Laws Should Protect Against Hate, Not Against Being Offended

April 2010

Dean Steacy is an investigator charged with upholding the Canadian Human Rights Act, drafted 30 years ago to ensure everyone can live free from discrimination. Yet Mr. Steacy and his employer, the Canadian Human Rights Commission, seem to think the law gives every Canadian the right to live without ever being offended.

Mr. Steacy has been enthusiastic in pursuit of what he sees as the CHRC’s mandate. In one case, he testified that he and his colleagues regularly used aliases to log on to far-right websites and exchange messages, presumably with the intention of inciting users to new heights of bigotry.

In another case, he said “freedom of speech is an American concept, so I don’t give it any value” (a commission spokesperson said this quote has been taken out of context and that if the question had been about freedom of expression, one of the freedoms guaranteed in the Charter, the answer would have been different).

Doug Finley, the Conservative Party campaign manager who was appointed to the Senate last year, disagrees with Mr. Steacy. “Freedom of speech is as Canadian as maple syrup, hockey and the Northern Lights,” he said in the Senate last week, when he called for an inquiry into what he sees as an erosion of the right to speak out.

Outraged by the scenes of mob rule at the University of Ottawa, where American political provocateur Ann Coulter was intimidated into cancelling her speech, Mr. Finley believes the time is right for parliamentarians to take another look at the laws on “hate messages” and their prosecution by the commission.

“It was the most un-Canadian display I’ve seen in years, an embarrassing moment for Canada,” he said.

Mr. Finley’s call for an inquiry into the Human Rights Act -- specifically, into Section 13, which makes it discriminatory to communicate messages that could expose a person to hatred or contempt -- was supported in the Senate by a number of his colleagues, including fellow Conservatives Pamela Wallin and Mike Duffy.

Justice Minister Rob Nicholson has not committed to any such inquiry, though it would be a popular move among Conservatives, who voted unanimously at their last policy convention to kill Section 13. It would also receive some cross-party support — Keith Martin, a Liberal MP from British Columbia, has put forth a private member’s bill calling for the same thing.

What the Coulter case made clear is that the issue of freedom of speech is back on the political agenda.

Modernizing the law would bring it into step with the reality on the ground. Last September, a Canadian Human Rights Tribunal member ruled that Section 13 unreasonably limits Charter rights to free expression and is unconstitutional. Even a report commissioned by the CHRC itself recommended that Section 13 be repealed and that hate speech on the Internet be left to the criminal courts (the CHRC downplayed the report as “only one step in a comprehensive review”).

Yet it is hard to argue that rights commissions have not exceeded their mandates when it comes to cases against former Western Standard publisher Ezra Levant and Maclean’s magazine for publishing material that offended some Muslims.

Speech is already limited by legal prohibitions on hate speech, slander and libel. Those provisions at least require a fair process for the accused -- something absent from the human rights provisions, where there is no requirement for an intent to foment hatred and no defence for truth or responsible belief.

Mr. Finley should be commended for pushing to get rid of the censorship provision. There are laws that protect against hate, but there should be none that shield people from being offended. As Mr. Finley pointed out, “political correctness on steroids” creates a climate in which everyone could potentially complain to the commission that their rights have been breached.

“If I had a dime for every ad that featured a fake Scots accent and made jokes about being cheap,” he said, half in jest.