Harper must act now to protect free speech

The Prime Minister admits there’s a problem. And he says he doesn’t have a clue how to fix it.

by The Editors

Harper must act now to protect free speechStephen Harper used to have very clear—and colourful—ideas on human rights commissions and what should be done about them.

“Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society,” he said in a 1999 interview with Terry O’Neill of BC Report newsmagazine.“ It is in fact totalitarianism. I find this is very scary stuff.” He went on to complain about the “bastardization” of the entire concept of rights in modern society.

Of course, that was back when Harper was president of the National Citizens Coalition. Today he’s Canada’s 22nd Prime Minister. And he appears to have lost his fear of totalitarianism.

In an interview this past January with Maclean’s, the Prime Minister was asked what, if anything, he intended to do to halt the encroachment on individual freedom by the Canadian Human Rights Commission in the name of regulating hate speech.

It is an issue of crucial importance to this country and our strongly held traditions of freedom of speech and freedom of the press.

This magazine understands only too well the dangers involved in putting those rights at risk. Following a 2006 cover story by columnist Mark Steyn titled “Why the future belongs to Islam,” we were visited by a group of law students from the Canadian Islamic Congress. We were given the option of handing over editorial control of our pages for a rebuttal to Steyn’s piece or face a series of human rights complaints. As the first option was anathema to our obligations to our readers, the students launched their complaints.

That we were vindicated in all instances, notwithstanding the Ontario Human Rights Commission’s attempt at an unofficial smear, is beside the point. Under the guise of human rights, the ability of any news organization to produce truthful and reasoned articles was questioned by a variety of government bodies. Scary stuff indeed.

So we asked Harper if he intended to correct this threat to the basic existence of a democratic society.

“The government has no plans to do so,” was his casual reply. “It is a very tricky issue of public policy . . . It’s probably the case that we haven’t got the balance right, but I’m not sure the government today has any answer on what an appropriate balance would be.”

To summarize: the issue of human rights commissions running amok over Canadians’ basic rights and freedoms is something Harper has followed—closely and with obvious passion—for at least a decade. As Prime Minister he admits it is still a problem. And he says he doesn’t have a clue how to fix it.

We do. He should repeal Section 13 of the Canadian Human Rights Act.

A wave of informed opinion and public sentiment is in agreement that the CHRC and other provincial rights bodies have become a menace to many of the freedoms Canadians consider central to our way of life. Besides, even if we are concerned with the possible proliferation of hate speech, Section 13 is wholly unnecessary.

In 1970 the Criminal Code was amended to outlaw the promotion of genocide and the distribution of hate propaganda. Penalties of fines and jail terms were established, but the rights of the accused were also protected through due process, a need to prove intent and, crucially, the defence of truth.

Parliament later created the Canadian Human Rights Commission to cover a variety of potential discriminatory practices in Canada. Section 13 of the act deals with the transmission of materials “likely to expose a person or persons to hatred.” As this body was intended to be conciliatory and to rely on cease and desist orders for enforcement, its legal standards are set lower than in the Criminal Code; due process is missing, intent is not necessary to prove, and truth is not considered a defence for the accused.

The constitutionality of Section 13 was tested in 1990 in the Supreme Court’s Canada v. Taylor decision. A narrow split decision found that due to the CHRC’s remedial nature, it was not a threat to free speech. A dissenting opinion, however, written by current Chief Justice Beverley McLachlin, worried that Section 13 was “too broad and too invasive” and so “intrudes on the fundamental freedom of expression.”

Since then, the scope of the CHRC has grown in many worrisome and unexpected ways. In particular, it can now levy fines and impose other punishments. And the CHRC staff has become fixated on aggressively pursuing Section 13 cases. Approximately 11 per cent of all complaints made to the CHRC are sent to a tribunal for a hearing. The rest are dismissed or settled “out-of-court.” Among Section 13 complaints, however, 68 per cent are sent to tribunal.

This means the CHRC is now engaged in punishing offenders in ways the Supreme Court never imagined. And thanks to the lower legal standard of proof and lack of due process, the accused is often unable to mount an effective defence. McLachlin’s fears have become reality.

Following widespread public outrage regarding the obvious zealotry at the CHRC, and the complaints made against this magazine, last year the CHRC commissioned academic Richard Moon for an opinion on Section 13. He concluded it should be repealed. The Criminal Code already does everything necessary to keep Canadians safe from hate speech, he said, and in a way that properly protects the rights of the accused. All Section 13 does is trample on the rights of Canadians to hold views that the CHRC disapproves of.

Rather than accept Moon’s sensible recommendation, the CHRC instead released its own in-house report this June. Its review of itself called for Section 13 to be maintained.

Then, this year, Section 13 came under further scrutiny from within the human rights apparatus. A Canadian Human Rights Tribunal decision in March cast a scolding eye on CHRC investigatory practices and, in particular, serial complainant Richard Warman, who acknowledged placing inflammatory messages on Internet sites under a variety of aliases. The tribunal found these actions to be “disturbing.”

And earlier this month, another nail in Section 13’s coffin. All complaints in a long-standing case against webmaster Marc Lemire were dropped for constitutional reasons.

After Warman spotted some allegedly offensive articles on one of Lemire’s websites, Lemire removed them and repeatedly offered to seek conciliation. This was refused. It became clear to Athanasios Hadjis, the tribunal vice-chair who issued the ruling, that it was the CHRC’s intent to punish Lemire, not mediate. In doing so, the CHRC had mutated far beyond what was contemplated in the Supreme Court’s Taylor ruling. Section 13 now violates Lemire’s basic Charter rights of freedom of expression. Since it’s beyond Hadjis’s powers to declare the law unconstitutional, he said he would simply choose to ignore it.

A Canadian Human Rights Tribunal has thus decided Section 13 is so badly flawed and abused that it will pretend the law doesn’t exist. The CHRC has remained mute on this crippling blow.

To complete the demolition of Section 13, Harper must now amend the legislation. Besides reflecting common sense and current facts, it will prove to be a popular move.

