Rights commission wants say on online hate; Report rejects bid to only have Criminal Code deal with Internet hatemongers

Don Butler, The Ottawa Citizen, Ottawa Citizen, June 12, 2009 Friday

The Canadian Human Rights Commission wants to stay in the business of policing online hate speech.

In a report tabled in Parliament Thursday, the commission rejected a proposal to leave the task of reining in Internet hatemongers to the Criminal Code.

However, the report suggests several changes to the Canadian Human Rights Act to address shortcomings identified during public consultations.

They include adding a statutory definition of hatred and contempt, repealing penalty provisions, allowing for an award of legal costs in exceptional circumstances and the early dismissal of complaints that don’t meet the definition of hate speech.

Chief Commissioner Jennifer Lynch said the “dual approach” to hate speech the report advocates “provides flexibility that wouldn’t be available if only the Criminal Code is used.”

Without the human rights act as an alternative, she said, few Internet hate complaints would be resolved. Criminal charges are rare, in part because just 12 of 58 Ontario police services have hate specialists, Lynch said.

“If we pulled out of our jurisdiction in this area, there would be a gap that could remain for decades or forever.”

In a report last year, Richard Moon, a University of Windsor law professor, recommended repeal of section 13 of the human rights act, which obliges the commission to screen complaints about online hate.

Moon stood by that recommendation Thursday, saying that even with the proposed changes, section 13 still would be “potentially too broad.”

To justify a dual approach to hate speech, the commission needs to carve out “something that’s distinctive” for section 13, Moon said, so it doesn’t just replicate the Criminal Code provisions.

In order to do that, it probably has to be “a little bit looser” than the criminal law, he said. But “that begins to raise all the concerns about free speech.”

The report divided Jewish groups.

“What the commission is recommending is, in essence, cosmetic tinkering to deal with a human rights system that is in need of a major overhaul,” said Frank Dimant, B’nai Brith Canada’s executive vice president.

But Bernie Farber, chief executive officer of the Canadian Jewish Congress, welcomed the report, saying its recommendations would make human rights commission involvement “more palatable” to the political mainstream.

The key, he said, is its proposal to fast-track the dismissal of complaints that don’t meet the law’s definition of hate speech. “If a case is frivolous, there has to be a provision to get rid of it very quickly.”

Controversy erupted over the impact of section 13 on freedom of speech after a Muslim group filed a complaint against Macleans magazine in 2007. After investigating, the commission dismissed the complaint last year. While the furore over Macleans generated fierce debate, Lynch said the debate “has not yet been balanced.”

Moon agreed, saying the commission’s report was partly an attempt to respond to a “disinformation campaign” mounted by the commission’s critics.

Under the human rights act, the commission can dismiss section 13 complaints, send them for conciliation or refer them to a quasi-judicial body, the Canadian Human Rights Tribunal, for a hearing.

Since passage of the human rights act in 1977, 72 complaints have been filed and accepted under section 13, of which six are still pending.

Forty-nine were resolved without a hearing, and 17 went to the tribunal. Of those, the tribunal has upheld 16, most of which were filed by Ottawa lawyer and anti-hate activist Richard Warman.

Moon picked up on those facts in response to Lynch’s argument that prosecutions would dry up if Internet hatred was left to the police.

The human rights tribunal also hears very few section 13 cases, Moon pointed out. “In the absence of Richard Warman, there really is very little happening under section 13. You take him away, you’ve got nothing.”

The commission’s report says the act should be amended to make it clear section 13 only applies to “ardent and extreme” hate messages.

The Commons committee on justice and human rights will consider the commission’s report as part of its review of section 13 this fall.