Thursday, September 10, 2009

McGill Tribune: EDITORIAL: Tribunals aren't the way to deal with hate speech

EDITORIAL: Tribunals aren't the way to deal with hate speech

Posted: 9/9/09

If something can't be done consistently and fairly, then it shouldn't be done at all. That's the message the Canadian government needs to hear about prosecuting hate speech through flawed human rights tribunals, and, thankfully, it's a message that might be starting to get through.

Last week the Canadian Human Rights Tribunal ruled that Section 13 of the Canadian Human Rights Act - which gives human rights tribunals the power to issue penalties of up to 20,000 dollars against people who publish hate speech on the Internet - violates Section 2 of the Charter of Human Rights (namely, the right to freedom of speech) and is therefore unconstitutional. In effect, the Tribunal stripped itself of its own punitive powers, and we applaud them for that decision.

Dealing with hate speech through human rights tribunals is a terrible idea. Section 13 gives plaintiffs with no injury or relationship to the alleged hate speech the right to sue publishers or authors in front of appointed tribunals that can then issue punitive punishments (including fines of up to 10,000 dollars payable to the government or 20,000 dollars to an identified victim). The system allows only well-connected and wealthy complainants to see their case through to a verdict, which has resulted in one lawyer, Richard Warman, being responsible for the lion's share of Section 13 cases. Even if a complaint is judged to be invalid, the complaint process often takes years, and is both financially and emotionally exhausting for the defendant.

The Canadian Civil Liberties Association and newspaper editorial boards across the country have often criticized these tribunals in the past. We'll reiterate some of their arguments here: defendants lack the ability to defend their writing as truthful, scholarly, or as a work of journalistic intent; identical complaints are often heard simultaneously by provincial human rights tribunals in different jurisdictions; and some investigative practices - such as posting messages on discussion groups in order to investigate targets - are questionable at best.

But worst of all, the process is inconsistent and is essentially censorship. Very few hate speech cases are pursued in real courtrooms under the criminal code of Canada, and that's because there's a very fine line between preventing hate speech and censorship. We should allow the courts, not tribunals, to decide where that line lies.

Unfortunately, in the words of H.L. Mencken, "The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels." And while stripping human rights tribunals of their power to prosecute hate speech may allow some willfully ignorant and unpleasant writing to go unpunished, that's the price we must pay for freedom of speech.