The right decision

  • September 11, 2009
{mosimage}The Canadian Human Rights Commission does important work in battling discrimination and ensuring work place equality. But it has no place as the nation’s censor and should be stripped of its power to police and prosecute matters pertaining to hate speech.

That is the position of several civic groups, Catholic organizations and media outlets that have asked Parliament to lop some tentacles from the CHRC. The Catholic Women’s League is the most recent group to join the debate, passing a resolution last month that urged Ottawa to diminish the CHRC’s authority.

The cause received new impetus on Sept. 2 when a Canadian Human Rights Tribunal, in an unexpected decision in a case involving alleged hate speech, ruled that  Section 13(1) of the Canadian Human Rights Act is unconstitutional because it violates the charter guarantee to freedom of thought, belief, opinion and expression.

Now Parliament should act. Rather than let the ruling go to an expensive appeal, Justice Minister Rob Nicholson should move quickly to have Section 13 repealed and direct that all hate-speech offences be handled by the Canadian Criminal Code.

Parliament should act because free speech is too important in a democracy and hate speech is too offensive to society to be delegated to tribunals. A delicate balancing act is required to both promote freedom and quash hate. The current system, in which the CHRC can act as police, judge and jury, lacks that balance.

In tribunals, the rules of evidence are lax compared to a criminal court and there is no standard of guilt beyond reasonable doubt. There is virtually no cost to initiate a complaint but considerable cost to defend one. The process can be abused for purposes of harassment or to make frivolous claims or, in the case of complaints against religious groups, to challenge beliefs. Tribunals are not obligated to accept a legal defence of truth, or consider intent or motive, but instead can base decisions merely on the degree to which a complainant feels offended.

But those aren’t the reasons Section 13(1) was ruled unconstitutional. Tribunal member Athanasios Hadjis found that Section 13(1)violates the charter right to freedom of expression because it lets tribunals impose fines of up to $10,000 and award damages up to $20,000. Those punitive penalties, plus legal costs, have the effect of putting a chill on free speech and democratic debate.

His ruling deserves applause. The Criminal Code already provides a deterrent of up to two years in jail for hate speech. Additional oversight and penalties are unnecessary.

The challenge in a democracy is to encourage frank and open discussion while muzzling those who interpret free expression as license to promote hate. While some limitations may be necessary, restrictions on free speech should be minimal, precise and subject to laws that are established by Parliament and enforced by criminal  courts.

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