Improved freedom of speech in Canada with Bill C-304
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- Published on Tuesday, 19 June 2012 06:26
- Written by John Draper
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If you value free speech (like I do), you will have been unhappy with Section 13 of the Canadian Human Rights Act (CHRA) which makes it an offense to blog about any matter that is likely to expose a person or persons to hatred or contempt”. The problem is not so much that it bans hate speech but that it makes it easy to call anything you don’t agree with “hate speech”. There is no definition of “likely” and that makes it open to abuse. As a result, there have been many activists brought before the human rights tribunals simply because someone did not agree with them. Section 13 does not provide the same provisions that the Criminal Code does (Section 319(3)), in that S.13 of the CHRA does not take into account whether statements made are based on truth nor does it require evidence of intent or wilfulness on the part of the respondent.
As Jesse Brown of Macleans says:
It’s weird to me that the promotion of an emotion is against the law, but I get what the law is going for, and at least it’s enforced like any other law—by the police, selectively. If the identifiable group you promote hatred toward is Nickelback, the cops will probably leave you alone.
Human Rights Code violations on the other hand are investigated by the Code’s own little bureaucracy, the Human Rights Commission, and offences are judged by their own kangaroo court, the Human Rights Tribunal. Cases arise whenever a citizen makes a claim. If you make a successful hate speech claim, you can be awarded money in fines collected from the guilty party, even if you weren’t the target of their hate speech. And there’s nothing to stop an employee of the Human Rights Commission itself, say a lawyer who knows exactly how the process works, from making a claim.
We know this because that’s what happened. A former employee of the commission launched the vast majority of Section 13 cases during the past 12 years, winning all but one of them and collecting thousands of dollars. His name is Richard Warman, and you might call Section 13 “Richard’s Law.”
Warman made a habit of using the law to go after bloggers on the Internet. Not only are bloggers in his gun-sight, but the web site owners, hosting companies and Internet providers were also targeted for allowing them.
As Jesse says;
It makes no distinction between the publisher of a comment and the publisher of a website. If Section 13 were to remain a law, and one that’s actually enforced by Canadians other than Richard Warman, then you simply couldn’t host any kind of interactive website. Youtube would go, Wikipedia would go, Macleans.ca and every other site with a comment section would go.
Most of Warman's targets have been right-wing, anti-semitic and generally unpleasant but the last straw for most people was when Mohamed Elmasry of the Canadian Islamic Congress filed a complaint against Ezra Levant and Maclean's magazine which was accused of publishing eighteen Islamophobic articles between January 2005 and July 2007. The case was dismissed but not before many asked - why do we need Human Rights tribunals?
Warman has been the CHRC plaintiff on half the Section 13 cases in its entire history and on all the Section 13 cases since 2002. He relies on the wishy–washy Section 13 wording (More here) when any real cases could have used the criminal code which clearly bans hate speech. To convict anyone under the Code, very specific proof is required: both of the criminal act itself, and of the intention or motivation to commit the crime. It isn’t enough that someone has said something hateful or untrue; the courts will only find someone guilty if they contravened the Code exactly, and if they did it deliberately.
It is clear that Section 13 of the CHRA causes more problems than it solves, that it causes Human rights tribunals to make rulings limiting legitimate free speech and that the Criminal code is sufficient for prosecution of extreme cases of people like Ernst Zundel. But for Liberals, it seems that since their “idol” Pierre Trudeau initiated the law, they did not want to repeal it. But now, Conservative MP Brian Storseth finally managed to get it repealed – his private member’s bill C-304 (download a copy here) - passed the House of Commons on June 6, 2012 and is now before the Senate. It should be law in just over a year from now.
There are still Provincial laws with similar provisions – notably section 3 of a similar Alberta law – but that may take a while to get changed.
Brian Storseth comments: “It is important that Freedom of Speech issues be dealt with by police officers rather than ‘simple servants.’ You should have police officers looking at it, not civil servants. You should have real lawyers and real judges presiding over the courts, not some quasi-judicial body that nobody ever hears about.”
Bill C-30 was also supported by religious organizations – they want to be able to criticize other religions (and atheists) – it’s an unlikely alliance, free-thinking atheists and narrow minded religious people. But we both agree on the importance of free speech.
Bill C-30 is a step forward for Free Speech in Canada.
See also column in the Toronto Sun by Salim Mansur on this subject – Stain on Canadian Democracy Removed.