Guest blogpost: Ending “Hate Speech”

February 2nd, 2008 | email this | digg it

Leave your comment Posted by Martin Rayner

Well, kind of… At least that would be the case if my local MP, Dr. Keith Martin gets his way with the passage of a Private Member’s Bill (M-446) that would scrap subsection 13(1) of the Canadian Human Rights Act. There are a few different ways of viewing this initiative, but here’s my take on the matter and why, unlike Warren Kinsella, I don’t have any problem with it whatsoever, and to the contrary, enthusiastically support the proposed move.

First of all, let’s do a little remedial learning and refresh our memories as to the scope of subsection 13(1) shall we. Under this section of the Act: “It is a discriminatory practise 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 that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” By any measure, this is an atrocious chunk of verbiage, that’s immediately open to all sorts of abuse. How, for example, one determines whether some wildly inflammatory, bigoted or prejudicial statement is “likely to expose a person or persons to hatred” is beyond me. It’s an arbitrary metric so utterly vague and indeterminate as to be laughable.

Unsurprisingly, this nebulous prohibition has been cynically exploited on more than a few occasions by those with grievances for various reasons: in some cases because the complainants were unable to obtain satisfactory resolution of their disputes by other means; and in others simply as a form of expensive, retaliatory nuisance. And therein lays the essential difficulty with this problematic bit of legislation. Doubtless, it was originally crafted with the very best of intentions, but alas, over time it’s fallen victim to the laws of unintended consequences. Rather than serve its original purpose, it now exists simply as a means of recruiting the odious weight of the government to fight protracted quasi-legal skirmishes on behalf of semi-professional whiners against the free expression of speech — however loathsome or objectionable those expressions might be. This, I would argue was most certainly NOT the original intent of the legislation when it was (poorly) drafted, which was, it seems clear, simply to obviate “discriminatory practises” in the workplace and other forms of daily life.

Fortunately, there already exists a remedy in our penal code for what can properly be described as “hate speech” and it’s contained in sections 318, 319, 320 and 320.1 of the Criminal Code, all of which deal with “hate propaganda” offences whereby the offender advocates genocide or communicates hatred of any identifiable group. Why charges under the provisions of these particular statutes aren’t invoked more frequently is anyone’s guess. But hey, here’s one… perhaps they require a higher standard of evidence; one apparently not demanded within the more “flexible” ambit of the existing human rights legislation and its well-intentioned, but thoroughly hapless bureaucratic administrative apparatus.

The perverse aspect of allowing the current regime to perpetuate itself in its current state is that it not only promotes somewhat frivolous/malicious complaints launched with cynical and/or otherwise dubious motives, but that it also unjustifiably elevates purblind bigots and morally bankrupt douchebags accused of alleged “hate speech” to the status of martyrs. Yes, let’s all get out our crying towels for Ezra Levant, the editors of Maclean’s and Ernst Zundel… Boo,hoo,hoo,hoo,hoo! Cloaked in the righteous mantle of “free speech” and “civil rights” (ironic, considering they generally have precious little regard for them otherwise), these pathetic, self-appointed “victims” use such actions to moan and keen ad nausea about their own excruciating persecution at the malicious hands of the wickedly evil, fascistic “liberal” establishment. Wah, wah, wah… Boo, hoo, hoo! Case in point, witness Mr. Levant’s recent gloriously self-pitying parade of YouTube videos detailing his Kafka-esque, so-called “interrogation” before a rather bored and indifferent official from the Alberta Human Rights Commission (sorry, I really can’t be bothered to go look up any links to this, but you know… Google is your friend). That sort of comical nonsense totally undermines the original intent and purpose of the legislation.

So, returning to the initiative proposed in M-446, the question has to be asked whether subsection 13(1) of the Canadian Human Rights Act is perhaps doing more harm than good. I happen to think it’s a pernicious bit of fluff that can be easily dispensed with so that more egregious examples of truly hateful propaganda can be addressed more effectively, and that if strictures on hate and prejudice in the workplace and other daily interactions of commerce are required, they need to be dealt with in a considerably more specific manner than that of the HRA, ss.13(1).

