Harper must act now to protect free speech
The Prime Minister admits there's a problem. And he says he doesn't have a clue how to fix it.
MACLEANS MAGAZING | The Editors on Sunday, September 20, 2009
Stephen Harper used to have very clear—and colourful—ideas on human rights commissions and what should be done about them.
"Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society," he said in a 1999 interview with Terry O'Neill of BC Report newsmagazine." It is in fact totalitarianism. I find this is very scary stuff." He went on to complain about the "bastardization" of the entire concept of rights in modern society.
Of course, that was back when Harper was president of the National Citizens Coalition. Today he's Canada's 22nd Prime Minister. And he appears to have lost his fear of totalitarianism.
In an interview this past January with Maclean's, the Prime Minister was asked what, if anything, he intended to do to halt the encroachment on individual freedom by the Canadian Human Rights Commission in the name of regulating hate speech.
It is an issue of crucial importance to this country and our strongly held traditions of freedom of speech and freedom of the press.
This magazine understands only too well the dangers involved in putting those rights at risk. Following a 2006 cover story by columnist Mark Steyn titled "Why the future belongs to Islam," we were visited by a group of law students from the Canadian Islamic Congress. We were given the option of handing over editorial control of our pages for a rebuttal to Steyn's piece or face a series of human rights complaints. As the first option was anathema to our obligations to our readers, the students launched their complaints.
That we were vindicated in all instances, notwithstanding the Ontario Human Rights Commission's attempt at an unofficial smear, is beside the point. Under the guise of human rights, the ability of any news organization to produce truthful and reasoned articles was questioned by a variety of government bodies. Scary stuff indeed.
So we asked Harper if he intended to correct this threat to the basic existence of a democratic society.
"The government has no plans to do so," was his casual reply. "It is a very tricky issue of public policy . . . It's probably the case that we haven't got the balance right, but I'm not sure the government today has any answer on what an appropriate balance would be."
To summarize: the issue of human rights commissions running amok over Canadians' basic rights and freedoms is something Harper has followed—closely and with obvious passion—for at least a decade. As Prime Minister he admits it is still a problem. And he says he doesn't have a clue how to fix it.
We do. He should repeal Section 13 of the Canadian Human Rights Act.
A wave of informed opinion and public sentiment is in agreement that the CHRC and other provincial rights bodies have become a menace to many of the freedoms Canadians consider central to our way of life. Besides, even if we are concerned with the possible proliferation of hate speech, Section 13 is wholly unnecessary.
In 1970 the Criminal Code was amended to outlaw the promotion of genocide and the distribution of hate propaganda. Penalties of fines and jail terms were established, but the rights of the accused were also protected through due process, a need to prove intent and, crucially, the defence of truth.
Parliament later created the Canadian Human Rights Commission to cover a variety of potential discriminatory practices in Canada. Section 13 of the act deals with the transmission of materials "likely to expose a person or persons to hatred." As this body was intended to be conciliatory and to rely on cease and desist orders for enforcement, its legal standards are set lower than in the Criminal Code; due process is missing, intent is not necessary to prove, and truth is not considered a defence for the accused.
The constitutionality of Section 13 was tested in 1990 in the Supreme Court's Canada v. Taylor decision. A narrow split decision found that due to the CHRC's remedial nature, it was not a threat to free speech. A dissenting opinion, however, written by current Chief Justice Beverley McLachlin, worried that Section 13 was "too broad and too invasive" and so "intrudes on the fundamental freedom of expression."
Since then, the scope of the CHRC has grown in many worrisome and unexpected ways. In particular, it can now levy fines and impose other punishments. And the CHRC staff has become fixated on aggressively pursuing Section 13 cases. Approximately 11 per cent of all complaints made to the CHRC are sent to a tribunal for a hearing. The rest are dismissed or settled "out-of-court." Among Section 13 complaints, however, 68 per cent are sent to tribunal.
This means the CHRC is now engaged in punishing offenders in ways the Supreme Court never imagined. And thanks to the lower legal standard of proof and lack of due process, the accused is often unable to mount an effective defence. McLachlin's fears have become reality.
