TORONTO — It’s a debate that’s been joined in Canada, off and on, for decades: to what extent, if any, should limits be imposed on free speech to protect minorities from vilification?

At the law offices of Cassels Brock & Blackwell, two proponents of laws that would restrict free expression clashed with a longstanding supporter of unfettered speech in a Sept. 25 lunchtime event sponsored by the Speakers Action Group and the Canadian Jewish Civil Rights Association.

Representatives of B’nai Brith Canada and the Friends of the Simon Wiesenthal Center (FSWC) pushed for retention of the anti-hate speech provisions of Canada’s Human Rights Act and similar provincial legislation, while Alan Borovoy, general counsel of the Canadian Civil Liberties Association, said the law ought to be abandoned.

At the federal level, Section 13 of the Canadian Human Rights Act targets statements that are likely to expose people to hatred or contempt, based on prohibited grounds of discrimination, such as their religion.

“The first problem is, what the hell does hatred mean?” Borovoy asked. “Free speech is most important if it creates strong disapproval. Where does strong disapproval end and hatred begin?”

The legislation does not provide for the defence of truth, for lack of intent, or reasonableness of the statement, Borovoy said, suggesting that historian Daniel Goldhagen’s argument that many Germans subscribed to Hitler’s murderous anti-Semitism and were “willing executioners” could lead to hatred against Germans.

And if someone believes Serbs supported Slobodan Milosevic’s atrocities against Kosovo and were willing executioners, would that not expose Serbs to hatred or contempt? And, Borovoy asked, should that view be censored?

“We want [the law] used against the people we don’t like and not against the people we do like. Who do you trust to make that decision?” he asked.

“It’s not as if that’s the only weapon we have, and if we don’t use it, we’re powerless,” he continued.

“This law undermines the value of free speech for our country. This law deprives us of a valuable weapon – speech with which we can denounce our enemies.”

Borovoy said human rights commissions, which adjudicate complaints under Section 13, remain necessary to address discriminatory deeds, “not against unacceptable words.”

Leo Adler, director of national affairs of the FSWC, said Canadians have decided to restrict free speech, and the Supreme Court of Canada has ruled that such as restriction is valid. The problem with Section 13 is “the way it’s enforced.”

The Canadian Human Rights Commission has asked University of Windsor law professor Richard Moon to study the provision. Controversy about the section’s application was prompted by high-profile cases, one of which alleged that the mainstream magazine Maclean’s ran an article by columnist Mark Steyn that promoted contempt of Muslims.

Adler said Canadians live in an “ABC world” of agencies, bureaus and commissions that limit our freedoms. Sometimes these institutions make mistakes. But so does the criminal justice system, and no one contemplates doing away with it, he said.

Adler argued the legislation targets only the most extreme cases, and 99.9 per cent of Canadians don’t produce speech that approaches the venom found on hate websites. At most, 30,000 Canadians might be targeted by the section, he said.

Canada is a “cohesive, democratic society in which certain forms of behaviour, extreme as they are, will not be tolerated,” he said.

David Matas, senior legal counsel for B’nai Brith, told the audience that “prohibition of hate speech is compatible with free speech.”

Accepting that society will limit hate speech in some way, he said doing so under the auspices of human rights commissions is less draconian than under the Criminal Code. He pointed to a number of cases in which extremists were shut down after human rights complaints were launched, including New Brunswick teacher Malcolm Ross, former Aryan Nations spokesperson Terry Long in Alberta, and pro-Nazi propagandist Ernst Zundel in Toronto.

Matas acknowledged that “there are problems” with the system – including an ongoing “frivolous” complaint against B’nai Brith – but he said that they can be addressed through reforms.

Human rights commissions are likely to face an attempt by proponents of political Islam to further their agenda, he warned, adding human rights commissioners should be educated to meet that threat. He called for other reforms to the system, including awarding costs to the successful party and full disclosure of materials.

In a question period, Matas suggested that there is a direct link between incitement to hatred and the Holocaust, and that threats should be addressed while they are still considered “marginal.”

Borovoy, however, said Matas was assuming “that only with these laws can you fight expressions of hatred and there is nothing else.

“Please don’t assume that if you don’t use laws like this you are powerless against hatemongers,” Borovoy said.

High-profile figures such as former teacher Jim Keegstra and former native leader David Ahenakew were dealt with by losing their positions – Keegstra as a teacher and mayor of the Alberta town of Eckville, Ahenakew by being stripped of his Order of Canada.

“Deprive them of their standing in the community,” Borovoy suggested.