I’d be a bit remiss in all of this however if I didn’t take final note of the curious, somewhat bizarre enthusiasm with which the Wing-Nut-O-Sphere® has pounced on this story like a fat kid on a Twinkie, and I have to confess that it’s more than a little disturbing to be sharing some intellectual bed-space here with people ranging from the Nazi thugs at Stormfront to Joanne (she, of the addlepated, ever-pointless “Journey” to God-knows-where) but such is politics, I guess. I’ve always believed in working from first principles and if occasionally that happens to land one in the company of some rather unsavoury wayfarers at times, well so be it.

Martin Rayner is better known as “Red Tory” from the same-named blog. When he declared he was taking a break from blogging, I offered him a spot here to guest-blog when he felt the need to vent. He has since half-revived his blog (though without as much political blogging) but he still will from time to time guest-blog here when the blogging itch hits him. The opinions expressed by Martin and any other guest-bloggers here are not necessarily the opinions held by Scott’s Diatribes

30 Responded To This Post

12960. JimBobby said on February 2, 2008 at 1:27 pm

Good boogin’, RT.

I figger the best defense against hate is education. The more you know, the stoopider bigotry and racism looks. Smallmindedness ain’t called smallmindedness fer nuthin’. Bigots and racists are intellectually bankrupt cretins. Let them rant and crow and preach as much hate as they want.

As long as we don’t allow our education system to slip into the absurd realm where creationism is taught as fact and race hatred is systemically perpetuated through the schools, we have nothing to fear from a few ignorant loudmouths who are obviously not exactly brainy. So long as we don’t start separatin’ the races in the schools and we don’t start denying science, we’ll be okay.

12963. Raphael Alexander said on February 2, 2008 at 1:31 pm

Agreed, Martin. And while it also pains me to do the obligatory "join the crowd" thing which I avoided at all costs during the Ezra Levant affair, I do throw in the chips with the rest of the BT-o-sphere. No doubt my own post will invite ironically hateful comments onto leftwing do-gooding multicultural humanist secularists, but I guess that’s the price of admission when you’re on the same side of the fence on an issue.

12964. Martin Rayner said on February 2, 2008 at 3:26 pm

RA — I’m generally opposed to “hate speech” legislation as a matter of principle and have made this quite clear in the past, notwithstanding that it might put me at odds with some of my more “liberal” ("do-gooding") friends. Personally, I find the notion of invoking the government to intervene in such matters to be highly objectionable. It’s a very dangerous precedent that potentially leads to no good; particularly when the fundamental ground rules are so arbitrary and fuzzy to begin with. That said, I’m not comforted much by some the company being kept in maintaining such a position, as I suspect their motives are quite different from mine — some quite clearly are just seeking more or less free license to spew their hateful rhetoric with complete impunity. Which is their right, to an extent, but hardly an admirable objective by any measure.

12971. KC said on February 2, 2008 at 3:37 pm

You da man RT. Agree with every word. Although I think the assault on secularism represented by these complaints is the biggest issue at play here. Better watch out though. Its just a matter of time before Big City Liberal suggests you are an apologist for Nazism.

12972. Martin Rayner said on February 2, 2008 at 3:40 pm

JB — Along the same lines, I’ve always felt that “sunshine is the best disinfectant” when it comes to this sort of thing and that when exposed to the clear light of day, any sentient, rational person can see hateful, ignorant of malicious tripe for exactly what it is. This perhaps is one of the unfortunate and unintended consequences of this particular piece of legislation in that it encourages the “haters” to apply a thin veneer of rhetorical shellac to their bigotry in order to skirt the censors and in the extremely rare event they are actually nailed for stepping over the line of common decency, then moan and wail about being “victimized” by the big-bad nanny state. Unfortunately, all this does is serve to gin up their credibility and rally fellow bigots to their cause… all under the glorious banner of “free speech” naturally. I say, let them speak freely without such pathetic ruses and be exposed for the loathsome, small-minded creatures they are.

12973. Raphael Alexander said on February 2, 2008 at 3:41 pm

That said, I’m not comforted much by some the company being kept in maintaining such a position, as I suspect their motives are quite different from mine

Nail. Head.

