The right to offend

As the house prepares for its first 2012 sitting, Bill C-304 is coming back for second reading. The private members bill—brought forward by MP Brian Storseth with a substantial level of support within the party and the cabinet—deals with the Canadian Human Rights Act (CHRA), a citizen based cousin to the Charter of Rights of Freedoms. The CHRA broadly acts under the principle that, “all individuals should have an opportunity equal with other individuals…” and that they are free from discrimination of any kind. In short, while the Charter is a force on government, the CHRA is designed to ensure discriminatory practices are confronted through means other than the court system.

Bill C-304, An Act to Amend the Canadian Human Rights Act (Protecting Freedom), asks Parliament to amend several sections of the CHRA including section 4, 53 and 57 and seeks to repeal section 13 and 54.

It’s section 13 of the CHRA that has caused a lot of controversy. It explicitly deals with discrimination or “hate speech” conveyed through electronic mediums–phones, media and the Internet. While hate speech is not flooding the roster of the commission’s cases and only accounted for two percent of complaints to the commission, the cases that do come forward are often high profile and controversial.

This has instigated a renewed debate about the limits on freedom of expression and the basic Charter right as stated in section 2b. Many people have come out against this particular section of the CHRA representing a broad spectrum of political ideologies—it isn’t often that Noam Chomsky and Ezra Levant align on something. Of course, there are also a great number of those who have come out in support of section 13, including several prominent human rights lawyers and various members of editorial boards.

The commission itself has also cast doubt upon its ability to judge cases based on section 13. Specifically in a 2009 case, Warmin vs. Lamire, the tribunal ruled “section 13 of the CHRA violated freedom of expression as guaranteed by section 2(b) of the Charter, and could not be justified as a reasonable limit under section 1 of the Charter”. A commissioned report in 2008, The Moon Report also recommended the section be repealed and left in the hands of Criminal Code.

Removing the section from the CHRA, and placing hate speech in the hands of the legal system demands a higher burden of proof from those who are making complaints based on discrimination. Hate speech is tricky for many reasons. It is vague in its meaning and is almost entirely dependent on the norms accepted or “reasonable limits” deemed appropriate by society. While Canadians agree that an unprovoked physical attack on a person based on their religion, race, sex, or sexual orientation it is still unclear what constitutes hate speech as opposed to simply an offense and so the controversy exists within our federal system, our provinces and our communities.

Importantly, Bill C-304 does not entirely take hate speech out of the CHRA. Both section 12 and section 13 deal with hate speech, but it is section 13 that explicitly outlines discrimination through electronic media. MP Storseth, when speaking of the bill to the media or in parliament, does little to outline this key separation.

Speaking in the house on November 22, 2011 MP Storseth makes it clear that section 13 is an affront to “freedom of expression,” part of the fundamental freedoms Canadians are guaranteed under the charter, “Section 13 … has instead been used to address differing values or opinions and impedes one of the most basic civil liberties that we hold dear to our hearts, the freedom of expression.” MP Storeseth has yet to make it clear why section 13 is of particular interest to him. Section 12 of the CHRA carries the same message: displays and propaganda considered discriminatory is not acceptable and considered an offence. There are also provisions in provincial human rights acts that use similar language and more often than not a complaint would go through a provincial commission before a federal.

This bill is not as simple as it appears upon first glance. It does one thing while saying it will do so much more, and it begs the question as to why. The only answer given so far by MP Storseth is that section 13 contravenes our fundamental freedom of expression. Retracting section 13 does bow to what many have recommended in the past—but their recommendations did not come under “freedom of expression” but primarily that hate speech is a crime and a crime should be dealt with under the criminal code. But as the legal system is not fairly and freely accessible it may not be a realistic endeavour.

If nothing else, this bill does provide Canadians an opportunity to have a discussion about what freedom of expression means to us, and further what it is we as a society consider “hate speech.” As Parliament reconvenes on January 30, Bill C-304 is expected to move to second and final reading this spring.

This article was published in VUE Weekly, January 25th in issue #849.

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