06/22/2012 05:32 EDT | Updated 08/22/2012 05:12 EDT

Without Section 13, All Hate Crimes Are the Same

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.