A proposal to repeal Section 13 received near-unanimous approval at a 2008 Conservative party conference, and enjoys support from several key cabinet ministers. It is also an issue that crosses political divides. Even the perennially left-wing editorial board of the Toronto Star has endorsed an end to Section 13, saying it “isn’t salvageable.”

While certain lobby groups courted by Harper and the Conservative party, such as the Canadian Jewish Congress, are outspoken in support of Section 13, this certainly does not imply monolithic support among all minority groups. For example, many prominent Jewish advocates of human rights legislation, including Alan Borovoy, who was involved in establishing the CHRC, have spoken out about the errors of Section 13.

And Harper himself appears to accept Moon’s point that the Criminal Code makes Section 13 redundant. In receiving the Saul Hayes Human Rights Award from the Canadian Jewish Congress last year, Harper called the Criminal Code an “effective legal weapon against naked hate-mongering, without compromising the elemental right to freedom of expression.” If the Criminal Code is so effective, why do we need Section 13?

Of course the blame for Section 13’s continued existence does not rest solely with Harper, particularly in a minority government.

Michael Ignatieff has also been a profound disappointment. As a prolific writer and celebrated thinker previous to his political career, one would expect the Liberal leader to be a passionate defender of the right of Canadians to express reasoned and informed views, regardless of whom they might offend.

And yet, he has shrugged off responsibility and left the issue to his backbench. Last year Liberal MP Keith Martin introduced a private member’s motion calling for the repeal of Section 13, but it languishes at the bottom of the Liberal priority list. (The top Liberal priority appears to be a motion supporting a Universal Declaration on Animal Welfare.) Why has Ignatieff not adopted Martin’s position as official party policy? Or moved his motion up in significance?

Academic and popular opinion is solidly behind removal of Section 13. It is an unnecessary measure for protecting Canadians from hate speech, and represents a clear threat to freedom of speech. It’s also clear the CHRC has expanded its powers far beyond the limits considered to be constitutional by the Supreme Court in 1990. And now even the Canadian Human Rights Tribunal has declared the law unconstitutional. The only real problem left appears to be a lack of political leadership to make the change.

Parliament needs to repeal Section 13.




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Harper must act now to protect free speech

  1. I used to respect Maclean's magazine. After this article I no longer respect them.

    • really why are you disrespecting him, i am studing the Charter of Rights and freedoms now in school. I Don't agree with this but it is his job to put it on the table. It doesn't mean that it will be abolished. Everyone has the right to free speech, but people have to becareful in how they word things. Our Country is very multicultural now, its not how it was 50 years ago. We are a diverse nation and we will continue to be that way. Our Prime Minister is just making an arguement.

    • john, i never respected you, and comments like that are why

    • John, it is kinda like those nasty neo-nazi sites! Who is forcing you to read them?

    • John you must be a member of that self-appointed higher casts of Holy Cows, who extort money for being offended. There are some degenerates who deserve to be offended. Clifford Olson, Karla and Paul Bernardo should be offended forever. John if you expect that society will follow your unrealistic, perverted dreams, you should live in Stalin's Soviet Union. Those times are gone and will never come back. If somebody is going to introduce them in Canada, I will risk my life to stop them. Government is not supported by taxpayers to protect some Holy Cows from being offended by normal human activities like free exchange of opinions. Human Rights Commission and Section 13th has been hijacked by supporters of Inhuman Wrongs. I let some believe that Earth is Flat or is only 6000 years old. It does not bother me a bit, as long as they are not going to ban the airplanes, (so they will not fall of the earth into space).

    • i used to disrespect Maclean's centrist, statist, effete and antilibertarian stance on issues.
      after this article, i now respect them.

  2. John.. care to elaborate on why? What exactly did you find so offfensive?

  3. Here's the deal: Canadians are susceptible to fear-mongering about social conservatism. If the Liberals can brand Harper as a social conservative with a hidden agenda to remake the country along US lines, they win. It doesn't matter how juvenile the allegation, nor does it matter how sensible the social conservative position in question, there is a knee-jerk Canadian reaction (particularly in Ontario and Quebec) to this sort of attack and it's not pretty. This was demonstrated twice by Paul Martin and several times by Jean Chretien. For the moment (i.e. during the lifetime of the Baby Boomers), it works.

    Harper, therefore, goes out of his way to avoid any possible tie-in to socially conservative causes. Issues like abortion, affirmative action, and hate crimes are all shuffled aside. They are not on his radar, he'd have us all know. For if they were, they'd be part of a "hidden agenda". In other words, if he tells us what he thinks he's hiding something. As long as he avoids rocking the boat he's a "mainstream" Politician Whom Canadians Can Trust. Sounds crazy, but the electorate is not entirely rational on this. Decades of preaching and propaganda about how "Canadian Values" are Trudeaupian, Not-American, and Centrist have had their effect.

    Therefore, if he takes action on this he opens himself to damaging political attacks. It doesn't matter that Canadians generally disapprove of Section 13 – many would still buy the line that Harper is a Scary Guy if he tries to remove it. He would lose all chance at a majority government, and without a majority government he can't change Section 13 or anything else of substance.

    Canadians have to learn to think freely before we can regain the right to speak freely. That is the sad fact.

  4. Here's the deal: Canadians are susceptible to fear-mongering about social conservatism. If the Liberals can brand Harper as a social conservative with a hidden agenda to remake the country along US lines, they win. It doesn't matter how juvenile the allegation, nor does it matter how sensible the social conservative position in question, there is a knee-jerk Canadian reaction (particularly in Ontario and Quebec) to this sort of attack and it's not pretty. This was demonstrated twice by Paul Martin and several times by Jean Chretien. For the moment (i.e. during the lifetime of the Baby Boomers) it works.

    Harper, therefore, goes out of his way to avoid any possible tie-in to socially conservative causes. Issues like abortion, affirmative action, and hate crimes are all shuffled aside. They are not on his radar, he'd have us all know. For if they were, they'd be part of a "hidden agenda". In other words, if he tells us what he thinks he's hiding something. As long as he avoids rocking the boat he's a "mainstream" Politician Whom Canadians Can Trust. Sounds crazy, but the electorate is not entirely rational on this. Decades of preaching and propaganda about how "Canadian Values" are Trudeaupian, Not-American, and Centrist have had their effect.

