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Monday, November 24, 2008

One small step in the right direction for free speech and expression

The Canadian Human Rights Commission has now posted on its website Prof. Richard Moon's report, on Section 13 of the CHRA.

1. The first recommendation is that section 13 of the Canadian Human Rights Act (CHRA) be repealed so that the CHRC and the Canadian Human Rights Tribunal (CHRT) would no longer deal with hate speech, in particular hate speech on the Internet.

Posted by Terry O'Neill on November 24, 2008 in Freedom of expression | Permalink


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As Graham Chapman might say, "I didn't expect the Spanish Inquisition!" I really thought he was just going to recommend ways to implement the provision "more effectively". Recommending it be repealed seemed beyond Moon's mandate. He also has a track record of being in favour of limiting hate speech. So this is a very pleasant surprise. I suspect it also means that section 13's days really are numbered now.

Posted by: Fact Check | 2008-11-24 10:35:09 AM

Holy crap, I'm with FC. This isn't what I expected at all.

Harper's party is telling him to scrap Section 13, and now this. I still think he'll ignore it all, at least for now.

But he shouldn't.

Posted by: Terrence Watson | 2008-11-24 11:10:26 AM

He recommends repealing 13 but adding in new bodies such as expanded press councils. These seem to be geared towards handling "softer cases" of discriminatory speech that might fail a section 13 case. So for example, the WS might have lost a case to one of these press councils over the cartoons affair and been FORCED to print a notice saying they had been found discriminatory.

Be careful what you wish for. More at BCLSB.

Posted by: bigcitylib | 2008-11-24 11:12:59 AM

Look what else is in the report:

Prof. Moon recommends that, if Section 13(1) isn't totally scraped, then it should be amended to include an intention requirement.

Posted by: Terrence Watson | 2008-11-24 11:16:04 AM

There's some really interesting stuff in this report.

Moon argues that Section 13 should be reformulated to include an intent requirement. But he doesn't think it should be adjusted to allow a truth defense. Here's why:

"In my view, a truth defence is not required because hate speech is necessarily untrue."

"Our commitment to equality entails a rejection of any view that the members of a racial or other identifiable group are inherently inferior or dangerous."

Verrry interesting. The flip side of this (as far as I can tell) is that speech would only count, for the purposes of Section 13, only if it made the claim that "...members of an identifiable group share a dangerous or undesirable trait – that they are by nature violent or corrupt or dishonest – and must be stopped by violent means if necessary."

If that's the kind of claim Moon is saying is necessarily false (give him that, for now) -- such that a truth defense would be a redundancy -- then other claims not rising to that level (e.g. Mark Steyn's) would automatically get a pass.

No? As I interpret this, unless the claim falls into this narrow category of "necessarily false", Moon is saying it shouldn't be counted as hate speech for the purposes of a Section 13 Version 2.0, or whatever.


Posted by: Terrence Watson | 2008-11-24 11:31:44 AM


I think so. The question is, does Moon intend the revitalized Press councils to operate in both the case of repeal and amendment? If amendment as well, then the new S13 lets Steyn go and the Press Council bags his ass.

Posted by: bigcitylib | 2008-11-24 11:53:01 AM

Don't anyone kid themselves, the current corrupt HRC bureaucracy is well entrenched in Canada and will not be dislodged easily.

Stephen Harper would be well advised to rejig and neuter the National HRC version while the life of this new mandate would not hinge on that issue.
Are you listening Bob Nicholson and Stephen Harper?
A deadly chess game on the future of freedom of speech in the deranged Dominion, I would say.

Posted by: Joe Molnar | 2008-11-24 11:55:13 AM


What's the deal with the press councils, anyway? They could force a newspaper to say "Sorry, we printed something discriminatory"?

That sounds like a step up from fines and legal wrangling.

Posted by: Terrence Watson | 2008-11-24 11:59:06 AM


That is what Macleans claimed to have been fighting for--they did not want to surrender editorial content. Does this principle suddenly mean nothing? They would still lose that under Moon's recommendations. How severe is such a fine to a major newspaper anyhow? Its really the symbolic slap on the wrist thats more important.

Under Moon's recommendation (even if 13 is repealed)Hate Crime Laws get beefed up. So white supremacists gets nailed anyway,just under a different bit of legislation, and maybe Steyn/Macleans get a slap on the wrist where if it was a section 13 case they get nothing because the case was not strong enough. In a sense, this broadens hate speech sanctions to include softer forms of discrimatory speech.

Posted by: bigcitylib | 2008-11-24 12:09:30 PM


"That is what Macleans claimed to have been fighting for--they did not want to surrender editorial content. Does this principle suddenly mean nothing?"

I said it was a step up, not the whole shebang. :-). But you're right: for some, having to print the -- what should we call it? A retraction? -- would be worse than a fine. I'm not sure what the WS would do in such a case (and I know, electronic media seems to be excepted, but it's interesting to think about.)

Would the press council have the authority to issue a cease and desist order? Or would certain publications just keep racking up the retractions every month?

My primary concern involves the suppression of ideas and the squelching of dialogue. Fines and other legal penalties can have that effect. I'm not sure mandatory retractions would.

Suppose magazine X prints an article. The press council says, "X, that article was discriminatory speech." Then the council forces X to print a little blurb next month saying, "We regret that some folks found the article by MS last month discriminatory."

Is that how it would go down? It's still bad. It's still a gross violation of private property rights. But it wouldn't be the state cracking down on offensive or hateful ideas.

And it's a little different than how things went down (or could have gone down) with Maclean's. As I recall, the kids behind the complaint didn't just want a retraction: they wanted total control.

And if white supremacists are still going to get nailed, at least they'll face a more exacting burden of proof, no?

Posted by: Terrence Watson | 2008-11-24 12:24:04 PM


Moon suggests that, given the people that the HRCs have gone after, that won't be hard to achieve.

Also, it may mean that much of what was going to the HRCs goes to the cops instead. Remember, WS has occasionally hosted expressions of genocide in the comments. As I read Moon, this kind of thing is what would get transferred to the police hate crimes team. Instead of getting a letter from a bureaucrat you might get a call from the nice policeman just after the ISP disappears your website until the police figure out whether it meets the standard or not.

For example, Boisson's letter was judged on the militancy of its language--the war on gays it conjured--and the fact that a kid was beaten a little bit later by one of Boisson's associates. That might simply, under Moon's proposals, have become a criminal rather than commission matter.

Posted by: bigcitylib | 2008-11-24 12:59:40 PM

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