Repeal Section 13 of the Canadian Human Rights Act
On June 17, 2008, the Canadian Human Rights Commission (CHRC) launched its own policy review of Section 13 of the Canadian Human Rights Act (CHRA). Section 13 (added to the Act in 2001) gives the commission the power to investigate and punish instances of “hate speech” on the internet. The 59-page review, conducted by Prof. Richard Moon, an expert on constitutional law and free speech at the University of Windsor, was made public at a cost of over $1,000 a page on November 24, 2008 and is posted on the CHRC website.
In a move that may have surprised the CHRC – and more than a few outside the organization – Moon made the following recommendations:
1. That Section 13 of the Canadian Human Rights Acts be repealed so that the CHRC and the Canadian Human Rights Tribunal (CHRT) no longer deal with hate speech, especially hate speech on the internet. Hate speech should continue to be prohibited under the Criminal Code, he said, but the definition should be confined to expression that advocates, justifies or threatens violence. Moon also said in the fight against hate on the internet, police and prosecutors should make greater use of Section 320.1 of the Criminal Code, which gives judges power to order internet service providers (ISPs) to remove “hate propaganda” from their systems.
2. Changes should be made to Section 13 of the CHRA if it is not repealed.
3. (i) Changes to the language in order to clarify that the section prohibits only the most extreme instances of discriminatory expression – that is, articulations that threaten, advocate or justify violence against members of an identifiable group
(ii) The amendment of Section 13(1) of the CHRA to include an intention requirement; and
(iii) The amendment of the CHRA to establish a distinct process for the investigation of Section 13 complaints by the CHRC. Under the amended process, the CHRC would receive inquiries and information from individuals or community groups, but would not longer investigate and assess formal complaints.
More coercion suggested
Unfortunately, here Moon goes on to suggest some coercive methods of his own to remove offensive (non-criminal) speech from the internet. He suggests forced deletion or blocking at the ISP level. This would involve the role of non-state actors, such as the media, in the prevention of expression that is deemed “hateful” or “discriminatory” in character.
In a nod to the all-pervasive political correctness of academia, Moon suggests the creation of a “hate-tip line” that could result in the removal of offending websites. Such recommendations are of concern, points out Marc Lemire, a Canadian who has been battling the HRC’s for years and who is involved in a constitutional law case against them. The recommendations, he says, represent a departure from the traditions of Anglo-Saxon justice which include the right to face one’s accuser.
The creation of a “hate-tip line,” Lemire states, is something censorship-driven groups such as the Canadian Jewish Congress have lobbied governments for years to implement. This endeavour might include such projects as the ridiculous “CleanFeed” program, which would allow for the arbitrary removal of websites from being accessible in Canada via a blacklist of sites that are blocked at the internet service provider level.
“CleanFeed” would then see websites effectively banned in Canada and a site’s webmaster would have no recourse. There would be no hearing to assess the contents of the site, no decision would be forthcoming from a court, and no remedy would be available.
The CHRC all along has liked this approach, Lemire notes. As part of its mandate under Section 27 of the Canadian Human Rights Act, the agency has thus far targeted some 200-300 websites in Canada and around the world, trying to get them knocked offline by highlighting internet service providers’ “acceptable use policies.” Dating back to 1995 in Canada, the agency has been strong-arming internet service providers behind closed doors to not allow those it has deemed “hate mongers” to post material online.
The CHRC, feeling threatened by Moon’s report, is now calling for more public consultations (to be attended, no doubt, by the special-interest groups that favour it). Rather than dispatching Moon’s report to Parliament, it seeks to develop its own set of recommendations in 2009.
During the previous parliamentary session, Liberal MP Keith Martin introduced a private member’s bill to repeal Section 13. He has already reintroduced this bill. Meanwhile, delegates at November’s Conservative Party national policy convention in Winnipeg voted overwhelmingly for repeal and were joined in the vote by Justice Minister Rob Nicholson.
Newspapers from coast to coast have published editorials hailing especially Moon’s most prominent recommendation, that of removing from the jurisdiction of the HRCs, Section 13. These include the National Post, the Toronto Star, the Montreal Gazette and the Vancouver Sun, the Globe and Mail, the Ottawa Citizen, the Edmonton Sun, the Calgary Herald, Macleans and Catholic Insight magazines, and the Canadian Association of Journalists.
Jewish groups continue to oppose any changes with the possible exception of the Simon Wiesenthal Centre which is conducting its own review. The Canadian Jewish Congress (CJC), however, declared itself “disappointed.” Its CEO, Bernie Farber said, “We have mixed feelings about the report.” Its legal counsel, Mark Freiman, expressed this in a Globe and Mail article (Nov. 26, 2008) in which he described criminal law as “a blunt tool to deal with ... hate speech.” Marvin Kurtz, national legal counsel to B’nai Brith Canada, said “Doing away with Section 13 … would be a step in the wrong direction. However, we do favour in principle the type of middle approach also outlined by Moon, which opens the door to necessary reform of the CHRC.” (Can. Jewish News, Dec. 4, 2008).
The CJC and B’nai B’rith are the only groups supporting the CHRC’s proceedings, not too surprising because it was from the Jewish community that the idea of Human Rights Commissions was first launched in the mid-sixties. It was they who have made regular use of the HRCs to battle anti-Semitism, first in print and telephone, then on the Internet.
