Section 13 (S13) of the Canadian Human Rights Act (CHRA), which prohibited the promotion of hatred and contempt via the internet and telephone, is now dead. To be sure there was a long, passionate, rancorous and sometimes downright unseemly debate over both its effectiveness and whether it limited free speech in Canada. In my view it was a necessary discussion even if in the end we lost what I have always held to be a valuable tool to defend vulnerable minorities in Canada.
As a result of MP Brian Storseth's Private members Bill to repeal S13, consequences and remedies we once had under a civil rule of procedure to deal appropriately with the promulgation of hatred is no longer. Where a complaint under S13 could result in cease and desist orders or at most a fine, today the only tool left to guard against hate promotion targeting Jews, LGBTQ, First Nations, Muslims and other faith and ethnic groups are the hate laws, sections 318 and 319 of the criminal code. Convictions will mean a criminal record and perhaps even jail.
Some argued that with the criminal code, the case first requires the approval of the province's Attorney-General to proceed. Then they note that cases are heard under proper jurisprudence. This is true. However outside the A-G's approval S13 cases were also heard under proper rules of juridical procedure in the same manner as any other lawfully appointed provincial or federal tribunal.
Indeed mental health cases heard under tribunal where the most sacred of all our rights, freedom from unwarranted detention, are decided following the same procedures as did S13 tribunals. Similarly, labour tribunals that could decide loss of employment or immigration review panels where the right to live in Canada is judged on a regular basis.
The debate on S13 began as a result of complaints leveled against McLean's where provocative columnist Mark Steyn had written what some believed to be an offensive harangue against Islam. The second complaint targeted then Western Standard publisher Ezra Levant who reprinted the now infamous Mohammed cartoons. In Levant's case the complaint was filed under the Alberta Human Rights provision on hate speech while in Steyn's case, complaints were filed with the BC and Ontario Human Rights Commissions as well as the federal CHRA. This was done after some young Muslim Canadian lawyers failed to receive what they believed to be a fair hearing from Maclean's magazine on the Steyn article.
The irony of the history related to S13 is that while these cases became the catalyst for the eventual ensuing debate led aggressively by Levant and Steyn, neither of these cases was ever heard under the CHRA. Levant's was never a S13 case and the Steyn complaint was dismissed.
In the end, the Levant case was also dismissed by the Alberta Commission while the Steyn complaint did proceed under BC human rights law to tribunal. The case was finally dismissed by the adjudicator following a long and in my view totally uncalled for hearing.
Were there problems with S13? Yes. The issue of speed in dealing with vexatious claims; the lack of provisions for falsely accused complainants to recoup financial losses and I came more and more to believe that punishing fines as opposed to cease and desist orders changed the whole tenor of human rights applications. Punishment, as will now be the only option under the criminal code, should never have been an option for S13.
S13 did not go without a spirited fight. Many laudably argued that fully repealing S13 was akin to throwing out the baby with the bathwater. MP Irwin Cotler one of Canada's most eminent human rights advocates summed it up best when he addressed Parliament on this very issue:
...the debate we should be having tonight should be regarding how we might reform and structure the human rights commissions to protect freedom of expression while protecting vulnerable individuals and minorities from hate and group vilifying speech rather than committing ourselves to abolishing the entire regime ...
Professor Cotler got it right. Of the few hate-related S13 cases that went to tribunal, all were of the vilest hate where calls for mass murder of Jews, Gays, Muslims, First Nations and others were posted. All the other complaints were solved either through negotiation or simply dismissed.
On June 6 the vote in Parliament was close. The Conservatives using their majority passed the repeal of S13 153-136. With only the criminal code left for protection I hope Parliament did not bite off its nose to spite its face.
Follow Bernie Farber on Twitter: www.twitter.com/@berniefarber
I don't want any Government deciding what information I can access, or telling me what's "Hate Speech". Give these fools all the rope they want, better to hang themselves with. Don't silence them, allow their true ignorance the full light of exposure. This is Canada, we don't need thought police.
Secondly given the piece I wrote for the Ottawa Citizen (you really should read it before you post) I think even you might agree that calling for the mass murder and genocide of identifiable groups goes far beyond "offensive speech".
