Section 13: How the battle for free speech was won

Five years, two tribunals, secret hearings, a court challenge and a turning point

Five years, two tribunals, a raft of secret hearings, a Supreme Court challenge. How the battle for free speech was won.

Lorraine Hjalte / Calgary Herald

For all the passion it stirred, you’d think it would get a noisier send-off. An ovation, maybe. Or tears. Instead, Section 13 of the Canadian Human Rights Act slipped quietly beneath the waves last week during a night-time sitting of the House of Commons—victim of a private member’s bill and a trailer load of toxic publicity. Brian Storseth, Conservative MP for Westlock-St. Paul, had glanced anxiously around the chamber as his kill bill went through its third reading. “The benches weren’t full,” he recalls. “That always makes for a bit of extra heart pumping.”

Justice Minister Rob Nicholson had voiced support for the legislation. So had the Prime Minister. The result, then, was never in doubt: at 9:35 p.m. on June 6, by a vote of 153-136,  Parliament got Canada’s human rights bureaucrats out of the business of policing speech on the Internet. There was a scattering of applause, and handshakes for Storseth (the bill requires the rubber stamp of Senate approval). “To be honest, it’s all a blur,” says the three-term MP, laughing. But if the passage of Bill C-304 represents a fundamental shift in Canadian culture, you’d never have known it that night. Members dealt with a few housekeeping matters, then waded through a supply bill. Finally, one by one, they trickled out into the cool Ottawa night.

The effect of killing Section 13 will be debated for years among anti-racist groups and civil libertarians. But it is undoubtedly a turning point. Since 1999, Canadians who felt aggrieved by material transmitted online have been encouraged to seek redress under federal human rights law, which targeted material “likely to expose a person or persons to hatred or contempt” based on grounds of discrimination like race, religion or sexual orientation. Storseth’s bill repeals the provision outright, leaving the Criminal Code as the primary bulwark against the dissemination of hate propaganda by electronic means.

With it will go one of the most divisive disputes to grip the country since the introduction of the Charter of Rights itself—a contest of values that over the past five years has pitted Canadians’ desire to protect minorities from discrimination against the bedrock principle of free speech. Mainstream media outlets, most notably Maclean’s, have been hauled before commissions to answer for their published content. The commissions themselves have come under fire for allowing their processes to be used as a bludgeon against legitimate expression, tailored as they are to encourage complainants to come forward. Meantime, a Saskatchewan law similar to Section 13 has become the subject of a Supreme Court challenge that could invalidate hate-speech provisions in most provincial human rights codes. By year’s end, it is conceivable that no human rights commission in the country will be in the business of adjudicating published material.

Is Canada ready for this brave new world of unfettered expression? There was no shortage of critics last week predicting a flood of online hate now that the legislation is gone. “It leaves a huge gap,”says Darren Lund, a University of Calgary professor and human rights activist. “There are so many hate sites right now on the Internet, and I think some reasonable monitoring of the hatred they’re spewing fits with the Canadian ethos of living harmoniously in a democracy.”

The question, of course, is what constitutes “reasonable” and, on that, our values appear to be shifting. The story of Section 13’s demise is in part one of evolving opinion among interest groups, politicians and institutions who were appalled by the spectre of rights commissions being used as instruments of press control, worried that it would make free-speech martyrs out of basement-dwelling hate-mongers. “We recognized the inevitable,” says Marvin Kurz, national legal counsel for B’nai Brith Canada, the Jewish organization that once regarded the legislation as its best weapon against neo-Nazi hate propaganda. “We saw that public respect for Section 13 had ebbed, to the point that even our own people no longer supported it. For a law like that to work, it has to be supported by the people.”