    Therefore, if he takes action on this he opens himself to damaging political attacks. It doesn't matter that Canadians generally disapprove of Section 13 – many would still buy the line that Harper is a Scary Guy if he tries to remove it. He would lose all chance at a majority government, and without a majority government he can't change Section 13 or anything else of substance.

    Canadians have to learn to think freely before we can regain the right to speak freely. That is the sad fact.

  5. Here's the deal: Canadians are susceptible to fear-mongering about social conservatism. If the Liberals can brand Harper as a social conservative with a hidden agenda to remake the country along US lines, they win. It doesn't matter how juvenile the allegation, nor does it matter how sensible the social conservative position in question, there is a knee-jerk Canadian reaction (particularly in Ontario and Quebec) to this sort of attack and it's not pretty. This was demonstrated twice by Paul Martin and several times by Jean Chretien. For the moment (i.e. during the lifetime of the Baby Boomers) it works.

    Harper, therefore, goes out of his way to avoid any possible tie-in to socially conservative causes. Issues like abortion, affirmative action, and hate crimes are all shuffled aside. They are not on his radar, he'd have us all know. For if they were, they'd be part of a "hidden agenda". In other words, if he tells us what he thinks he's hiding something. As long as he avoids rocking the boat he's a "mainstream" Politician Whom Canadians Can Trust. Sounds crazy, but the electorate is not entirely rational on this. Decades of preaching and propaganda about how "Canadian Values" are Trudeaupian, Not-American, and Centrist have had their effect.

    Therefore, if he takes action on Section 13 he opens himself up to damaging political attacks. It doesn't matter that Canadians generally disapprove of Section 13 – many would still buy the line that Harper is a Scary Guy if he tries to remove it. He would lose all chance at a majority government, and without a majority government he can't change Section 13 or anything else of substance.

    Canadians have to learn to think freely before we can regain the right to speak freely. That is the sad fact.

  6. Here's the deal: Canadians are susceptible to fear-mongering about social conservatism. If the Liberals can brand Harper as a social conservative with a hidden agenda to remake the country along US lines, they win. It doesn't matter how juvenile the allegation, nor does it matter how sensible the social conservative position in question, there is a knee-jerk Canadian reaction (particularly in Ontario and Quebec) to this sort of attack and it's not pretty. This was demonstrated twice by Paul Martin and several times by Jean Chretien. For the moment (i.e. during the lifetime of the Baby Boomers) it works.

    Harper, therefore, goes out of his way to avoid any possible tie-in to socially conservative causes. Issues like abortion, affirmative action, and hate crimes are all shuffled aside. They are not on his radar, he'd have us all know. For if they were, they'd be part of a "hidden agenda". In other words, if he tells us what he thinks he's hiding something. As long as he avoids rocking the boat he's a "mainstream" Politician Whom Canadians Can Trust. Sounds crazy, but the electorate is not entirely rational on this. Decades of preaching and propaganda about how "Canadian Values" are Trudeaupian, Not-American, and Centrist have had their effect.

    Therefore, if he takes action on Section 13 he opens himself up to damaging political attacks. It doesn't matter that Canadians generally disapprove of Section 13 – many would still buy the line that Harper is a Scary Guy if he tries to remove it. He would lose all chance at a majority government, and without a majority government he can't change Section 13 or anything else of substance.

    Canadians have to relearn how to think freely before we can regain the right to speak freely. That is the sad fact.

    • "Canadians have to relearn how to think freely before we can regain the right to speak freely."

      Seems to me that the simple explanation is that Canadians don't support socially conservative causes. In order to gain his marginal lead in recent elections, Harper has had to swear off the rightwing hard stuff. We're talking about a pro-life evangelical Christian here, with a huge fraction of his MP's coming from the Reform Party – it would be political suicide to indulge the social conservatives in his party and he would never, ever gain a majority because Canadians don't want that agenda enacted.

      The rest of your post is Grade A Rightwing Victim Complex. It's not the Liberals' fault that rightwing social ideas are unpopular in Canada. If Harper gives them an opening on that flank, they should take it. For comparison, listen to Harper's dire warnings about the Liberals' incompetence at managing the national purse. It doesn't even have to make sense, it's political messaging.

      And frankly, to call Canadians sheep because they're mistrustful of Harper's unpopular social conservatism is a sickening insult. I know perfectly well how to think, for example, and I think it's quite rational to mistrust a leader who believes that God has certain expectations of him (and that his eternal soul may hang in the balance).

      Harper is free to say whatever he pleases. And Canadians are free to vote for whichever party they prefer.

      • you think it's ok to mistrust someone because they believe in God? really?

        oh well, enjoy hell.

        • You stay classy, dude.

          What I *said* was that I mistrust a leader who believes that God has certain expectations… in other words, someone who's going to feel conflicted between their religious beliefs and their civic duty.

          Try to read more carefully next time.

          • You may not have said it, but I tend to believe it.
            Someone who believes in God is admitting they do not subscribe to reason as a primary explanation. Faith denies reason.
            As such, I think it's reasonable to mistrust such a person, because they've admitted that they may not act in a reasonable fashion. Doesn't mean I can't do business with them, just means I'm going to be wary until I can see a pattern of whether they act reasonably or faithfully.

          • "Someone who believes in God is admitting they do not subscribe to reason as a primary explanation. Faith denies reason. "

            Both of those statements are false, and suggest a basic ignorance of well-known philosophers who used reason to argue concerning faith. If an elected official believed them I'd mistrust that person's competence due to a lack of fundamental literacy.

          • "Someone who believes in God is admitting they do not subscribe to reason as a primary explanation. Faith denies reason. "

            Both of those statements are false, and suggest a basic ignorance of well-known philosophers who used reason to argue about faith. If an elected official believed them I'd mistrust that person's competence due to a lack of fundamental literacy.

