Fix, don’t scrap, rights panels

Bill Whatcott is a man who doesn’t much like gay men and isn’t shy about saying so. The Saskatchewan Human Rights Commission thought that what he said went beyond dislike, all the way to hate. That ruling went to the Supreme Court, which is now trying to decide whether hate speech should be free speech. In doing so, the Canadian Human Rights Act and the Criminal Code might have to be re-written.

About time, say all the opinionators. Ezra Levant over at Sun TV is licking his chops: take that you Human Rights commissars, you free speech police. Well, not so fast.

Hate crimes, as determined and reported by police are going up in Canada—by 42% in 2009, on top of a 35% increase in 2008. It is pretty much the only crime that is actually increasing. It is also, the police speculate, one of the most unreported.

“There are glances of hatred that stab, and raise no cry of murder,” George Eliot wrote in 1866—a woman who felt it necessary to write under a man’s name. Fifty points if you know her real name without looking it up.

Hate speech, even if it doesn’t provoke violence, is a cancer. It spreads its malice until conditions become ripe for violence. Hate speech, when it is not stopped or condemned, gives a kind of permission for action.

That is what dug the mass graves in Kosovo, and how hatred for blacks moved from Jim Crow laws to lynchings in the United States. And that is how (according to the Ipperwash Inquiry) we in Canada got from anti-Native rights rhetoric to the death of Dudley George.

As B’nai Brith points out in a 2008 report supporting Human Rights Commissions, “The Holocaust did not begin with censorship. It began with hate speech.”

Paul Lachine. Used with permission of the artist (http://www.paullachine.com/)

In its report, B’nai Brith argues that the Criminal Code is not enough—and too much. Section 319 obliges the Crown to show that an expression of hatred would “likely lead to a breach of the peace.” That’s an awfully high bar to meet and a lot of hate can slip under it. But the Criminal Code is a very big and expensive hammer, useful only after hate propaganda has inflamed passions to the point of violence.

Section 13 of the Human Rights Act, is the section that mandates Human Rights Commissions to decide what is or is not hate speech. Properly implemented, it is a scalpel. It allows Commissions to stop the hate before it can spread and do more damage, rather like a surgeon making a pre-emptive excision of a cancerous tumour. In this way, hate speech can be dealt with at a lot less cost to governments, the individuals involved, and to free speech.

Sure it’s a nasty job, deciding what is or isn’t hate. What’s free speech to one is hate speech to another. But we delegate all kinds of nasty jobs to unelected, quasi-judicial bodies: the police, workman’s compensation boards, criminal injuries compensation boards. Why not have qualified people adjudicate what’s hate speech without resorting to the Criminal Code and the expensive and stressful court process that entails?

The B’nai Brith report does a pretty good job of arguing for the scalpel over the sledge hammer and makes some very good suggestions for cleaning up the process by which Human Rights Commissions come to their decisions.

It makes you wonder why the Prime Minister, given the position of B’nai Brith, one of his staunchest allies, would float the idea of getting Human Rights Commissions out of the business of adjudicating hate speech altogether by scrapping section 13.

What is even more curious is news that Mr Harper is looking at banning speech that “glorifies terrorism.” What would come under that scrutiny? The play he disliked (without seeing) at Toronto Fringe in 2011? How about the hymn, “Onward Christian Soldiers, marching as to war”? Maybe if someone sang instead, “Onward Islamic soldiers, marching to intifada?” The “glorification of terrorism” is as open to abuse as section 13’s “any matter likely to expose a person or persons to hate.”

When I look at the statistics on hate crimes and read some of the commentary that passes for free speech, it seems that we are becoming a more hateful people. As Limp Bizkit sang just before 9/11, “Now I know why you wanna hate me; ‘Cuz hate is all that the world has even seen lately.”

And that’s why we should keep section 13 in the Canadian Human Rights Act. If Human Rights Commissions need fixing, let’s fix them. Let’s not neuter them.

© David McLaren January 2012

This article appeared in Sunmedia papers the week of 11 February 2012.
There is another version that resurrects Wilson (from Orwell’s 1984) in the time before the revolution. The editors liked the one above. I liked the one below. Which do you like better?

Before the Revolution 2—The Two Minutes Hate

Winston sat in his cubicle in the Department and stared at his computer screen for a long time. O’Brien, his boss, had sent him a memo saying the Minister wanted a rationale for doing away with section 13 of the Human Rights Act. The Prime Leader’s Office had deemed it too vague to be useful and a threat to free speech besides.

He always got these assignments. He got them because he was, except for O’Brien himself, the longest serving policy analyst in the Department. He had somehow survived the purge of the civil service, and now the Party deemed him loyal enough to impart some sort of historical validity to their policy changes without damaging the new reality they were constructing.

