After three years of public thrashings, a controversial hate speech provision is now under the federal microscope. In a committee room in the bowels of Parliament Hill, a cross-section of MPs will debate the clause’s merits through the fall, and possibly into next year.
The provision in question, Section 13 of the Canadian Human Rights Act, allows the Human Rights Commission to deal with complaints regarding hate speech by phone or internet.
Opponents of Section 13 complain that it establishes a lower threshold for offences than the two hate speech laws that appear in the Criminal Code.
A raft of free speechers — from civil liberties groups to the Canadian Association of Journalists — decry the clause as an unnecessary intrusion on Canadians’ right to speak their minds. The issue gained visibility in 2007 after Muslim groups used Section 13 to pursue Ezra Levant and Macleans columnist Mark Steyn for publishing material they found offensive. Steyn and Levant are now avowed enemies of the clause.
But the worst blow was dealt to the provision in September, when a Canadian Human Rights Tribunal declared the clause unconstitutional.
“It was a breath of fresh air,” said long-time Section 13 critic and Liberal MP Keith Martin of the tribunal decision.
Since September’s decision sets no legal precedent, the legislation remains intact until either a superior court decision strikes it down or Parliament amends the Canadian Human Rights Act (CHRA). In the meantime, The Commons Justice Committee — the group charged with studying the provision — will investigate whether it should be struck down.
Conservative MP Brent Rathgeber is a member of the committee and a vocal opponent of Section 13.
“I think our study is timely in that the Human Rights Commission has filed an appeal, so it will be reviewed by the Federal Court of Canada, and if they uphold that decision, presumably that will strike down Section 13,” says Rathgeber. “That could create a legal void, and there are many cases pending.”
“I hope at the end of the day we can table a report in Parliament that can protect the freedom of speech while still protecting groups from real harm, not perceived harm or hurt feelings,” Rathgeber says.
But Rathgeber and the Conservatives will have to face an opposition that is just as likely to want to keep the provision in place.
“We certainly wouldn’t be in favour of abolishing it,” says Liberal justice critic Dominic LeBlanc. “We think that Section 13 and the Human Rights commissions have played a useful role. We’re always open to discussions of how Section 13 might be strengthened or clarified.”
LeBlanc adds that he has spoken with the chair of the Canadian Human Rights Commission and is in the process of reading their recent report on the issue.
“We think there should be a measure between the Criminal Code provisions with respect to hate propaganda, and a lower threshold which would properly be in the domain of a Human Rights Commission — particularly around new technologies and information technologies,” LeBlanc says.
The NDP also supports the retention of the clause.
“My own position is, and I’ll be calling witnesses from this vantage point, is what we can do to clarify the problems,” says NDP justice critic Joe Comartin. “I think it is possible to rewrite the section, to amend it, and to put in criteria as to how you would interpret when the commission would have jurisdiction to intervene. I think that would be probably a bit more restrictive than it has historically been.”
Comartin expects the Conservatives to call witnesses that would advocate for the abolition of Section 13, starting with opponents like Levant and Steyn.
But not all Conservatives feel the need to abolish Section 13. Lesbian Conservative Senator Nancy Ruth feels that it should be retained.
“The Canadian Human Rights Act does include women, but the Criminal Code does not,” says Ruth. “So if we lose Section 13, there’s no protection for hatred against women anywhere.”
“If it is missing, then it should be in the Criminal Code,” says Martin. “The Criminal Code is there to protect us all from hate speech, and any individual, any group must be protected against true hate speech.
“If there is something missing in the Criminal Code, then again it’s up to Parliament to deal with it. It’s a wonderful opportunity to strengthen the Criminal Code aspects of hate speech while removing the flaws in Section 13 that exist right now.”
Ruth says that she has been engaging with the ministers of justice and Status of Women on that inclusion, but that their priorities at present remain the economy and tough-on-crime legislation.
The prominence of voices like Levant and Steyn in the call for repeal — along with PEN Canada, the Canadian Association of Journalists, the Canadian Civil Liberties Association and Pink Triangle Press (Capital Xtra’s parent company) — is nevertheless disturbing to some supporters of the clause.
Richard Moon, a constitutional law professor at the University of Windsor, says Levant may reach some of the right conclusions, but he uses the wrong rationale.
In October of 2008, Moon published a report for the Human Rights Commission that called for Section 13 to be struck down.
“I have felt deeply disturbed by the way in which certain claims made on rightwing blogs like Levant’s have seeped into mainstream discourse, many of which are grotesque exaggerations — or, in some cases, outright fabrications of the circumstances,” Moon says.
“I believe there are very good — but complicated — arguments as to why we ought to repeal Section 13, but the accusations of corruption or even those sorts of simple assertions that they have a 100 percent conviction rate — those are all grotesque distortions.”
Moon is referring to the claim in Shakedown that everyone who is accused of hate speech by Canadian human rights tribunals is convicted. Moon explains that frivolous complaints are weeded out before they reach the tribunal — only those likely to succeed actually make it to hearings.
“I’m deeply disturbed by the…smear campaign against the people who support Section 13 and the people at the Commission who are, for the most part, simply carrying out their statutory duties,” Moon says. “You can have a problem with the statute and call for its repeal without attacking civil servants who are generally implementing the law as it stands.”
A Supreme Court case is likely as a result of September’s tribunal decision declaring Section 13 unconstitutional. The last time this issue was brought before Canada’s highest court was in 1990, when a split 4-3 decision in the Taylor case declared the limits placed on free speech under Section 13 legal and constitutional.
Meanwhile, the Justice Committee will tender a report that may influence Parliamentary direction on the issue. If the report is convincing, Section 13 could be repealed by way of Parliamentary bill.
“It is Parliament’s responsibility to deal with the Act — it’s not the Tribunal or the commission’s responsibility,” Martin says.
“The important thing is for Parliament to have the courage to go and make the changes of Section 13(1) that will protect one of our true fundamental rights — the right of freedom of speech — while making it very clear that hate speech belongs in the Criminal Code.”