Section 13 of the Canadian Human Rights Act Repealed!?

Through a recent tweet from Omar Ha-Redeye (@OmarHaRedeye), we learned that private member’s Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom) passed third reading in the House of Commons without much media coverage, public attention or debate from the opposition parties. The Bill aims to amend the Canadian Human Rights Act by deleting section 13 to ensure the Act doesn’t infringe on the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. However, it still needs to go through the Senate before it receives royal assent. If enacted, the new Act will come into force one year after the day on which it receives royal assent.

Although it is a private member’s Bill, the Conservative Party forming today’s government has thrown their support behind the amendments to the CHRA. The Bill passed the House by a margin of 153 to 136.

I find it appalling that the government is using private member’s Bills to pass their agenda. And yes, I say their agenda since, according to NDP public safety critic Randall Garrison, Conservative Party members voted a few years ago at their annual convention in favour of a resolution to eliminate the human rights commission’s authority to “regulate, receive, investigate or adjudicate complaints” dealing with hate speech on the Internet.

I wrote about the meaning and purpose of section 13 of the Canadian Human Rights Act in a previous Slaw post. So I won’t go into the details. To summarize though, the section prohibits the communication of messages that are likely to expose a person to hatred or contempt, by reason of the fact that the persons targeted are identifiable on the basis of a prohibited ground of discrimination such as race, nationality, sex, sexual orientation, religion, and so on.

According to Alberta Conservative MP Brian Storseth, who introduced the Bill:

The current human rights code allows too many frivolous cases to proceed against citizens, when the Criminal Code already covers hate speech that could generate harm against an individual or group.

Acts of hate speech are serious crimes that should be investigated by police officers, not civil servants, he said, and the cases should be handled by “real judges and real lawyers,” instead of a quasi-judicial body such as the human rights commission.

Well, let me share with you why I believe section 13 of the Canadian Human Rights Act is still relevant, still has a purpose and should have been reviewed to fit its intended purpose instead of being removed from the law despite the existence of Criminal Code provisions on hate crimes:

1. Recent comments by Jonathan Kay in the National post:

Canada’s human-rights law is a product of the 1960s, when much of our society truly was shot through with bigotry and prejudice. Those days are gone, thankfully, and laws such as the Canadian Human Rights Act now comprise a greater threat to our liberty than the harms they were meant to address.

Really!? Those days are gone… and the rest of his comment simply shocks me. Tell me, if those days are gone, why are white supremacists cheering and are overjoyed with the repeal of section 13?

2. Section 319 of the Criminal Code of Canada bans the wilful promotion of hatred toward an identifiable group. Challenging hate crimes under the Criminal Code is most often a losing battle because it is such a difficult charge to prove.

The Canadian Bar Association supported “retaining section 13 as a useful tool,” but had reservations about the punitive fines and stated in a paper that promotion of hatred is a “social evil” that has increased with the proliferation of the Internet, and that the standard for wilful promotion of hatred in the Criminal Code is very hard to prove.

3. Taking away the Human Rights Commission’s authority over hate speech will make it much harder to prevent hate speech online, will continue to encourage racism and could lead to more racial violence and intolerance.

In addition, it is not just an internal issue. How the world sees Canada on human rights issues is becoming a problem. As stated by Mark Kersten on his blog Justice in Conflict:

This past week the United Nations Committee Against Torture released a report into Canada’s human rights record. It wasn’t pretty. The Committee suggested that Canada was complicit in the torture of Canadian citizens post-9/11 and expressed concern at the “apparent reluctance on part of the State party [Canada] to protect rights of all Canadians detained in other countries.” Shocking, right? Not really—not if we look closely at Canada’s recent behaviour with regards to international justice and human rights…

Moreover, this isn’t a partisan issue—both Liberal and Conservative Governments share responsibility for Canada’s human rights failures. Nevertheless, there doesn’t appear to be much hope with the current Conservative Government and, for a government which rode to power under the banner of accountability, their record on human rights and international justice issues is particularly disturbing. Perhaps this should be unsurprising. In 1999, Canadian Prime Minister Stephen Harper described Canada as “a Northern European welfare state in the worst sense of the term.” And what does he think of human rights commissions? According to Harper,

“Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society…It is in fact totalitarianism. I find this is very scary stuff.”

