Canadian Human Rights Commission free speech controversies
Encyclopedia
The Canadian Human Rights Commission free speech controversy refers to debates that have arisen over Section 13.1 of the Canadian Human Rights Act
and the interpretation and application of it by the Canadian Human Rights Commission
.
, 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 claim that CHRC adjudicators have limited legal training and poor investigative resources and allege that, as a result, the power of section 13.1 is being used for nuisance cases
that would be tossed out if they were adjudicated within the judicial system. Although there is no Section 13.1 of the CHRA, critics are likely referring to Section 13(1) and 13(2) of the Act.
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 hate speech
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 also 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?" However, the bill did not become law.
Irwin Cotler
, a Canadian human rights scholar and former minister of justice, (who has expressed support for prohibitions on the incitement of hate and genocide), 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.
, 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." He 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.
Borovoy further added that:
Borovoy commented that none of these cases resulted in a lasting conviction or property seizure "But only lawyers could be consoled by that."
Linguist and analytic philosopher Noam Chomsky
has said about the section, "I think it's outrageous, like the comparable European laws. It's also pure hypocrisy. If it were applied the media and journals would be shut down. They don't expose current enemies of the state to hatred or contempt?"
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."
Mary Agnes Welch, president of the Canadian Association of Journalists
stated that 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." Syed Soharwardy, the founder of the Islamic Supreme Council of Canada
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'. Fred Henry, Catholic Bishop of Alberta
, has argued that the HRCs are used to stifle debate on important issues.
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."
In December 2009, CHRC Chief Commissioner Jennifer Lynch was subject to criticism after the Canadian Taxpayer's Federation (CTF) revealed that she had been sent abroad to consult dignitaries from countries with questionable human rights records, including Bangladesh
, Cameroon
, Cuba
, Kyrgyzstan
, Russia
and Saudi Arabia
. Derek Fildebrandt of the CTF sharply criticized Lynch, stating that:
The CTF also noted that the CHRC was reticent about providing access to information on expenses, and accused it of obfuscating the actual costs of Ms. Lynch’s travels outside Canada. The Information Commissioner of Canada (ICC) later found that the CHRC has "placed itself in a position of deemed refusal" in response to complaints filed by the Canadian Taxpayers Federation (CTF). The CTF had filed three separate Access to Information Requests in August 2009 to obtain details on Lynch's expenses. The CHRC refused to provide information within the legally allotted time frame as it would "unreasonably interfere with the operations of the [Commission]."
published an editorial which harshly criticized 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:
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:
Prominent supporters of hate speech laws include the Canadian Jewish Congress and several Muslim community groups. Haroon Siddiqi of the Toronto Star, former Justice Minister and MP for Mont-Royal Irwin Cotler
("The Principles of Free Expression"), lawyer David Matas (author of "Bloody Words"), and Toronto lawyer Mark Freiman all support prohibitions against extreme forms of speech.
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. She also argued that 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." In August 2008, Eliadis wrote an article in Maisonneuve
where she argued that expressive behaviour has been the subject of human rights laws in since the 1940s. She also argued that critics of the commissions were causing Canadians to be "misled and lied to about the most basic aspects of Canadian law and human rights" and further stressed "the clear and present danger posed by discriminatory speech and the growth of e-hate."
Eliadis stated in a subsequent interview, that:
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.
In January 2010 the Canadian Bar Association
released a statement which supported "retaining section 13 as a useful tool." However, it also called for the adoption of several recommendations for improving the Act "to ensure that the efficacy of this protection is not only enhanced but also accords with other fundamental human rights values," including the repealing of certain penalty provisions and "empowering the CHRC to dismiss at an early stage complaints that lack merit or have no reasonable chance for success."
case, lead CHRC investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Steacy 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's mind, "Section 2
has been excised from his copy of the Canadian Charter of Rights. Kay also stated that "someone lacking such basic general knowledge apparently occupies a senior position in the "Human Rights Commission" is cause for serious concern, and certainly an audit of the whole CHRC apparatus."
Senator Doug Finley
later criticized Steacy, stating that "He [Steacy] actually said that. The Canadian Human Rights Commission actually admits they do not give free speech any value. That is totally unacceptable. Freedom of speech is the great non-partisan principle that every Member of Parliament can agree on — that every Canadian can agree on." He also called on the Canadian Senate to "reaffirm that freedom of speech is a great Canadian principle that goes back hundreds of years."
