Saving The Canadian Human Rights Commission Through Amputation

January 2010

Richard Moon is the law professor retained last year by the Canadian Human Rights Commission to write a report about the regulation of “hate speech” on the Internet. He didn’t strike people as a libertarian when he got his commission, so he surprised many when he recommended the repeal of Section 13, the controversial “hate speech” provision, from the Canadian Human Rights Act.

The other day, Moon outlined in the Saskatchewan Law Review Annual Lecture how he arrived at his recommendation, leaving little doubt he threw the dead ballast of s. 13 overboard to save the leaky vessel of the CHRC. He reasoned, he said, that speech should be prohibited only if it advocated, threatened or justified violence against an identifiable group, not if it merely defamed or stereotyped it, and that prohibition against preaching violence should come under the Criminal Code, not the Human Rights Act.

“I argued,” the professor explained, “that a narrowly drawn ban on hate speech that focuses on expression that is tied to violence does not fit easily or simply into a human rights law that takes an expansive view of discrimination, emphasizes the effect of the action on the victim rather than the intention or misconduct of the actor and employs a process that is designed to engage the parties and facilitate a non-adjudicative resolution of the ‘dispute’ between them.”

Professor Moon mentioned this almost in passing, to get it out of the way, before embarking on a spirited defence of the human rights industry against its critics. I’d like to dwell on his description of human rights law for a moment, though, because it illustrates perfectly why such laws don’t fit easily or simply into a free society’s system of laws and should be repealed altogether.

A law that takes an “expansive” view of discriminatory conduct based on the subjective feelings of groups selected to be immunized against existential trauma, then bases censure or sanctions against conduct that falls short of this standard, not on what the “actors” had actually done or intended to do, but on the effect their actions may have had on the most hostile or sensitive or vulnerable member of an immunized group, and finally adds insult to injury by describing this arbitrary, coercive and iniquitous process as “a non-adjudicative resolution of a ‘dispute,’” turns society into a mixture between Orwell’s 1984 and a Monty Python skit.

Flaunting the insolence of office probably wasn’t Professor Moon’s intention, but many feel hurt and diminished by the process and philosophy the professor so matter-of-factly described. If a human rights tribunal were to assess what Professor Moon is advocating and justifying, not on the basis of his intentions but the feelings of Canadians who feel threatened and insulted by it, he could be found to have violated their human rights.

That is, if devotees of liberty were an identifiable and protected group under the Act. But of course they’re not.

When Canada’s statist left found it had bitten off more than it could chew last year, and could end up choking on it (as some think it ought to), the CHRC retained Professor Moon to organize an orderly disgorgement. He did. “I recommended the repeal of s. 13 of the [Canadian Human Rights Act],” Professor Moon explained in his lecture, “so that the CHRC and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular hate speech on the Internet.”

One of his reasons, said Professor Moon, was that s. 13 “would require extraordinary intervention by the state and would dramatically compromise the public commitment to freedom of expression.” No doubt, except that would be more a classical liberal’s reason — say, my reason — for recommending s. 13’s repeal than Professor Moon’s. I suspect his recommendation had to do with the CHRC being an open whaling boat about to be swamped by big white whales, and Professor Moon not being Captain Ahab.

When Canada’s human rights industry, emboldened by its success with netting small fry — a teacher here, a preacher there — set its sights on the big fish swimming in the mainstream media, it opened itself to the risk of running into Moby Dick. As it happened, it ran into a whole school, from Ken Whyte’s harpoon-resistant Maclean’s magazine to a mix between a whale and a mongoose named Ezra Levant, and of course the world’s only cetacean with a sense of humor, Mark Steyn. The biggest whale turned out to be the Internet itself, looming immense, committed solidly to the freedom of the seas. The good ship CHRC was no match against such fish.

Professor Moon quickly moved to cut bait, not to save an endangered species of free-swimming sea creatures but to secure the escape of the beleaguered whalers. Moon thinks he has done it, too. “While the critics of the CHRC have been successful in spreading their views, all they can hope for is a marginal win in a polarized debate,” he offered in his lecture. The pity is he may be right.