Toss Section 13

  • November 22, 2011

Bills introduced from the backbenches of Parliament are typically cast adrift unless the government opts to throw them a life preserver. So we applaud Justice Minister Rob Nicholson for tossing a lifeline to a private member’s bill that seeks repeal of Section 13 of the Canadian Human Rights Act.

Section 13 comprises the paragraphs of an otherwise worthwhile act that makes hate speech a punishable offence. Hateful language, however transmitted, is abhorrent and society has an obligation to combat it robustly. But Section 13, which evolved from legislation in the 1960s to silence racist telephone hotlines, is manifestly flawed and its repeal is long overdue.

Thus Bill C-304, introduced by Tory backbencher Brian Storseth last month, has won the support of the government and now seems almost certain to proceed eventually to a final vote in Parliament next year. The Conservatives voted almost unanimously to scrap Section 13 at a 2008 policy convention. So Storseth’s bill appears a safe bet to pass under the Tory majority.

“Our government believes that Section 13 is not an appropriate or effective means for combatting hate propaganda,” Nicholson told Parliament. “We believe the Criminal Code is the best vehicle to prosecute these crimes.”

The purpose of the Canadian Human Rights Act is to safeguard human rights but Section 13, expanded in 2001 to include the Internet, grossly infringes on the basic right of free expression. The enforcement of Section 13 by tribunals is subjective and based on arbitrary definitions of hate speech. It can be wielded like a club to punish and muzzle any person or organization, including faith groups, whose message is deemed discriminatory by any individual who wants to file a complaint.

Speech promoting hatred or inciting violence is rightly classified as a criminal offence. But expressing opinions, however objectionable, that merely offend another person should not be unlawful in a free society. As constitutional lawyer Iain Benson argues, Section 13 fails to make that distinction between real hate speech and “hurt” speech.

Three years ago, constitutional expert Professor Richard Moon was asked by the Canadian Human Rights Commission to study Section 13. He concluded that it was tantamount to censorship and recommended its repeal. The next year, a human rights tribunal ruled that Section 13 violated the Charter right of free expression, a decision that will be reviewed next month in federal court.

Storseth’s bill pre-empts that court hearing and places the matter in Parliament, where it belongs. Laws should be made in Parliament where they can be transparently enacted by elected officials, not arbitrarily decided in courts by unelected judges.

Unfortunately, a minority parliament failed to act following Moon’s 2008 report, but Storseth’s bill is providing an overdue opportunity to finally make things right.

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