When investigating Marc Lemire's website, HRC investigators were alleged to have 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
conducted an investigation of the allegations, but ultimately the complaint was dismissed.
, 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."
Salafist Muslim who was accused of inciting hatred against homosexuals, Western women, and Jews, in a book he published on the Internet. Al-Hayiti had written that Allah has taught that "If the Jews, Christians, and [Zoroastrians] refuse to answer the call of Islam, and will not pay the jizyah [tax], then it is obligatory for Muslims to fight them if they are able." Christianity, in particular, was denounced as a "religion of lies," which is responsible for the West's "perversity, corruption and adultery." Al-Hayiti's book refers to "the incredible number of gays and lesbians (may Allah curse and destroy them in this life and the next) who sow disorder upon the Earth and who desire to increase their numbers."
In declining to hear the case, the Commission stated that Al-Hayiti was free to make comments against "infidels" because they are not an identifiable group. Regarding Al-Hayiti's statements against groups established as "identifiable," such as homosexuals and Jews, the commission simply stated that these "do not seem" to meet the criteria for promoting hatred.
The Commission's decision not to move forward with the case was criticized in two Canadian newspapers. The National Post
argued that Al-Hayiti's statements more than meet the criteria under Section 13 of the Human Rights Act and accused the Commission of selectively applying the Act to Christians and Conservatives who have been prosecuted under the Act for comments that are far less severe. The Post noted that a Christian pastor named Stephen Boissoin, who posted negative remarks about homosexuals, was subsequently ordered by the Alberta Human Rights Commission that he "shall cease publishing in newspapers, by e-mail, on the radio, in public speeches or on the Internet, in future, disparaging remarks about gays and homosexuals." The Post wrote that:
The Post concluded by noting that it believes that Al-Hayiti should be allowed to promote any particular interpretation of Islam, or any other religion and that the problem is that the Human Rights Commissions practice a politically correct double standard.
This affair also caused indignation in local Quebec media, with La Presse publishing an editorial criticizing the Commission for its decision. .
(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:
Harvey Goldberg stated 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."
law professor Richard Moon was commissioned by the CHRC 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 the 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.
Keith Martin, the Liberal MP who first proposed scrapping Section 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 not be put "in jail for their words."
's annual meeting that opponents of rights bodies have successfully created a "chill" that makes it difficult for anyone to defend those bodies without also becoming a target and asked for those in attendance to write "letters to correct misinformation." Lynch told the CBA that rights commissions represent an important component of the justice system, giving society's "most vulnerable" minority groups access to a mechanism to deal with alleged rights violations. She added that some of the criticisms against the CHRC have been "troubling" and "at times scary," and read outloud a graphic anonymous letter she received stating that she should be shot dead.
Although Lynch did not identify her critics, the National Post
noted that she has previously complained about attacks against her by Mark Steyn
, political commentator Ezra Levant
, and Conservative
Member of Parliament
Russ Hiebert.
Canadian Human Rights Act
The Canadian Human Rights Act is a statute originally passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set prohibited grounds such as gender, disability, or...
and the interpretation and application of it by the Canadian Human Rights Commission
Canadian Human Rights Commission
The Canadian Human Rights Commission is a quasi-judicial body that was established in 1977 by the government of Canada. It is empowered under the Canadian Human Rights Act to investigate and try to settle complaints of discrimination in employment and in the provision of services within federal...
.
Section 13.1 of the Canadian Human Rights Act
The controversy regarding the CHRC's practices comes from its enforcement of Section 13.1 of the Canadian Human Rights ActCanadian Human Rights Act
The Canadian Human Rights Act is a statute originally passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set prohibited grounds such as gender, disability, or...
, 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 claim that CHRC adjudicators have limited legal training and poor investigative resources and allege that, as a result, the power of section 13.1 is being used for nuisance cases
Nuisance lawsuit
Nuisance lawsuit may refer to:* a suit of the tort of nuisance, i.e. the plaintiff claims the defendant is causing a nuisance to the plaintiff* a frivolous lawsuit, i.e. by bringing the suit, the plaintiff is causing a nuisance to the defendant...
that would be tossed out if they were adjudicated within the judicial system. Although there is no Section 13.1 of the CHRA, critics are likely referring to Section 13(1) and 13(2) of the Act.
