statism watch

Joseph Brean, National Post
Tuesday, June 17, 2008

NIAGARA-ON-THE-LAKE — Faced with a growing controversy over human rights complaints and freedom of speech, the Canadian Human Rights Commission Tuesday launched a major independent review of how it deals with hate messages on the Internet.

“I’m a free speecher. I’m also a human rightser,” said Jennifer Lynch, chief commissioner of the CHRC. “We have a responsibility to lead the debate on how we can keep our policy up to date to effectively regulate hate on the Internet.”

Headed by Richard Moon, a law professor at the University of Windsor, the review will involve a re-analysis of Section 13-1 of the 1977 Canadian Human Rights Act, which applies to “telecommunication” of any material “that is likely to expose a person or persons to hatred or contempt,” based on 11 specific grounds such as race, gender or religion.

Recommendations could include changes to the law, formal guidelines for the commission or requests for further guidance from Parliament.

A parallel internal probe will examine the methods used by CHRC staff in investigating complaints under this section, which have controversially included using pseudonyms to access and post material to target Web sites.

Although hate-message cases account for only about 2% of the CHRC’s workload, they have emerged as the topic of a divisive national debate, in which freedom of speech is often seen as incompatible with freedom from discrimination.

That debate has focused most notably on hate speech complaints brought against Maclean’s magazine in three jurisdictions by a group of Muslim law students. But it had been brewing earlier because of similar complaints against conservative blogger Ezra Levant, who published the Danish Muhammad cartoons, and far-right Internet propagandist Marc Lemire. Mr. Lemire is pursuing a constitutional challenge to section 13-1 as part of the case against him at the Canadian Human Rights Tribunal.

Critics argue that the section’s legal test of “likely to expose” is too loose because truth is not a valid defence, and intent – whether malicious, journalistic or even scholarly — is irrelevant.

In an interview on Tuesday with the National Post, her first since the controversy hit the headlines this year, Ms. Lynch said the “tidal bore of interest on both sides of the equation” prompted her to take this “more formal step to lead some cutting-edge thinking.”

She was clearly familiar with the criticisms levelled against her commission, and had an answer for each.

She said the CHRC’s harshest critics have misunderstood its dual role to decide which cases to refer to the Canadian Human Rights Tribunal for adjudication and to promote awareness and lead public discussion of human rights.

“No one would ever call up the chief justice of the Federal Court and say, ‘Hey, are you ever overdoing it! What are you taking this case for?’ ” she said.

She compared the commission’s work on complaints to that of a court registrar, meaning it has neither the ability nor the duty to make legal findings of fact.

“The challenge is identifying Canadian jurisdiction over hate on the Internet and who put it there,” she said.

She denied that her investigators have ever posted bigoted comments on the Internet, or engaged in entrapment, as has been frequently alleged.

“We have not done that and I would not tolerate it,” she said.

But she acknowledged that many of the CHRC’s investigatory strategies were developed before people realized the full impact of the Internet revolution and how it would affect human rights law.

She said the commission is doing “a superlative job” of weeding out the frivolous or vexatious complaints, as evidenced by the fact that not a single hate message complaint referred by the commission to the tribunal has been overturned on judicial review.

She has “no discomfort level” with the prominence of former CHRC employee Richard Warman, who has brought more than a dozen complaints under section 13-1, including Mr. Lemire’s, and boasts a 100% success rate.

“I have pride and respect for the work that’s done by commission members,” she said, and she expects that it always “adheres to the principles of natural justice.”

Prof. Moon’s study will be the first major analysis of section 13-1 since the Supreme Court examined it in 1990, in the case of neo-Nazi phone-line operator John Ross Taylor. The court determined, by a vote of 4-3, that the section placed a “reasonable limit” on the Charter right to freedom of expression.

At the time, the section only applied to telephone communications, but it was expanded to include the Internet as part of the security response to 9/11. In the process, and because of the rapid expansion of the Internet, the scope of section 13-1 was drastically widened to include everything from individual bloggers to mainstream media.

“I don’t think that’s what was intended, but now that most media have [Web sites], suddenly they do fall within the scope of it,” Prof. Moon said yesterday.

Prof. Moon, whose expertise is in constitutional law as it relates to freedom of speech and religion, said his mandate is to “think broadly” about whether section 13-1 is necessary and whether it should be adjusted.

He said the scope of his review is necessarily limited by the tight deadline. His mandate is to provide a detailed plan by July 4, and a final report by October 17.

Source | See Also: Blogger arrests hit record high | CRTC revisits Internet oversight

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