Section 13 of the Canadian Human Rights Act

The Canadian Human Rights Commission (CHRC) has been the subject of free speech controversies in regards to complaints made under section 13.1 of the Canadian Human Rights Act.

Section 13.1 of the Human Rights Act

The controversy regarding the HRC's practices comes from its enforcement of Section 13.1 of Canada's Human Rights Act, which states that it is discriminatory to communicate by phone or Internet any material "that is likely to expose a person or persons to hatred or contempt." Critics charge that the HRC adjudicators have limited legal training and poor investigatory resources and the result is that the power of section 13.1 is being abused for nuisance cases that would be rightly tossed out of a real court.

Liberal MP Keith Martin has proposed a private member's bill in Parliament to rescind section 13.1 of the Canadian Human Rights Act, upon which federal HRC censorship cases are based. Martin described the legal test of "likely to expose" as "a hole you could drive a Mack truck through," and said it is being applied by "rogue commissions where a small number of people [are] determining what Canadians can and can't say."

Martin asserted that some of history's most important ideas "were originally deemed to be sacrilegious and certainly in opposition to conventional wisdom. Who's to say that a commission cannot rule those ideas out of order and penalize people for saying or thinking them?"

Irwin Cotler, a Canadian human rights scholar and former minister of justice, floated (but did not endorse) the idea that section 13.1 cases should require the authorization of the Attorney-General, which is the requirement for criminal prosecutions for inciting violence or promoting hatred.

Alan Borovoy, general counsel for the Canadian Civil Liberties Association, has also criticized Section 13.1. He cited an example of the book Hitler's Willing Executioners, which alleges the complicity of German civilians in the Holocaust, and said that the thesis is arguably "likely to expose" German people to contempt, and therefore be a violation of Section 13.1.

Borovoy also noted that under Section 13.1, "Intent is not a requirement, and truth and reasonable belief in the truth is no defence."

Criticism

Alan Borovoy has said that when he and other human rights activists advocated the creation of human rights commissions they "never imagined that they might ultimately be used against freedom of speech" and that censorship was not the role he had envisioned for the commissions.

Borovay further added that:

"Although it's true that they have nailed some genuine hatemongers with it, it has nevertheless been used or threatened to be used against a wide variety of constituencies who don't bear the slightest resemblance to the kind of hatemongers that were originally envisioned: anti-American protesters, French-Canadian nationalists, a film sympathetic to South Africa's Nelson Mandela, a pro-Zionist book, a Jewish community leader, Salman Rushdie's Satanic Verses, and even a couple years ago, a pro-Israeli speaker was briefed about the anti-hate law by a police detective before he went in to make a speech."

Borovoy added that none of these cases resulted in a lasting conviction or property seizure "But only lawyers could be consoled by that."

White supremacists James Scott Richardson and Alex Kulbashian, who ran a racist website called "Canadian Ethnic Cleansing Team," are currently challenging the constitutionality of section 13.1 of the Canadian Human Rights Act. Other white supremacists such as Marc Lemire and Paul Fromm have also criticised the constitutionality of the CHRC. Lemire (with the qualified support of PEN Canada and the Canadian Civil Liberties Association, among others) has won the right to cross-examine HRC investigators concerning their conduct during investigations, namely their posting of provocative racist comments on websites. Jonathan Kay, of the National Post, opined that the HRC had "managed a seemingly impossible task: They've found a way to rehabilitate the image of neo-Nazis, transforming them from odious dirtbags into principled free-speech martyrs."

- Fred Henry, Catholic Bishop of Alberta, wrote:

Each judgment emanating out of our various human right commissions seems to be more brazen and bizarre than the one that preceded it... - It would also seem that this panel is also not bound by reasonable argument or the elementary rules of logic but is free to skewer anyone not espousing and proclaiming politically correct views...[The punishment in the Boissoin case] is tantamount to ruling out honest debate and a plurality of views in the public sphere lest someone be offended by a differing viewpoint.

Syed Soharwardy, a Muslim who filed a complaint with the Alberta Human Rights Commission against Ezra Levant for republication of Danish cartoons depicting Muhammad, later dropped the complaint and changed his mind about the value of using Canada's human rights commissions to prosecute 'hate speech':

When I initiated my complaint against Mr. Levant, I saw human rights commissions as a non-violent means of resolving differences among Canadians. I was not aware of the controversies between the commissions and Canada's faith communities. I am thinking specifically of my friend Fred Henry, the Roman Catholic bishop of Calgary. Upon learning about the difficulties he and other faith communities have encountered with the commissions, I withdrew my complaint against Mr. Levant.