Liberal
Liberal Party of Canada
The Liberal Party of Canada , colloquially known as the Grits, is the oldest federally registered party in Canada. In the conventional political spectrum, the party sits between the centre and the centre-left. Historically the Liberal Party has positioned itself to the left of the Conservative...
MP
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
Keith Martin has proposed a private member's bill
Private Member's Bill
A member of parliament’s legislative motion, called a private member's bill or a member's bill in some parliaments, is a proposed law introduced by a member of a legislature. In most countries with a parliamentary system, most bills are proposed by the government, not by individual members of the...
in Parliament to rescind section 13.1 of the Canadian Human Rights Act
Canadian Human Rights Act
The Canadian Human Rights Act is a statute originally passed by the Parliament of Canada in 1977 with the express goal of extending the law to ensure equal opportunity to individuals who may be victims of discriminatory practices based on a set prohibited grounds such as gender, disability, or...
, upon which federal HRC hate speech
Hate speech
Hate speech is, outside the law, any communication that disparages a person or a group on the basis of some characteristic such as race, color, ethnicity, gender, sexual orientation, nationality, religion, or other characteristic....
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 also 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?" However, the bill did not become law.
Irwin Cotler
Irwin Cotler
Irwin Cotler, PC, OC, MP was Canada's Minister of Justice and Attorney General of Canada from 2003 until the Liberal government of Paul Martin lost power following the 2006 federal election. He was first elected to the Canadian House of Commons for the constituency of Mount Royal in a by-election...
, a Canadian human rights scholar and former minister of justice, (who has expressed support for prohibitions on the incitement of hate and genocide), 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.
Criticism
Alan BorovoyAlan Borovoy
Alfred Alan Borovoy is a Canadian lawyer best known as the general counsel of the Canadian Civil Liberties Association .He received a Bachelor of Arts in 1953 and a Bachelor of Laws in 1956 from the University of Toronto. He has been awarded four honorary doctorates. He was admitted to the Ontario...
, general counsel for the Canadian Civil Liberties Association
Canadian Civil Liberties Association
The Canadian Civil Liberties Association or CCLA, is Canada's leading national organization devoted to the defence of civil liberties and constitutional rights, both inside and outside the courts. The organization's work focuses on constitutional litigation, law reform, advocating on civil...
, has also criticized Section 13.1. He cited an example of the book Hitler's Willing Executioners
Hitler's Willing Executioners
Hitler's Willing Executioners: Ordinary Germans and the Holocaust is a book by American writer Daniel Goldhagen that argues that the vast majority of ordinary Germans were as the title indicates "willing executioners" in the Holocaust because of a unique and virulent "eliminationist antisemitism"...
, 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." He 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.
Borovoy 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 VersesSatanic VersesThe Satanic Verses was a purported incident where a small number of apparently pagan verses were temporarily included in the Qur'an by the Islamic prophet Muhammad, only to be later removed...
, 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 commented that none of these cases resulted in a lasting conviction or property seizure "But only lawyers could be consoled by that."
Linguist and analytic philosopher Noam Chomsky
Noam Chomsky
Avram Noam Chomsky is an American linguist, philosopher, cognitive scientist, and activist. He is an Institute Professor and Professor in the Department of Linguistics & Philosophy at MIT, where he has worked for over 50 years. Chomsky has been described as the "father of modern linguistics" and...
has said about the section, "I think it's outrageous, like the comparable European laws. It's also pure hypocrisy. If it were applied the media and journals would be shut down. They don't expose current enemies of the state to hatred or contempt?"
White supremacists
White supremacy
White supremacy is the belief, and promotion of the belief, that white people are superior to people of other racial backgrounds. The term is sometimes used specifically to describe a political ideology that advocates the social and political dominance by whites.White supremacy, as with racial...
James Scott Richardson
James Scott Richardson
James Scott Richardson, is a Canadian white supremacist and was a member of the Tri-City Skins, associate of Alex Kulbashian of Toronto, and leader of the Canadian Ethnic Cleansing Team...
and Alex Kulbashian
Alex Kulbashian
Alexan Kulbashian , also known as Alex Krause, is a Canadian white supremacist who has been called a neo-Nazi by the Jerusalem Center for Public Affairs. Kulbashian jointly ran the now-defunct white supremacist website of the Canadian Ethnic Cleansing Team group which was based in Ontario, Canada...