12974. Raphael Alexander said on February 2, 2008 at 3:42 pm

Damnit, I forgot Scott’s site has an editor…

No problem Raphael - fixed. (Scott)

12975. Scott Tribe said on February 2, 2008 at 3:44 pm

I highly doubt it, Kyle, that BCL will accuse Red Tory of such a thing.

12976. KC said on February 2, 2008 at 3:48 pm

Hey he accused Keith Martin of it. Why should it come as a surprise?

12977. Martin Rayner said on February 2, 2008 at 4:00 pm

KC — I’m above reproach. The last time I checked, my status as a quasi-liberal, secular humanist, "bright" was intact.
But seriously… “an apologist for Nazism”? You must be joking. I’m not sure if I could be bothered to go ferret out where BCL accused the good doctor of this, but it’s difficult to apprehend what the rationale would be.

12978. KC said on February 2, 2008 at 4:05 pm

RT - I dont know how else we are to interpret headlines like "Liberal MP moves to to ensure Nazi rights".

12979. bigcitylib said on February 2, 2008 at 4:11 pm

RT, if I may still call you that, could you be more specific as to which of the cases you see (outside of the Levant, Steyn ones), where you think the particular process has been abused. I’m sort of aware of about half of the 30 or so Federal/Provincial cases and I can see maybe two where I think they’ve been abused (the case against Topham and Catholic Insight). But for the most part, the people that got nailed seem to me to have more or less met the standard (Whatcott) etc.

So while, the noise these two guys have made is great, I don’t see the HRC process being any more open to abuse than anything else, and the harm done to them (or Macleans) is minimal. In fact, I imagine this whole case is keeping Ezra’s SUV full of gasoline.

Also, my understanding (and in the case of the law its pretty thin) is that the HRC is as often a pre-court process as it is a cheaper version with (allegedly) a lower standard of evidence. You go to the tribunal to save money all around.

12980. Scott Tribe said on February 2, 2008 at 4:22 pm

I sent this to Martin in email, but I figured I’d follow up BCL’s posting (with no accusations of RT being a Nazi symathizer from him, I might note, as predicted ) with it here:

Warren K’s response to Kyle at Facebook about the necessity of the HRC’s, despite the Criminal Code provisions still being there was this:

The CC provisions have been relied upon a handful of times in the past three decades, but there have been very many more instances of hate activity in that time. (The provisions require an Attorney General’s approval, and that is rarely given.) The Human Rights Act was designed to permit society to express disapproval of hatred, without involving the serious penal sanctions found in the CC, among other things

12981. Joanne (TB) said on February 2, 2008 at 4:26 pm

You had me until the intellectual bed-space.

*Shiver*

12982. Martin Rayner said on February 2, 2008 at 4:42 pm

BCL — You’re being a little unfair in excluding off the bat the most notable cases of abuse that come to mind. I might also point out that these are the ones we know of. It’s quite conceivable there are many other complaints that haven’t received any where near the media attention of these ones, or that simply failed to get off the ground altogether. What happened to the most recent kafuffle with Whatcott and FreeDominion? It was all the buzz a while back and then just appeared to melt away into nothing… That one seemed especially bogus to me, particularly given that the complainant wasn’t even connected in any way at all to the groups alleged to being the subject of the hate-mongering in question.
I’ve seen the flow-charts detailing the assessment/evaluation/adjudication process for complaints and, while thorough in the extreme, it’s completely absurd. The burden on the accuser is minimal, the cost to the accuser is next to nothing and, there’s no consequence should the charge prove to be utterly baseless. Well, if that isn’t an invitation to abuse, I don’t know what is. As for the accused, well you yourself “imagine this whole case is keeping Ezra’s SUV full of gasoline” so where is the harm or penalty involved if indeed your suspicion is correct. If anything, it only serves to bolster my contention that these cases just serve bolster the fortunes and reputations of those subject to scrutiny and elevates the miscreants in question to the status of martyrs. Also, sorry to disabuse you of the illusion that going before a tribunal is “cheaper” but legal representation carries the same costs regardless of what venue justice is being meted out and the process can be an expensive one (Ezra seems to have really gone overboard in this department, but that’s another matter) nonetheless.

