Too wide a net for hate – opinion/editorial – Too wide a net for hate
June 23, 2008

Hate is a subject that the Canadian Human Rights Commission wisely wishes to think about. A law professor at the University of Windsor, Richard Moon, will write a wide-ranging report for the CHRC, to come out in October, on “the most appropriate mechanisms for addressing hate messages.”

In her announcement of this policy review on Tuesday, Jennifer Lynch, the Chief Commissioner, unmistakably alluded to the debate over three human-rights complaints against Maclean’s magazine about “The future belongs to Islam,” an article in 2006 by Mark Steyn. There is no hearing date yet for the proceeding at the CHRC; the complaint in B.C. has been heard but not decided; while the Ontario one failed for lack of jurisdiction, the commission joined in the accusation by way of press release.

The Canada Human Rights Act deals with hate in a section that was originally about telephone “hate messages.” But in December, 2001, the Anti-Terrorism Act made clear that Internet communications were covered. Of course, Internet publication now largely overlaps with print media. An enactment that once dealt, for example, with a phone number that one could call to hear a recorded “white power message” now looms over the whole of the press in Canada.

Like its sibling in the B.C. Human Rights Code (at the core of the Maclean’s hearing in Vancouver earlier this month), section 13 of the federal statute is aimed at what is “likely to expose” people to hatred or contempt because of ethnicity, religion and other specified factors. Evidence of such a likelihood — in the absence of a solid science of mass psychology on which to base expert testimony — is bound to be dubious, and there are no defences of the kind found in civil lawsuits about damage to reputation, such as fair comment.

Back in 1990, a case from the federal human-rights commission about the hate-message section made its way up to the Supreme Court of Canada. Khurrum Awan, one of the instigators of one of the trio of complaints against Maclean’s, has portrayed the court’s decision in that case as an active recommendation of section 13, in preference to the hate-speech sections of the Criminal Code. In fact, both the majority and the dissenting minority were troubled that the hate-message section is not limited to cases where there is hateful intent, though the majority was sufficiently comforted that the Human Rights Act’s penalties were less drastic than the Criminal Code’s.

Whether or not the future belongs to Islam, as Mr. Steyn fears, both the present and future belong in large measure to the Internet. A statutory provision that once restrained racist cranks who were putting telephones to wicked uses now threatens public debate in the press on matters of concern to all Canadians. It may well have been too broad in 1990, as three out of seven Supreme Court judges then thought; it is much too broad in the 21st century.

Let us hope that Richard Moon says likewise to Ms. Lynch and her colleagues, and that the Parliament of Canada then repeals, or severely limits, section 13 of the Canada Human Rights Act.

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