Yesterday, the Canadian Human Rights Commission tabled a rare special report to Parliament, the culmination of months of consultation and study on the issue of hate speech on the Internet. Over the course of many months, Canadians have heard arguments that Section 13 of the Canada Human Rights Act, governing hate on the Internet, serves as a curtailment on freedom of expression.
Section 13 prohibits the repeated electronic transmission of messages that are likely to expose an individual or a group of individuals to hatred or contempt.
It has always been a controversial section. A particularly vigorous debate has arisen since 2007, when a complaint (subsequently dismissed) against Maclean's magazine was filed. Our report, while proposing amendments to the act, rejects the notion that human-rights legislation, and the processes used to enforce it, are an unreasonable restraint on freedom of expression. Support for this view was articulated by the Supreme Court of Canada, which concluded in a 1990 decision that hate propaganda presents a serious threat to society:
"It undermines the dignity and self-worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality."
Tolerance and open-mindedness are ideals to which Canadians have subscribed, and are part of the quest for equality that has come to define our country all over the world. They are the foundation of the Canadian Human Rights Act, whose promise is to give effect "to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have" without discrimination.
Some who disagree with this notion would have Canada weaken its human-rights system, taking the view that freedom of expression is the paramount right in Canadian society, over and above the right of all citizens to be protected from the harm that can be caused by hate messages.
In fact, there is no hierarchy of rights with some rights having greater importance than others. They work together toward a common purpose.
It is up to legislators and courts to find the appropriate balance that best protects the human rights and freedoms of all citizens. Canada has an enviable track record in this regard, and our Charter of Rights and Freedoms is viewed as a model for other free societies to emulate. Human-rights commissions and tribunals provide access to the justice system and remedies for those who believe they are the victims of discrimination. As is the case with all administrative law bodies, they ensure that all parties are protected by the rules of natural justice, and that frivolous complaints are efficiently disposed.
Canadians expect fairness and efficiency from their human-rights system, and we must continue to offer both.
However, I believe critics of human-rights commissions and tribunals are manipulating information and activities around rights cases and freedom of expression to further a new agenda. This agenda posits that rights commissions and tribunals, and the attendant vigilance over all the rights and freedoms Canadians now enjoy, no longer serve a useful purpose. In this way, the debate over freedom of expression has been used as a wedge to undermine and distort our human-rights system.
Ironically, a debate about balancing rights has not itself been balanced. One can only surmise that if these critics succeed, thus would begin a broader assault on freedoms they would subordinate to absolute freedom of expression.
Ensuring the promotion and protection of human rights is a responsibility that belongs to all of us. Our diverse and inclusive society was created through a commitment to equality, dignity and rights. We have come a long way, but we cannot afford to relax our vigilance or declare victory. Together, we must ensure that those who are the most vulnerable in our society are not further marginalized.
To be sure, the debate over freedom of expression and hate messages will continue. The commission welcomes that debate; it is a positive and democratic exercise. By presenting its special report, the commission's aim is to contribute a balanced analysis for those interested in developing informed opinions on this passionate topic.
Jennifer Lynch is Chief Commissioner of the Canadian Human Rights Commission.