Parliament should repeal hate crimes section in act

By 
  • November 27, 2008

OTTAWA - An independent consultant has recommended Parliament repeal the hate crimes section of the Canadian Human Rights Act.

“The use of censorship should be confined to a narrow category of extreme expression — that which threatens or justifies violence against the members of an identifiable group, even if the violence that is supported or threatened is not imminent,” wrote University of Windsor law professor Richard Moon in a $50,000 report the Canadian Human Rights Commission commissioned five months ago.

In the 45-page report, released Nov. 24, Moon recommended Parliament repeal the act’s controversial hate crime Section 13 and that hate speech be prosecuted under the provisions already in the Criminal Code. Subsection 13.1, the so-called thought-crimes provision, states that anything that is likely to expose an identifiable group to hatred or contempt is discriminatory under the act.

“The report took me by surprise — it was not what I expected, nor what the CHRC tried to orchestrate,” said Calgary Bishop Fred Henry, who faced complaints to the Alberta Human Rights Commission in 2005 for a pastoral letter on marriage. “The CHRC has discovered not only should it never ask a question it doesn’t know the answer to, but it shouldn’t commission a report whose conclusion undermines its present activity and will eventually lead to erosion of its authority and mandate.

“I think that this is more than a slap on the wrist as it is indicative of social movement to restrict the activity of thought police who have turned human rights laws from shields into swords,” Henry said, calling the recommendation “welcome news.”

“Professor Moon has made a courageous assessment of the Canadian Human Rights Act and made a very intelligent conclusion that balances protection from hate speech and our rights to freedom of speech,” said Liberal MP Keith Martin, who led the fight to abolish the thought-crimes provision of the Act in the last Parliament.

For Catholic Insight editor Fr. Alphonse de Valk, who has spent more than $20,000 defending his magazine against complaints of homophobia for articles consistent with Catholic teaching, the recommendation is good news. 

“I’m all in favour of that,” he said.

“This is one more voice saying that the human rights commission should not be in the business of censoring people,” said Catholic Civil Rights League executive director Joanne McGarry. “Hate speech should be reserved for extreme cases focused around incitement to violence and they should be handled by the courts and not by human rights tribunals.”

But both de Valk and McGarry say they are disappointed the government has no plans for immediate action. Instead of turning this report over to Parliament, the commission has launched a consultation process, with a final report expected in mid-2009.

“The power to change the commission’s activities rests within Parliament, it does not rest with the Canadian Human Rights Commission,” said Martin, who tabled a private members motion to axe Section 13.1 from the Canadian Human Rights Act in the last Parliament. He has already re-submitted a similar motion.

Commission senior litigation counsel Philippe Dufresne said the Moon report was “an important step in the debate on this very important issue.”

“And the issue is ensuring that Canadians are protected against hate will preserve freedom of expression,” he said.

Justice Minister Rob Nicholson told CFRB’s Brian Lilley Nov. 24 he would look at the report and that he hoped the Commons Justice Committee will take a look at it. In the last session of Parliament the Justice Committee was so dysfunctional, however, that it stopped meeting.

The new committee had not been struck when the report was released.

Martin said there is widespread support for changing the act in both major parties.

“Now the ball is in Parliament’s court, and there’s never been a better time with bipartisan support for amendments to the act that will rein in the activities of the commission so that they‘re doing what they were originally intended to do,” Martin said.

“It’s time for Parliament to act,” McGarry said, noting that almost everyone who studies this issue has come to the same conclusion of “either killing section 13 or substantially changing it.”

“We don’t need any more discussion,” she said.

Though the rights’ commission eventually dismissed the complaints against Catholic Insight last June after an expensive process, the complainant has appealed to a higher court. De Valk said his lawyer has recommended he continue to defend the magazine on appeal because he doubts the commission will defend its decision. This means thousands more in legal fees.

Federal and provincial rights commission’s have engaged in prosecuting Christian expression for decades, from mayors being forced to proclaim Gay Pride Days in the 1990s to Henry’s complaints in 2005.

The Moon Report also offered recommendations to tighten up Section 13 should Parliament not repeal it. He recommended changes to the language so it is clear only extreme instances of hateful expression are covered.

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