Some folks like to offend. Ezra Levant knew he would stir anger, for instance, when in 2006 he published the notorious Danish cartoons of the Prophet Muhammad in his now-defunct magazine, the Western Standard. Yet even Canada’s leading right-wing gadfly—hungry to get his Calgary-based biweekly some attention—never imagined his decision would land him before a provincial human rights bureaucrat, with the looming threat of hefty financial penalties. Syed Soharwardy, a Calgary imam, complained to the Alberta Human Rights Commission, claiming the illustrations were an affront to the dignity of all Canadian Muslims. Two years later, Levant sat, scarlet with anger, at a pro forma interview as Shirlene McGovern, an investigator with the commission, blandly asked his “intent and purpose” in publishing the images.

Levant had demanded the right to video-record the proceedings, and the resulting footage became a YouTube sensation. Hunching over a conference table, he unleashed a rant that began with him proclaiming the right to “publish what the hell we want, no matter what the hell you think,” and ended with him inviting McGovern to assume the worst about his intentions. “I published the cartoons in the most unreasonable manner. Whatever offends you, I reserve the right to publish, for whatever offensive reason I want. I reserve the right to publish the cartoons for exactly the reason they complain about.”

If there was a watershed moment in the debate, this was it. Levant’s interview (or, as he put it, “interrogation”) became a top 10 hit on YouTube, sparking unaccustomed conversation about the chilling effect of Islamic sensitivities on public discourse. By then, Maclean’s was facing similar complaints over 18 separate articles, including a book excerpt in which columnist Mark Steyn argued high birth rates and the spread of radical ideology in Muslim countries represent a threat to Western values and ways of life.

To maximize publicity—or to raise its chance of winning—the Canadian Islamic Congress (CIC) complained not just to the federal commission but to those in Ontario and B.C. as well. The Ontario commission ruled it did not have jurisdiction to hear the complaint; the Canadian commission dismissed the case without referring the matter to a tribunal. But the B.C. Human Rights Tribunal went ahead with a hearing, combing the content of Steyn’s excerpt for offending material, judging the articles fit for public consumption but chiding Steyn for trying to “rally public opinion by exaggeration and causing the reader to fear Muslims.”

The CIC claimed moral victory. “We are delighted the tribunal has discredited the content of the articles that Maclean’s and Mark Steyn have been publishing,” said lawyer Faisal Joseph. But few others were cheering. Even long-time believers in Section 13 were astounded by the spectacle of a state tribunal reviewing a newsmagazine’s content, while questions of fairness abounded. With no evidence of intent, and without proving guilt beyond a reasonable doubt, critics noted, the tribunal was clearly prepared to brand someone a racist—one of the most reviled labels in Canadian society. “This is a serious business,” Wayne Sumner, a University of Toronto philosophy professor who has studied hate speech, told Maclean’s in 2008. “The proper place for it is in a criminal court, not a human rights tribunal.”

More troubling signs would later emerge, as the procedures and practices of human rights panels came under scrutiny. It turned out that one man, a former commission employee, had been lodging practically all of the Section 13 complaints investigated by the Canadian Human Rights Commission. For a time, Richard Warman had been acting as an investigator while complaints he’d made were before the commission. Officials’ insistence that Warman never wore both hats on the same file was less than reassuring.

Small wonder, then, that Storseth’s bill struck a chord, gaining support from unexpected quarters. B’nai Brith, which had used Section 13 to shut down the website of notorious hate-monger Ernst Zundel, got behind the legislation. “The whole Maclean’s-Mark Steyn fiasco was one of the spurs,” says Kurz, the group’s lawyer. So did the Toronto Star, a normally staunch supporter of state protections for minorities. “Most Canadians have no sympathy for hate-mongers,” the left-leaning paper said last December in an editorial. “But an unwarranted, creeping chill is being cast over free speech, absent any real problem.”

That broad-based backing might explain the muted political response to last week’s vote—a nominally free one which nevertheless split down party lines. While the opposition NDP lamented the end of a tool that helped shut down hate sites, the Liberals let the vote pass with no comment, as did most interest groups representing the country’s minorities. “The only guys I see speaking up for it are a couple of white lawyers who might profit from it,” Levant crowed earlier this week. “It is one of the great pleasures of my life to see the tide turn on this issue, and to know that I played a small role in it.”

