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Tuesday, October 28, 2008

Section 13 (1) of the Canadian Human Rights Act

It seems that the hammer used to attack free expression through our human rights agencies is Section 13 (1) of the Canadian Human Rights Act (CHRA).

Section 13 (1) says in part 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.

The original purpose of Section 13 (1) of CHRA was to overcome discrimination; not to censor speech. That was then, but despite best intentions, it now seems that Section 13 (1) is being used by minority groups and human rights agencies to control the expression of opinion and emotion.

Apparently and bizarrely so, truth is not a defence to a complaint under Section 13 (1) of the CHRA, even though such defences are available in tort actions. The rationale is that the prohibition on discrimination is concerned with adverse effects, not with intent.

Keith Martin, the Liberal Party member of parliament for Esquimalt-Juan de Fuca has introduced a private member’s motion, M-446, to delete Section 13 (1) of the Canadian Human Rights Act. As I understand the situation, however, a political party must take up M-446 and support or it will languish without a vote.

The damage being done to our democracy would seem to be obvious to anyone reading our newspapers—the Mark Steyn/Maclean’s and Levant cases were widely publicized—so I hope this issue will soon be championed in parliament.

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  1. Truth is also a defense for the crime of "Willful Promotion of Hatred":


    Wilful promotion of hatred

    (2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

    (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

    (b) an offence punishable on summary conviction.

    Defences

    (3) No person shall be convicted of an offence under subsection (2)

    (a) if he establishes that the statements communicated were true;

    (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

    (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

    (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

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