Bill C-304 Amending Canadian Human Rights Act

I am a Free Speech advocate, as it underpins the Democratic state, it is first among equals I would say. We have to guarantee the free speech rights of raging, ranting, nonentities, so that when people like Martin Luther King, Salman Rushdie, Margaret Higgins Sanger and countless others show up they have a space to talk. But not without restriction as that is foolhardy. The question we face is not whether to set limits on free speech but what kinds. Speech has an effect and so a balance must be sought, between the possible Harm generated from allowing speech against the likelihood Damage caused from restricting it.


John Stuart Mill said  
"...here ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered."
he also accepted that 
"the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others"

I have read Bill C-302 An act to amend the Canadian Human Rights Act and the pertinent sections of the Canadian Human Rights Act in order to understand what is being changed. The head line change is the Repeal of Section 13 dealing with what a hate messages.


Hate messages

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

There were two problem that people had with this section. That the Human Rights commission had power to censor speech and that the burden was set low with the words "likely to expose". For Conservative/Libertarians and others, this section meant outright censorship of speech. A website could be taken down and the owner fined because what they said could possible cause harm to an individual or group. An affected party need only show a likely hood of harm, not actual harm. This did not mean that a panel would find in favour of the complainant, many cases brought under this section were not successful. But it was argued that it lowered the burden of proof unnecessarily and so adversely affected our freedoms. 

With the passing of Bill-302  Canada's Human Rights commission will have no jurisdiction to here cases of hate speech promulgated over the Internet and phone. Hate speech will still be illegal under the criminal code of Canada. All complaints must now pass through the courts.

The question that needs to be asked of any piece legislation is its utility. Does it address a real need, create unreasonable burdens?  

Section 13 introduced a level of responsibility, in the exercise of free speech. A person communicating over the Internet had to be aware that what they said may offend/injured another and the possible consequences of their actions. A person is was still free to test the limits of the legislation by communicating as they see fit, but knowing it comes with a cost. Does this mean self censorship? Yes, and if you argue that freedom of speech suffers due to self censorship, I would agree in principle but require an explanation of the effect with a given context. We already acknowledge that speech is not absolute, we add to it or subtract from it to address necessity.

Section 13 provided access for citizens to express grievances and seek resolution.It provided  a space between letting the alleged abuses go unaddressed or going through the courts, a process that is costly and all ready slow from heavy burden. 

Our conservative citizens, for it was mostly them that were roused, felt section 13 inflicted real harm on freedom of speech primarily by removing action from the courts by giving jurisdiction to the commissions and reducing the burden of proof. They will cite suppression of speech or more honestly, individuals having to answer for their speech some winning some losing. Under section 13 a person had to take responsibly for what they did. I don't think they have proven sufficiently the claim that freedom of speech has suffered. There is no utility in repealing the section, if harm can not be substantiated. 

The application of rights must take into consideration dynamic relationship between the individual and the community. Conservatives rely over much on theory. 

Some have suggested this is the opening salvo on how human rights are addressed in Canada. That I will leave for another time.

It is reasonable to conclude that the amending of the Canadian Human Rights Act today, will lead us to unexpected places. This in part to the use of a Private Members bill to effect change. These bills usually do not face the scrutiny of Government bill, which some suggest is why a lot of Government legislation is being done this way.