          • "Someone who believes in God is admitting they do not subscribe to reason as a primary explanation. Faith denies reason. "

            Both of those statements are false, and both suggest a basic ignorance of well-known philosophers who used reason to argue about faith. If an elected official believed them I'd mistrust that person's competence due to a lack of fundamental literacy.

          • "Someone who believes in God is admitting they do not subscribe to reason as a primary explanation. Faith denies reason. "

            Both of those statements are false, and both suggest a basic ignorance of well-known philosophers who used reason to argue about faith. If an elected official believed these I'd mistrust that person's competence due to a lack of fundamental literacy.

          • Except at the end of the day you can't argue rationally about faith successfully, because, by definition, it is a belief without evidence, whereas reason is logical thought backed up by evidence.

            Because faith denies evidence, it is changeable. One faith out there preaches the stoning of adulterers. Another faith preaches jihad and the martyr's death. And there is no evidence that tells us which faith is the correct one. Because of this, a man who believes, and who acts on faith cannot be fully trusted — as with no evidence dictating which faith is correct, there is nothing preventing the person from deciding to radically shift their given faith. Now, that's not to say that a faithful person cannot also be reasonable in most respects, I will always slightly mistrust someone who believes in something that has no proof.

          • "you can't argue rationally about faith successfully, because, by definition, it is a belief without evidence"

            No, it's belief based on the word of another. If evidence suggests the source is trustworthy and knowledgeable then having faith in their statements is reasonable and evidence-based. This is the sort of logic used in courtrooms every day, as well as in scientific journals, classrooms, and almost every human interaction.

            Philosopher (many of them theists) throughout history have (a) used reason to question the existence of God, and (b) used reason to examine premises held by various faiths. To suggest that anyone who believes in God is denying reason's primacy or that faith ipso facto denies reason is remarkably ignorant.

          • "you can't argue rationally about faith successfully, because, by definition, it is a belief without evidence"

            No, it's belief based on the word of another. If evidence suggests the source is trustworthy and knowledgeable then having faith in their statements is reasonable. This is the sort of logic used in courtrooms every day, as well as in scientific journals, classrooms, and almost every human interaction.

            Philosopher (many of them theists) throughout history have (a) used reason to question the existence of God, and (b) used reason to examine premises held by various faiths. To suggest that anyone who believes in God is denying reason's primacy or that faith ipso facto denies reason is remarkably ignorant.

          • "you can't argue rationally about faith successfully, because, by definition, it is a belief without evidence"

            No, it's belief based on the word of another. If evidence suggests the source is trustworthy and knowledgeable then having faith in their statements is reasonable and evidence-based. This is the sort of logic used in courtrooms every day, as well as in scientific journals, classrooms, and almost every human interaction.

            Philosophers (many of them theists) throughout history have (a) used reason to question the existence of God, and (b) used reason to examine premises held by various faiths. To suggest that anyone who believes in God is denying reason's primacy or that faith ipso facto denies reason is remarkably ignorant.

      • Free speech is now right wing hard stuff.

    • You've hit the nail right on the head. One of the most insightful, politically savy analyses I've read.

  7. MacLean's is promoting a right wing agenda reminiscent of Faux Noise in the US.

    • Freedom is "right-wing" on all fours with fascist dictators. Support free speech and you support Hitler.

      Got it.

      • So I suppose suppressing free speech would be anti-Hitler?? Somehow I think YOU missed it.

    • Do you have anything positive to contribute to this discussion, John? If not, at least reduce your carbon footprint and stop posting such useless comments

    • The fact that left wing moonies consider the right to speak without bureaucratic approval a dreaded right wing agenda item explains much about why the left is dying. Good riddance too.

    • So I guess the Toronto Star and EGALE and PEN are all supporting this right wing agenda too? Wow…quite the conspiracy.

  8. Would this be different if Harper had a majority?

    • In a New York minute!

  9. In a Country so diverse with multiculturalism we have to have free speech. How would you feel if you came here and couldn't voice your opion. This is a free society, I shouldn't have to wonder if i say something I will be thrown in the slammer for it. If the freedom of speech was taken away, we wouldn't be writing here today.

    • Well now if some people have it their way we won't have freedom of speech,unless we conform to the belifts of their religon,theirs a minster that got taken of the air because he voiced his oppion on some thing ,without even a question,this Country is not Canadian any more believe me and it's going to get worst believe me before the return of Christ,so read em and weep my friend…Canada is not Canadian any more….God Bless….Jesus lover !!!

  10. Well done, Macleans. You deserve to be far more outraged at Section 13 than is the tone in this editorial, given recent history. But you are absolutely correct. The Criminal Code already limits freedom of speech, to a degree most Canadians would likely find quite tolerable. Most Canadians, when informed about how the CHRC is operating, no longer tolerate Section 13. It must go. A pox on ANY federal party that does not see this. There was a multi-partisan support of Ezra Levant at his Ottawa book launch, but it seems that Keith Martin (Liberal) is the only federal politician willing to walk the talk. How has our country reached the point where it is a bad idea politically to embrace freedom in a manner that the majority of Canadians support?

  11. This might be part of Harper's Hidden Agenda. If he gets that majority who knows what else he might go after? If we want to maintain Section 13, if we want to Welcome Back Khadr we need to stop Harper. Only Liberals have and understand Canadian Values.

    • only the liberlas have and understand canadian values = You simply can't be serious!

      • The difference between Conservatives and Liberals is that Liberals allow for no other ideology than their own –that is truly scary. I am Canadian (6th generation) but it is more than apparent to me that Liberals do NOT reflect my values. They have abandoned the truth that principles, not entitlement, are what makes both an individual and a country strong.

    • It is precisely the arrogance demonstrated here, that keeps repelling my support of the Liberals.

    • Oh yes the good old and tired 'hidden agenda'. Unfortunately it would take nothing at all for the MSM and the opposition parties to run with that and Canadians would believe it.

  12. "Parliament needs to repeal Section 13."