, who ran a racist
Racism
Racism is the belief that inherent different traits in human racial groups justify discrimination. In the modern English language, the term "racism" is used predominantly as a pejorative epithet. It is applied especially to the practice or advocacy of racial discrimination of a pernicious nature...
website called "Canadian Ethnic Cleansing Team
Canadian Ethnic Cleansing Team
The Canadian Ethnic Cleansing Team was an Ontario-based white power website that was operated by Alexan Kulbashian and James Scott Richardson...
," are currently challenging the constitutionality of section 13.1 of the Canadian Human Rights Act. Other white supremacists such as Marc Lemire
Marc Lemire
Marc Lemire is a figure in the Canadian white supremacist movement. He works closely with leader Paul Fromm, and is the webmaster of the Hamilton, Ontario-based Freedom-Site which he began in 1996. He has been called a "bigot" by Jonathan Kay of the National Post...
and Paul Fromm
Paul Fromm
Frederick Paul Fromm , known as Paul Fromm, is a Canadian neo-Nazi and Holocaust denier, based in Port Credit, Ontario. He hosts a radio show on the Stormfront web site and has ties to former Ku Klux Klan members David Duke and Don Black...
have also criticised the constitutionality of the CHRC. Lemire (with the qualified support of PEN Canada
PEN Canada
PEN Canada is one of the 144 centres of International PEN. Founded in 1926, it has a membership of over 1,000 writers and supporters who campaign on behalf of writers around the world who are persecuted, imprisoned and exiled for exercising their right to freedom of expression.Since its founding,...
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
Jonathan Kay
Jonathan Hillel Kay is Comment Pages Editor for the Toronto-based Canadian daily newspaper National Post, a columnist for the Post op-ed page, a blogger for the Post web site, a book author and editor, and a public speaker. He is also a regular contributor to Commentary Magazine and the New York...
, of the National Post
National Post
The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...
, 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."
Mary Agnes Welch, president of the Canadian Association of Journalists
Canadian Association of Journalists
The Canadian Association of Journalists or L'Association Canadienne des Journalistes in French is one of several Canadian organizations of journalists. It was created to promote excellence in journalism and encourage investigative journalism...
stated that 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." Syed Soharwardy, the founder of the Islamic Supreme Council of Canada
Islamic Supreme Council of Canada
Islamic Supreme Council of Canada is a Canadian Muslim organization based in Calgary, Alberta. It was founded in 2000 by Imam Syed Soharwardy with the aims of fostering Canadian understanding of Islam, contributing to society in general, guiding Canadian institutions on the needs of Muslims,...
who filed a complaint with the Alberta Human Rights Commission against Ezra Levant
Ezra Levant
Ezra Isaac Levant is a Canadian lawyer, conservative political activist and media figure. He is the founder and former publisher of the Western Standard, hosts The Source daily on Sun News Network, and has written several books on politics....
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'. Fred Henry, Catholic Bishop of Alberta
Alberta
Alberta is a province of Canada. It had an estimated population of 3.7 million in 2010 making it the most populous of Canada's three prairie provinces...
, has argued that the HRCs are used to stifle debate on important issues.
In a press conference on October 2, 2008, Tarek Fatah
Tarek Fatah
Tarek Fatah Urdu: طارق فتح is a Canadian political activist, writer, and broadcaster. He is the author of Chasing a Mirage: The Tragic Illusion of an Islamic State published by John Wiley & Sons. In the book Fatah challenges the notion that the establishment of an Islamic state is a necessary...
, a founder of the Muslim Canadian Congress
Muslim Canadian Congress
The Muslim Canadian Congress was organized to provide a voice to Muslims who support a "progressive, liberal, pluralistic, democratic, and secular society where everyone has the freedom of religion." The organization claimed to have 300 dues-paying members prior to its 2006 split.-Origins:It was...
, stated that the Ontario Human Rights Commission
Ontario Human Rights Commission
The Ontario Human Rights Commission was established in the Canadian province of Ontario on March 29, 1961 to administer the Ontario Human Rights Code...
