National Post editorial board: Abolishing S. 13 would be a big win for free speech
Sep 28, 2011 – 5:49 PM ET
Tory backbencher Brian Storseth wants to eliminate Section 13 of the Canadian Human Rights Act (CHRA). That is the provision in federal law that gives the Canadian Human Rights Commission authority to hear complaints of hate speech on the Internet. We wish Mr. Storseth, the MP from Westlock-St. Paul in Alberta, well in this campaign. Section 13 is a particularly pernicious infringement on free speech. Originally added to the CHRA in 2001 as a protection for vulnerable groups against racist or violence-promoting websites, the clause has more often been used by minority activists (or those purporting to act on behalf of minorities) to silence those who do not share their opinions.
The biggest problem with Sec. 13 is that its provisions make it far too easy for commissioners to find an alleged offender guilty. Unlike in a court of law — where the presumption of innocence, rules of evidence and bans on hearsay testimony protect defendants from wrongful prosecution — at a human rights tribunal complainants may remain anonymous and complaints may be filed by third parties with no direct interest in the case at hand. (Some folks even make a profitable hobby out of launching these complaints.) Hearsay evidence is perfectly acceptable, the onus to prove one’s innocence often falls on the accused, and tax dollars pay for the plaintiff’s lawyers while the accused is on his or her own to fund a defence.
A further flaw in Sec. 13 is that neither the truth nor the lack of intent to harm is permitted as a defence. It does not matter whether the offending Internet message was truthful or if adjudicators find it “likely to expose an identifiable group to hatred or contempt” (the standard employed under criminal law) — the owner of the website on which it appears and the person who posted it are guilty anyway.
In 2007, Sec. 13 was used against writer Mark Steyn for material he wrote in Maclean’s magazine that four Muslim students claimed had offended them. That same year, a similar provision in Alberta provincial human rights law was used to prosecute Ezra Levant for publishing the infamous Danish cartoons of the Prophet Muhammad in the now-defunct Western Standard magazine. In both cases, the clear intent of the complainants was to limit legitimate debate about religious extremism.
Fears that getting rid of Sec. 13 will lead to a flood of vicious anti-Semitism and the like are unfounded. Sections 318 through 320 of the Criminal Code already prohibit “hate propaganda” — including “any writing, sign or visible representation that advocates or promotes genocide.” And it has been used several times to prosecute true hatemongers,James Keegstra, most famously. Nothing in Mr. Storseth’s proposal would affect those laws.
The problem for censorship-minded activists is that proving hate speech in court is hard. Courts tend to abridge Charter rights such as freedom of expression only in the most extreme cases. It is unlikely that an anti-immigration screed on the Internet or a controversial editorial cartoon would prompt a real judge to shut down a website or fine a blogger. That’s why most activists prefer to rely on Sec. 13 of the CHRA and its provincial counterparts (which should also be written out of the law), instead of the criminal code.
For instance, in a high-profile case against an alleged white-supremacist website, Canadian Human Rights Commission investigator Dean Steacy was asked what value he gave freedom of speech in his investigations. Stunningly, Mr. Steacy replied: “Freedom of speech is an American concept, so I don’t give it any value. It’s not my job to give value to an American concept.” In this same case, CHRC investigators allegedly permitted the complainant to review their evidence files and used false names to post racist remarks on websites, then waited to see whether the site operators took them down.