The National Post editorial board states that "The Moon report gets it right"
‘The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law.” We can’t recall the last time reading 28 words gave us such an exquisite frisson.
On Monday, the Canadian Human Rights Commission (CHRC) released a consultant’s report calling for the federal human rights police to lose their power to censor speech on the Internet and in other forms of media. We wholeheartedly concur, and urge the federal government to pass legislation bringing about this change now, rather than waiting until after the drawn-out public consultation process proposed by the CHRC itself.
We will admit we had concerns initially about the ability of Richard Moon, a University of Windsor law professor, to conduct an impartial review of the commission’s hate speech powers. He had occasionally in the past expressed what might be described as a collectivist view of freedom of expression — one that appeared to put the desire to protect minorities from insult ahead of the individual’s right to speak his or her mind boldly. Before his selection, Prof. Moon had written that speech has a “social character,” with great “potential for harm.” If left unchecked, “it can cause fear, it can harass and it can undermine self-esteem.”
Since this seemed, superficially at least, to concur with the commission’s own view of free speech — that it is less important than protecting politically favoured groups from criticism — we wrote in an editorial last June that we were hopeful Prof. Moon would be unbiased, but were not holding our breath.
But no such political correctness appears in his final report. Indeed, the only form of government censorship Prof. Moon justifies is that against “extreme expression — which threatens, advocates or justifies violence against the members of an identifiable group.” This type of expression, he notes, is already contrary to criminal law — so in this respect, section 13 is redundant.
On the other hand, he reports, policing expression that merely “stereotypes or defames the members of an identifiable group is not a practical option.” If the commission or the government think reducing mean-spirited remarks against minorities is a noble goal, Prof. Moon explains, they should engage in public education rather than investigating those who use objectionable language or images.
Most, if not all, hate speech complaints should be handled by the courts, according to Prof. Moon. This is significant and sensible, since the courts require high burdens on proof and require a higher standard of evidence than human rights tribunals. Moreover, they are staffed by real lawyers — not civil servants who, as we learned during the recent human rights prosecutions of Mark Steyn and Ezra Levant, have little grasp of Canadian constitutional protections.
Limiting anyone’s free speech should be a last-resort measure in a democracy. Since human rights commissions permit hearsay to be admitted as testimony, and do no guarantee defendants a right to face their accusers or challenge evidence presented against them, they afford insufficient protection of defendants’ rights to justify a punishment as drastic as the loss of free speech.
If Parliament does repeal section 13, it will also close an important shortcut around the judicial and political processes. In recent years, special interest and advocacy groups have realized that, despite their lax evidentiary rules and biased procedures, federal and provincial human rights commissions have roughly the same power to coerce citizens as superior courts. Race- and gender-baiting organizations, not to mention Islamist firebrands, have come to see HRCs as a means to punish opponents, or ram through special treatment for their own members, in a way that would be impossible if they had to go through real courts or Parliament.
However welcome Prof. Moon’s report recommendations are, there are signs the CHRC is already seeking to undermine them. Rather than sending the report directly to Parliament, the commission has called for public consultation followed by its own set of recommendations sometime in the middle of next year. This sounds too much like an attempt to water down Prof. Moon’s conclusions.
What is to prevent the commission from using its consultations as a way to marshal special interest groups to oppose the report? Indeed, the commission is eager to keep its role as speech cop. And special interests are similarly eager to keep using the commission to intimidate their critics into silence.
The government needn’t wait. It should use the occasion of Prof. Moon’s report to axe the CHRC’s power to limit free speech now.National Post