And in the end Canada still has strong hate laws that now make it a criminally indictable offence to knowingly and willfully promote hatred against identifiable groups identified by race, creed colour, national origin or sexual orientation. If convicted hatemongers will now have criminal records and possibly have to serve up to two years in jail. That I would suggest is far more onerous than a fine or a cease and desist order.
Major parts of any slander and libel awards are for pain and suffering as well.
Who does he recover the costs of his defence from?
B: And prove it, let's see your old columns defending Steyn and Macleans.
After how many hundreds of thousands of dollars were spent by them defending themselves and after how many millions of tax dollars wasted?
It didn't cost the complainants one thin dime.
leftcoasterman suggests that Canadian Human Rights Tribunals are "Kangaroo Courts". He may not understand that all Canadian quasi-judicial Tribunals operate under legally established judicial rules of order. I noted the other such Tribunals that operate as do the CHRT in my piece. And all decisions can and are reviewed by the Federal Court of Canada.
He then asserts that simple offense is not hate insinuating that these were the types of cases brought to Tribunal. Another fallacy; of the 16 cases brought forward by Richard Warman for example all preached mass murder or genocide against Aboriginals, Jews, blacks, LGBTQ, Muslims etc. You can read more about that here http://tinyurl.com/7pz4nwh
Lastly David Langtry Acting Chief Commissioner of the CHRC noted recently in the National Post that "Of the 1,914 human rights complaints under the federal Act in 2011, only one complaint regarding hate on the Internet was given consideration.", hardly an onslaught as leftcoasterman suggests.
The National Post summed up nicely why these courts ought to be rightly considered "kangaroo courts", considering that:
-Third parties not involved in the alleged offences may nonetheless file complaints.
-Plaintiffs have sometimes been given access to the commissions' investigation files and given the power to direct investigators.
-Truth is not a defence.
-Defendants are not always permitted to face their accusers.
-Normal standards for assuring the validity of evidence do not apply.
-Hearsay is admitted.
-The government funds the plaintiff but the defendant is on his/her own.
-Commission investigators are allowed to entrap defendants into committing hate crimes.
http://web.archive.org/web/20080701191358/http://www.nationalpost.com/opinion/story.html?id=597251&p=2
It is also fair to note that other Tribunals where your actual liberty is at stake (mental health tribunals for example) follow the same tribunal procedures as does the CHRT. In fact Tribunals will continue under the CHRT minus S13 which had a miniscule of cases over the decade.
As for money lining Mr. Warman's pockets can you provide actual proof that this was the case. The only time Richard received payments were on libel cases he won not S13 matters.I take it you are not demanding that libel laws be repealed as well?
Which is why in your other article you hedge your bets by writing 'virtually all'...
Hitler used the hate speech laws to silence his opponents.
The same opponents who drafted and passed those laws.
Why did the HP remove my previous post about this?
Is the truth that offensive to them?
I find it surprising that any Canadian would condone Anti-Semitism, White Supremecists, and Neo-Nazi hate in the way you do here. So you approve of hate speech.... interesting!!! I hope you and your family become the target of a lot of hate aimed at you sometime, and we'll see how you like it then.
phone calls = harassment, not the same thing at all.
your other points are ridiculous.
it is a straw man argument, you are holding up the worst people in our society and saying that they are the only people who benefit from free speech.
not civil liberties organizations, no political groups.
but small, fringe, hate groups.
give it a rest, please.
Did any of you read the article?
You have free speech, you do not have the right to promote hate speech. It was necessary to push through this bill, since once they are able to monitor all online speech, it will be easier to find those responsible. But now they don't have to worry and can go crazy with the hate, and now Stevie's buddies in the Northern Front will put his picture back on the wall.
The system worked, needed change, but did what it was supposed to do. Free up the courts to deal with murders, rapists... All this does is make it harder to stop the hate speech, how does that increase your freedom? Unless you want to be allowed to promote hatred online. There is no slippery slope here as you contend hate speech is wrong and against the law. So why would we want to take away the power to enforce that law without clogging up the courts?