    Hear hear. But it's a classic example of why our democracy is in terrible shape. If we had a majority government (either Liberal or Conservative), Section 13 would be done like dinner, and the government could ride out any negative spin the opposition put on the repeal. Likewise, if we had a minority parliament in which rancour, spite, and bile were not the order of the day, all parties could come together to sensibly lay it to rest. As it is, no one can afford to defy public uneasiness on the issue ("giving the zanies a platform" etc.) to act for the collective good. So we are, as with everything, trapped by inertia; meanwhile the Warmans gallop around like paranoid Zorros and the Levants laugh all the way to the bank. Please, won't someone think of the children?

    • Warman's been laughing all the way to the bank for no useful work for ages. At least Levant EARNED his treasure (and passed on some or most to his lawyers), by asking interested people to support his cause (and no tax receipt, either!) or to buy his book. Surely that last pursuit is dear to your heart.

      But there I go again, bringing up lawyers. I know you feel defendants shouldn't take these circuses seriously enough to hire competent legal representation. But I continue to steadfastly not second-guess those defendants who have had to actually face these circuses.

      • A poor man can't sue for defamation under the normal system. I don't buy the financial argument.

        "I know you feel defendants shouldn't take these circuses seriously enough to hire competent legal representation."

        No, that wasn't my position at all. I felt that if Maclean's had been in it for the public good, it would not have fought tooth and nail at the HRT stage, it would have made its case, hoped it would lose, and then appealed with the heavy guns. Frankly I think a magazine owned by Rogers can do that. It does not cost a lot to lose, and they'd get the cost of the heavy guns back when they won the appeal. It would also have made it more of a cause célèbre, which I thought was at least notionally the plan here (some feel, for some reason, that the real plan is to keep Section 13 busy oppressing everybody for as long as possible, so as to sell more magazines and/or feel more righteous). You shouldn't confuse Maclean's with Joe Citizen. Tribune of the people fail is fail.

        • A poor man can't sue for defamation under the normal system. I don't buy the financial argument.

          I'm honestly blanking on the above, so I don't know where to go with this. Could you expand?

          And I will update my phrase to "I know you feel CERTAIN defendants shouldn't take these circuses seriously enough to hire competent legal representation." Although I do not buy the notion that any particular person or corporate entity has some sort of martyrdom-complex obligation to lose a battle in order to maybe later win the war.

          • Obviously a poor man can't afford the lawyers it takes to win a defamation suit. We have two standards of civil litigation in this country, one for the rich and one for the poor. You'll have noted the way that certain lords of certain crossharbours get kid-glove treatment from the media because everybody's terrified that some tinpot aristocrat will sue them; that fear is entirely absent when the subject is not a litigious multimillionaire.

            Of course, I'll grant you that if the poor could afford representation they wouldn't be poor.

            NB: This is apart from Section 13-specific arguments, since the Criminal Code covers hate-crime stuff. I just think it gravely weakens the whole "gosh darn it I couldn't afford a defense" objection to the HRT's. For one thing, the concept behind the HRT's is that neither plaintiff nor defendent need. While there are obviously some serious problems when people like Warman start jacking the system to advance personal political agendas, the principle of lawyer-free justice is one I very much like, at least on the civil side.

          • Obviously a poor man can't afford the lawyers it takes to win a defamation suit. We have two standards of civil litigation in this country, one for the rich and one for the poor. You'll have noted the way that certain lords of certain crossharbours get kid-glove treatment from the media because everybody's terrified that some tinpot aristocrat will sue them; that fear is entirely absent when the subject is not a litigious multimillionaire.

            Of course, I'll grant you that if the poor could afford representation they wouldn't be poor.

            NB: This is apart from Section 13-specific arguments, since the Criminal Code covers hate-crime stuff. I just think it gravely weakens the whole "gosh darn it I couldn't afford a defense" objection to the HRT's. For one thing, the concept behind the HRT's is that neither plaintiff nor defendent need representation. While there are obviously some serious problems when people like Warman start jacking the system to advance personal political agendas, the principle of lawyer-free justice is one I very much like, at least on the civil side.

          • OK, I am still blanking on how that has to do with Ezra laughing all the way to the bank. I will stab at it after a night's repose.

          • For your morning's consideration: Levant frequently attacks the HRT's because he says the mere filing of an accusation incurs unrecoupable costs for the accused. This is misleading because, under the HRT system (whether we approve of it or not), no lawyer is needed. (That may be a separate reason to dislike the HRT's, but it has no bearing on cost.) Second, if he is so fired up about people not getting justice because they can't afford it, he should direct his crusade against our current system of civil law, in which the poor cannot sue. Of course he will never do that, because for Levant (a lawyer) the fact that lawyers are not making pots of money off the HRT's is merely one more sign that the system is flawed. That he should use that argument to solicit donations from well-meaning but not very bright supporters is just one more sign he is totally unscrupulous.

          • Good morning.

            So, the time off work, the lost productivity because of worry that the STATE is on your back, and the eventual fine (given the prevailing conviction rate): all that is not "cost"? The "laughing all the way to the bank" notion for Ezra still falls flat. Your advice about which part of the justice system Ezra should feel responsible for amending also falls rather flat when the guy's totally tied up in a part of Canada's INjustice system. Toss away an insult to anyone who feels strongly enough about freedom of expression to voluntarily contribute their own $ to the cause, and I must conclude we are left with one of Mitchell's lesser comments.

          • "So, the time off work, the lost productivity because of worry that the STATE is on your back, and the eventual fine (given the prevailing conviction rate): all that is not "cost"?"

            Nope, that's life. Like jury duty, etc. If you can't take a day off work to defend yourself for your thought crime / heartless discriminatory practice, you're working a bit too hard.

            I must conclude that we are left with one of MYL's more desperate defenses. You know me, MYL: I take reasonable arguments seriously, but when there's an appeal to the "Oh, poor little martyred me!" — by whoever — I grow suspicious that this is just another manifestation of Canadian society's relentless obsession with victimhood. Don't tell me you fell for it with a few Paypal payments! Well, I take back "not very bright" if so.

          • Haven't been by this page in a while, so sorry for the slow response. But are you truly equating a DUTY OF CITIZENSHIP (serving on a jury when called) with taking your lumps from the state because somebody objected to your expressed thoughts? Wow.