Following widespread public outrage regarding the obvious zealotry at the CHRC, and the complaints made against this magazine, last year the CHRC commissioned academic Richard Moon for an opinion on Section 13. He concluded it should be repealed. The Criminal Code already does everything necessary to keep Canadians safe from hate speech, he said, and in a way that properly protects the rights of the accused. All Section 13 does is trample on the rights of Canadians to hold views that the CHRC disapproves of.
Rather than accept Moon's sensible recommendation, the CHRC instead released its own in-house report this June. Its review of itself called for Section 13 to be maintained.
Then, this year, Section 13 came under further scrutiny from within the human rights apparatus. A Canadian Human Rights Tribunal decision in March cast a scolding eye on CHRC investigatory practices and, in particular, serial complainant Richard Warman, who acknowledged placing inflammatory messages on Internet sites under a variety of aliases. The tribunal found these actions to be "disturbing."
And earlier this month, another nail in Section 13's coffin. All complaints in a long-standing case against webmaster Marc Lemire were dropped for constitutional reasons.
After Warman spotted some allegedly offensive articles on one of Lemire's websites, Lemire removed them and repeatedly offered to seek conciliation. This was refused. It became clear to Athanasios Hadjis, the tribunal vice-chair who issued the ruling, that it was the CHRC's intent to punish Lemire, not mediate. In doing so, the CHRC had mutated far beyond what was contemplated in the Supreme Court's Taylor ruling. Section 13 now violates Lemire's basic Charter rights of freedom of expression. Since it's beyond Hadjis's powers to declare the law unconstitutional, he said he would simply choose to ignore it.
A Canadian Human Rights Tribunal has thus decided Section 13 is so badly flawed and abused that it will pretend the law doesn't exist. The CHRC has remained mute on this crippling blow.
To complete the demolition of Section 13, Harper must now amend the legislation. Besides reflecting common sense and current facts, it will prove to be a popular move.
A proposal to repeal Section 13 received near-unanimous approval at a 2008 Conservative party conference, and enjoys support from several key cabinet ministers. It is also an issue that crosses political divides. Even the perennially left-wing editorial board of the Toronto Star has endorsed an end to Section 13, saying it "isn't salvageable."
While certain lobby groups courted by Harper and the Conservative party, such as the Canadian Jewish Congress, are outspoken in support of Section 13, this certainly does not imply monolithic support among all minority groups. For example, many prominent Jewish advocates of human rights legislation, including Alan Borovoy, who was involved in establishing the CHRC, have spoken out about the errors of Section 13.
And Harper himself appears to accept Moon's point that the Criminal Code makes Section 13 redundant. In receiving the Saul Hayes Human Rights Award from the Canadian Jewish Congress last year, Harper called the Criminal Code an "effective legal weapon against naked hate-mongering, without compromising the elemental right to freedom of expression." If the Criminal Code is so effective, why do we need Section 13?
Of course the blame for Section 13's continued existence does not rest solely with Harper, particularly in a minority government.
Michael Ignatieff has also been a profound disappointment. As a prolific writer and celebrated thinker previous to his political career, one would expect the Liberal leader to be a passionate defender of the right of Canadians to express reasoned and informed views, regardless of whom they might offend.
And yet, he has shrugged off responsibility and left the issue to his backbench. Last year Liberal MP Keith Martin introduced a private member's motion calling for the repeal of Section 13, but it languishes at the bottom of the Liberal priority list. (The top Liberal priority appears to be a motion supporting a Universal Declaration on Animal Welfare.) Why has Ignatieff not adopted Martin's position as official party policy? Or moved his motion up in significance?
Academic and popular opinion is solidly behind removal of Section 13. It is an unnecessary measure for protecting Canadians from hate speech, and represents a clear threat to freedom of speech. It's also clear the CHRC has expanded its powers far beyond the limits considered to be constitutional by the Supreme Court in 1990. And now even the Canadian Human Rights Tribunal has declared the law unconstitutional. The only real problem left appears to be a lack of political leadership to make the change.
Parliament needs to repeal Section 13.