12983. Martin Rayner said on February 2, 2008 at 4:53 pm

Scott — Warren’s justification hardly seems compelling in any way at all. To the contrary, as I read that, it sounds like the legislation is practically an open invitation for any aggrieved whiner or John Q. Complainer to bring their charge of alleged “hate speech” to bear on the accused with only the most minimal standard of evidence supporting their purported outrage. He makes sound like a backdoor way of circumventing the law, which is, you know… just a bit too rigorous.

12985. Jon said on February 2, 2008 at 7:06 pm

BCL -
I think you’re missing the biggest issue.
1 man has filed 50% of the cases under section 13. This man is Richard "lucy" Warman. I call him Lucy because (supposedly) he would go to sites like stormfront and instigate hate speech, then use the tribunals to punish (and profit from) those who joined him.

I don’t see how any "liberal" could ever support a system in which the assumption of guilt is placed on the defendant. How could someone like yourself support a system where only the accuser (in Lucy’s case, a former HR employee) has his/her fees paid for?

Keep in mind that the complaints levied against Steyn are directly in reference to QUOTATIONS he made in his book. That’s right: quotations, of a Norwegian Imam. Is it your opinion that its ok to be tried in an extra-legal tribunal for quoting someone else?

12986. Martin Rayner said on February 2, 2008 at 7:13 pm

How could someone like yourself support a system where only the accuser (in Lucy’s case, a former HR employee) has his/her fees paid for?

Um, I’m not supporting the present system. In fact, if you read the post, I’m in agreement with my MP and his Private Member’s Bill that would strike this provision from the HRA. Now, that’s not the position of the Liberal Party (according to some spokesweasel according to a story that appeared on CBC’s website), but so be it. I don’t agree with the LPC on many things.

12987. Martin Rayner said on February 2, 2008 at 7:15 pm

Oops. That was directed at BCL. Never mind.

12991. Gayle said on February 2, 2008 at 7:45 pm

With respect, I think you have mischaracterized this legislation.

In 1990, the brightest legal minds in this country dissected section 13(1) in a case called Taylor. The SCC agreed it violated s. 2 of the Charter, but upheld it under section 1. This was a case where an individual set up a telephone message service that contained messages of hatred directed towards a particular religious group.

The headnote of the case contains the following summary:

"Although s. 13(1) of the Act infringed the s. 2(b) Charter right to freedom of expression, it was saved by s. 1 of the Charter. S. 13(1) had a valid objective, namely, to promote equal opportunity unhindered by discriminatory practices. The effect of s. 13(1) was proportionate to the objective. It was rationally connected to the aim of restricting activities antithetical to the promotion of equality and tolerance. The words "hatred or contempt" in s. 13(1) were not vague. Also, the fact that s. 13(1) addressed only messages communicated repeatedly indicated that there was minimal impairment to the freedom of expression."

When considering the purpose of the section, the Court said:

"It is this purpose — the promotion of equal opportunity unhindered by discriminatory practices based on, inter alia , race or religion — which informs the objective of s. 13(1). In denoting the activity described in s. 13(1) as a discriminatory practice, Parliament has indicated that it views repeated telephonic communications likely to expose individuals or groups to hatred or contempt by reason of their being identifiable on the basis of certain characteristics as contrary to the furtherance of equality."

So when you claim the legislation was designed to address discrimination in the workplace you are wrong. Your opinion that "[i]t’s an arbitrary metric so utterly vague and indeterminate as to be laughable" is one that was not shared by the justices of the supreme court. They clearly felt that the courts (or tribunals, as the case may be) could properly weigh the language used and determine if it falls within this section.

Finally, while I certainly have some sympathy for people who have been brought before these tribunals at their own expense, it is no different than people who have to pay for their own legal defence when given a traffic ticket or when charged with a criminal offence.

The purpose around this legislation is to benefit all Canadians, not just the ones who make a complaint. That is why the cases are considered the Tribunal v. the Accused, rather than as the Complainant v. the Accused.

