Section 13 is no more.
Last week, the Senate agreed to the repeal of the provision in the Canadian Human Rights Act that had made it a discriminatory practice to promote hatred through the Internet or telephonic communications.
Though it passed its third reading in the Upper Chamber, the bill rescinding the section has yet to receive royal assent, though that is considered largely a formality.
The section has been at the forefront of a spirited debate over free speech and the extent to which the government can impinge on it for the purpose of protecting minorities from vilification.
Like the wider Canadian public, the Jewish community has been split over the provision. Groups such as B’nai Brith Canada and the Canadian Jewish Congress, which was folded into the Centre for Israel and Jewish Affairs (CIJA), supported it, though with reservations. They had urged the government to retain the section, though with modifications to address its weaknesses.
When the private members’ bill advanced by Conservative MP Brian Storseth – supported by Prime Minister Stephen Harper and Justice Minister Rob Nicholson – passed the House of Commons last year, CIJA suggested the hate law provisions of the Criminal Code should be strengthened to protect “vulnerable minorities… from hate speech.”
“Ultimately, we are indifferent as to whether the Criminal Code becomes the instrument or a modified Section 13 continued to be the platform. One or the other would be fine,” said CIJA CEO Shimon Fogel.
Avi Benlolo, president and CEO of Friends of the Simon Wiesenthal Center in Canada, acknowledged “there are problems with the operation of Section 13.” However, “the law must strike a balance between preventing the abuse of the Internet and protecting individual rights to privacy and free speech. In as much we all believe in absolute freedom, our freedom is in reality protected by laws and social safeguards that help shield us against harm from each other and from civil disobedience. Without guiding posts or red lines that protect us against hateful behaviour, inequity would result, leading to a loss of freedom and tolerance for all.”
Sun TV broadcaster Ezra Levant, one of the country’s most vocal opponents of the law, said he was “delighted” by the Senate’s move. “I’m proud the government did the right thing.”
Section 13 unjustifiably infringed on free speech to promote a “counterfeit right” not to be offended, he said. “There is no human right not to be offended.”
Levant, who was brought before the Alberta Human Rights Commission under the provincial equivalent of Section 13, said the provision had been introduced as “a shield” to protect minorities, but had been turned into “a sword… to try to silence [journalist] Mark Steyn and me.”
Levant was brought before the provincial human rights commission for publishing the cartoons of the Islamic prophet Mohammad, while Steyn, a widely read columnist, faced investigations over excerpts from his book, America Alone, that ran in Maclean’s magazine. He contended that Muslim birth rates and radical Islam endangered Western countries.
The complaint against Steyn to the Canadian, B.C. and Ontario Human Rights Commissions was brought by Mohamed Elmasry of the Canadian Islamic Congress; the complaint against Levant and the defunct Western Standard magazine he published were brought by Syed Soharwardy of the Islamic Supreme Council of Canada.
In the end, Levant and Steyn were successful in their cases and in drawing attention to the law. A YouTube video of Levant being questioned by a human rights commission investigator went viral. The commissioner wanted to know his “intent and purpose” in publishing the cartoons.
In British Columbia, the Commission criticized Steyn for his views on the spread of radical Islamic ideology, raising concerns that government bureaucrats were looking into the content of magazines.
Responding on his website to news of the section’s repeal, Steyn wrote: “Victories against the state’s encroachments on free speech are protracted and difficult, but still just about possible. I am honoured to have played a small role in a modest victory for liberty in Canada.”
Bernie Farber, former CEO of Canadian Jewish Congress, said the organization “led the way in trying to have people understand the importance of having on the books a civil procedure dealing with hate groups.
“The loss of Section 13 is not something to celebrate. Canada is not living up to its international obligations in relation to hate laws. Democratic countries have been asked to come up with procedures to delineate between the traditions of free speech and protecting minorities.”
“It is a fine balance,” he said. “Section 13 for the most part found that balance.” Human Rights legislation does so without “the heavy hand of the criminal law.”
Farber said the “flaws in Section 13” should have been addressed, particularly its “onerous penalties.
“But one doesn’t throw out the baby with the bath water.”
Words can escalate into something more lethal, just as they did in Nazi Germany, he said.
For his part, Levant cited a laundry list of flaws in the section, beyond its punitive nature. Calling human rights tribunals “kangaroo courts,” he criticized their evidentiary standards, failure to award costs for a failed complaint, warrantless search and seizures and a general “violation of the Canadian tradition of the rule of law.”
He rejected suggestions the law was necessary to protect minorities from words before they escalated into substantial deprivation of rights.
Section 13 wouldn’t have saved Jews from the Nazis. Instead, “the Nazis would have used it against every Jew who dared complain. It’s foolish to think the problem in Nazi Germany was words. It was bullets, real harm to the Jews, gas chambers,” he said.