Monday, November 24, 2008

Speech Warriors™ : strike three

It's been a rough few days for Canada's Speech Warriors™.

Strike One: A "real court" upheld a CHRC ruling against neo-Nazi Terry Tremaine.

Strike Two: The RCMP completed its investigation of the CHRC for allegedly hacking into a private citizen's wireless internet account, and found no evidence to support the allegation. Ezra Levant exploded into a foaming frenzy upon hearing the news. He prefers to believe the neo-Nazis down at Stormfront, and insists that hacking did so take place, it did, it did, it did so too.

"The only question is whether that hacking reached the level of a crime; the RCMP thinks it didn't."

Uh, no, Ezra, that's not how it works, and as a lawyer you know better than that. Hacking is a crime. There's no magic point at which hacking becomes a crime. The RCMP didn't find evidence to support the allegation of hacking, period. Deal with it.

Strike Three: Dr. Richard Moon, who conducted an internal review of CHRC procedures with respect to the agency's investigation of Internet hate speech, has submitted his report.

The Speech Warriors
have been eagerly awaiting this moment, having carefully hedged their bets: if it condemned the CHRC's procedures, this would be welcomed with applause, trumpets and banners; if it failed to do so, it would be because Moon was in a conflict of interest, it was an internal review by the CHRC, the mandate was too narrow, etc., etc.

Indeed, Ezra Levant attacked the report before it even appeared [h/t commenter truewest]. Not being blessed with foreknowledge, however, I actually had to wait to read it.

There's something in here for all sides of the debate to like and to dislike, as it turns out. Moon's measured analysis requires careful reading--one shouldn't just just skip to the conclusions. Some extracts:

The goal of ending prejudice in the community cannot be accomplished through censorship. The purpose of hate speech law must be more narrowly defined as the protection of the members of an identifiable group from the risk of violence that results from expression that threatens, advocates or justifies violence. While it is unrealistic to imagine that more familiar forms of discriminatory expression can be censored out of public discourse, the failure to ban the extreme or radical edge of prejudiced speech – that which threatens, justifies or advocates violence – carries too many risks, particularly when it is directed at the members of a racist subculture or occurs in a context in which there is little opportunity for response. This narrower purpose offers a better account of the actual practice of hate speech law in Canada, which focuses on the most extreme and hateful instances of expression. The small number of section 13 cases that have been sent by the CHRC to the Tribunal, and in which the Tribunal has found a breach of the section, have all (or almost all) involved expression that is so extreme and hateful that it may be seen as advocating violence against the members of an identifiable group. (28)

Most religions have something to say about how we should act towards others and the kind of community we should work to create. For these reasons, religious beliefs or values cannot be insulated from debate and criticism, even that which is harsh and uncivil. The criticism of religious belief cannot be restricted without undermining our commitment to freedom of expression. To count as hate speech against a religious group, the communication must target the members of the group, attribute to them certain dangerous or undesirable traits, and call on others to take violent action against them. However, the line between an attack on the group, which may sometimes amount to hate speech, and an attack on their beliefs, which cannot be restricted, may not always be easy to draw. (30-1)

Moon recommends the outright repeal of Section 13--or revision to it. As support for repeal, he argues that the current interpretation of Sn. 13 is already so narrow that it coincides, more or less, with the requirements of the Criminal Code's hate speech provisions. If it is repealed, he favours revising the Criminal Code to prevent the nullification of the law by provincial Attorneys General, who may presently withhold consent to proceed.(33) He makes a number of other proposals as well for increased reliance upon the Criminal Code provisions:

In the fight against hate on the Internet, police and prosecutors should make greater use of section 320.1 of the Criminal Code, which gives a judge power to order an Internet service provider (ISP) to remove “hate propaganda” from its system. Each province should establish a provincial “Hate Crime Team,” composed of both police and Crown law officers with experience in the area, to deal with the investigation and prosecution of hate crimes including hate speech under the Criminal Code. (2)

In effect, he is proposing that much of what we would lose on the CHRC roundabout we would gain on the Criminal Code swings.

But most of the report, in fact, is taken up with the suggested revisions of Sn.13, and they make quite a bit of sense. If revision is the preferred alternative, he would restrict the language of the section to refer only to the advocacy of violence; and he would add an explicit intent requirement. Indeed, such a requirement would trump a truth defence, which he therefore does not propose adding (36-7).

Moon ventures into troubled water at one point:
"In my view, a truth defence is not required because hate speech is necessarily untrue." (37). This is a little confusing, but his citation of Chief Justice Dickson on the previous page indicates a similar position on Dickson's part. The Chief Justice, in Keegstra, stated: "I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred against a racial or religious group." Anyone familiar with the sordid history of the Southern states knows better: using inflammatory rhetoric to emphasize the race of a Black person accused of raping a white woman, whether the charge was true or not, was sufficient to set off the lynch mobs.

But the objection to a truth defence is better stated immediately afterwards. No doubt thinking of Zundel's 1985 trial, Moon writes:

A truth defence will enable a respondent in a section 13 case to repeat her or his odious claims and make them the subject of legal contest. The focus of the case will shift to historical, sociological or psychological claims that are simply window dressing for more basic assertions about the dangerous or dishonest nature of the members of certain groups. While these claims will ultimately be repudiated by the tribunal, during the hearing they will be presented as debatable interpretations of events and actions.

Turning to the current procedures employed by the CHRC in investigating complaints under Sn.13, Moon makes what I believe to be very sensible recommendations, which in fact should be put into effect in provincial and territorial jurisdictions as well.

He makes the point that, as currently constituted, Sn. 13 requires dedicated activists (are you listening, Richard?) to breathe life into the section. In his view (38-9), this is unsatisfactory: the CHRC itself should take on the carriage of a case once a complaint has been submitted. One of the positive results of doing this, he argues, would be a more effective screening mechanism at the outset: complaints that are not simply vexatious or frivolous, but are not likely to meet the bar required for them to be upheld, can be weeded out instead of proceeding to the Tribunal. Bravo!

The Speech Warriors
will not be happy with his further recommendations. Moon wants ISPs and the print media (oddly, the electronic media are exempted without explanation) to be accountable to the public in regard to hate speech. He proposes a national regulatory body for ISPs (41) and mandatory Press Council membership for newspapers (41-2). He makes an excellent general point in this respect:

The familiar refrain of those who oppose the censorship of hate speech or group defamation is that the answer to bad speech should be “more speech” – hate speech should be answered, not censored. But if we are serious about the “more speech” answer, then we must think about the real opportunities individuals and groups have to participate in public discourse and respond to speech that is unfair and discriminatory...

A newspaper is not simply a private participant in public discourse; it is an important part of the public sphere where discussion about the affairs of the community takes place. As such, it carries a responsibility not to defame or stereotype identifiable groups within the Canadian community. (41-42)

There is much here to chew on. Moon's proposals are clearly a balancing act between free expression on the one hand and social responsibility on the other. His impulse is democratic, and his report is a substantive contribution to the on-going debate.

I hope that revision rather than repeal is the chosen alternative primarily because the Tribunal offers relative ease of access to justice by the general public. The proposed revisions would not only streamline the process, but allow the screening out of ill-founded complaints from the start. In any case, a new round of discussions has now been ignited. One hopes that the Speech Warriors
will focus on the substance of the report rather than engage in their usual personal attacks, but I'm not holding my breath.


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