Time to strike the right balance in Canadian Human Rights Act

The government should take the necessary steps to enhance the application of the Criminal Code regarding hate speech, and ensure the desired balance.

By Shimon Koffler Fogel

OTTAWA—Section 13 of the Canadian Human Rights Act has sparked an intense division across Canada: to repeal or not to repeal? However, this binary debate overlooks the most important issue at stake—the fundamental balance between freedom of speech and protection from hate that underpins democratic society.

Section 13 of the Canadian Human Rights Act was created as a shield to protect the most vulnerable members of society from heinous messages of hatred. Historically, it provided an effective tool for Canadians, particularly in the fight against Holocaust denial. Unfortunately, Section 13 and its provincial counterparts have increasingly been used as a sword, brandished to stifle valid criticism and chill legitimate expression. As a result, Section 13 has become a highly divisive issue across Canada, including various faith groups not least of which is the Jewish community.

After careful consideration, it is clear to the Centre for Israel and Jewish Affairs that deliberations surrounding Section 13 are less about a particular legislative vehicle than how best to ensure a balance between freedom of speech and protection from hate—both of which are cornerstones of Canadian society. Section 13, as it currently stands, is woefully deficient in achieving this, and we are grateful that Conservative MP Brian Storseth has put the issue on the public agenda in his private member’s bill (C-304).

Freedom of speech is a pillar of democratic society, and our human rights institutions must not be abused to erode this fundamental liberty. However, without concomitant changes to the way Criminal Code provisions regarding hate speech are enforced, the repeal of Section 13 would create an inverse situation to the one we now face—where free speech is nearly absolute and vulnerable minorities are unprotected from vilification. Nobody is advocating the repeal of Section 13 as an intentional means to expose these groups to hatred, but care must be taken to ensure that this does not become the result.

Professor Richard Moon, in his 2008 report to the Canadian Human Rights Commission, noted a lack of prosecution of hate speech under the Criminal Code “not because the attorney general decided that the case was weak but because she/he did not regard hate speech as a significant problem.” This deficiency must be corrected if Section 13 is repealed, with robust application of the Criminal Code hate speech provisions as a core requirement.

To accomplish this, federal and provincial justice ministers should meet to determine uniform guidelines and training programs to ensure more active use of these provisions. It would make the attorneys general more accountable and create single points of contact with which communities could engage to ensure hate speech is dealt with effectively. Moreover, each province could be directed to establish its own Hate Crime Team, as has been done in British Columbia.

The educative intention of Section 13 is important, but could otherwise be achieved through a national education campaign about the dangers of hate propaganda.

Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association, has noted this would have a far greater preventative impact.

Alternatively, a number of commentators, including the Liberal MP Irwin Cotler, have proposed that Section 13 should be salvaged and amended to ensure freedom of expression without compromising the imperative to protect people from vilifying speech.

For these twin goals to be fully realized, significant changes to Section 13 would have to be considered, such as a built-in filtering mechanism, similar to that already present in the Criminal Code requiring attorney general consent to launch an action.

Additionally, a narrow Supreme Court of Canada-based statutory definition of hatred and contempt, and a provision for early dismissal of Section 13 complaints that do not meet that definition, would be required. The provision allowing for the assessment of punitive penalties should be repealed, procedural safeguards in terms of the trial process and evidentiary standard should be introduced, and human rights commissions should be empowered to award costs as a strategy to dissuade frivolous claims.

Freedom of speech and protection from hate are fundamental Canadian values and a balance must be achieved between them. The Centre for Israel and Jewish Affairs has found in our consultations with advocates on both sides of the issue that there is consensus about this core principle, but not a monolithic position on how to achieve it. We are therefore less concerned about whether Section 13 is rehabilitated or replaced by robust application of the Criminal Code, so long as the this core principle is adequately reflected.

Current human rights legislation is not up to the task, and we must ensure that whatever takes its place achieves this vital equilibrium. Practically speaking, there is no doubt that Bill C-304 will pass given the government’s announced intention to support it. The Centre for Israel and Jewish Affairs hopes and expects that the government will take the necessary steps to enhance the application of the Criminal Code regarding hate speech, and ensure the desired balance we’ve described. Failure to do so would leave Canadians no further ahead than we were before Bill C-304 was first introduced.

 Shimon Koffler Fogel is CEO of the Centre for Israel and Jewish Affairs.

::The Hill Times