In this context, the response from the government should come as no shock. Rather than confronting the issues raised by the UN Committee, the Canadian Government’s response was to criticize the report and to brush of its allegations by claiming that worse abuses elsewhere absolve the Government’s record. A spokesperson responded by saying that,

“In times when there are serious concerns regarding human rights violations across the world, it is disappointing that the UN would spend its time decrying Canada.”

Moreover, in response to the report a Conservative MP has declared it is “high time” that the Canadian government consider withdrawing from the UN altogether.

Canada’s flailing record on human rights and international justice is catching up with it and its reputation is suffering. When I tell people I’m Canadian increasingly people ask “What happened to Canada?” It’s a question I often find myself asking.

So do I!

Many experts and the media say that Bill 304 is a fait accompli!. However, I hope not. But in the meantime, what do you think? Do you agree with free speech proponents on the repeal of section 13? Are the Criminal Code provisions sufficient to limit and prevent hate speech? Does section 13 of the Human Rights Act unnecessarily infringe on Canadians’ freedom of speech? Is section 13 necessary to protect certain identifiable groups against hate speech? Is section 13 of the Human Rights Act still relevant today to ensure people are not posting hate speech on the Internet?

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Comments

  1. Individuals interested in this topic may wish to read the following items:

    The Toronto Star editorial supporting the repeal of Section 13

    The “Moon Report” recommending repeal of Section 13

  2. I think you have lost sight of the fact that, unless freedom of speech also protects speech others may deem “offensive”, it is no freedom at all.

  3. I find the argument that the criminal code standard of ‘willful promotion of hatred’ is too difficult to prove to be unpersuasive. Justice is hard. When the powerful and well financed state is taking away fundamental rights like free expression it should be difficult. Thats why we have so many safeguards in criminal law. If we’re prepared to do away with them here why cling to them at all?

    The same thing goes for proceeds of crime legislation and
    ‘safer communities’ type legislation. They are all part of a broader movement to reclassify matters as ‘administrative’ or ‘civil’ to do an end run around the usual safeguards of criminal law. Its a disturbing trend and I wish the courts would do more to stand up to it.

    I also don’t agree with the way that proponents of s. 13 have used the support of white supremacists for this amendment as an argument against the change. It reminds me of the way that the Conservatives have accused their opponents of supporting pedophiles because they have concerns about how laws may impact online privacy or terrorists because they have concerns about security certificates. Even the most repugnant in society are entitled to due process.

    I still think that s. 13 was vulnerable to a renewed Charter challenge in any event. Taylor was a narrow 4-3 decision and with a change in the composition of the court a different outcome may have been reached.

  4. Generally speaking, people don’t believe in freedom. The starting point is that you have no rights.

    Some time ago, this idea was fundamentally rejected. The starting point was that you had rights that ended at the end of someone else’s nose (not their feelings).

    In just about all areas of society (or so it seems to me), people still start their thinking from the first position rather than the second. Gay rights, speech rights, political rights, rights to know what our government is doing and so on all seem to suggest that rights are restricted rather than granted.

    The term “fight for your rights” is a meaningful one due to our inherently conservative nature in respect of rights. This is unfortunate in my view as it has resulted in significant harms and injustices over recent history.

    Given the foregoing, and generally believing in free speech (let’s not forget the role of speech in the massacres of Rwanda and Nazi Germany), I think that speech should generally be freer. However, I believe that a corresponding courage in shouting down the evil ones amongst us is required. Their number is legion and I am not sure I see enough valiant defense of the good in words to satisfy me that evil will be opposed. Far too often, I hear voices calling for genocide against members of certain faiths and regions of the planet without the corresponding denunciations to be satisfied that speech can be as free as it ought to be.

    It is a difficult thing to weigh properly in the balance.

    The Wet One

  5. Yosie Saint-Cyr

    Does freedom of speech include offensive or hate speech?! The right to freedom of expression is not final and absolute. Expressions of hate cause real harm to groups that are depicted in very negative ways. The rights of marginalized groups should not be spoken about or depicted in demeaning and derogatory ways; this outweighs any claim to freedom of expression. Marginalized groups are owed societal protection from hate speech.

  6. For those who have not been following the developments leading up to this Bill, they emerged almost exclusively from a small handful of cases.

    Pearl Eliadis has done a wonderful job addressing them, and the misinformation these respondents have spread about human rights legislation, in a piece from 2009.