12992. bigcitylib said on February 2, 2008 at 8:08 pm

RT wrote:

"BCL — You’re being a little unfair in excluding off the bat the most notable cases of abuse that come to mind. I might also point out that these are the ones we know of.
[...]
What happened to the most recent kafuffle with Whatcott and FreeDominion? It was all the buzz a while back and then just appeared to melt away into nothing…"

What happened was the complainant dropped the case very early on. What’s interesting is that this occured after a bit of an intimidation campaign by FreeD. They posted her email, maybe a picture or two (I can’t 100% remember), and maybe a phone number. The interesting thimg is, no matter what the validity of the original complaint, I have been told that she could probably have nailed them just for their subsequent behavior.

But I am assuming from your response that your answer to my question is "no I haven’t paid any attention to anything other than the Levant and Steyn cases, and base my opinion of the relevant legislation on their objective, unbiased writings on the topic"

RT also wrote, after some stuff about flow charts etc.:

"Well, if that isn’t an invitation to abuse, I don’t know what is…"

As opposed to what? I could call crime stoppers now from a public phone booth and tell them you were carrying dope. I DID, when I was a college student, repeatedly fink my neighbor out to the municipal gov. after they bitched about our lawn not being cut. Think we should abolish municipal by-laws and crime stoppers?

12993. Martin Rayner said on February 2, 2008 at 8:36 pm

Gayle — So when you claim the legislation was designed to address discrimination in the workplace you are wrong.

What I said was that the intent was to obviate discriminatory practises "in the workplace and other forms of daily life." That extends well beyond the workplace, although the "equality of opportunity" aspect of the legislation’s intent (at least as I understand it) would seem to indicate the workplace would naturally be the primary locus of most complaints.

The SCC may well have felt that Tribunals are equipped to "weigh the language used" and determine whether it constitutes "hate speech" but I still maintain that arriving at such a conclusion (as in the Steyn case, for one example) is highly problematic. As I recall, even the publication that Whatcott was circulating that caused such a flap a while back wasn’t particularly "hateful" at least in my opinion.

I don’t think the two situations are comparable. The complaint can be a matter of opinion. If you hold up a gas bar, run a red light, or are caught doing 50 in a school zone, that’s not a matter of opinion. As I said, the standard of evidence in criminal procedures is a lot higher and more rigorous than seems to be the case for complaints brought before the HRC.

12994. Martin Rayner said on February 2, 2008 at 8:50 pm

BCL — Yeah, I heard rumblings about the campaign of intimidation that was being waged by the folks at FD (or some of their subscribers, I should say). Whether that was actually the case, or just a lot of talk, I’m not sure. I don’t know that I can subscribe to the notion that “she could probably have nailed them just for their subsequent behavior” because if this was the case, then it naturally begs the question of why she didn’t, or at least why the authorities didn’t consider it to be actionable under the Criminal Code…

Regarding your finking, I can’t say that speaks very highly to your character, but for the sake of argument, of course the law is subject to abuse (the realm of liable is a classic case in point in that regard), so too are other things. I could phone in a phony bomb threat or set of a fire alarm just for fun, but of course that doesn’t mean I think we should do away with the police or fire departments. However there are usually penalties for such actions, just as there are for providing false information or leveling patently false accusations against another person. And again, I’ll come back to the contention that the evidentiary standard in criminal matters tends to be higher than would seem to be the case with the HRC in responding to complaints. As I understand the process, they are required to look into these matters, and because of the nature of the complaints, legal representation is usually required at every stage (i.e., its more than a simple matter of, say, determining one’s whereabouts at a certain time or whatever).

12995. Gayle said on February 2, 2008 at 9:04 pm

Actually, there are a number of criminal matters that are a matter of opinion. If they all were as cut and dried as the ones you cite we would not require trials. For example, evidence that was obtained through a violation of an individual’s rights may be excluded - and determining whether rights were violated often requires a balancing act. When someone is brought before the court on criminal charges after the police have unlawfully entered their home and conducted a search, you can be well assured that person feels bitter about having to pay a lawyer to have the matter sorted.

Other cases involve a she said/she said situation, where the only evidence comes from the complainant. The police are happy to lay charges and leave it to the courts to sort it out.

There is a provision in the criminal code that allows an individual to lay a private information if the police refuse to lay charges. These informations are prosecuted by the crown in the same way charges laid by the police are prosecuted. There is another provision that permits one to obtain a restraining order without the expense of hiring a lawyer and obtaining one in civil court. Again, the complaint is prosecuted by the crown, and the accused must obtain his own counsel at his own expense.

