Are hate speech laws unconstitutional?

There’s been lots of press coverage this morning of a fairly confusing issue: The Canadian Human Right Tribunal has ruled that Section 13 of the Canadian Human Rights Act is unconstitutional, as it contravenes Section 2(b) of the Canadian Charter of Rights and Freedoms.

What does this mean?

Good question. In short, it means that the CHRT has declared that the Canadian Human Rights Commission can’t penalize people for hate speech, because that conflicts with the fundamental right to freedom of expression enshrined in the charter.

Now, since the CHRT doesn’t in and of itself have the power to strike down a federal law, I’m not exactly sure what this means in terms of the future of Sec 13 of CHRA.

Parliament, I believe, would have to change the law, and this (basically allowing hatemongers their right to spew hate) doesn’t seem like a really popular vote-winning issue in my mind. However, it does seem to indicate that any future prosecutions under Sec 13 are pretty much going nowhere. I’ll keep my eyes open for more informed analysis as they roll out in the coming day and beyond. (If you’ve got one, leave a comment with a link!)

This ruling came out of the ongoing legal wrangle between Richard Warman and Marc Lemire. Lemire is a white supremicist who has written a lot of really disgusting stuff and was extensively involved with the neo-Nazo group Heritage Front. Warman is a lawyer from Ottawa who has filed a whole lot of human rights complaints, often against hate groups who have published hate speech on their websites. And he wins, almost always. Warman has been incredibly successful in winning human rights rulings, with financial penalties attached, against Internet hate sites. Warman has also sued a bunch of people and organizations, ranging from David Icke (the lizard conspiracy book dude) to  a provincial library association (see para 23 in this article), for libel and/or defamation of character.

Suffice to say these are both polarizing characters here.

Anyway, Warman complained that Lemire has posted stuff that was “likely to expose identifiable groups to hatred or comtempt” and Lemire countered by challenging the law itself, and the upshot is that the trubunal decided that the law isn’t working the way it was intended anway (has become punitive rather then preventative, as it was apparently intended to be). So even on the one count on which he found in favour of Warman, tribunal chair Athanasios Hadjis did not levy fines.

My thoughts:

I have been fascinated with Canadian laws and legal record related to freedom of expression since I had the fortune to take Ann Curry‘s class on intellectual freedom some years ago.

Unlike the US Government, with which I am more familiar due to having grown up south of the border, the Canadian govenment does not hold Freedom of Speech as quite so strong a core value (not that Free Speech is inalienable right in the US either). Canada also tends to be more paternalistic in approach, which has led to some odd case law (see R. v Butler, a somewhat misguided effort to protect women against the oppression of pornography, for example).

In general, I do subscribe to the idea that speech is speech, writing is words, and these are somehow different from actions. There is a grey area in there, though. When do words become actions? I used to work in domestic violence — when do words become abuse, for example?  How can we provide law courts with effective guidance on this? I have written before on the Westboro Baptist Church. When are their homophobic and racist rallies merely speech and what would it take to cross over into inciting a riot or other violence?

These are tough questions, and I find it quite interesting and challenging to consider things that are particularly abhorrent to me, for example holocaust denial, and think about whether I can maintain my free speech convictions in the face of that.

For me, a test of whether something is too restrictive of expression, is whether it seems too restrictive when I apply it to an issue I feel strongly the other way about.

For example, I argued that homophobic demonstrators should not be turned away at the Canadian border because god-hates-fags signs are visible in their car, because I would not want gay rights demonstrators heading to California to protest Prop 8 turned back at the American border because of their pro-gay-marriage signs.

Yeah, from some perspectives one of these is about hate and another about love, or one is about curtailing rights and another about expanding rights, but perspective is not universal. And I certainly cannot assume all lawmakers and border guards do or will share my perspective. It’s hard to think of one, but I’m sure there’s a way, now or in the future, that Internet sites I believe in could be charged as hate-promoting.

Back to Sec 13 of the Canadian Human Right Act, and the Tribunal’s decision that it’s unconstitutional. Is this a good ruling? I think so. Will it “stick”? I don’t know. It seems unlikely that parliament would repeal it. It seems unlikely that the Tribunal will enforce it? It also seems unlikely to me that Warman will just let it lie in limbo for too long. There is an “out,” an escape route of sorts, in the fact that there is criminal code (sec 318 & 319) that also outlaws hate propaganda, making the human rights code sec 13 somewhat redundant (although I think the barriers to criminal code prosecution may be higher). Maybe the politicians will be able to “eliminate redundancies” by removing sec 13(1) without looking like neo-nazi supporters?  Twill be interesting to see in the days to come…

-Greyson

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Filed under censorship, government, Intellectual freedom

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