Section 13: How the battle for free speech was won

Five years, two tribunals, secret hearings, a court challenge and a turning point

Five years, two tribunals, a raft of secret hearings, a Supreme Court challenge. How the battle for free speech was won.

Lorraine Hjalte / Calgary Herald

Five years, two tribunals, a raft of secret hearings, a Supreme Court challenge. How the battle for free speech was won.
Lorraine Hjalte / Calgary Herald

For all the passion it stirred, you’d think it would get a noisier send-off. An ovation, maybe. Or tears. Instead, Section 13 of the Canadian Human Rights Act slipped quietly beneath the waves last week during a night-time sitting of the House of Commons—victim of a private member’s bill and a trailer load of toxic publicity. Brian Storseth, Conservative MP for Westlock-St. Paul, had glanced anxiously around the chamber as his kill bill went through its third reading. “The benches weren’t full,” he recalls. “That always makes for a bit of extra heart pumping.”

Justice Minister Rob Nicholson had voiced support for the legislation. So had the Prime Minister. The result, then, was never in doubt: at 9:35 p.m. on June 6, by a vote of 153-136,  Parliament got Canada’s human rights bureaucrats out of the business of policing speech on the Internet. There was a scattering of applause, and handshakes for Storseth (the bill requires the rubber stamp of Senate approval). “To be honest, it’s all a blur,” says the three-term MP, laughing. But if the passage of Bill C-304 represents a fundamental shift in Canadian culture, you’d never have known it that night. Members dealt with a few housekeeping matters, then waded through a supply bill. Finally, one by one, they trickled out into the cool Ottawa night.

The effect of killing Section 13 will be debated for years among anti-racist groups and civil libertarians. But it is undoubtedly a turning point. Since 1999, Canadians who felt aggrieved by material transmitted online have been encouraged to seek redress under federal human rights law, which targeted material “likely to expose a person or persons to hatred or contempt” based on grounds of discrimination like race, religion or sexual orientation. Storseth’s bill repeals the provision outright, leaving the Criminal Code as the primary bulwark against the dissemination of hate propaganda by electronic means.

With it will go one of the most divisive disputes to grip the country since the introduction of the Charter of Rights itself—a contest of values that over the past five years has pitted Canadians’ desire to protect minorities from discrimination against the bedrock principle of free speech. Mainstream media outlets, most notably Maclean’s, have been hauled before commissions to answer for their published content. The commissions themselves have come under fire for allowing their processes to be used as a bludgeon against legitimate expression, tailored as they are to encourage complainants to come forward. Meantime, a Saskatchewan law similar to Section 13 has become the subject of a Supreme Court challenge that could invalidate hate-speech provisions in most provincial human rights codes. By year’s end, it is conceivable that no human rights commission in the country will be in the business of adjudicating published material.

Is Canada ready for this brave new world of unfettered expression? There was no shortage of critics last week predicting a flood of online hate now that the legislation is gone. “It leaves a huge gap,”says Darren Lund, a University of Calgary professor and human rights activist. “There are so many hate sites right now on the Internet, and I think some reasonable monitoring of the hatred they’re spewing fits with the Canadian ethos of living harmoniously in a democracy.”

The question, of course, is what constitutes “reasonable” and, on that, our values appear to be shifting. The story of Section 13’s demise is in part one of evolving opinion among interest groups, politicians and institutions who were appalled by the spectre of rights commissions being used as instruments of press control, worried that it would make free-speech martyrs out of basement-dwelling hate-mongers. “We recognized the inevitable,” says Marvin Kurz, national legal counsel for B’nai Brith Canada, the Jewish organization that once regarded the legislation as its best weapon against neo-Nazi hate propaganda. “We saw that public respect for Section 13 had ebbed, to the point that even our own people no longer supported it. For a law like that to work, it has to be supported by the people.”

Some folks like to offend. Ezra Levant knew he would stir anger, for instance, when in 2006 he published the notorious Danish cartoons of the Prophet Muhammad in his now-defunct magazine, the Western Standard. Yet even Canada’s leading right-wing gadfly—hungry to get his Calgary-based biweekly some attention—never imagined his decision would land him before a provincial human rights bureaucrat, with the looming threat of hefty financial penalties. Syed Soharwardy, a Calgary imam, complained to the Alberta Human Rights Commission, claiming the illustrations were an affront to the dignity of all Canadian Muslims. Two years later, Levant sat, scarlet with anger, at a pro forma interview as Shirlene McGovern, an investigator with the commission, blandly asked his “intent and purpose” in publishing the images.

Levant had demanded the right to video-record the proceedings, and the resulting footage became a YouTube sensation. Hunching over a conference table, he unleashed a rant that began with him proclaiming the right to “publish what the hell we want, no matter what the hell you think,” and ended with him inviting McGovern to assume the worst about his intentions. “I published the cartoons in the most unreasonable manner. Whatever offends you, I reserve the right to publish, for whatever offensive reason I want. I reserve the right to publish the cartoons for exactly the reason they complain about.”

If there was a watershed moment in the debate, this was it. Levant’s interview (or, as he put it, “interrogation”) became a top 10 hit on YouTube, sparking unaccustomed conversation about the chilling effect of Islamic sensitivities on public discourse. By then, Maclean’s was facing similar complaints over 18 separate articles, including a book excerpt in which columnist Mark Steyn argued high birth rates and the spread of radical ideology in Muslim countries represent a threat to Western values and ways of life.