But then Ezra should know all that, being the bright young attorney that he is, and given that he completed his articles with a criminal/family lawyer.

In any event, the Charter s. 24(1) permits the courts to award costs if Charter rights have been violated and the prosecution was without merit or was pursued for improper motives. Public officials are not permitted to abuse the legal process without consequence. If Ezra is vindicated, and if the courts ultimately determine the prosecution was an abuse of process, he will be able to get his costs back.

13027. Martin Rayner said on February 3, 2008 at 11:43 am

Gayle — I think we’ll have to agree to disagree on this one. You clearly feel that this provision of the HRA still has validity and should be preserved. I think that it’s doing more harm than good by unintentionally providing a platform from which the objectionable opinions of strident blowhards and activists can be amplified, all the while wrapped in the mantle of “free speech.” In such cases, all too often it seems that we end up discussing the issue of “free speech” rather than the substance and nature of the questionable comments themselves.

13028. ALW said on February 3, 2008 at 12:03 pm

I’m with RT on this one, except for the digression on Levant. I’m not really sure why the character of victims of abuses of the HRA is relevant; if anything, that’s precisely the point of free speech protections in the first place: because we usually strongly dislike or otherwise disapprove of the people whose speech is being restricted, they don’t make for very sympathetic victims in the court of public opinion. But the public being offended isn’t the standard that has to be met: as RT points out, the HRA is a sort of a end run around the usual burden that must be met under the Criminal Code.

Even free speech zealots like myself believe there are limits: libel, slander, shouting fire in a crowded theatre, incitement to violence. These sorts of allegations can be proven and are forced to meeta tangible evidentiary burden. But the sort of nebulous, open-ended, I-subjectively-feel-my-dignity-has-been-violated claims that come out of HRA complaints are an embarassment.

13029. Gayle said on February 3, 2008 at 12:22 pm

Actually RT, I do not really hold an opinion one way or another on this provision, though I suppose I do trust the legal system. There is no ideal solution here and I firmly believe the right to express yourself freely must be balanced with the rights of individuals to be free from expressions of hate simply because of the colour of their skin.

My point was not to argue against your opinion. I think I understand why you feel the way you do, and I respect that even if I do not share that opinion. I think your points are valid.

However, I find it necessary to dispute some of your statements. You may not like the provision, but that does not make it "vague" in the legal sense (there is a whole line of cases on statutory interpretation and whether legislation is "void for vagueness"). This provision is no different than thousands of other provisions whose operation affects individuals. Nor is the costs argument valid, unless you are prepared to extend that argument to all circumstances.

13216. ALW said on February 5, 2008 at 10:54 am

<i>I firmly believe the right to express yourself freely must be balanced with the rights of individuals to be free from expressions of hate simply because of the colour of their skin.</I>
I don’t understand from where this latter right arises, Gayle. Are we to judge what the legitimate reasons are for hating someone else? Or are we really saying that hate is legal, but expressing it is not? If A hates B because he is purple, and says so, should A pay money to B? What if its because B is tall and A is jealous? What if it is because B is ugly? Or fat? What is the standard for the inappropriate expression of hatred - is it saying "I hate you"? Or something more? Are we really trying to imply that hatred should not just be bad or immoral, but illegal?
These questions are just the tip of the iceberg. But my point is that when you and others insist that we all have a "right to be free from expressions of hate" directed towards us, what you really mean is that there is a consensus amongst the vast majority of people that such expressions of hate are distasteful, stupid and should be condemned. Normally when we pass laws to deter or prohibit certain types of behaviour, we do so because the argument is that if we don’t, serious, measurable harm will occur. But with human right codes, that’s all out the window: all that is required is a subjective perception of "feeling hated" resulting from spoken or written words! It should be obvious to anyone that this is a dangerous step, and that once accepted, there is no principled basis where this line of thinking can be scaled back. We do not punish people for thinking things; we shouldn’t punish them for saying them, no matter how repulsive, so long as they are not libellous, slanderous or an incitement to violence.

