Exclusive: Rumoured Changes to CHRC Arbitrations May Result in Further Censorship

A panel discussion at the recent 30th annual 'Canadian Association of Journalists National Conference' revealed motivations and suspected actions by the Canadain Human Rights Tribunal to 'strengthen' its judgements of hate crimes related decisions.

While not completely unexpected, it is nonetheless shocking to discover that there has been little if any national media coverage of the recent 30th annual meeting of the Canadian Association of Journalists National Conference (CAJ) that took place in Edmonton, AB (Canada) from May 23–25, 2008. Remarkably, there was no official coverage of the panel discussion held on the 24th of May which focused on human rights and limitations on free speech in the Canadian media. Although the discussion was attended by Canadian journalists—as this was their conference—the only coverage was by the Cable Public Affairs Channel (CPAC) which was broadcast on their regular 'Public Record' program. Three major viewpoints on these issues were represented by: Dr. Keith Martin – Lib. MP, voicing a somewhat partisan view of the need for increased discussion of the matter(s); Ian Fine – Director General for the Dispute Resolution Branch, Canadian Human Rights Commission (CHRC), speaking on behalf of the CHRC Tribunal; and Ezra Levant – author, journalist, and political activist, speaking strongly against increased censorship and misapplication of the Canadian Human Rights Act (CHRA). Each presented their viewpoint with varying levels of passion and (dis)interest. At the core of the often heated exchange was Section 13 of the CHRA (quoted below). Quoting from Fine's prepared introductory comments:

We believe in the work that we do. We believe that there should be reasonable limitations on freedom of expression but that is not to say that individuals have the right not to be offended.

In the back-and-forth of public debate everyone should be able, without fear, to say or write things with which others may disagree and even find offensive. What is not permissible, however, is to use free speech as a cover for hatred.

What Fine was unable to adequately address was two-fold: 1) the disagreement between clauses within Section 13 of the CHRA, and 2) the systemic incongruity between its intended purpose and application / eventual judgements. 1 – Section Disagreement Section 13 was designed to provide guidelines for the determination and possible prosecution of hate speech (as a criminal act). On its face, it would appear to serve that purpose. Quoting directly from the source:

Hate messages

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, 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.

Interpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

Interpretation

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

Subsection (1) clearly identifies hate messages as anything "likely to expose a person or persons to hatred or contempt ... [if] those persons are identifiable on the basis of a prohibited ground of discrimination." Simply put, were someone to use the N-word, F-word, or K-word (my reasons for the odd word usage will become clear) rather than black / African-American, gay man, or Jew via phone, voicemail, or Internet usage, said person would be committing a hate crime. The recipient of the hate speech would then have sufficient grounds to bring a claim before the CHRC. The difficulty in interpretation and fair application arises out of subsections (2) and (3) as Internet correspondence does not exempt one from prosecution, yet standard broadcast media, i.e., television or radio, transmission is exempted. Nor are the owners / operators of broadcasting stations held responsible, but website owners / maintainers would be held accountable. Prior to the advent and explosion of blogging, online commentary, and news sources, such as DJ, this would not have caused much concern. However, now that traditional broadcast media have also ventured into cyber-space, there is further room for confusion when bringing claims under Section 13 before the CHRC Tribunal. Not only are the goose and gander being treated differently, but it also depends on which either represents itself as. 2 – Systemic Incongruity in Application Once the niceties and pleasant introductions by Martin, Fine, and Levant were completed, claims of blatant favouritism, gross mismanagement, cloak-and-dagger style investigation techniques, and widely inept training were levied at Fine by Levant. It should be noted that Mr. Levant is considered by some to be rather extreme in his definition and defense of free speech, however he was able to provide proof of poor decision making and other internal snafus within the CHRC Tribunal. Much of his supporting evidence concerned the actions of a particular former employee—serving directly under Fine while at the CHRC—who regularly posted under various pseudonyms at a variety of ultra right-wing and blatantly racist web forums. Said employee was said to have been engaging in these practices in an effort to 'trap' other contributors to those sites in acts of overt hate speech. What confounded Levant, and this reporter, is that the same former employee has continued to post in those forums and has then made it a personal mission to bring claims of damages before the CHRC—the prospect of monetary gain appears to have one of the driving forces for these possibly fraudulent claims. Levant presented further evidence regarding an ongoing investigation both internally at the CHRC and by the RCMP regarding the possible criminal offense of hacking into a private citizens email account for the purposes of engaging in this 'trapping' activity by current investigators at the CHRC Tribunal (specifics regarding these investigations are not publicly available). Mr. Fine was unable to respond directly to any of these assertions as he was "unable to speak to the details of an ongoing investigation." He did, however assure all in attendance that when both the internal and RCMP investigations were completed, the CHRC would be cleared of all suspicions of wrongdoing. Dr. Martin was uncomfortably silent during the majority of this often heated exchange. Martin was able to contribute to the vague nature of the clause, "likely to expose ... to hatred or contempt ...", as he has been directly involved in clarifying that and other muddy areas of the CHRA. While all three were able to agree that 'hatred' is by definition an emotion and that the expression of that (or any other emotion) does not necessarily lead to harm on the part of the recipient, Fine argued that Section 13 – as currently written – should be further broadened to allow for greater variance in its interpretation. In his words, "Hatred is the poison that erodes the tolerance and open-mindedness that must flourish in a multicultural society committed to the idea of equality." It was also inferred that the Canadian Parliament is currently being heavily lobbied to make such dramatic changes. Open Discussion Initially, when the floor was opened to questions from the journalists in attendance, there was a palpable silence. Once all had overcome their shock at the extended and heated exchange they had witnessed, several questions (many variations on the same theme) were raised by members of primarily print media. In two cases, representatives of major daily papers (currently at some stage before the CHRC) raised concerns about what – if any – protections that had under Section 13. Others reiterated concerns about how the current Act is interpreted and raised further concerns about changes that would further hamper their ability to act as journalists, i.e., report the news in a fair and open manner without the fear of being unduly censored. It was apparent that the entrenched safety-net allowed for the traditional broadcasting community was not widely known amongst the journalists in attendance—which included members of the protected entities. The implications of the facts, assertions, and accusations alike are staggering for print and Internet based media. Recent activity surrounding the current run-up to the US general election is ample proof of the conviction, raw emotion, and unkind (if not hateful) speech that can result. While there has been no evidence of hate-speech here at DJ, what would be the consequences were a citizen journalist to directly quote something containing content that could broadly be interpreted as such? If that were to happen and a reader felt "exposed to hated or contempt" as a result of those words, he or she would then be able to bring a complaint before the CHRC in Canada. Further, it is likely that journalist would be severely constrained (if not prohibited) from further reporting until the issue had been resolved. Strangely enough, Fine began his opening comments as follows:

People from all over the world choose to make Canada their home because ours is a vibrant and progressive society – welcoming and inclusive.

I can only hope that the majority of our Canadian Parliament keep that declaration foremost in their thoughts should a discussion of rewriting the CHRA make it to the floor.