            Not that it really is anyone's business, but no, Ezra didn't get a penny from me. And that is to my shame, buddy, for I was a useless silent partner in the quest to rebuilding freedom in this country.

          • A further note while my first response struggles through Intense Debate: the conviction rate is, of course, a separate point, and not relevant to "cost." As I understood the word, "cost" was the price of reaching a verdict; the verdict itself is something else (though AFAIK the victor never pays cost). Being sued in regular civil court can also be a pain in the neck, especially if you lose!

            Don't get me wrong, MYL, you're welcome to give money to every beggar on the street. Many of them are shouting about injustice. Many are awfully hard-done-by. Few wear pink ties and pin-striped suits.

          • The conviction rate is most CERTAINLY related to cost. A $1000 fine that has a two percent probability of being assessed is entirely different from that fine that comes with a 99.6% probability of hitting you.

            And you unwittingly (I think) hit it on the head about civil court. The complainant had better have a decent case or it's gonna cost him. Sharpens the mind big-time, in deciding whether the case should even take place.

            Oh, and thanks for your permission for me to be generous with beggars, Jack. That's all I needed to remain the generous person I am. Phew.

          • *under the HRT system (whether we approve of it or not), no lawyer is needed*

            Obviously, Twitchell, you need to educate yourself.

            There is no law that says you need to attend court with an attorney, either. But anyone doing so would be, just like you, a fool.

            Likewise, any defendent accused of an HRC thought-crime would be nuts to go into that process without a lawyer – as is clear from any description of the star-chamber processes of this repulsive body.

            But, keep digging. You and your squirrels might get to the centre of the earth some day.

          • There is no law, but there are established rules of evidence, practice, and formality which must be followed. If you do not have a lawyer, odds are that you will lose simply on technical grounds rather than the merits of your case.

            The HRC's have relaxed the formality of these rules and procedures. If you can make a good case based on the merits of the case alone, that is enough.

          • which is of course my point: anyone not bringing a lawyer as a defendant to a HRC hearing has a fool for a client.

            A fool is exactly what our friend Conway Twitchell is, on the other hand.

          • No lawyer is needed to face an HRT – what planet have you being living on? No sane person should think of taking on a HRT without a lawyer – one common person up against a bureaucracy with untold number of lawyers working ON BEHALF of the person who complained would be the most foolish thing to do in the world. It is bad enough that the HRT follows no rules of evidence so that it is almost impossible to predict what type of information you need to bring forward and as was seen in the Lemerie situation, the HRT didn't even think it was important to share transcripts, findings or anything with the accused prior to the 'hearing' and even tired to hold the hearing without the accused present. You obviously have a lot of faith HRC/HRT, but most Canadians are smarter than that!

          • "one common person up against a bureaucracy with untold number of lawyers working ON BEHALF of the person who complained"

            Maureen, that description fits the criminal justice system.

  13. Very well written article. I strongly support repelling section13.

    • I love Freudian slips, or was that a pun. Nah, Freudian slip, I'm sure of it.

  14. The repeal of Section 13 may turn out to be a good example of how Michael Ignatieff may have tied himself up into knots by developing a spine as an "I oppose everything" Opposition Leader. Even if he agrees that it is a good idea to repeal Section 13, he can no longer do so as it will run counter to his policy of opposing everything the government does.

    Smart.

  15. This magazine understands only too well the dangers involved in putting those rights at risk.

    No it doesn't. A complaint was filed and the complaint was dismissed. The only thing being put at risk is the right of citizens to seek redress for their grievances. Getting rid of section 13 will leave them with no method of doing this.

    • Defamation, libel, the Criminal Code: all those disappeared, too, Bob? Wow, that tribunal guy acts fast…

      • Defamation laws don't cover defamation against groups and the Hate Speech laws simply aren't accessible to the general population.

        • A mental exercise regarding Rev. Boissoin's order: imagine if an anti-gay bureaucrat had ordered a gay activist to apologize to a Catholic priest, and then to write a public renunciation of his gay lifestyle in a newspaper.

          It's unthinkable. At least to some.

          Sec 13.1 is not a cheap mans court. This is not about accessibility to some form some of personal justice. If you want that then the complainant should pay – not have it paid for. All cases should go before a real judge and follow the criminal code. The SCC made it very clear Sec.13.1 was supposed to used in "extreme" case's of "hate" not the current string of BS it used for now.

          • The SCC made it very clear Sec.13.1 was supposed to used in "extreme" case's of "hate" not the current string of BS it used for now.

            It is only being used in extreme cases of hate. Boissoin's is a prime example of that. The BS complaints on the other hand, such as the ones against Macleans and Levant, have all been dismissed instead of proceeding to a tribunal.

          • An example of extreme hate? Wow your a sensitive one. Maybe towards Christians. If that was hate, why was the Montreal Imam – who clearly advocated the death of Jews, women and homosexuals – Let go?

            The system is hugely flawed and you know that. Perhaps a move to Saudi would do you a world of good. I don't need any quasi judicial govt body telling me what I can or can't read, say or what is or isn't hate.

            Boissoin had his appeal, in a real court last week. The ruling will be very interesting.

        • And so, as an individual I should be permitted to represent my "group" (whether or not I actually find myself a member of that group) because "wah-wah that bad man said bad things"? And I get this taxpayer-subsidized collosus to pick my fights for me? Ugh.

    • Oh, they understand. but they don't address it honestly. While the "new macleans" is generally pretty good, this is one area where they get super nutbar.

  16. The article rather misses the gist of the Moon report. Yes it does call for the repeal s13. But it then calls for expanded hate crimes squads and a national press council to make up for any diminishment caused by the removal of 13. Since Moon basically concedes that the majority of cases that have come before the tribunal (CHRT), and therefore the majority of Warman's cases, met the criminal code standard, then the job currently done by the Commission/Tribunal would be done by the police. There wouldn't necesarily be any fewer cases. And since the police might look at a marginal case just as much the HRC, Macleans might have wound up similarly under Moon's system, one difference being that it would have been the police involved.

