judicial commissions and tribunals that make up the human rights infrastructure across Canada. Several provinces have similar legislation prohibiting speech or communication that could be seen as encouraging hatred or violence against members of a group.

The issue is at the fore, in part, because of perceived "nuisance complaints," a category into which some observers place complaints against Maclean's magazine for publishing excerpts from a book by the writer Mark Steyn. The head of the Canadian Islamic Congress claimed Steyn's writings were hateful toward Muslims. Complaints filed with the Ontario, British Columbia and Canadian human rights commissions were each dismissed, though not before costing the respondents huge sums of cash. Maclean's, at least, is a major player in the media world, with some cash behind it. A similar inquiry against smaller publications or individuals could be economically fatal.

Moon's recommendation – that acts of expressed hatred be dealt with criminally, not quasi-judicially – makes sense. In a criminal case, at least, the defendant could be eligible for legal aid and such provisions and protections that accompany criminal charges, such as the presumption of innocence.

In his report, Moon states that the only justifiable government censorship is that covering public expression that "threatens, advocates or justifies violence against the members of an identifiable group." He notes that the most extreme type of hate speech is already prohibited in the Criminal Code: "The Criminal Code hate speech provisions and, in particular, section 319(2) and section 320.1, offer an effective response to hate speech while respecting the public and constitutional commitment to freedom of expression."

Moon also correctly recognizes that, "Less extreme forms of discriminatory expression, although harmful, cannot simply be censored out of public discourse.... Censorship of expression that stereotypes or defames the members of an identifiable group is not a practical option and so we must, as a community, develop other ways to respond to this expression."

The term "practical option" seems subjective, but one thing is obvious. The Internet is effectively unpoliceable – determining the source, verifying the author and gauging the intent of something found online presents more serious challenges than does traditional publishing. Nonetheless, writes Moon, "Even if we are unable to prevent some, perhaps even most, instances of hate speech, we ought to prevent those that we can ... a prohibition on extremist speech, even if it cannot prevent all such speech, represents an important affirmation to minority communities of their right not to be subjected to intimidation." He notes that, while the mainstream press isn't as likely, for various reasons, to engage in hate speech, "a newspaper may be the subject of a complaint that it has unfairly depicted or described the members of an identifiable group. Unless the complaint is trivial, vexatious, frivolous or made in bad faith ... it must be investigated by the CHRC."

Moon recommends that section 13 of the CHRA be repealed, but suggests reforms to the CHRC as an alternative. The human rights infrastructure certainly needs major renewal to prevent abuse and nuisance complaints. The kangaroo court antics permitted in tribunals – a lower burden of proof, the allowance of evidence and hearsay that would not be permitted in criminal proceedings – needs to be improved, and not only out of cost concerns. As Moon understands, "Any time a hate speech complaint is investigated, the respondent's freedom of expression right is compromised, even if the complaint is dismissed by the CHRC at the end of the investigation process."

There is a strong enough connection between hateful expression and hateful acts that complete free expression is not a desirable state. That being said, the best protection of civil liberties – for majorities and minorities – requires the least limitations on expression. As Moon correctly concludes, censorship is not the answer. And, as he suggests, Canadians must, as a community, develop other ways to respond to hate speech. The discussion is long overdue.

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