Monday, November 24, 2008

Moon Report: Repeal of Section 13 of CHRA Recommended

"The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law." So states the much anticipated report, by University of Windsor Law Professor Richard Moon, reviewing the role of the Canadian Human Rights Tribunal's role in regulating hate speech.

Professor Moon was commissioned to prepare this report by Jennifer Lynch, Chief Commissioner of the Canadian Human Rights Commission. According to the terms of contract, Moon was directed to "conduct legal and policy research and analysis regarding the most appropriate mechanisms for addressing hate messages and more particularly those on the Internet, with specific emphasis on the role of s.13 of the CHRA and the role of the Commission."

At first glance, Moon's recommendation would seem to complete the perfect trifecta of Section 13 repeal advocacy. First the Conservative Party of Canada, at the recent convention in Winnipeg voted almost unanimously for Resolution P-203 which "supports legislation to remove authority from the Canadian Human Rights Commission and Tribunal to regulate, receive, investigate or adjudicate complaints related to Section 13 of the Canadian Human Rights Act." Next Keith Martin, the Liberal M.P. for Esquimalt-Juan de Fuca, reintroduced his motion (formerly M-446, and now M-153) which states "That, in the opinion of the House, subsection 13(1) of the Canadian Human Rights Act should be deleted from the Act." And now comes the Moon Report, which recommends the repeal of Section 13.

However, this "trifecta" still does not guarantee that, in the final analysis, there will be the political will to repeal Section 13 of the Canadian Human Rights Act. Moon's report appears to recognize this, and as such he offers alternatives to an outright repeal of the section. The first alternative is to amend the section. Section 13 addresses discriminatory speech that is "likely to expose a person or persons to hatred or contempt." Moon suggests that the focus should be more narrow and should specifically address extreme forms of hate speech only. The word "contempt" should be dropped (opens the door to a "group defamation" interpretation), and hatred should be linked instead to an actual threat. Furthermore, the "likely" should be dropped, as it is far too vague and open to subjective interpretations.

Secondly, Moon recommends (again as an alternative to outright repeal), that the language be clarified to focus on the intention to offend. This is more defensible in law, as it recognizes the importance of mens rea and the 'standard of the reasonable person.' As such, a "requirement that the communicator intended to threaten, advocate or justify violent action against the members of an identifiable group, or recognized that her or his communication would reasonably be understood by its audience as threatening, advocating or justifying violence, would reinforce the section’s focus on extreme expression."

However, while the report's recommendations deal with the complaint that truth is not a defense, Moon considers the truth defense to be redundant. He states: "In my view, a truth defence is not required because hate speech is necessarily untrue. Hate speech makes the claim that the members of an identifiable group share a dangerous or undesirable trait – that they are by nature violent or corrupt or dishonest – and must be stopped by violent means if necessary. Our commitment to equality entails a rejection of any view that the members of a racial or other identifiable group are inherently inferior or dangerous." Furthermore, Moon worries that the truth defense would give defendants the platform in tribunal to restate their odious views for the record. The implication seems to be that, if only the narrowest scope were used to define hate speech, and if the intent to offend was legally important, then the truth defense is unnecessary.

Looking at the CHRC complaints process, Moon concludes that it is ill-suited to the investigation of Section 13 complaints. Investigators are required to investigation all complaints, even those that have not chance of succeeding at the tribunal. While it was beyond his mandate to scrutinize the conduct of the investigators throughout the process, Moon did judge the process to be highly consuming of time and resources. Also, and astonishingly, Moon judges the process to to too onerous on the complainant. As baffling as it seems, the report suggests that it is a burden upon complainants to have to track down or otherwise encounter hateful invective on the internet and then initiate the complaint process with the CHRC. In lieu of this complaints-driven system, Moon would see the CHRC possibly given to power to initiate investigations themselves. This would be a similar amendment to the recent Ontario amendment to the Human Rights code. Well, to put it bluntly, no thank-you.

Moon does qualify these last points: "I am not recommending that the CHRC play a greater role in monitoring hate speech on the Internet, since this would require a considerable increase in resources and would involve the CHRC in a police-like role that it is not designed to perform."

In the final analysis, the initial recommendation for repeal of Section 13 makes the most sense. Hate speech is best dealt with in criminal court. And surely, the court system provides the best guarantee that intent (mens rea) is considered, that only the narrowest definition of defamatory hate speech is used for prosecution, that expressions of hate are linked by evidence to an actual or imminent threat, that strict rules of evidence apply, and that the standard of proof is high. The alternatives offered by Moon (i.e., tweaking the act through targeted amendments), will surely fail to address the problems that arise when a Human Rights body investigates public speech.

Well, the trifecta of repeal advocacy would seem to be in place. The question remains as to whether this new alignment of the planets and stars will move the political tides? In a minority parliament, this should be interesting.

No comments: