Catholic Insight has formally responded to federal Justice Minister Rob Nicholson on the Moon report concerning Section 13 of the Canadian Human Rights Act. It supports the abolition of the section. Below is the text of the magazine’s submission.

Dear Mr. Nicholson,

This filing is in response to the Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet by Windsor Professor Richard Moon, October 2008, published by the Canadian Human Rights Commission in Ottawa.

We write having been targets of a complaint under that very section (of purveying “hate literature”), which was dismissed by the Commission in July 2008; however, the complainant, a member of the (gay) Pride Centre of Edmonton, has appealed that dismissal to the Federal Court. From the date of the original complaint, February 2007, till today, two years have passed. Total cost to the complainant: one postage stamp. Total cost to us in direct expenditures: $30,000.

We are a 17-year-old, national, monthly magazine of news, analysis and opinion. We write from the Catholic perspective. On matters of faith and doctrine, we seek to be faithful to the teachings of the Catholic Church. In our view, the attacks upon us, here fore, are also attacks on the freedom of the Catholic Church in Canada. As far as we can see, the changes to the Charter made by the Supreme Court over the years now pit the new sexual orientation equality rights against the rights of large sections of the Canadian population. In the future, this may well become the source of grave divisions and political unrest.

It should be stressed that the human rights complaint against our publication, initiated by the homosexual activist in Edmonton, was filed in tandem with other similar and unsuccessful actions set in motion by a Toronto-based homosexual activist, who attempted to strip us of our postal subsidy under Heritage Canada’s Publications Assistance Program, again on the grounds that we supposedly purveyed “hate literature.” This accusation was formally rejected by the Department as of December 31, 2008.

These harassing and unnecessary actions set our publication of modest means back just short of $30,000 in legal fees and untold hours in staff time. The nature and timing of the actions suggested a co-ordinated effort to injure our publication and, possibly, put it out of business. In deciding what to do about Section 13, the government should keep in mind this dimension of the human rights complaint process – the damage done to innocent parties unjustly accused by individuals who have nothing to lose by initiating an action.

The government should also keep in mind that persons of our faith persuasion are regularly subjected to vilification and criticism from the very segment of the population that launched human rights and other actions against us. The leading Canadian homosexual magazine Xtra!, for example, has regularly published a column called “Godless World,” which, as the name implies, focuses on expunging any vestiges of religious faith from the public sphere (see: Never has this publication, nor the composer of the column in question, been subject to a human rights commission investigation.

One further note: The Canadian Human Rights Commission and its provincial branches have had a political agenda from the beginning, especially in respect to incorporating sexual orientation and so-called same-sex marriage into Canadian legislation. Details may be found in the recent report issued by the Canadian Human Rights Commission itself: Human Rights Commissions and Public Policy: The Role of the Canadian Human Rights Commission in Advancing Sexual Orientation Equality Rights in Canada. Prepared by Annette Nierobisz, Mark Searl, Charles Theroux, 2008.

In it, the authors admit that the Commission meddled in public policy development on sexual orientation equality rights “despite a lack of political will or initial public support” (page 2). We wonder what right an agency funded by, and supposed to represent, all Canadians had in pushing a distinctly political agenda that was probably at odds with the will of the majority of the Canadian people.

We will now turn to the recommendations made by Professor Moon.

1. We strongly agree that the use of censorship by the government should be confined only to a narrow category of expressions that advocate, justify or threaten violence. In our case, we found that the complainant was attempting to use the human rights process as a retaliatory measure in response to our well-documented positions on phenomena such as the redefinition of marriage, adoption rights being extended to same-sex couples and the allocation of spousal and other social benefits. These are matters for legitimate public debate and should not be the subjects of an investigation by a government body holding punitive powers.

Hence, we concur with Professor Moon’s recommendation that Section 13 of the CHRA be repealed and that the Canadian Human Rights Tribunal no longer deal with hate speech. Such speech – involving advocacy, justification or threats of violence – should only be prosecuted under the Criminal Code, which allows for a burden of proof beyond a reasonable doubt (rather than just on a balance of probabilities), normal rules of evidence (meaning that hearsay and conjecture are inadmissible) and the presumption of innocence until guilt is established. Such an arrangement adequately balances the control of real hate speech with a respect for freedom of expression.

We note that human rights commissions were never intended to deal with hate speech in the first place. As even Alan Borovoy, a founder, noted, they were established solely to provide remedies outside the court system for victims of discrimination in employment and accommodation, not to suppress expression.

