CIJA to consult community on hate law stand

Rob Nicholson

Justice Minister Rob Nicholson last week called on fellow MPs to support a private members bill that will eliminate Section 13 of the Canadian Human Rights Act (CHRA) as an infringement to free speech.

Jewish community organizations have been vocal proponents of the section, although more recently Canadian Jewish Congress and B’nai Brith Canada have called for amendments that would address critics’ concerns that it is tilted in favour of complainants.

Last week, however, the Centre for Israel and Jewish Affairs (CIJA) adopted a different approach.

CIJA CEO Shimon Fogel said debate over the section “is an important opportunity to reach out and engage amcha [the Jewish community] in participating in the public policy debate… We are very keen to provide a platform for this kind of engagement.

“We will be holding town halls in Toronto, as well as an electronic town hall featuring two leading proponents of their respective positions.”

After noting that Congress was one of the community organizations folded into CIJA, Fogel said: “I have to balance a respectful acknowledgment of Congress’ past involvement with a commitment to involve the community at the grassroots level in a meaningful way. In this regard, it is possible that the traditional position advanced by CJC will not benefit from the same degree of support.

“I don’t want to pre-judge the outcome of our consultation process, but I will remind everyone that Congress also felt Section 13 was deficient and recommended extensive changes in its presentation to the Richard Moon inquiry. So it is safe to say we would be unlikely to support the retention of Section 13 in its current form. However, the extent to which we would see value in its continued inclusion altogether must await the consultation process.”

Asked if the Jewish community would benefit from the retention of Section 13, Fogel stated: “What was intended as a shield against hate has become a sword. Certainly in its day, it was helpful in confronting the challenges related to the likes of [Holocaust denier] Ernst Zundel… What it has really done is create difficulties for those who might legitimately want to raise questions about groups or ideas that in fact are a threat to the Jewish community or Israel. In effect, the act has become an instrument to chill critical debate about important issues like radical Islam.”

While CIJA was ready to reconsider its position, B’nai Brith issued a news release maintaining its support for the section.

“Proposed legislation introduced in the House of Commons to eliminate sections 13 and 54 (the remedies section) of the Canadian Human Rights Act is the wrong course to take at this time,” B’nai Brith stated.

Pointing to impending court judgments in two hate cases, B’nai Brith CEO Frank Dimant said, “It would be strategic to await such decisions before proceeding.

“Wiping out one remedy for hate on the Internet without a careful review of all the consequences opens floodgates that may later be difficult to close,” he stated.

Canadian law currently prohibits hate speech through Criminal Code provisions and the CHRA. The CHRA allows complainants to bring cases before a tribunal, without the consent of the provincial attorney general, as is the case in criminal prosecutions. CHRA procedures do not include penal remedies. They also feature a lower burden of proof, looser evidentiary standards, and they do not afford the defences available to accused persons in criminal cases.

In parliamentary debates, Liberal MP Irwin Cotler said freedom of speech is not absolute. All free societies limit it to some extent.

Referring to previous Supreme Court of Canada decisions, the former justice minister said: “Hate speech itself constitutes an assault on the very values that underlie freedom of expression.

“This promotion of hate speech actually constitutes an assault on that bedrock principle of freedom of expression.

“Hate speech is an equality issue as well as a free-speech issue,” he continued. “The promotion of hatred and contempt against an identifiable group results in prejudicial harm to the individual and group targets of that hate speech. As the [Supreme] Court put it, the concern resulting from racism and hate mongering is not simply the product of its offensiveness, but from the very real harm it causes.” He called for amendments to the section to address critics’ concerns.

Brian Storseth, the Conservative backbench MP who tabled the private member’s bill, offered a different perspective.

He argued the bill “would help to protect and enhance our most fundamental freedom, and that is the freedom of expression and speech.

“Section 13… eats away at this fundamental freedom. Most people are shocked when I explain to them that in Canada… a person can be investigated under a Section 13 complaint for having likely exposed a person or persons to hatred or contempt.

“The key word is ‘likely’ to have exposed. I think we can all agree that this is a very subjective and unnecessarily vague definition, not one of the narrowly defined legal definitions that would be far more appropriate for this clause. This is where Section 13 truly fails to make a distinction between real hate speech and what I often tern as ‘hurt speech,’ or speech that is simply offensive.”

Storseth noted that in 2008, the Canadian Human Rights Commission hired Prof. Richard Moon to evaluate Section 13, as well as its relationship with the Criminal Code. Moon recommended Section 13 be repealed, he said.