  7. Yosie Saint-Cyr

    Thanks Omar for the link to the piece by Pearl Eliadis

  8. “Does freedom of speech include offensive or hate speech?!”

    From a legal stand point freedom of speech–or more accurately freedom of expression–absolutely does ‘include offensive and hate speech’. The Supreme Court has repeatedly taken a broad view of free expression and in almost every case I am familiar with have found an infringemnt of section 2. The court almost always focuses its analyis on whether a law is a reasonable limit under section 1 of the Charter. So the correct statement of the question is whether the limits we’ve imposed on hate speech are a reasonably justied limit on free expression.

    But again in the context of repealing section 13 that isn’t really the issue. There seems to be a consensus (albeit a weak one) that some limits on hate speech are justifiable. The private members bill repealing s. 13 didnt also repeal the Criminal Code provision so really it is more a question of process than one of substance. There is almost no public appetite–that I am aware of at least–for repealing the Criminal Code provisions. So really the debate over whether there are justifiable limits on free speech is a bit of a distraction.

    I can certainly agree that some proponents of repeal have peddled some absurd myths about human rights commissions and the way they have dealt with hate speech. But opponents have committed some errors as well.

    The first is the claim that reverting to the Criminal Code will create a ‘wild west’ for hate speech. Its unquestionable that meeting the criminal code standard is more difficult than the section 13 standard but I think it remains to be seen that Criminal Code will be ineffective. The Criminal Code provisions were brought in only a little earlier than the Human Rights provisions so we really haven’t seen them at work long enough to judge. For the past 40 years almost anyone who wanted to pursue hate speech has done so through the easier to prove human rights system so we havent had that many prosecutions and therefore I think it remains to be seen if the Criminal Code will prove effective.

    The second error is more an error of persuasion than substance and it is the habit of slipping into the language of hurt feelings. When section 13 proponents argue that hate speech leads to actual acts of discrimination and in extreme cases ethnic cleansing or genocide they have peoples attention. I think most people see these as strong arguments to justify hate speech laws–whether they are ultimately persuasive or not being a different issue. But opponents of repeal have a habit of (intentionally or not) slipping into the language of hurt feelings and there you lose a lot of people. In an era of mass media where we are all exposed to content we feel offended by society doesnt accept the argument anymore that we are entitled to protection from that offence.

    I’ve seen this time and time again in this debate. An author will start off strong by asserting that it is not about ‘hurt feelings’ and that hate speech is linked to hateful actions of grave consequence for minorities. But then they’ll slip into the subjective emotional experience of the ‘target’ and talk about ‘dignity and self worth’ (to quote the SCC who made a similar mistake in Taylor).

    When we’re restricting expression that results in tangible harm to society we’re talking about a relatively narrow limit to free expression. When we’re using hurt feelings as the justification you’ve really blown the lid wide open on what types of expression could be limited and that will get peoples guards up.

  9. Sec. 13 violates freedom of speech and human rights. It’s purpose and that of all anti-hate laws is not to combat hate but to reward it. Who benefits from such laws? The intolerant, the bigotted, those who cannot stand anything critical being stated about them or their group. Who suffer? The small, the insignificant, those with little money to pursue their cases. Anyone who favours anti-hate laws is an enemy of freedom of speech. Anyone who is against freedom of speech is a hate-monger. Therefore anyone who favours sec. 13 and similar laws is a hate-monger.

  10. I wonder if B. Kendall has read the Report of the Special Committee on Hate Propaganda, circa 1966-67, appointed by L.B. Pearson, chaired, I think, by Maxwell Cohen and co-starring Pierre Trudeau, Mark MacGuigan and, I think, another. If he feels as he says above about s.13 of the Human Rights Act, I expect he feels much the same about the Hate Propaganda Act. However, if he is capable of giving a reasoned reply to this panel of constitutional luminaries without indulging in the ad hominem attacks (bordering on “hate mongering?”) above, then he might also recognize that a Human Rights provision allows an offense to be pursued with a lighter weapon than the Crim Code.

  11. I recommend Michael Plaxton’s thoughtful and thought-provoking review of _The Harm in Hate Speech_ by Jeremy Waldron, in the Jan/Feb issue of the Literary Review of Canada.

  12. “Human Rights provision allows an offense to be pursued with a lighter weapon than the Crim Code.”

    Are you serious?……..you must be joking……

    Regards, Don Laird
    Edson, Alberta, Canada