Let the courts judge hate crime

TheStar.com – Opiion/Editorial – Let the courts judge hate crime
September 04, 2009

The Canadian Criminal Code is tough on hate-mongers, and rightly so. It provides for up to two years in jail for wilfully promoting hatred against identifiable groups. That’s a major deterrent to racists, homophobes and other purveyors of hate in the media or anywhere else.

Given this safeguard, it’s hard to see why the Canadian Human Rights Commission (CHRC) should also be empowered to impose fines of up to $10,000 and award damages of up to $20,000 for much the same offence, under a controversial section of the human rights act that prohibits telecommunicating “any matter that is likely to expose a person or persons to hatred or contempt.”

Critics of Section 13(1), including the Star, regard it as an unwarranted chill on our Charter right to freedom of thought, belief, opinion and expression that imperils spirited public discourse.

Now, surprisingly, a member of the CHRC tribunal agrees.

In a bombshell ruling this week, Athanasios Hadjis flatly challenged Section 13’s constitutionality. He found that a Canadian with neo-Nazi ties ran afoul of the rights act by posting an anti-gay message on his website. But Hadjis also found Section 13 to be unlawful because it is more than a “minimal” infringement on freedom of expression.

That contradicts a 1990 Supreme Court ruling that upheld Section 13. But Hadjis argues that back in 1990 the CHRC could only issue a “cease and desist” order, not impose punitive fines. That changed in 1998. “The potential `chill’ upon free expression may have consequently increased,” he reasons.

This ruling strengthens the case for Parliament to get the CHRC out of the business of policing hate speech by repealing Section 13 and leaving the problem of hate speech to the criminal courts.

Section 13 isn’t salvageable. It can be interpreted to cover stereotyping and defaming, as well as hate-mongering. There’s no need to prove intent. The tribunal can accept evidence that wouldn’t stand up in court. And it doesn’t have to establish guilt beyond doubt. It’s that bad.

Even the CHRC now agrees that Parliament must more clearly define what constitutes hatred and that the CHRC should lose the power to fine. Yet it wants to continue sitting in judgment on these issues.

Why? An open, democratic society should impose as few restrictions as possible on free speech. Hate crimes should be handled by the courts, not by lesser tribunals.

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