    • If they meet the criminal code standard – then why has there never been any criminal charges laid? Yet tax free money awarded to Warman and everyone else who feels that their "human rights" have been violated. I say let the real police have at it. Let there be real judges and lawyers – We might get some where.

      • The hate speech laws under the criminal code are simply not accessible to the general public. I haven't seen anyone outside of powerful Jewish lobby groups gain access to them.

        I say let the real police have at it. Let there be real judges and lawyers – We might get some where.

        In some cases that would be preferable. But in many cases it would be equivalent to swatting a mosquito with a sledgehammer. Not all cases of hate speech need to be dealt with in such a heavy handed manner, hence the need for the lighter touch of Section 13.

        • So Sec 13.1 is acceptable to you – because it's a cheap court?

          Sorry Robert – These commissions themselves have admitted to the truth not being important. Guilty until proven innocent. Maybe that is your version of a happy Canada but it's certainly not the one I served my country for.

          There off the rails and I think this is just the calm before the storm.

          • So Sec 13.1 is acceptable to you – because it's a cheap court?

            That's not what I said. I said Sec. 13 is acceptable for it's lighter touch. Sometimes all that is required is a slap on the wrist.

          • Lifetime speech bans for making disparaging comments – nice slap on the wrist.

            Allowing Dr's to be sued for refusing to do surgery on transgendered individuals, people being allowed to smoke pot in someones place of business? and someone anyone, please explain to me how being asked to wear a helmet for safety violates human rights? I mean how is being asked to wash your hands a violation of someones human rights? Not to mention all paid for by the taxpayer.

            What a crock of BS

          • Lifetime speech bans for making disparaging comments – nice slap on the wrist.

            Nobody has been given a lifetime speech ban and the hate speech was more than merely disparaging comments.

            What a crock of BS

            I agree, so why did you post it.

          • "Mr. Boissoin and [his organization] The Concerned Christian Coalition Inc. shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the Internet, in future, disparaging remarks about gays and homosexuals."

            No mention in the ruling of hate speech, no illegal comments were made but a lifetime ban. Maybe that's your version of Canada – Not mine. I don't even know how some people even call themselves Liberal.

        • ExG,

          Warman and CJC et al have proceeded with criminal charges on several occasions (Tremaine being one, if I remember correctly). Its hard to get police to act on these sometimes, perhaps for the reason McLelland cites–they have more important things to be working on. Again, Moon's recommendations are intended to help facilitate the police in their new beefed up hate speech role should S13 disappear.

          • BCL,

            Will you be defending Lucy on your site?

    • Absolutely – speechies might not be so thrilled if they thought about going to jail rather than paying a small fine.. It's also worth noting that the Criminal Code would apply all over Canada whereas not all provinces specifically outlaw hate speech.

  17. "McLelland cites–they have more important things to be working on."

    Well that really sums up these commissions – Doesn't it :)

    • Nope, it talks about police having nothing better to do. I fully admit hate speech is actually a pretty minor ill in our society, and I don't feel comfortable punishing it with jail time. And recall Moon was pretty clear that the cases which were heard in the tribunal would still have met with conviction in Criminal courts.

      • Ahh…no jail time but life time speech bans are acceptable.

        • lifetime hate speech bans, sure.

          • In the case of Rev B – he made no illegal comments but disparaging ones. Good to know that in Canada disparaging comments are considered hate speech.

          • this is an incorrect reading of the case.

          • How so?

  18. BCL, you are clearly no lawyer.

    I think if you combine this article along with that of Steyn and Nancy MacDonald in the September 21/09 issue – you might see the light (someday).

    • How quickly the ad hominem's begin to flow with these Levant guys. Can't you have a respectful debate with someone?

    • How quickly the ugly ad hominem's begin to flow with these Levant guys. Can't you have a respectful debate with someone?

      • It would help if we had a respectable opponent. I have little to no respect for the speech tyrants who dictate what I may say- or hear. I'll be the judge of what my tender ears hear and lips say.

  19. Why can't hate speech laws be tried in regular courts? I mean if hate speech is a real crime, why do try hate speech in kangaroo courts without actual judges? I think the Maclean's position is a good one (I think hate crime is an unnecessary infringement on free speech, and is counter-productive, in that it prevents a war of ideas between racists and rational people – a war that racists would certainly lose), but not politically do-able. The problem is that leaders will get tarred as being racists themselves. Moving to require that hate speech trials take place in real courts is probably a do-able step that could win tripartisan support. The only problem is that this might be a provincial issue.

    • Not to be trite, but the answer is because the tribunal-style system actually works very well for all sorts of matters throughout Canada, including hate speech. The Supreme Court has said so and the recent determination trumpeted by Steyn really doesn't change that. I can accept if not agree with the basic argument of "there must be no limit on any form of speech, even hate speech", but the procedural arguments mustered against the system tend to be self-serving crap.

      • and arguments mustered for the system tend to be self-serving crap.

        So somewhere in the middle there has to be a happy medium.

  20. It's in nobody's interest to have every second comment on this issue be dripping with bile.

    • Until these "institutions" are treated with the (dis)respect that they deserve, they will continue trundling along as an "essential" part of the Canadian "mosaic".

      Don't shoot the messenger!

      • Feels good to have something to vent your disrespect on, eh? Honestly, old people these days!

      • Yeah, but you free-speech zealots are in a minority. If you shout loud enough, the majority will shout back at you twice as loud. It doesn't help your case to vent, especially in those terms. So are you interested in helping your case or just in venting?

        • A tad presumptuous? or clueless? or just blind? look around – not a lot of support for 13.1- Who's venting? Com'on Jack – We all are.

          • I'm just saying that there are lots of people like me out there who are in favour of free speech in principle, but when I look around and hear the tone people use in attacking Section 13 I wonder if its opponents aren't all a bunch of nuts. Take Levant himself: never arguing, always playing to the peanut gallery. It makes me quasi-indifferent to the fate of Section 13.