(OHRC) has been "infiltrated by Islamists" and that some of its commissioners are closely linked to the Canadian Islamic Congress
Canadian Islamic Congress
The Canadian Islamic Congress refers to itself as Canada's largest national non-profit and wholly independent Islamic organization without affiliation to any foreign group, body, or government and says it represents -- Sunni and Shi'a Muslims, men and women, youth and seniors...
and the Canadian Arab Federation
Canadian Arab Federation
The Canadian Arab Federation was formed in 1967 to represent the interests of Arab Canadians with respect to the formulation of public policy in Canada. It presently consists of over 40 member organizations....
, both of which, according to Fatah, have "contempt for Canadian values."
In December 2009, CHRC Chief Commissioner Jennifer Lynch was subject to criticism after the Canadian Taxpayer's Federation (CTF) revealed that she had been sent abroad to consult dignitaries from countries with questionable human rights records, including Bangladesh
Bangladesh
Bangladesh , officially the People's Republic of Bangladesh is a sovereign state located in South Asia. It is bordered by India on all sides except for a small border with Burma to the far southeast and by the Bay of Bengal to the south...
, Cameroon
Cameroon
Cameroon, officially the Republic of Cameroon , is a country in west Central Africa. It is bordered by Nigeria to the west; Chad to the northeast; the Central African Republic to the east; and Equatorial Guinea, Gabon, and the Republic of the Congo to the south. Cameroon's coastline lies on the...
, Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
, Kyrgyzstan
Kyrgyzstan
Kyrgyzstan , officially the Kyrgyz Republic is one of the world's six independent Turkic states . Located in Central Asia, landlocked and mountainous, Kyrgyzstan is bordered by Kazakhstan to the north, Uzbekistan to the west, Tajikistan to the southwest and China to the east...
, Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
and Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
. Derek Fildebrandt of the CTF sharply criticized Lynch, stating that:
Lynch had a busy year of meeting with other human rights defenders in 2008 however; also traveling to Kuala Lampur, Malaysia with a business class airfare of $8,893, plus all other expenses. This confab was hosted by the Human Rights Commission of Malaysia, which is a part of a government that – according to the US State Department – restricts freedoms of the press, speech and religion, including "barring Muslims born into Islam from converting to another religion," allowing religious courts to enforce apostasy cases under Shariah law. This country’s human rights example was on display just this summer when a woman was convicted by an Islamic Shariah court in Malaysia for drinking a beer, sentencing her to "six beatings by cane".
The CTF also noted that the CHRC was reticent about providing access to information on expenses, and accused it of obfuscating the actual costs of Ms. Lynch’s travels outside Canada. The Information Commissioner of Canada (ICC) later found that the CHRC has "placed itself in a position of deemed refusal" in response to complaints filed by the Canadian Taxpayers Federation (CTF). The CTF had filed three separate Access to Information Requests in August 2009 to obtain details on Lynch's expenses. The CHRC refused to provide information within the legally allotted time frame as it would "unreasonably interfere with the operations of the [Commission]."
Criticism from The National Post
In June 2008, the National PostNational Post
The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...
published an editorial which harshly criticized 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.
- HearsayHearsayHearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
is admitted. - The government funds the plaintiff but the defendant is on his/her own.
Support for the Human Rights Commissions
Several leading lawyers and academics support restrictions on hate speech through human rights legislation. In 2008, law professor Jane Bailey published an Op Ed "Democracy suffers when equality is threatened" (Ottawa Citizen, December 11, 2008). She noted that " Section 13 places Canada at the forefront of democratic nations in addressing hate propaganda by treating it as a practice of inequality, a mechanism for perpetuating myths, stereotypes and calls for violence that are fundamentally inconsistent with the goal of ensuring that all of us are able to reach our potential and live the life of our own choosing regardless of personal characteristics such as race, religion and sexual identity."Prominent supporters of hate speech laws include the Canadian Jewish Congress and several Muslim community groups. Haroon Siddiqi of the Toronto Star, former Justice Minister and MP for Mont-Royal Irwin Cotler
Irwin Cotler
Irwin Cotler, PC, OC, MP was Canada's Minister of Justice and Attorney General of Canada from 2003 until the Liberal government of Paul Martin lost power following the 2006 federal election. He was first elected to the Canadian House of Commons for the constituency of Mount Royal in a by-election...
