Globe and Mail & Ottawa Citizen Denounce CHRC censorship
In the end, freedom of speech and expression are unduly trammelled by hate-speech legislation, whether the criteria involve the inferred contents of someone's head, or the supposed likelihood of the effects of words, or both. Words that actually incite physical violence should remain punishable under the Criminal Code, but human-rights legislation and the Code should be free of dangerously vague prohibitions of speech.
Globe and Mail
June 15, 2009
And remember the Canadian “Human Rights” Commission’s position on Freedom of Speech:
MS KULASZKA: Mr. Steacy, you were talking before about context and how important it is when you do your investigation. What value do you give freedom of speech when you investigate one of these complaints?
Lemire Transcript: page 4793
From Monday's Globe and Mail, Monday, Jun. 15, 2009
The Canadian Human Rights Commission has unfortunately overcome its previous doubts about its own power to restrict freedom of speech, in the form of electronic transmissions - ranging from the telephone to the Internet - which are found likely to expose people to hatred or contempt.
On Thursday, the commission delivered a report that recommended no major changes to the Canadian Human Rights Act.
In the light, or shadow, of complaints to the federal, B.C. and Ontario human rights commissions about an article in Maclean's magazine by Mark Steyn, the federal commission had asked Professor Richard Moon of the University of Windsor to review the hate-speech section of the CHRA. He recommended its repeal and the leaving of hate speech to the mercies of the Criminal Code.
All those complaints failed, the Steyn-Maclean's controversy faded and the federal body is less worried about the hate-speech section. It now recommends the addition to its statute of what the Supreme Court of Canada had already effectively read into it, 18 years ago. Then, the court said the section can pass muster with the Charter of Rights and Freedoms if the hatred or contempt consists of "unusually strong and deep-felt emotions of detestation, calumny and vilification" that are "ardent and extreme."
The Supreme Court's interpretation thus means that the purveyors of hatred must have certain mental states, if they are to be reached by the section, but the commission's report to Parliament decides against the explicit addition to the CHRA of any requirement of hateful or contemptuous intention.
In the end, freedom of speech and expression are unduly trammelled by hate-speech legislation, whether the criteria involve the inferred contents of someone's head, or the supposed likelihood of the effects of words, or both.
Words that actually incite physical violence should remain punishable under the Criminal Code, but human-rights legislation and the Code should be free of dangerously vague prohibitions of speech.
Why censorship is impossible in a democracy
By Mark Mercer, The Ottawa Citizen
In a democracy marked by the rule of law, evidence against a person in a court or facing a board or tribunal must be available for public inspection. Within that fact lies the fundamental incoherence of censorship in a democracy marked by the rule of law.
Consider: The evidence before the censor includes the words or images themselves that are at issue. But as that evidence must be available to the public, those words or images can be reproduced by whoever wishes to reproduce them. (Indeed, news organizations are obliged by their mission to reproduce them.) And so the words or images stay inbounds, even should the censor rule them out of bounds.
This fundamental incoherence has entirely escaped the Canadian Human Rights Commission (CHRC). In its new report to Parliament, "Freedom of Expression and Freedom from Hate in the Internet Age," released last week, the CHRC seeks to justify both its mandate to investigate complaints of hate speech and the power of the Canadian Human Rights Tribunal (CHRT) to censor peaceful expression of thought and emotion. Nowhere in the report does it address the necessarily self-defeating nature of censoring something that will remain in full public view.
The report explains that Canada needs to have an agency to police expression, the CHRC, and one to remove from public view ardent and extreme expressions of hatred, the CHRT, because words and images can cause harm. Of course they can, though, unlike sticks and stones, they needn't.
But the CHRT is to order down only ardent and extreme expressions of hatred, for to meddle with anything less would certainly be to infringe upon freedom of expression. Yet ardent and extreme expressions of hatred for groups are the least harmful of all. Sociologists and psychologists tell us that when minorities or the vulnerable are harmed by words and images, it's the everyday ones that are at fault -- the commonplaces uttered without malice. So the justification according to which censorship is needed in our fight for equality and social justice doesn't work at all if restricted to extreme expression. If not so restricted, it puts an awful lot of expression at risk.
Again, to investigate and adjudicate a complaint of hate speech, the speech must be available to the public. If it was harmful in the first instance, it must again be harmful when repeated, and the harm must mount as it is disseminated further. If the ardent and extreme expression of hatred in fact did, or could, cause harm, the worst thing to do would be to go after it in public, as a government agency must.
This point is independent of whether one thinks freedom of expression is of value only as an instrument, as the CHRC report asserts, or is something to love for its own sake. Even if freedom of expression is merely a tool for uncovering and communicating truths, censorship, even well-meaning and well-regulated censorship, cannot in its nature serve to promote equality and justice.
Mark Mercer is a professor in the department of philosophy at Saint Mary's University in Halifax.