          • I'm just saying that there are lots of people like me out there who are in favour of free speech in principle, but when I look around and hear the tone people use in attacking Section 13 I wonder if its opponents aren't all a bunch of nuts. Take Levant himself: never arguing, always playing to the peanut gallery. It makes me quasi-indifferent to the fate of Section 13. (Spare me the lectures on "first they came for the funny little men in pink ties and pin-striped suits" etc.)

          • The best quote I've ever read on the subject, made by a Canadian:

            "The minute you start playing with human rights, with conventions, with civil liberties, in order to say that you're doing it to protect yourself and others, you are going against those rights and conventions, you are no better than the person who doesn't believe in them at all."

            I like Levant, I like BCL, even a little Warren K – Somewhere in the middle is where it needs to be. Not some vague section in a code that does not even deign to allow itself to be governed by the standard rules of law.

            A lot of people died for that principle.

          • How am I supposed to read this? "Treat someone with power who doesn't recognize BASIC freedoms with the respect they feel they deserve and they will inevitably come round"? Really? What universe did that happen in?

            I guess the difference between you and the "zealots" is we don't just believe in the PRINCIPLE of free speech. Speaking for myself alone, I believe in free speech. And I for one won't apologise for the outraged tone. I'm not sure what crowd you roll with Jack, but I don't hear a lot of people, outside of the "rights industry", demanding more restrictions on their basic rights and freedoms.

          • How am I supposed to read this Jack? "Treat someone with power who doesn't recognize basic freedoms with the respect they feel they deserve and they will inevitably come round"? Really? In what universe did that actually work?

            I guess the difference between you and the "zealots" is we don't just believe in the PRINCIPLE of free speech. Speaking for myself alone, I believe in free speech. And I for one won't apologise for the outraged tone. I'm not sure what crowd you roll with Jack, but I don't hear a lot of people, outside of the "rights industry", demanding more restrictions on their basic rights and freedoms.

  21. whoops, meant to say "police having better things to do." which, again, I feel is true, but that doesn't mean there is no place in law for combatting hate speech.

  22. Repealling a section of the Human Rights Act, no matter how valid, is political suicide, especially for a Conservative PM. The opposition have long tried to demonize the Conservatives and create the boogeyman of a "hidden agenda". An action like this would simply add fuel to the smoldering BS.

  23. Harper can't do anything about the HRC's or section 13 because Warren Kinsella would not aprove. What else can account for his avoidance/inaction?

  24. The most frightening thing in this story is Harper's statement that the government needs to find an "appropriate balance" to settle the issue of free speech. The second most frightening thing is Macleans' (and presumably other Canadians') apparent inability to recognize that that is the crux of the problem. It is not merely about repealing Section 13. It is about getting government out of the business of policing speech, unless the speech promotes criminal activity such as incitement to violence or actual violence.

  25. Repealing Sec 13 would be a good start. The whole HRC boondoogle should be shut down. These people are politically appointed hacks sucking off public funds because they couldn’t make anywhere near the same money any real job they could get. They will always try to create, exaggerate and expand “human rights” and their authority. They are pretentious posers who presume to be the people who can judge what are human rights and what are not. Doesn’t Macleans get it yet? Fire. Them. All.

  26. When you think of it all Section 13 is about is prosecuting pre-crimes. Remember Minority Report? Your opinion could possibly in some 7 degress of Kevin Bacon result in a crime being committed against some unknown minority at some unknown time. In fact it is far worse than the program envisioned in Minority Report. Fact is something happened to Harper's courage along the way from the NCC to Ottawa.

  27. The editorial cites MacLeans sense of “responsibility to its readers” – a responsibility, first and foremost, to get facts right, and avoid fabrication. But a few months ago, spectacular errors were pointed out, with no correction or acknowledgement from editors, despite requests. MacLeans claimed that “about 10 million Finns died under Lenin, almost half due to starvation”.

    Finland's population of 5 million was smaller during Lenin's time (about 3 million). 10 million of them could not have died. Nor would any have died under Lenin, who never ruled Finland (Finland was independent in 1917 when Lenin arrived in Russia). The article may be confusing Finland with the Ukraine, where, some estimates suggest, casualties from the “Holodomor” (starvation under forced collectivization) ranged from 2.6 million to 10 million. But this event occurred decades later, under Stalin, not Lenin, who was then dead.

    Not only does MacLeans have the wrong country, but apparently the wrong leader and wrong time period.

    An error of this magnitude requires a correction, and an acknowledgement from the editors who signed off on it. When and if editors acknowledge errors like this, we might trust that MacLeans takes seriously its “responsibility to readers”, and deserves the freedoms it claims.

  28. Harper is weak-kneed on abolishing section 13 of the Human Rights Commission law; He needs to be prodded to do the right thing as he did by having Canada's UN delegation walk out on the Iranian President's so called "address" to the member states. To their everlasting credit, several other member nations walked out as well.

  29. I can’t believe that Canada fought against Nazi Germany and participated in the cold war against the Soviet dictatorship only to allow de facto censorship committees to take root a few decades later. That’s what the Human Rights Commissions are, they are a disgrace and must be abolished even if the brain-dead leftists see an attack on these commissions as being an attack on human rights. To abolish these commissions is the best safeguard for Canadians’ basic right to free expression.

    Historical note—during the 1930′s the Nazi government had a lot of influence outside its borders and it successfully persuaded the socialist Belgian goverment, among others, to pass laws that barred the press from reporting anything negative about Nazi Germany. Later, when war finally came, many Belgian citizens sympathized with the Nazi’s because they had never been allowed to here the truth about them. The moral of this story: never let a government commission censor free speech, no matter how lofty its proclaimed values are.

  30. As an American I should be thankful for the first amendment, but to me that's not the real lesson here: it is the practice of all bureaucracies to expand their mandates and budgets, to the point where rights are infringed and original purposes are lost. That, it seems to me, was the real wisdom of Jefferson, Franklin, Adams et al — to recognize this point. Not that we in the US have followed it very well. Anyway, a good article — and for us, cautionary.

  31. One must commend Maclean's, Mark Steyn and Ezra Levant for exposing this fraud on the Canadian people.
    I would also hope that the writers keep pursuing this outrage until someone goes to jail.

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