Victims of the HRCs
Catholic Insight and other victims of the CHRC are hailing especially Moon’s recommendations to repeal Section 13. The list of those who have unjustifiably suffered under Canada’s human rights system – which Justice Minister Nicholson has described in a letter to C.I. as “second to none” – is a long and varied one: B.C. teacher Chris Kempling; the Knights of Columbus in B.C.; Calgary Bishop Fred Henry; Alberta Pastor Stephen Boissoin; Saskatchewan’s Hugh Owens and marriage commissioner Orville Nichols; Ezra Levant in Calgary; the Christian Horizons ministry to the disabled in Ontario; Mark Steyn and Maclean’s magazine in Toronto; the mayors of a dozen Canadian cities who have been forced to proclaim “gay pride” days; the FreeDominion.ca website, and more.
What is the situation with Catholic Insight? Rob Wells of Edmonton’s Gay Pride Centre (an organization some of whose activities are subsidized by public grants), had his claim against us of spreading hatred , dismissed by the CHRC in Ottawa in July, 2008 (see C.I., July/August, 08, p. 29). He has since appealed to an Edmonton Court for a judicial review of the ruling.
The case, anyone might think, is therefore between Wells and the CHRC whose ruling he has challenged. Well, if you thought that, you are wrong. It turns out that we, at Catholic Insight, have to defend ourselves once again , this time in a Federal Court in Edmonton. Why? Because the CHRC apparently washes its hands of the whole affair and is not interested in defending its own rulings.
So, our lawyers have had to file various forms and affidavits, including one opposing Wells’s attempt to expand the CHRC case by introducing new articles and materials, etc. Costs so far: $3,200, which, of course, we cannot afford. It is on top of the $25,000 we have spent already on Wells’s outrageous but politically correct accusations. Even without these expenses, Catholic Insight has never been able to cover all its costs from subscriptions alone.
We still have our Paypal button on our Website for our Legal Defence Fund. We recommend it to your attention.
Freedom of conscience
While the threats of kangaroo “courts” have simmered over the years, Evangelicals and Catholics have seen their rights threatened elsewhere as well. New, related phenomena are the attacks on, and banning of, pro-life groups at several universities (see elsewhere in this edition). No human rights figures or commissions stepped forth to defend their right to free expression.
As Michael Coren put it so well, Catholics and evangelicals are not one of the protected groups in human rights legislation. “People have been persecuted, prosecuted and bankrupted for speaking their minds on issues such as Islam, homosexuality and history,” he said in his commentary on the Moon report. “Take the case of Catholic Insight magazine. It is a tiny-budget monthly that caters to orthodox or conservative Catholics. A radical gay man read it and found some of its arguments about homosexuality to be offensive. Quite right, too. If he wasn't offended the magazine would not have been presenting genuine Catholic teaching, which is directly contrary to the notion that homosexuality is to be affirmed and praised.
“So here we have two clashing cultures in a modern pluralistic society. The response should be for both gay and Catholic to have and to be able to express their opinions and for both to act like grownups and avoid or ignore what annoys them.
“Let us emphasize that what is sometimes said about Catholics in gay magazines is far more offensive than what is said about gays in Catholic ones” (Toronto Sun, Nov. 29, 2008).
Indeed, the homosexual newspaper Xtra! has run a column entitled “Godless World” by Krishna Rau, whose sole purpose has been to attack religious faith.
Expensive and unnecessary
Another aspect of Canadian human rights commissions – be they federal or provincial – is that they are an expensive folly. They employ a host of bureaucrats and lawyers and, like most government employees, they come at a price. A recent expense posted by the CHRC was $75,000 per quarter year for “security.” The CHRC office in Ottawa is heavily staffed by security personnel and “as many as five bodyguards” may accompany bureaucrats on visits to hearings, reports Lemire. No one is sure exactly how high is the risk to their safety.
FreeDominion.ca co-founder Connie Fournier has described attending at the CHRC headquarters to drop off some paperwork. “When we walked in, we did not encounter a receptionist like we expected. There was a security guard behind glass, instead. When I wanted to hand him the letter with my case number on it, I had to slip it through a little slot in the glass.”
Later, Fournier was permitted to speak to a CHRC apparatchik, who was actually in the building, but only by telephone. “Both Mark and I were spooked by our experience at the CHRC. It was unlike any other government office we have ever seen. Talk about ‘faceless bureaucracy!’ It is absolutely frightening that these people, who spend their days hidden behind a security guard and bullet-proof glass, have the power to utterly destroy the lives of Canadians, and they don't even have to look their victims in the eyes. George Orwell must be spinning in his grave” (FreeDominion.ca; Nov. 22, 2008).
Blogger Steve Janke rightly wonders what will be done to bring reparations to those who have been needlessly harmed by human rights commissions: “Many people have been dragged through tribunals run by bureaucrats and patronage appointees with little understanding of law, rules of evidence, or even basic constitutional guarantees … So what of the people who have paid thousands to defend themselves in front of these tribunals? What of the thousands that have been doled out as fines by people found guilty by a tribunal that is not a court of law? … The point is that the CHRC has made a mess of things. It has to be cleaned up” (SteveJanke.com; Nov. 26, 2008).
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Updated: Jan 5th, 2009 - 21:27:29