Still, the section had its fans, many of whom now wonder what the future holds for the remaining patchwork of provincial human rights law meant to combat hate. In Alberta, Premier Alison Redford is on record saying that province’s provision, Section 3, should be repealed. In Saskatchewan, the government is awaiting a Supreme Court decision in the case of William Whatcott, an anti-gay activist sanctioned for distributing handbills labelling homosexuals as “sodomites” seeking to socialize children into accepting their lifestyle. Incendiary as Whatcott’s rhetoric was, Chief Justice Beverley McLachlin suggested during a hearing last winter that he might not have known he was running afoul of Saskatchewan’s vaguely worded rights code. “An ordinary Lutheran pastor should be able to look at the act,” she said, “and without being a Supreme Court scholar, be able to know whether he can say this or that.”

Even if the provincial statutes survive, notes Lund, the Calgary professor, they are aimed only at printed material; only the federal act empowered commissions to crack down online, where most of today’s hate propaganda is spread. That leaves web-promulgated hate under the exclusive domain of the criminal justice system, where the standards of proof are much higher, and convictions rarer. To even lay a charge, says Stephen Camp, president of the Alberta Hate Crime Committee and a former commander of the Edmonton police hate crime unit, officers must be able to show the material was wilfully promoted; that it targeted an identifiable group; that it met the common-law test of a hate material—and all beyond a reasonable doubt. In short, a lot of complainants will go away dissatisfied.

The rest, presumably, will fall to civil society, which is arguably where the onus belonged to start with. For decades, interfaith groups and non-religious organizations have been promoting tolerance. In recent years they’ve been complemented by hard-core activists who patrol the Internet, ferreting out hate sites and gathering information for the benefit of police. One such organization, the Anti-Racist Canada Collective, told Maclean’s it would keep up its efforts despite the loss of Section 13. “There is an irony, in that its absence might actually make it easier for us to collect intelligence,” a spokesman said in an email. “Online haters may become less reticent about posting their real views.”

That’s not much comfort to groups seeking to silence speech that merely offends. But as the battles of the past five years ease into perspective, even they are reconsidering their positions. Not long after Syed Soharwardy filed his complaint against Levant, for instance, the Calgary imam found himself on the receiving end of his own human rights complaint—from a group of women who claimed they’d been prevented from speaking and subjected to abusive language during a meeting at his mosque.

Experiencing the human rights ordeal from the other side was an eye-opener, he later acknowledged, telling Maclean’s: “I am now quite certain that the best way is for the parties to have dialogue. We need to be able to listen to each other. Human rights commissions should be there, but they are for questions of housing and employment and access to the workplace—not for disputes that are about freedom of speech.”

Section 13: How the battle for free speech was won

  1. Huge victory hate speech and an ugly example of how easy it is to fool some of the people most of the time.

    Ugh.

  2. No mention that Levant was never in any real danger of an actual human rights complaint arising, I see.

    • levant was hauled before a tribunal and investigated , of course a complaint was filed.

      • Fair enough – i should have said actual hearing. the poor little sobbing baby was asked some freakin questions and then it never got to an actual hearing, He was never in any real danger of a ruling against him (even less likely than Macleans) and in fact nothing ever happened.

        (A later second case by levant was withdrawn).

        • I’m always amazed at how easily people grow to love the blunt instrument of power. Freedom of expression is a Charter right, within laws that prevent abuses. If the government can’t charge, prosecute and convict, but they hold hearings and administrative processes that have real costs but no due process protections, there is no justification and it is not a minor inconvenience as you describe it.

        • “Nothing ever happened.”

          His legal fees disagree.

        • Fair indeed… but wait!… how much money did this “nothing ever happened” event cost us? times how many “nothing ever happened” non-events? it is sickening to see how some hide behind self-promoted ideology while making a nice living of it…

  3. Nice to see some evidence of sanity for a change.

  4. Big Win for Freedom and Western Civilization. Ezra Levant is a free speech hero.

  5. if this Lund “wise man” – the professor head – is so aware of all those hate sites why did he not file some complaints. it seems the only one the guy filed was against a Pastor – not for a hate site but for a letter to an newspaper. Lund’s anti- religous belief is one of hate – he just expressed it in what used to be a legal way.

