Canada Takes a Baby Step Toward Free Speech

"It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination."[1] -Section 13 of the Canadian Human Rights Act

Now that Parliament has repeated Section 13 of the Canadian (federal) Human Rights Act-amended in 2001 to ban "hate speech" on the Internet, too-Canadians can speak a little more freely. But only a little.

Controversial since its inception in 1977, Section 13 has been used repeatedly to club Christians, conservatives, and non-political individuals who said or published anything objected to by homosexuals, Muslims, atheists, and other groups favored by the government. It has never been used to punish anyone for saying hateful things about Christians.

Now it has been repealed-and what does that mean for the future of free speech in Canada?

Chalcedon has reported extensively on Canada's "human rights" bodies and their abuses of the rights of Christians. It would take up too much space to recapitulate this history. Instead, we chose to interview some of the more notable victims of the "human rights" inquisition.

Ezra Levant

Among the more high-profile targets of Canada's "human rights" zealots was journalist Ezra Levant, who spent 900 days and $100,000 defending himself against "hate speech" charges. As editor of the Western Standard magazine, Levant in 2006 published some examples of "Muhammad cartoons" to illustrate a news article about the worldwide firestorm touched off by the cartoons when they were originally published in a Danish magazine. A Canadian imam filed a "human rights" complaint, and Levant was dragged into the meat grinder.

"Section 13 has had a brutal effect on free speech in Canada," Levant told Chalcedon. "It's not that the number of prosecutions under Section 13 was ever that large. But it made examples of people, and inspired tremendous self-censorship. But now we're free, and we can say things that are politically incorrect."

But how free? The "human rights" legislation in Canada's thirteen provinces is still, so far, intact.

"The provincial human rights machinery remains," Levant said, "but this, the federal repeal, has got to cast a shadow over those. [Journalist, author, and commentator] Mark Steyn, for instance, was charged in three different jurisdictions for the same ‘offense.' But now we're seeing the censorship being challenged in Saskatchawan, and questioned in some other provinces."

Section 13 over the years, he said, "has attracted bullies to the ‘human rights' system. Ninety percent of the defendants charged under Section 13 can't afford a lawyer. And because countersuits are not allowed, there's no way to recover your legal expenses."

In Canada's "human rights" system, the government pays all the plaintiff's legal costs, but none of the defendant's. Nor is there any "double jeopardy" rule to prevent a defendant from being tried multiple times for the same incident.

"Except for me-I'm a Jew-no non-Christian has ever been prosecuted by a human rights tribunal," Levant said. "And the federal Human Rights Commission really enjoyed Section 13! They had a one hundred percent conviction rate over thirty-two years.

"They will still have many tools at their disposal to wreak havoc; but with Section 13 repealed, the momentum has shifted. At least in the court of public opinion, it's with us."

Kathy Shaidle

Blogger Kathy Shaidle (fivefeetoffury.com) is a co-defendant with Ezra Levant in a "human rights" libel lawsuit going back to 2008.

"Section 13 is only one of their tools," she said. "I'd have to be running Canada to get rid of the human rights commissions completely. The human rights bureaucracy in Canada has a $200 million budget. At a time when there's a recession, these folks are just jet-setting around and pontificating all over the world."

As for the repeal of Section 13, "We're pretty excited about it," she said, "but there are still some battles left to fight.

Promoting "hate," Ms. Shaidle explained, is still against the law in Canada, and can still land an individual in court, facing criminal charges. "But the criteria for a conviction are much higher in a court of law," she said.

As we have repeatedly documented, "human rights" tribunals are not courts of law. The ordinary rules of procedure and evidence do not apply to "human rights" deliberations. Hearsay, the plaintiff's feelings, and the political opinions of the plaintiff's friends and supporters are treated as evidence. As Ezra Levant famously said, "The process is the punishment."

Ms. Shaidle said she expects the "human rights" establishment to fight to hold on to its power.

"This is their religion," she said, "and they respond like people do when their religion is criticized."

Kari Simpson

Kari Simpson ran afoul of Section 7 of the British Columbia human rights code,[2] which reads as follows:

"A person must not publish, issue or display, or cause to be published, issued or displayed, any statement, publication, notice, sign, symbol, or other representation that (a) indicates discrimination or an intention to discriminate against a person or a group or class of persons, or (b) is likely to expose a person or group or class of persons to hatred or contempt because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sexual orientation or age of that person or that group or class of persons."

"The dragon hasn't been slain at all," Mrs. Simpson said, speaking of the repeal, "but we did cut off one of its big toes."