("The Principles of Free Expression"), lawyer David Matas (author of "Bloody Words"), and Toronto lawyer Mark Freiman all support prohibitions against extreme forms of speech.
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
Alan Borovoy
Alfred Alan Borovoy is a Canadian lawyer best known as the general counsel of the Canadian Civil Liberties Association .He received a Bachelor of Arts in 1953 and a Bachelor of Laws in 1956 from the University of Toronto. He has been awarded four honorary doctorates. He was admitted to the Ontario...
'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. She also argued that 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." In August 2008, Eliadis wrote an article in Maisonneuve
Maisonneuve (magazine)
Maisonneuve is a general interest magazine based in Montreal, Quebec, Canada. It publishes eclectic stories of national and international scope on the arts, culture and politics. Established in 2002 by Derek Webster, the magazine is named after Paul de Chomedey de Maisonneuve, the founder of Montreal...
where she argued that expressive behaviour has been the subject of human rights laws in since the 1940s. She also argued that critics of the commissions were causing Canadians to be "misled and lied to about the most basic aspects of Canadian law and human rights" and further stressed "the clear and present danger posed by discriminatory speech and the growth of e-hate."
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
Canadian Islamic Congress
The Canadian Islamic Congress refers to itself as Canada's largest national non-profit and wholly independent Islamic organization without affiliation to any foreign group, body, or government and says it represents -- Sunni and Shi'a Muslims, men and women, youth and seniors...
, 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.
In January 2010 the Canadian Bar Association
Canadian Bar Association
The Canadian Bar Association represents over 37,000 lawyers, judges, notaries, law teachers, and law students from across Canada.-History:The Association's first Annual Meeting was held in Montreal in 1896. However, the CBA has been in continuous existence in its present form since 1914...
released a statement which supported "retaining section 13 as a useful tool." However, it also called for the adoption of several recommendations for improving the Act "to ensure that the efficacy of this protection is not only enhanced but also accords with other fundamental human rights values," including the repealing of certain penalty provisions and "empowering the CHRC to dismiss at an early stage complaints that lack merit or have no reasonable chance for success."
Marc Lemire
In an exchange during the Marc LemireMarc Lemire
Marc Lemire is a figure in the Canadian white supremacist movement. He works closely with leader Paul Fromm, and is the webmaster of the Hamilton, Ontario-based Freedom-Site which he began in 1996. He has been called a "bigot" by Jonathan Kay of the National Post...
case, lead CHRC investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Steacy 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
Jonathan Kay
Jonathan Hillel Kay is Comment Pages Editor for the Toronto-based Canadian daily newspaper National Post, a columnist for the Post op-ed page, a blogger for the Post web site, a book author and editor, and a public speaker. He is also a regular contributor to Commentary Magazine and the New York...
of the National Post
National Post
The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...
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's mind, "Section 2
Section Two of the Canadian Charter of Rights and Freedoms
Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...
has been excised from his copy of the Canadian Charter of Rights. Kay also stated that "someone lacking such basic general knowledge apparently occupies a senior position in the "Human Rights Commission" is cause for serious concern, and certainly an audit of the whole CHRC apparatus."
Senator Doug Finley
Doug Finley
Michael Douglas Finley is a Canadian Senator and was formerly campaign manager for the Conservative Party of Canada during the 2006 and 2008 federal elections and the party's director of political operations. He is described often as Harper's "number two man" who vets and disciplines candidates...
later criticized Steacy, stating that "He [Steacy] actually said that. The Canadian Human Rights Commission actually admits they do not give free speech any value. That is totally unacceptable. Freedom of speech is the great non-partisan principle that every Member of Parliament can agree on — that every Canadian can agree on." He also called on the Canadian Senate to "reaffirm that freedom of speech is a great Canadian principle that goes back hundreds of years."
When investigating Marc Lemire's website, HRC investigators were alleged to have 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
Ottawa Police Service
The Ottawa Police Service serves the City of Ottawa, Ontario, Canada.-History:The OPS roots come from the formation of the "Bytown Association" in 1847. In 1855 Roderick Ross was the first Chief Constable for the newly formed City of Ottawa...
and the Royal Canadian Mounted Police
Royal Canadian Mounted Police
The Royal Canadian Mounted Police , literally ‘Royal Gendarmerie of Canada’; colloquially known as The Mounties, and internally as ‘The Force’) is the national police force of Canada, and one of the most recognized of its kind in the world. It is unique in the world as a national, federal,...
