OTTAWA, June 12, 2009 – The Catholic Civil Rights League has characterized as inadequate the recommendations contained in the Canadian Human Rights Commission (CHRC) report “Freedom of Expression and Freedom from Hate” released June 11. It is mainly focused on Section 13, which allows the CHRC to hear complaints about hate speech published on the Internet and in other telecommunications.
The main recommendations of the report, the result of an internal review by the Commission, are that the federal human rights tribunal no longer have the ability to issue fines to those it finds guilty of hate speech; that the Canadian Human Rights Act be amended to provide a statutory definition of “hatred” and “contempt”, that the Act be amended to allow for an award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process, and that a provision be added that allows for the dismissal of Section 13 complaints when messages do not meet the narrow definition of hatred or contempt.
Independent investigators, including, as the report notes, Professor Keith Moon, have concluded that Section 13 should go. So have Liberal and Conservative MPs. So has the League. So has just about every journalists’ association in Canada.
“Previous commentators, including the League and Professor Moon, identified the inadequacy and danger posed by the existing provisions of s.13 of the Canadian Human Rights Act. It now appears that after eight years of prosecutions against Internet applications under this section, the Commission acknowledges that there is a problem The Commission now wishes to try to continue its work in this area, under new rules. We find that most of the recommendations amount to fairly superficial changes to a system that is fundamentally flawed,” said League President Phil Horgan. “Cases involving limitations on a Charter right such as free speech should not be addressed by human rights commissions.”
The recommendation to remove the tribunal’s ability to levy fines against offenders is an improvement, but does not address the heart of the problem: Cases involving freedom of speech and freedom of religion should not be dealt with by a non-judicial tribunal. Freedom of expression and freedom of conscience and religion are fundamental values of our democratic tradition. Any judicial curtailment of them should face the standard of proof required by a court.
The League’s involvement with Section 13 cases has been motivated by the Commission’s investigations of expression of opinion based on religious belief. It appears that the Commission is now recommending the ability to award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process, and to include a provision to allow the early dismissal of Section 13 complaints.
If the Commission itself is recommending that these amendments be made, is it also not acknowledging that abuses occurred in the past? A true recognition of the imbalanced playing field between complainants and respondents would result in the recovery of the out of pocket expenses incurred by innocent parties.
In the case of Catholic Insight magazine, for example, the publisher ended up paying over $40,000 in legal fees to defend the right to publish views based on Catholic teaching. That case remains outstanding, as the complainant has sought judicial review of the Commission’s dismissal more than a year ago. Will the Commission acknowledge its complicity in this charade, and reimburse the magazine for its expenses?
The Commission’s report makes even more problematic proposals with respect to the hate provisions of the Criminal Code. The League raised concerns about changes to those provisions in 2002-03 that included “sexual orientation” as a further enumerated ground for complaint (BillC-250), and insisted that specific defenses for religious speech be incorporated. The report contains a recommendation that the requirement for the Attorney General to authorize prosecutions under the hate provisions of the Criminal Code be removed, and that “truth as a defense” in the Code be limited to some extent, especially in respect of group defamations.
On the one hand, the Commission is promoting greater reliance on the Criminal Code to prosecute hate crimes, but wishes to maintain a role in regulating content of the Internet. Some of the ethnically- and racially-inspired websites referred to in the report are deplorable, truly an acid test of anyone’s commitment to free speech. The League has been obliged to respond to some anti-Catholic commentary that could be described as hateful, but we have refrained from making use of the Commission for these issues.
Recourse to reasoned and civil discourse should be encouraged, rather than having reliance upon a Commission, whose own recommendations seem to recognize that it is not up to the task.
After millions of dollars in wasteful prosecutions of innocent parties, it is encouraging to note that the Commission may finally be getting the message that there have been problems with its past practices.
Report: http://www.chrc-ccdp.gc.ca/publications/srp_2009_rsp/toc_tdm-en.asp
Executive summary: http://www.chrc-ccdp.ca/publications/srp_2009_rsp/backgrounder_documentinformation-en.asp
About CCRL
Catholic Civil Rights League (www.ccrl.ca) assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. CCRL was founded in 1985 as an independent lay organization and has chapters across Canada. The Catholic Civil Rights League is a Canadian non-profit organization entirely supported by the generosity of its members.
For further information: Joanne McGarry, Executive Director, 416-466-8244; joanne.mcgarry@ccrl.ca