This assignment was a tough one though. Section 13 was the only section in the Human Rights Act that dealt with hate speech. All the rest dealt mainly with denial of services, housing, jobs, on the base of gender, race—the usual “classes of persons.”

But Winston knew that hate crimes were going up—77% in 2008-9, according to police statistics. And if he knew this, the Opposition would know it and so would some in the media who still called themselves journalists. They would make mincemeat of the Party if it scrapped a measure to deal with a crime that was actually increasing while enacting punitive measures to deal with crimes that were decreasing.

He supposed the Prime Leader’s response would be that the hate measures of the Criminal Code were sufficient. But, as B’nai Brith pointed out in its 2008 report supporting Human Rights Commissions, the Criminal Code was a very big and expensive hammer, useful only after hate propaganda had already done its damage, and only if it “is likely to lead to the breach of the peace,” to quote section 319.

Section 13 of the Human Rights Act, properly implemented, was a scalpel. It allowed Human Rights Commissions to stop the hate before it could spread and do serious damage, rather like a surgeon making a pre-emptive excision of a cancerous tumour. In this way, hate speech could be dealt with at a lot less cost to governments, the individuals involved, and to free speech.

Winston remembered another report that said more or less the same thing—the Ipperwash Inquiry Report, in 2005. Judge Linden determined that the Harris Government contributed to the shooting death of Dudley George by adding to the hateful rhetoric that swirled around the Aboriginal occupation of a Provincial Park.

As B’nai Brith pointed out, “The Holocaust did not begin with censorship. It began with hate speech.”

Winston sighed. The B’nai Brith report itself was a problem. Under its Executive Director, Frank Dimant, B’nai Brith had become a staunch supporter of the Party and of the Prime Leader personally. Gutting Human Rights Commissions of their ability to deal with anti-Semitic speech was not going to go down well in certain influential circles.

There was something else that bothered him. Even as it was looking at abolishing Section 13, the Prime Leader’s Office was considering banning anything that glorified terrorism. Winston wondered if that play the Prime Leader disliked at Toronto Fringe in 2011 would fall under the ban. Or the hymn, “Onward Christian soldiers, marching as to war …” Maybe if someone sang instead, “Onward Islam’s soldiers, marching to jihad.” Who could tell? The “glorification of terrorism” was as vague as section 13’s “any matter likely to expose a person or persons to hate.”

The Prime Leader’s Office could either get hate-free speech (if it kept section 13) or free hate-speech (if it cut it). No matter how hard he thought, Winston could not see how it could get both at once.

His head was beginning to hurt. For a break he went online for what Julie, the office cynic, called their daily two minutes hate.* Internet use in their Section was being closely monitored these days but DoublePlusGood.com was allowed.* More than allowed, it was quietly and subtlety encouraged and most in his office tuned in for at least a couple of minutes a day.

He clicked on “The Source” with Ezra Levant. Levant had had his own run-in with Human Rights Commissions when he re-reprinted cartoons mocking Islam, or rather the version of Islam promoted by “political Islam”.

The rant of the day was no surprise to Winston: Ezra was calling Human Rights Commissions kangaroo courts and its officers free speech commissars. After exactly two minutes Winston clicked on the close button and stared some more at O’Brien’s memo. His brief was due first thing tomorrow.

Clearly he was going to have to doublethink this thing. Yes, thought Winston, it’s going to be a long night.

*cribbed from George Orwell’s 1984.

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About David McLaren

David McLaren is an award-winning writer. He has worked in government and the private sector, with NGOs and First Nations in Ontario. He is currently writing from Neyaashiinigamiing on the shore of Georgian Bay and can be reached at david.mclaren@utoronto.ca. In February 2015, he won the nomination for the NDP to represent the riding of Bruce-Grey-Owen Sound in the 2015 federal election. See that page for writings during the campaign.
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2 Responses to Fix, don’t scrap, rights panels

  1. Considerably, the post is in reality the greatest on this laudable topic. I match in with your conclusions and definitely will eagerly look forward to your incoming updates. Saying thanks can not simply be enough, for the fantastic clarity in your writing. I will certainly at once grab your rss feed to stay privy of any updates. Pleasant work and also much success in your business efforts!

  2. Interesting that s. 319 of the Criminal Code defines hate speech as “likely lead to a breach of the peace.” I had forgotten that but was, nonetheless, thinking that the place to draw the line is one step short of inciting to riot, or inciting any other criminal act. Inciting has always been a crime, for the same reason as the acts which are incited are crimes. If we restrict free speech only when the speech is likely to incite then I expect that the Supreme Court will find (a) that this is an infingement of free speech, contrary to the Charter, but that it is a limitation justified under the limitations speelled out in s.1 of the Charter.
    Best regards,
    Mickey Posluns.

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