(RCMP). The office of the Privacy Commissioner of Canada
Privacy Commissioner of Canada
The Privacy Commissioner of Canada is a special ombudsman and an officer of parliament who reports directly to the House of Commons and the Senate....
conducted an investigation of the allegations, but ultimately the complaint was dismissed.
Shiv Chopra
In September 2008, Human Rights Tribunal (HRT) adjudicator Pierre Deschamps ruled that Shiv ChopraShiv Chopra
Shiv Chopra is a Canadian microbiologist and human rights activist, who was involved in one of the first major whistleblowing incidents in the Canadian public service...
, 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
Health Canada
Health Canada is the department of the government of Canada with responsibility for national public health.The current Minister of Health is Leona Aglukkaq, a Conservative Member of Parliament appointed to the position by Prime Minister Stephen Harper.-Branches, regions and agencies: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
National Post
The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...
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."
Imam Al-Hayiti
In December 2008, the Commission refused to look at the case of Imam Abou Hammad Sulaiman al-Hayiti. Al-Hayiti is a MontrealMontreal
Montreal is a city in Canada. It is the largest city in the province of Quebec, the second-largest city in Canada and the seventh largest in North America...
Salafist Muslim who was accused of inciting hatred against homosexuals, Western women, and Jews, in a book he published on the Internet. Al-Hayiti had written that Allah has taught that "If the Jews, Christians, and [Zoroastrians] refuse to answer the call of Islam, and will not pay the jizyah [tax], then it is obligatory for Muslims to fight them if they are able." Christianity, in particular, was denounced as a "religion of lies," which is responsible for the West's "perversity, corruption and adultery." Al-Hayiti's book refers to "the incredible number of gays and lesbians (may Allah curse and destroy them in this life and the next) who sow disorder upon the Earth and who desire to increase their numbers."
In declining to hear the case, the Commission stated that Al-Hayiti was free to make comments against "infidels" because they are not an identifiable group. Regarding Al-Hayiti's statements against groups established as "identifiable," such as homosexuals and Jews, the commission simply stated that these "do not seem" to meet the criteria for promoting hatred.
The Commission's decision not to move forward with the case was criticized in two Canadian newspapers. The National Post
National Post
The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...
argued that Al-Hayiti's statements more than meet the criteria under Section 13 of the Human Rights Act and accused the Commission of selectively applying the Act to Christians and Conservatives who have been prosecuted under the Act for comments that are far less severe. The Post noted that a Christian pastor named Stephen Boissoin, who posted negative remarks about homosexuals, was subsequently ordered by the Alberta Human Rights Commission that he "shall cease publishing in newspapers, by e-mail, on the radio, in public speeches or on the Internet, in future, disparaging remarks about gays and homosexuals." The Post wrote that:
Human rights commissions claim to be agencies that fight "hate" generically. But in fact, they are interested in a very narrow sub-category of alleged hatemonger -- the right-winger accused of homophobia, anti-Muslim bias or some other thoughtcrime. The more unvarnished and explicitly murderous forms of hatred made manifest in the publications of, say, Jew-hating Muslims and Hindu-hating Sikhs are of no interest to the thought police.
The Post concluded by noting that it believes that Al-Hayiti should be allowed to promote any particular interpretation of Islam, or any other religion and that the problem is that the Human Rights Commissions practice a politically correct double standard.
This affair also caused indignation in local Quebec media, with La Presse publishing an editorial criticizing the Commission for its decision. .
Response from the Canadian Human Rights Commission
In April 2008, three senior officials of the Canadian Human Rights CommissionCanadian Human Rights Commission
The Canadian Human Rights Commission is a quasi-judicial body that was established in 1977 by the government of Canada. It is empowered under the Canadian Human Rights Act to investigate and try to settle complaints of discrimination in employment and in the provision of services within federal...
(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 stated 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
Richard Warman
Richard Warman is an Ottawa-based lawyer who is active in human rights law. Warman worked for the Canadian Human Rights Commission from July 2002 until March 2004...
