Report says hate speech should not be covered by Human Rights Act

A new report to Canada's Human Rights Commission says the law should be changed so the federal agency no longer investigates complaints relating to hate speech.

A new report to Canada's Human Right Commission says the law should be changed so the federal agency no longer investigates complaints relating to hate speech.

Richard Moon, a professor at the University of Windsor, Ont., who authored the report, says the section of the Canadian Human Rights Act that prohibits communication that exposes people to hate should be repealed.

"My principal recommendation, in the end, has been for the repeal of Section 13," Moon told CBC News on Monday. "That does not mean that we no longer have hate speech regulation. What it means is that the Criminal Code of Canada, which has a ban on the wilful promotion of hatred, would be the recourse."

In his report, which was made public Monday, Moon also suggests that the application of the Criminal Code provision should also be limited. He says it should only be applied in cases where the speech "explicitly or implicitly threatens, justifies or advocates violence against the members of an identifiable group."

Moon argues that this narrower definition would be an awkward fit with human rights law.

"Human rights codes understand discrimination very broadly," Moon said. "They understand discrimination when dealing with employment or accommodation."

That is why, for example, Moon said, someone who fails to install a wheelchair ramp may be the subject of a complaint.

"It's very much oriented toward education, conciliation [and] trying to bring the parties together in some way and recognize the needs of each other."

In his report, Moon recommends focusing attention on the most extreme forms of hate speech.

"Expression that stereotypes or defames the members of an identifiable group is offensive, insulting and harmful," Moon wrote. "Nevertheless, censorship of this expression is not a viable option. Because discriminatory views or assumptions are so widely held and circulate generally in society, they cannot be eradicated through censorship."

To try and do so, Moon concluded, would require "extraordinary intervention by the state."

"We must develop ways other than censorship to respond to expression that stereotypes and defames," Moon wrote.

But the more extreme forms of expression, advocating violence, merit a stronger response.

"That extreme kind of expression is better dealt with in the context of criminal law rather than an administrative structure that is oriented to a broad and inclusive notion of discrimination," Moon said.

Moon's recommendation is not sitting well with the Canadian Jewish Congress (CJC), which has lobbied for protection of minorities targeted with hate messages.

"Certain speech does not require criminalization, but certainly does require some kind of a hand in guiding people," Bernie Farber, the CJC's chief executive officer told CBC News on Monday.

If Section 13 of the Canadian Human Rights Act were repealed, Farber said there would be a void in the legal landscape.

"It leaves Canadians, in general, without access to a part of the justice system in relation to the promotion of hatred towards identifiable groups," Farber said.

The commission has asked the public to comment on the recommendations.

Philippe Dufresne, senior legal counsel for the commission, told CBC News that Canadians need to have a discussion about striking a balance between protecting free speech and controlling hateful messages.  

"The goal is to find the right balance," he said. "Not restricting or chilling legitimate debate but at the same time, as Professor Moon indicates, recognizing the great harm that extreme messages of hatred can cause and looking at the best ways to deal with them. Again, finding that right balance."

Dufresne said the commission is open to new ideas and will prepare its own recommendations for Parliament and will submit those in mid-2009.