One of the reasons I chose Canada as my adopted homeland is because of our country's great respect for religious freedom. In Canada, I am free to be good Canadian and a good Muslim. There is no contradiction between the two. In listening to the experiences of Bishop Henry and Pastor Boissoin, I realized how precious religious freedom is to our country and how easily freedom is lost.

Yes, I have often expressed concerns over Islamophobia. Some of the portrayals of Muslims in the media have been painful - so much so, that I worried when I set out across Canada on the multifaith walk against violence.

However, the reaction from ordinary Canadians could not have been more hospitable. Canadians of all races, colours, religions, and ages have welcomed me, a Muslim man with brown skin, into their homes, their neighbourhoods and their communities. They have walked with me, eaten with me and prayed with me. They have expressed strong concern for preserving our civil liberties - which includes freedom of speech and religion. They have also expressed a strong desire to end violence in Canada and around the world. This experience has taught me that we can only end violence when we respect the freedom of all Canadians.

There will always be pockets of Islamophobia in Canada, just like there are still pockets of anti-Semitism, racism and sexism. However, I have learned that the best way to dispel misconceptions between our various cultures and communities is for us to meet face to face and learn from each other's similarities and difference.

This can only be accomplished in a society that respects freedom of expression, freedom of religion and all of our other democratic freedoms.

Frank Dimant, Executive Vice President of B’nai Brith Canada says:

We are calling for a much-needed overhaul of the protections offered by the human rights commission system. We have to ensure that commissions do not become abusers of the very human rights they are charged with protecting.

The Canadian Association of Journalists president Mary Agnes Welch states:

Human rights commissions were never meant to act as language nannies. The current system allows complainants to chill the speech of those they disagree with by entangling targets in a human rights bureaucracy that doesn't have to operate under the same strict rules of defence as a court.

In a press conference on October 2, 2008, Tarek Fatah, a founder of the Muslim Canadian Congress, stated that the Ontario Human Rights Commission (OHRC) has been "infiltrated by Islamists" and that some of its commissioners are closely linked to the Canadian Islamic Congress and the Canadian Arab Federation, both of which, according to Fatah, have "contempt for Canadian values."

Criticism from The National Post

In June 2008, the National Post published an editorial which harshly criticized the Canada's Human Rights Commissions (HRCs). The Post writes that "It is increasingly obvious these commissions were set up deliberately to lower the standard of proof and get around rules of natural justice, thereby ensuring people who would never be convicted in court are punished to the satisfaction of the activists and special interest groups that hover around the tribunals."

The post stated that Chief commissioner Jennifer Lynch has "no clear understanding of free speech or the value of protecting it." Lynch had previously stated that "I'm a free speecher. I'm also a human rightser." However, the Post argued that:

"No human right is more basic than freedom of expression, not even the "right" to live one's life free from offence by remarks about one's ethnicity, gender, culture or orientation. Ms. Lynch seems mistakenly to believe there is a delicate balance between free expression and other, newer human "rights."

Lynch also stated that "We [the HRCs] have a responsibility to lead the debate on how we can keep our policy up to date to effectively regulate hate on the Internet." The post also criticized Lynch for this statement, arguing that "Her interest appears to be not whether to regulate speech, but merely how to do it "effectively." There seems to be little doubt in her mind that a government agency must have the ultimate say."

Finally, the post criticized the procedures and structure of HRC hearings, citing a number of specific problems:

• 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.

Support for the Human Rights Commissions

At the Niagara-on-the-Lake conference of the Canadian Association of Statutory Human Rights Agencies in June 2008, Pearl Eliadis, a prominent human rights lawyer, defended the HRC's current mandate. Responding to Alan Borovoy's concern that he never expected they would be used against the free expression of opinion, Eliadis stated that what Borovoy thought 40 years ago should not determine the current state of human rights law, and that the arguments against human rights commissions dealing with complaints against media are premised on the notion that "new rights are bad rights." She added that the commissions are "strategically and uncomfortably poised" in "dynamic tension" among NGOs, government, voters, industry and other influences, and it is "almost proof of their relative success that nobody is happy."

Responding to criticism, Eliadis stated in a subsequent interview, that:

"There's a narrow band of intolerant bigots out there who are jumping on to this bandwagon and are using this debate to propagate particularly hateful views. What the free speech absolutists are saying is that, once you take that core element of speech and transport it into mass media, suddenly it becomes immune. I don't understand why speech should be immune from discrimination law. The media should not enjoy more rights or immunity than anyone else."