, 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 WindsorUniversity of Windsor
The University of Windsor is a public comprehensive and research university in Windsor, Ontario, Canada. It is Canada's southernmost university. It has a student population of approximately 15,000 full-time and part-time undergraduate students and over 1000 graduate students...
law professor Richard Moon was commissioned by the CHRC 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 the 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
Richard Warman
Richard Warman is an Ottawa-based lawyer who is active in human rights law. Warman worked for the Canadian Human Rights Commission from July 2002 until March 2004...
, 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 "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 Section 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 not be put "in jail for their words."
CHRC appeals for Support
In August 2009, Jennifer Lynch, the chief commissioner of the CHRC, told the Canadian Bar AssociationCanadian Bar Association
The Canadian Bar Association represents over 37,000 lawyers, judges, notaries, law teachers, and law students from across Canada.-History:The Association's first Annual Meeting was held in Montreal in 1896. However, the CBA has been in continuous existence in its present form since 1914...
's annual meeting that opponents of rights bodies have successfully created a "chill" that makes it difficult for anyone to defend those bodies without also becoming a target and asked for those in attendance to write "letters to correct misinformation." Lynch told the CBA that rights commissions represent an important component of the justice system, giving society's "most vulnerable" minority groups access to a mechanism to deal with alleged rights violations. She added that some of the criticisms against the CHRC have been "troubling" and "at times scary," and read outloud a graphic anonymous letter she received stating that she should be shot dead.
Although Lynch did not identify her critics, the National Post
National Post
The National Post is a Canadian English-language national newspaper based in Don Mills, a district of Toronto. The paper is owned by Postmedia Network Inc. and is published Mondays through Saturdays...
noted that she has previously complained about attacks against her by Mark Steyn
Mark Steyn
Mark Steyn is a Canadian-born writer, conservative-leaning political commentator, and cultural critic. He has written five books, including America Alone: The End of the World As We Know It, a New York Times bestseller...
, political commentator Ezra Levant
Ezra Levant
Ezra Isaac Levant is a Canadian lawyer, conservative political activist and media figure. He is the founder and former publisher of the Western Standard, hosts The Source daily on Sun News Network, and has written several books on politics....
, and Conservative
Conservative Party of Canada
The Conservative Party of Canada , is a political party in Canada which was formed by the merger of the Canadian Alliance and the Progressive Conservative Party of Canada in 2003. It is positioned on the right of the Canadian political spectrum...
Member of Parliament
Canadian House of Commons
The House of Commons of Canada is a component of the Parliament of Canada, along with the Sovereign and the Senate. The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament...
Russ Hiebert.
The End of Section 13(1)
In the case of Warman v. Levine, decided on September 2, 2009, the Human Rights Tribunal ruled in paragraph 102 that its hate speech provision was unconstitutional and could not be saved by s. 1, the Charter rights-limiting clause. Since the Tribunal did not have the authority to declare sections of the Act which created it invalid, the Tribunal simply declined to apply s. 13(1) in that case. However, the precedent established will effectively negate the hate speech provision for future cases. The prohibition of genocide advocacy (s. 318) and the anti-hate speech provision of the Criminal Code (s. 319) are unaffected by this ruling and remain in force.See also
- Human rights complaints against Maclean's magazineHuman rights complaints against Maclean's magazineHuman rights complaints against Maclean's magazine were filed in December 2007 by Mohamed Elmasry of the Canadian Islamic Congress with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission. Maclean's magazine was accused of...
- Ezra Levant human rights complaint
- Censorship in CanadaCensorship in CanadaIn Canada, appeals by the judiciary to community standards and the public interest are the ultimate determinants of which forms of expression may legally be published, broadcast, or otherwise publicly disseminated...
- Canadian Human Rights TribunalCanadian Human Rights TribunalThe Canadian Human Rights Tribunal is an administrative tribunal established in 1977 by the Canadian Human Rights Act. It is directly funded by the Parliament of Canada and is independent of the Canadian Human Rights Commission which refers cases to it for adjudication under the Act.The Tribunal...
- Ontario Human Rights CommissionOntario Human Rights CommissionThe Ontario Human Rights Commission was established in the Canadian province of Ontario on March 29, 1961 to administer the Ontario Human Rights Code...
- Human rights in CanadaHuman rights in CanadaSince signing the Universal Declaration of Human Rights in 1948, the Canadian government has attempted to make universal human rights a part of Canadian law...