13238. Gayle said on February 5, 2008 at 7:00 pm

ALW - I think it owuld help your understanding if you took all my comments in context. I was referring to the stated purpose of section 13(1). I posted a portion of what the SCC said about that purpose above. I will post the entire quote here:

"It is this purpose — the promotion of equal opportunity unhindered by discriminatory practices based on, inter alia, race or religion — which informs the objective of s. 13(1). In denoting the activity described in s. 13(1) as a discriminatory practice, Parliament has indicated that it views repeated telephonic communications likely to expose individuals or groups to hatred or contempt by reason of their being identifiable on the basis of certain characteristics as contrary to the furtherance of equality.

40 Parliament’s concern that the dissemination of hate propaganda is antithetical to the general aim of the Canadian Human Rights Act is not misplaced. The serious harm caused by messages of hatred was identified by the Special Committee on Hate Propaganda in Canada, commonly known as the Cohen Committee, in 1966. The Cohen Committee noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct. This intensely painful reaction undoubtedly detracts from an individual’s ability to, in the words of s. 2 of the Act, "make for himself or herself the life that he or she is able and wishes to have". As well, the Committee observed that hate propaganda can operate to convince listeners, even if subtly, that members of certain racial or religious groups are inferior. The result may be an increase in acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence.

41 Since the release of the Report of the Special Committee on Hate Propaganda in Canada, numerous other study groups have echoed the Cohen Committee’s conclusion that hate propaganda presents a serious threat to society. Affirmation of the Committee’s findings may be found in the 1981 Report Arising Out of the Activities of the Ku Klux Klan in British Columbia by John D. McAlpine, the 1984 report of the Special Committee on Participation of Visible Minorities in Canadian Society, entitled Equality Now!, the Canadian Bar Association’s Report of the Special Committee on Racial and Religious Hatred, also released in 1984, and the 1986 Working Paper 50 of the Law Reform Commission of Canada, entitled Hate Propaganda . It can thus be concluded that messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality.

42 In seeking to prevent the harms caused by hate propaganda, the objective behind s. 13(1) is obviously one of pressing and substantial importance sufficient to warrant some limitation upon the freedom of expression. It is worth stressing, however, the heightened importance attached to this objective by reason of international human rights instruments to which Canada is a party and ss. 15 and 27 of the Charter .

43 The stance taken by the international community in protecting human rights is relevant in reviewing legislation under s. 1, and especially in assessing the significance of a government objective (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 ). Both Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, Can, T.S. 1970 No. 28, and Article 20 of the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), as well as the jurisprudence of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950) (see, e.g., Eur. Comm. H.R., Applications Nos. 8348/78 and 8406/78, Glimmerveen v. Netherlands , October 11, 1979, D.R. 18, p. 187) demonstrate that the commitment of the international community to eradicate discrimination extends to the prohibition of the dissemination of ideas based on racial or religious superiority.

44 Indeed, in 1983 a complaint to the United Nations Human Rights Committee by Mr. Taylor and the Western Guard Party alleging a violation of the freedom of expression guaranteed in the International Covenant on Civil and Political Rights was rejected on the ground that "the opinions which Mr. T. seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit": Taylor and Western Guard Party v. Canada , Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), para. 8(b), decision reported in part at (1983), 5 C.H.R.R. D/2097 . This conclusion is indicative of the approach taken in the realm of international human rights, and thus emphasizes the substantial weight which must be given the aim of preventing the harms caused by hate propaganda.

45 That the values of equality and multiculturalism are enshrined in ss. 15 and 27 of the Charter further magnify the weightiness of Parliament’s objective in enacting s. 13(1). These Charter provisions indicate that the guiding principles in undertaking the s. 1 inquiry include respect and concern for the dignity and equality of the individual and a recognition that one’s concept of self may in large part be a function of membership in a particular cultural group. As the harm flowing from hate propaganda works in opposition to these linchpin Charter principles, the importance of taking steps to limit its pernicious effects becomes manifest."

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April 12th, 2008 at 10:40 pm Marginalized Action Dinosaur » I would like to point out 2 things first I agree with Red Tory, mention something about this post....

Guest blogpost: Ending “Hate Speech”

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