Wahida Valiante, national vice-president of the Canadian Islamic Congress, stated that the commissions are the only recourse available to minorities treated unfairly in the media since membership in press councils is optional and criminal hate speech charges require the consent of the federal Attorney-General.

Recent Controversies

In an exchange during the Marc Lemire case, lead CHRC investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Dean responded: "Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept." The Canadian Charter of Rights and Freedoms refers to "freedom of expression" whereas the U.S. Constitution refers to "freedom of speech." Jonathan Kay of the National Post criticized Steacy's remarks, stating that: "for an organization that is supposed to promote "human rights," the HRC's agents seem curiously oblivious to basic aspects of constitutional law." He added that in Mr Steacy view, "Section 2 has been excised from his copy of the Canadian Charter of Rights.

When investigating Marc Lemire website, HRC investigators reportedly tapped into the secured wi-fi router of a 26-year-old Ottawa woman who lived near the commission's headquarters in order to avoid revealing the commission's IP address. Marc Lemire has filed criminal complaints concerning this issue with the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP). The office of the Privacy Commissioner of Canada has begun an investigation of the allegations.

Complaint Against Maclean's Magazine by the Canadian Islamic Congress

Main article: Canadian Islamic Congress human rights complaint against Maclean's Magazine

Mohamed Elmasry, president of the Canadian Islamic Congress, launched human rights complaints against Maclean's claiming that the article The Future Belongs To Islam, an excerpt from Mark Steyn's book, "America Alone: The End of the World as We Know It," subjects Canadian Muslims to "hatred and contempt." [1]

The complaint has been dismissed by the Ontario Human Rights Commission. In June 2008, the Canadian Human Rights Commission also dismissed the complaint. However, the British Columbia Human Rights Commission (BCHRC) forwarded the complaint to the British Columbia Human Rights Tribunal (BCHRT) for a hearing. The Tribunal heard arguments from both sides in June 2008. On October 10, 2008 the BCHRT ruled the article did not violate the province's hate speech law and officially dismissed the complaint. The tribunal also ruled Maclean's could not be held accountable for what others wrote on blogs about their story.

Shiv Chopra Case

Main articles: Shiv Chopra and Canadian Human Rights Tribunal

In September 2008, Human Rights Tribunal (HRT) adjudicator Pierre Deschamps ruled that Shiv Chopra, a Punjabi Hindu who’d emigrated to Canada in the 1960s, was entitled to $4,000 in damages for "hurt feelings," lost wages, and interest, finding that Chopra was subjected to discriminatory comments, was suspended in retaliation for filing an earlier human rights complaint, and was discriminated against when passed over for a temporary promotion to acting chief of his division. The comments in question occurred on Feb. 9. 1998; Chopra was in the audience when his incoming boss at Health Canada, André Lachance, stated that "he liked visible minorities.” Chopra claimed this was “a racist remark” and Deschamps accepted this argument that this comment was “discriminatory against Mr. Chopra as well as individuals … who were non-white” and that Lachance's remark "shows a lack of sensitivity on the part of Dr. Lachance for people whose skin is not white." Deschamps stated that Lachance's remark was "by any standard, racist." Deschampes criticized the "inherent racist nature" of Lachance's comment and stated that Lachance's intent was irrelevant: "The test is, over and above the racial nature of the comment itself, whether or not the person alleging discrimination was offended by the comment."

Jonathan Kay of the National Post criticized the decision, alleging that Deschamps accepted Chopra's claim without any substantive explanation. Kay described Chopra as "a race-obsessed paranoiac" and that the ruling is an "advertisement for why we should be closing down Canada’s human-rights commissions" and "nicely illustrates the absurd lengths to which our society’s elites will now go to demonize Whitey."

Response from the Canadian Human Rights Commission

In April 2008, three senior officials of the Canadian Human Rights Commission (CHRC) granted a telephone interview with the media to respond to criticism. The officials were Ian Fine, senior general counsel and director-general of dispute resolution, Monette Maillet, director of legal advisory services and Harvey Goldberg, senior policy advisor on hate speech, disability and First Nations issues.

The officials read out loud some of the material the CHRC deals with to prove the seriousness of their mission. Fine defended tha CHRC stating that:

"If you think that we're concerned, upset, from time to time discouraged with some of what we've been hearing and reading in the press, you're right, we are. Because to be quite clear about it, we do believe in what we do. We believe that in our society there should be limits on freedom of expression and freedom of speech, that there is a line, not one that we draw, but one that must be drawn nevertheless. We are comfortable with what we do."

