Wednesday, September 28, 2011

NatPost articles on Section 13 and its possible repeal!

There were two articles in today’s National Post on Section 13 of the Canadian Human Rights Act, the notorious censorship provision.

1.    Internet hate speech section of rights code could face repeal  (Front page story)
2.    What the #!%*?: Section 13 of federal human rights code explained

Internet hate speech section of rights code could face repeal

Charles Lewis  Sep 28, 2011 – 6:15 AM ET | Last Updated: Sep 27, 2011 7:55 PM ET

A Tory MP plans to introduce legislation as early as Friday calling for the repeal of a section in the federal human rights code banning hate speech over the Internet.

Despite being a backbencher, Brian Storseth is convinced the bill will succeed because nearly every Tory MP opposes Section 13, and he believes the Harper government wants to see it repealed.

“Section 13 suppresses the basic right to freedom of speech in our society that is guaranteed under the Charter of Rights & Freedoms,” said Mr. Storseth, who represents the Alberta riding of Westlock-St. Paul.
Hate speech that is truly capable of bringing harm to an identifiable group or individual is already dealt with in the Criminal Code, he said. In those cases, police investigate and the Attorney General has to lay the complaint to ensure that allegation is not frivolous.
“We need to have some reasonable tests of harm in our society and I believe the Criminal Code looks after that and ensures that Canadians aren’t targeted by hatred,” he said.

“But the difference is that in a court there is the openness and transparency, which you don’t have through the human rights tribunal. In a tribunal, a person can lay a complaint, but doesn’t not have to have their name attached to it. There’s no cost or expense to the person putting the complaint forward, no matter how frivolous that complaint might be. And it violates the fundamental right of an accused to face his accuser.

“At the end of the day, all the onus and costs are put on the defendant and this should not the basis of our justice system.”

Suppressing free speech can help drive abhorrent views underground, allowing them to fester and grow, he adds.

“We need to have liberty of free speech and it’s ultimately freedom of speech that looks after these issues by allowing the light of day to destroy hateful propaganda.”

The bill will come to a first vote in early November, about a month before the constitutionality of Section 13 will be reviewed by a federal court.

Mr. Storseth said he prefers not to wait for the court to make its decision because this is the responsibility of Parliament.

Section 13 has been controversial since its inception more than a decade ago.

In 2008, Richard Moon, a law professor at the University of Windsor, prepared a report for the Canadian Human Rights Commission concluding the section should be removed. His advice was never acted upon.
The following year, a member of a human rights tribunal said Section 13 violated the Charter, which put the bill in a state of limbo and eventually led to the review in federal court.



What the #!%*?: Section 13 of federal human rights code explained

Joseph Brean  Sep 28, 2011 – 6:15 AM ET | Last Updated: Sep 27, 2011 7:51 PM ET

In this occasional feature, the National Post tells you everything you need to know about a complicated issue. Today: Joe Brean elucidates Section 13 of the federal human rights code:

Q: Section 13 again? What the heck? I thought Ezra Levant and Mark Steyn already slew that kangaroo. It says so on the Internet.
A: You need to get out more. Section 13 is not dead. It’s resting. Unfinished cases are on hold, and no new ones have been launched since 2008, when the Canadian Human Rights Tribunal ruled the law violates section 2(b) of the Charter of Rights & Freedoms, which guarantees freedom of expression. That decision, in the case of far-right webmaster Marc Lemire, put the law into limbo but did not technically overturn it. An appeal in federal court is slated for December.
Q: 2(b) or not 2(b), that is the question, eh? And look how things turned out for Hamlet. So, this MP, can he actually kill it with a private member’s bill?

A: In theory, yes. In reality, maybe, but only if it makes it to a vote. Even then, there is the political problem of appearing to side with hatemongers against minorities. There is strong public support for repeal, including nearly all major newspapers and a large segment of bloggers. But no politician, with the exception of former Liberal MP Keith Martin, has ever taken a serious stand against Section 13. Even the ruling Conservatives have gone against their members’ wishes, first by intervening in support of Section 13 at Mr. Lemire’s Tribunal, then backing out of the appeal.

Q: Why is there a law against hurt feelings? Is this a country of laws or a daycare?
A: Section 13 does not protect hurt feelings. It prohibits hate speech on the Internet, defined in law as “unusually strong and deep felt emotions of detestation, calumny and vilification.” But its legal test is strangely subjective. It bans repeated messages that are “likely to expose” identifiable groups to hatred or contempt, and provides for punishments including fines and restrictions on internet usage. Truth is no defence, to prevent tribunals being hijacked by arguments over Holocaust revisionism or the genetic inferiority of blacks. Neither is benign intent, which raises the awkward question of whether the Tribunal’s own judgments, or news reports about them, which quote hate speech verbatim, technically violate the law. And it does not require a victim, just the possibility of one, which has led to criticism that Section 13 only pretends to be a remedial law, like the rest of human rights legislation, and is in fact simply punitive. It is also vastly more broad than its creators envisioned in the 1960s, when it was written for racist telephone hotlines. In 2001, as part of an anti-terrorism bill, Parliament expanded Section 13 to include the Internet, and thus almost every word published in Canada. Since then, Jennifer Lynch, head of the Canadian Human Rights Commission (CHRC), has compared online hate speech to “microwave popcorn … popping up here, popping up there.”

Q: Is it true no one has ever been acquitted?
A: Pretty close, at least not until Mr. Lemire, although several cases were withdrawn or settled. Hate speech represents only about 2% of complaints to the CHRC; of the 71 or so filed since 2001, 33 were referred to the tribunal. Of the roughly 20 that have been decided, all but two were brought by Richard Warman, an activist lawyer and former CHRC employee.