2. We strongly advocate the repeal of Section 13, as the potential for it to be utilized in the service of social control is too great, even if incremental measures are put in place to deal with current complications. We do not agree with Professor Moon’s recommendation that, failing the repeal of Section 13, a distinct process for the investigation of complaints under Section 13 be established. As mentioned above, we strenuously object to the processes involved in investigating and prosecuting human rights cases by these Commissions. As matters currently stand, a complainant has the full support of the human rights system, no matter how frivolous, harassing or scurrilous his complaint may be, while a defendant is fully liable, particularly in a financial sense, for establishing his own defence.

The scenario is obviously unfairly weighted in favour of the complainant, who has no liability in initiating an action, as he has the backing of governmental machinery throughout the process, from the investigation stage through to prosecution (if the matter proceeds that far). Some commentators have characterized this state of affairs as “the process is the punishment.” In our case, despite our innocence, our publication was placed in the position of having to expend large amounts of funds for legal purposes and divert staff from other tasks in which they would normally be engaged.

In general, the overall human rights complaints process violates Section 11 d) of the Canadian Charter of Rights and Freedoms: to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

We also call attention to a number of incidents that have come to light in the recent past of CHRC investigative personnel using questionable tactics, such as tapping into a private citizen’s wireless internet connection and posting inflammatory materials on certain websites in the apparent hopes of eliciting actionable responses. Such unethical actions must be eliminated and the easiest way to do this is to remove from the HRCs the power to censor speech, the press and the internet.

We disagree with the assertion, on pages 36-37 of Professor Moon’s report, that truth cannot, in all circumstances, be used as a defence. We go down a very slippery slope when verifiable facts cannot be presented in support of certain legitimate positions in matters of public debate. Much like the hazy definition of “hate,” such a point of view naturally prompts the question of which facts would constitute hate and which would not. It seems almost a matter of common sense that this is an untenable position and a road we should not go on.

We know that, with respect to defamation, truth is an absolute defence in the United States, as well as in the common law jurisdictions of Canada. Human rights law in Canada should acknowledge this position, as well as other common law libel defences such as fair comment and lack of intent to harm. These were established as long ago as 1835 in Canada; it is unconscionable that they are not being recognized by a government body in the 21 century.

Professor Moon was quite correct to observe that, “Any time a hate speech complaint is investigated, the respondent’s freedom of expression right is compromised, even if the complaint is dismissed” (page 38). We certainly found that to be our reality during the months we were awaiting the commission’s decision to dismiss the complaint against us.

We also found to be true the “chilling effect” Professor Moon alluded to, also on page 38. Our editorial advisory board was locked in a number of debates over what we should or should not publish in light of the human rights action against us, even though we felt it was clearly not in violation of Section 13 strictures. This occurred chiefly out of fear of further burdening ourselves with significant legal costs.

3. With respect to Professor Moon’s third recommendation, we have concerns over the bestowing of powers to shut down websites deemed “hateful.” Much depends on the factors used in assessing whether a site is indeed hateful. There is the potential to cause the same problems that emerged over the application of Section 13 – the inadvertent suppression of legitimate free speech, as opposed to real hate. The key is to ensure that only those sites engaged in the narrow definition of hate as stated earlier – advocacy, justification or threats of violence – are subjected to such extreme measures.

We reject the use of alternate avenues, such as press councils. Ensuring that aggrieved parties have the ability to make their views known is infinitely preferable to squelching one side of a public debate in which the public needs to be informed of certain facts. In our case, we have, on several occasions, received correspondence disagreeing with our editorial and faith-based positions on certain subjects of public import. These communications were reproduced in our publication for general consumption.

In summary, our concerns around the human rights complaint process as it exists in Canada currently revolve around the following problems that need to be rectified:

• The obscure definition of the term “hate” under the Canadian Human Rights Act, Sections 13, which is being interpreted by some as virtually any opposition to certain agendas impacting on public policy and is being used as fodder for the filing of frivolous and harassing complaints

• The financial and legal onus on a defendant to prove himself innocent. Even if he is successful in this, he suffers the fate of undergoing a “process as punishment,” in being left with significant legal bills and additional staff costs. This, along with the use of a balance of probabilities instead of proof beyond a reasonable doubt in establishing fact, offends against the principle that innocence is to be presumed until guilt is proven and creates an unfair advantage for a complainant

• The questionable investigative tactics of CHRC personnel, which have verged on entrapment and have involved such ethically dubious strategies as stealing private wireless internet connections and surreptitious postings on websites

• The deficiency in human rights tribunals in terms of their failure to adhere to established and widely recognized processes of law and justice – rules of evidence, in particular. This violates Section 11 d) of the Canadian Charter of Rights and Freedoms

We appreciate the opportunity to respond to the Moon Report and trust that our submission will be considered with due seriousness.

Rev. Alphonse de Valk, CSB, Editor
Catholic Insight Magazine