Harvey Goldberg state that "Freedom of expression is the lifeblood of any free and open society and the commission embraces freedom of expression. I think if you remove all the rhetoric, at the base of the debate that's been going on ... is a centuries-old debate about the appropriate role of the state in limiting freedom of expression in certain precise areas." Regarding the debate about whether Section 13.1 of the human rights code, which makes it an offence to communicate by phone or Internet any message that is "likely to expose a person or persons to hatred or contempt," Goldberg stated that this is "actually the predominant view among most of the states of the world. The view in the United States [that the right to free speech is near-absolute] is really a minority view." Fine also noted that "Just as Parliament has bestowed on the commission the mandate, in fact the obligation, to deal with Section 13 cases, Parliament can take that power away at any time."

Responding to the complaint that respondents are on the hook for their own defence bills, while complainants have their cases argued by the commission, Fine stated that ""We don't set the rules. It's for Parliament to decide whether or not respondents should have the ability to recover costs." As for the fact that the CHRC has a 100% conviction rate for hate speech cases that have reached the tribunal, Maillet argued that this is a testimony to the commission's efficiency, stating that "To me, it is a sign that we have done a good job in screening complaints, and referring those cases to tribunal that have merit."

Responding to the complaint that Richard Warman, a former CHRC employee turned activist who was the complainant in all but two of the 13 hate speech cases decided by the Canadian Human Rights Tribunal, Fine stated that "Anyone can file a complaint, so from our perspective, that's the end of the matter. The tribunal decisions speak for themselves."

When asked about the current investigation of CHRC investigators who apparently hijacked a private citizen's Internet account to access a Web site they were investigating, Fine responded that "We believe that the processes we've employed in these cases are appropriate, and that's about all I think I can say on that issue."

November 2008 Report by Professor Richard Moon

In 2008, University of Windsor law professor Richard Moon was commissioned to prepare a report on the CHRC's mandate under Section 13 of Canadian Human Rights Act which deals with hate-speech. In November 2008, Moon released his report in which he recommended that Section 13 should be repealed so that online hate speech is a purely criminal matter. Moon wrote that "The use of censorship by the government should be confined to a narrow category of extreme expression -- that which threatens, advocates or justifies violence against the members of an identifiable group." Moon argued that "it's not practical to deal with what one might generously describe as group defamation or stereotyping through censorship. It's just not a viable option. There's too much of it, and it's so pervasive within our public discourse that any kind of censorship is just overwhelming."

Regarding thee current legal test for violations of Section 13, which is whether messages were "likely to expose" identifiable groups to "hatred or contempt," neither truth nor intent is a defence, unlike libel law. Moon recommended that intent to advocate or justify violence be made a requirement for Section 13, replacing the test of "likely to expose." However, he did not recommend that truth be allowed as a defence since it could result in tribunals becoming forums to debate, for example, the veracity of the Holocaust, the genetic inferiority of blacks, or the dangers of homosexuality."

Prof. Moon noted that the current complainant-driven system is unequal, in that only well-resourced and determined complainants can see their case through to a conclusion. In this, he was referring to Richard Warman, an Ottawa lawyer and former CHRC employee who has brought more than a dozen cases, far more than any other complainant.

Reactions

Jennifer Lynch, chief commissioner of the CHRC, stated that Moon's report is a "one step in a comprehensive review" and that "we can envision Section 13 being retained with some amendments." Lynch also stated that that "our commission exists to protect Canadians from discrimination and I'm fervently going to uphold this core principle." She added that "we're going to strive to find more effective means to protect Canadians from exposure to hate on the Internet."

Keith Martin, the Liberal MP who first proposed scrapping Sction 13 earlier this year, called the recommendation "very courageous" and that "Now it's in Parliament's hands to do something to defend one of our true rights, freedom of speech."

Pearl Eliadis, a human rights lawyer and prominent supporter of the CHRC, stated that Moon's statement that Section 13 targets only extreme speech "makes explicit what the courts have already said implicitly." However, she opposed shifting the CHRC's role to focus solely on violence as opposed to hatred. Eliadis arged that "when we deal with genocide and ethnic cleansing cases in other countries, what does the international community say over and over again? We need a warning system. And one of the warnings is incitement to hatred." However, she opposed criminal investigations into hate speech on the basis that people should be put "in jail for their worlds."

See also

• Ezra Levant
• Censorship in Canada
• Canadian Human Rights Commission
• Canadian Human Rights Act
• Canadian Human Rights Tribunal
• Human rights in Canada

External links

• Canadian Human Rights Commission
• CBC News: Sunday "Can Human Rights Go Too Far?" March 2008