Note how difficult it would be to comply with Section 7, other than by keeping a vow of silence. How does one prove "an intention to discriminate"? And how "likely to expose a person ... to hatred or contempt" must speech be before it becomes actionable? Who gets to judge what constitutes "likely"? And how is it decided what constitutes evidence of "hatred or contempt"? Must the hatred be expressed overtly, or may a citizen be prosecuted for unintentional expressions of "unconscious" hatred or contempt?

"Conform and comply-that's what this legislation's all about," Mrs. Simpson said. "People are afraid to question this stuff." The standards are so vague, so elastic, that no one can be sure whether he has violated the code or not. "We're going to get nowhere until we can get the courts cleaned up," she added.

Judges Say the Darnedest Things

Canadian legal experts, judges, and legislators have always had vague and flowery things to say about "human rights" restrictions on free speech.[3] For example, "Diversity is one of Canada's greatest strengths, and the Government of Canada is taking steps to protect it." Oh, please: how does one "protect diversity"? "Measures will be included ... to address the root causes of hatred"-it wouldn't be a basic component of human nature, would it?-"and to ensure Canadian values of equality, tolerance, and fairness are affirmed," and so on.

The government "seeks to protect visible minorities from any hate on the Internet," and recommends that "the prohibition of hate messages in the [Human Rights] Act be broadened to encompass both existing and future telecommunications technologies."

Hate messages, said the Supreme Court of Canada in 1990, will "undermine the dignity and self-worth of target group members ... eroding the tolerance and open-mindedness that must flourish in a multi-cultural society which is committed to the idea of equality." The Chief Justice ruled, "A discriminatory act is just as hurtful if unintended as if intended." How is anyone to prevent unintentional actions? The Chief Justice has also ruled that Canada's Charter of Rights and Freedoms "did not require the Act to provide a defense of truth to persons alleged to have disseminated hate messages. A truthful statement in this context is just as damaging as an untruthful one" [emphasis added].

And so, in Canada's jurisprudential funhouse, you can be guilty of hate-mongering without even knowing it until you're hauled before a "human rights" tribunal. And if that happens, the fact that whatever you said was true ... is no defense. In the United States, "libel" actually has to be untrue. In Canada, "libel" can be just about anything for which a plaintiff can think of suing you.

With such rubbish as a foundation, is it any wonder Canada so often launches into folly and repression? Such as this current example:

In June, with support and funding from the provincial government, homosexual activists in Quebec set up a "registry of homophobic acts"-that is, a list of persons, by name, who are "guilty"-without a trial or a hearing-of "any negative word or act toward a homosexual or homosexuality in general: physical abuse, verbal abuse, intimidation, harassment, offensive graffiti, abuse, injurious mockery, inappropriate media coverage"-what does that mean?-"and discrimination."[4]

Who, here, is actually doing the intimidation and harassment?

Ron Gray

In 2006 Ron Gray, then head of the Christian Heritage Party, a registered political party in Canada, was slapped with a Section 13 complaint.

"My crime was to support my party's platform," he recalled. "Our policy is that homosexuality is harmful to the people who practice it and bad for society. Some activist saw that on our website and submitted a complaint."

Gray's legal fees, over two years of defending himself, ran up to $51,000-"And then the complaint was just dropped," he said. "I was disappointed. I really wanted to get them into a genuine court where rules of evidence apply."

Gray now co-hosts Roadkill Radio on the Internet with Kari Simpson.

"I'm glad Section 13 is going," he said, "but we're not nearly where we need to be. The repeal was long overdue, but we really do have a long way to go-toward establishing, in law, that the purpose of the Charter is to protect us from our government."

How Free Are We?

It would not be exaggerating to say that in some parts of Canada, Canadians have only as much freedom of speech as homosexual activists will allow them.

Meanwhile, all of Canada's provinces still have their human rights codes complete with language copying or resembling the repealed Section 13. But whatever else we might say, the repeal of the federal Section 13 is a step in the right direction-with many more steps needed.

Here in the United States, we take it for granted that the First Amendment to the Constitution guarantees our freedom of speech. We can't imagine a state of the union setting up a "registry of homophobic acts," forbidding any "negative word" to be said about homosexuality in general, to which any citizen's name could be attached, without anything approaching due process. It would be blatantly unconstitutional. It would be unthinkable.

But, really-how unthinkable is it?

[1] http://www.chrc.ca/proactive_initiatives/hoi_hsi/qa_qr/page1-eng.aspx

[2] http://www.chalcedon.edu/research/articles/fighting-the-human-rights-machine/

[3] All quotes from "Overview," published by the Canadian Human Rights Commission, http://www.chrc.ca/proactive_initiatives/hoi_hsi/qa_qr/page1-eng.aspx

[4] http://www.chp.ca/2012/lessons...