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Canadians
heard a long time ago, at least as long ago as 1990,
that they are not free to speak their minds as they
see fit. 1990 was the year the Supreme Court of Canada
ruled constitutional Section 13 of the Canadian Human
Rights Act. Section 13 says that it is "a discriminatory
practice" to communicate "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." It is under s. 13 that
a complaint against Maclean's magazine has been filed
with the Canadian Human Rights Commission. It's indirectly
because of s. 13 that provincial and territorial human
rights commissions see fit to consider complaints about
what people have said or written or drawn - as in the
current complaint against The Chronicle-Herald for publishing
an editorial cartoon that offended some readers.
Now
none of us wants that any group of people is vilified.
We don't want our ears bruised by racist epithets and
we don't want to witness displays of contempt. And yet
one doesn't have to be a free speech absolutist to see
what is wrong and dangerous with s. 13. It is addressed
to any matter that "is likely to expose" a
person to hatred.
What you say need not actually expose anyone to hatred.
It need not even be intended to expose anyone to hatred.
Now consider the phrase "hatred or contempt."
These subjective attitudes shade imperceptibly into
dislike or disapproval and finally into simply turning
a cold shoulder.
Who can tell whether what has been expressed is hate?
The test here could very well be just that someone might
feel they've heard hate.
Worst of all, under s. 13, what you say need have no
discriminatory effect in order to be a discriminatory
practice. No one need be harmed.
Since
it is vague and not about harm, s. 13 could be used
to charge with discrimination a person who, in discussing
a serious matter in public, related an opinion, not
his own, to which someone might conceivably take offence
(though no one did), even though relating this opinion
harmed no one. It would just depend on the attitudes
and agenda of the human rights commissioners. And what
if the opinion related happened to be true? That would
be neither here nor there - after all, what matters
is that someone could conceivably feel that she received
a cold shoulder.
A
person of sense in 1990 could easily have predicted
that s. 13 would soon be used, as it has indeed come
to be used, to bully people away from saying what sitting
commissioners happen not to want to hear. The Supreme
Court had three people of sense on it in 1990. The Court
upheld the constitutionality of s. 13 by a mere 4-3
majority. The Justices who got their way discounted
their colleague's fears. As long as authorities remember
that hatred and contempt are extreme feelings, they
said, and keep in mind that the purpose of the Act is
to overcome discrimination, and not to censor speech,
Canadians have no reason to fear that a chilly climate
for opinion will descend on the country or that s. 13
will be used to control the expression of opinion and
emotion. These Justices neglected the sage advice never
to make a law that requires intelligence or goodwill
on the part of those who administer it.
Happily,
Keith Martin, the member of parliament for Esquimalt-Juan
de Fuca, a riding on Vancouver Island, has introduced
into the House of Commons a private member's motion,
M-446, to delete s. 13 of the Canadian Human Rights
Act. Unhappily, the matter of s. 13 hasn't yet become
a political issue. Unless a political party takes it
up, M-446 will languish, and unless Canadians make s.
13 a political issue, no party will take up M-446. We
need to communicate to politicians our support for M-446.
Keep
in mind that s. 13 is peripheral to the Human Rights
Act. Removing s. 13 will in no way prevent federal or
provincial human rights commissions from effectively
addressing discrimination in jobs, housing, and the
rest. Harmful hate propaganda will remain criminal,
a matter for the police and the courts, as will public
mischief (shouting "fire" in a crowded theatre),
incitement to violence, and conspiracy to commit a crime.
Civil courts will continue to provide remedies for libel.
Nothing that matters would be lost to us should human
rights commissions no longer be able to censor, suppress,
or punish speech.
Let
us thaw the chilly climate in which we presently live
so that we may speak candidly with each other about
whatever is important to us.
Support publicly Dr. Martin's motion so that our politicians
will come to do so, too.
Mark
Mercer is a professor, Department of Philosophy,
Saint Mary's University, Halifax.
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