To maximize publicity—or to raise its chance of winning—the Canadian Islamic Congress (CIC) complained not just to the federal commission but to those in Ontario and B.C. as well. The Ontario commission ruled it did not have jurisdiction to hear the complaint; the Canadian commission dismissed the case without referring the matter to a tribunal. But the B.C. Human Rights Tribunal went ahead with a hearing, combing the content of Steyn’s excerpt for offending material, judging the articles fit for public consumption but chiding Steyn for trying to “rally public opinion by exaggeration and causing the reader to fear Muslims.”

The CIC claimed moral victory. “We are delighted the tribunal has discredited the content of the articles that Maclean’s and Mark Steyn have been publishing,” said lawyer Faisal Joseph. But few others were cheering. Even long-time believers in Section 13 were astounded by the spectacle of a state tribunal reviewing a newsmagazine’s content, while questions of fairness abounded. With no evidence of intent, and without proving guilt beyond a reasonable doubt, critics noted, the tribunal was clearly prepared to brand someone a racist—one of the most reviled labels in Canadian society. “This is a serious business,” Wayne Sumner, a University of Toronto philosophy professor who has studied hate speech, told Maclean’s in 2008. “The proper place for it is in a criminal court, not a human rights tribunal.”

More troubling signs would later emerge, as the procedures and practices of human rights panels came under scrutiny. It turned out that one man, a former commission employee, had been lodging practically all of the Section 13 complaints investigated by the Canadian Human Rights Commission. For a time, Richard Warman had been acting as an investigator while complaints he’d made were before the commission. Officials’ insistence that Warman never wore both hats on the same file was less than reassuring.

Small wonder, then, that Storseth’s bill struck a chord, gaining support from unexpected quarters. B’nai Brith, which had used Section 13 to shut down the website of notorious hate-monger Ernst Zundel, got behind the legislation. “The whole Maclean’s-Mark Steyn fiasco was one of the spurs,” says Kurz, the group’s lawyer. So did the Toronto Star, a normally staunch supporter of state protections for minorities. “Most Canadians have no sympathy for hate-mongers,” the left-leaning paper said last December in an editorial. “But an unwarranted, creeping chill is being cast over free speech, absent any real problem.”

That broad-based backing might explain the muted political response to last week’s vote—a nominally free one which nevertheless split down party lines. While the opposition NDP lamented the end of a tool that helped shut down hate sites, the Liberals let the vote pass with no comment, as did most interest groups representing the country’s minorities. “The only guys I see speaking up for it are a couple of white lawyers who might profit from it,” Levant crowed earlier this week. “It is one of the great pleasures of my life to see the tide turn on this issue, and to know that I played a small role in it.”

Still, the section had its fans, many of whom now wonder what the future holds for the remaining patchwork of provincial human rights law meant to combat hate. In Alberta, Premier Alison Redford is on record saying that province’s provision, Section 3, should be repealed. In Saskatchewan, the government is awaiting a Supreme Court decision in the case of William Whatcott, an anti-gay activist sanctioned for distributing handbills labelling homosexuals as “sodomites” seeking to socialize children into accepting their lifestyle. Incendiary as Whatcott’s rhetoric was, Chief Justice Beverley McLachlin suggested during a hearing last winter that he might not have known he was running afoul of Saskatchewan’s vaguely worded rights code. “An ordinary Lutheran pastor should be able to look at the act,” she said, “and without being a Supreme Court scholar, be able to know whether he can say this or that.”

Even if the provincial statutes survive, notes Lund, the Calgary professor, they are aimed only at printed material; only the federal act empowered commissions to crack down online, where most of today’s hate propaganda is spread. That leaves web-promulgated hate under the exclusive domain of the criminal justice system, where the standards of proof are much higher, and convictions rarer. To even lay a charge, says Stephen Camp, president of the Alberta Hate Crime Committee and a former commander of the Edmonton police hate crime unit, officers must be able to show the material was wilfully promoted; that it targeted an identifiable group; that it met the common-law test of a hate material—and all beyond a reasonable doubt. In short, a lot of complainants will go away dissatisfied.

The rest, presumably, will fall to civil society, which is arguably where the onus belonged to start with. For decades, interfaith groups and non-religious organizations have been promoting tolerance. In recent years they’ve been complemented by hard-core activists who patrol the Internet, ferreting out hate sites and gathering information for the benefit of police. One such organization, the Anti-Racist Canada Collective, told Maclean’s it would keep up its efforts despite the loss of Section 13. “There is an irony, in that its absence might actually make it easier for us to collect intelligence,” a spokesman said in an email. “Online haters may become less reticent about posting their real views.”

That’s not much comfort to groups seeking to silence speech that merely offends. But as the battles of the past five years ease into perspective, even they are reconsidering their positions. Not long after Syed Soharwardy filed his complaint against Levant, for instance, the Calgary imam found himself on the receiving end of his own human rights complaint—from a group of women who claimed they’d been prevented from speaking and subjected to abusive language during a meeting at his mosque.

Experiencing the human rights ordeal from the other side was an eye-opener, he later acknowledged, telling Maclean’s: “I am now quite certain that the best way is for the parties to have dialogue. We need to be able to listen to each other. Human rights commissions should be there, but they are for questions of housing and employment and access to the workplace—not for disputes that are about freedom of speech.”