  6. I would like to quote from “Life on Mars”, the UK detective series:
    Sam: You see? Reeves’ murder is looking more and more like a hate crime.
    Gene: What? As opposed to an “I really, really like you” crime?

  7. Finally. I cannot even begin to describe how much I despise this law and the fascists who supported it.

    • uh it was the leftists and communists who supported the law….

      • The leftists and communists are fascists

  8. Here`s my contribution to the excitement about hate speech provisions being struck down. I hate Mark Steyn because he is a huge piece of worthless dog excrement

  9. Oh, and Ezra Levant is the asshole Sten came out of

  10. I guarantee most of the red-necked mouth breathers that are cheering this vote have never actually read section 13. Section 13 only prohibited communications that was “… likely to expose a person or persons to hatred or contempt …” and was only SUCCESSFULLY applied to the most egregious hate speech. Did they investigate more mainstream reporters? Yes. So what? You don’t have a right to not be investigated. You still don’t.

    I have always been allowed to call Gillis an uneducated inbred sh*thead. Section 13 prohibited me from advocating that Gillis should be gang raped and hung. Your celebrating your right to advocate violence? Won’t your kids be proud!

    • Apparently you’ve never heard of this statute called the Criminal Code of Canada. It has offences such as incitement, which is essentially, ummm, advocating violence.
      Your post is laughable hyperbolic hysteria.

      • The concern @d04e4b239341afd68bdbab784cdf9352:disqus , is that the threshold of proof in the criminal code (beyond a reasonable doubt) is too high, and won’t catch some extreme hate speech. The human rights tribunal is a better avenue because, instead of criminal sanctions, the tribunal can simply order that fines be paid or a website be taken down. Loss of section 13 is a loss for Canada and the freedom to live without fear.

        • Why should “hate speech” be stopped at all you liberal maggot?

          • That’s “Jewish Liberal Maggot” to you… And darn proud of it. The reason hate speech is regulated because it’s not a form of expression that is worthy of protection. Other rights, such as the right to equality and the right to live free from fear. Hate speech is a kind of perverse expression that is intrinsically violent and threatens the foundation of our democracy.

  11. Can’t wait to see how much “free speech” comes out of Harper MP’s in the next while. Surely they are only doing this to protect their own propaganda. Should be interesting.

  12. Watch the hate machine roll.

    • Yeah, Nazis in jackboots are marching down my street right now, looking for a synagogue to burn.
      And I hear that there are crosses burning in Prince George as I write this.

      • I hope I’m wrong

  13. I find the Harper government to be the worst government Canada has had in a long time. The unconstitutional bills they have introduced like C-11, C-31 and C-38 are extremely damaging. But C-304 is one Conservative bill that I fully support. Different people find different things funny. Banning a website because it contains racist jokes and racial epithets is a slipperly slope that Canada should avoid.

  14. Go Canada! *cheers*

  15. Congratulations for getting some freedom of speech back. While Canada is moving into more freedom America is moving into speech restrictions, especially anything critical of Islam.

  16. “anti-racist” a better term for them is anti-white.

  17. They forgot to mention Freedominion.ca

  18. Amazing that Darren Lund, of the famous Lund v. Boissoin case, was interviewed for this article. Lund was one of those same people who tried to use Section 13 to silence someone who wrote something in a newspaper he didn’t like, and almost succeeded. Then he appealed the decision by the Court of Queen’s bench that overturned the conviction and sentence of the Alberta Human Rights commission. I’m absolutely disgusted that not a single mention of this was made in the article at all. Of all the issues and problems mentioned with Section 13 in this article, and Macleans doesn’t even acknowledge that Lund was part of the problem. Instead, he’s made to appear as some kind of impartial expert.

    Lund’s criticism of the removal of Section 13 from the Human Rights code is entirely without merit. His actions were a direct attack on free speech in this country, and reveals his obvious bigotry and hatred against Christians.

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