Wednesday, June 17, 2009

OTTAWA CITIZEN: "The most dangerous part of the Canadian Human Rights Act is called Section 13"


Rights revisited


The Ottawa Citizen    June 17, 2009 7:49 AM


 After years of rancorous debate, there seems at last to be a consensus that human rights commissions, at both the federal and provincial levels, are in serious need of reform.

Even the Canadian Human Rights Commission admitted the need for change in its recent report to Parliament on freedom of expression. Of course, the reforms it suggests are much less sweeping than its critics would like. Still, it's a start. This is a conversation Canadians must have, because the current system is sowing acrimony and mistrust, and risks treading on the right to free expression.

The most dangerous part of the Canadian Human Rights Act is called Section 13, which governs communication through electronic means, including the Internet. It allows the Canadian Human Rights Commission and Canadian Human Rights Tribunal to investigate cases such as that of the Maclean's article written by Mark Steyn in 2006 entitled "The Future Belongs to Islam," which was of course posted online.

The Commission asked law professor Richard Moon in 2008 to have a look at whether the system was achieving the right balance between freedom of expression and what it calls "freedom from hate." Moon recommended the repeal of Section 13, arguing that the prosecution of hate speech should be limited to speech that incites, advocates or justifies violence. The Criminal Code, Moon rightly argued, can take care of that kind of speech. The rest should be protected.

The commission, in its latest report, rejects that recommendation. It does support, at least in part, a few of Moon's other ideas -- suggesting, for example, that the act define "hatred," and that costs could be awarded in exceptional cases where one party abuses the system.

But what the commission doesn't do is define, in any real way, what it means by "harm." Although it insists its role is not to protect people from being offended, it does speak in nebulous terms about the "right" to be treated with dignity and respect -- by one's neighbours as well as by the government.

And accusers do not have to prove their cases beyond a reasonable doubt. The federal commission points out that it is not a court, that its role is not supposed to be punitive. It doesn't send people to jail. Nonetheless, proceedings can be costly, damaging to reputations and incredibly stressful. Censorship is censorship, and the state can't just censor speech it doesn't like.

The Steyn case was never referred from the commission to the tribunal. Nonetheless, it made a lot of people nervous, and justifiably so. It looked very much like a sign that the system had gone far beyond rooting out examples of extreme hatred, to policing political correctness in the media.

The commissions, as they are today, do not have the complete trust of Canadians. In Ontario, some of the Tories vying to lead the party have suggested abolishing the province's human rights commission and tribunal. Christine Elliott, one of the front-runners, has cautioned that such a controversial stand might damage the party's chances in an election, just as John Tory's stand on school funding damaged him.

It would be a shame if the John Tory experience were to frighten Ontario Progressive Conservatives away from taking principled positions on important issues. Abolition might not be the right answer, but an election would be a very good time for Ontario to take a close look at its human rights commission, and ask whether it's doing the job we want it to do.