Law Times

PAGE 4 NEWS JULY 14/21, 2008 / LAW TIMES Windsor academic to review controversial section BY RON STANG For Law Times WINDSOR — Constitutional and human rights expert Rich- ard Moon, of the University of Windsor, has been chosen by the Canadian Human Rights Commission to review contro- versial s. 13 of the federal Hu- man Rights Act. Moon, whose major work is The Constitutional Protection of Freedom of Expression, and who has written widely on free speech and freedom of religion, will deliver his report this fall. His appointment comes amidst a maelstrom of debate over the commission's use of the section in deciding cases of internet hate speech. The current eye of the storm is a case that was brought by Ontario Labour & Employment Legislation 2008-2009 Prepared in consultation with the law firm McArthur Vereschagin & Brown LLP This edition includes: Includes all of the new Human Rights Tribunal of Ontario Rules New in this edition: Perfectbound 1,154 pp. July 2008 Standing order $76 P/C 0813140000 Current edition only $86 P/C 0813010000 Multiple copy discounts available ISSN 1195-0196 www.canadalawbook.ca Ontario Labour & Emp(LT 1-4x3).indd 1 LT0714 applicant Richard Warman, an Ottawa lawyer, against far-right internet blogger Marc Lemire, alleging the online publication of hate speech. Section 13, which was part of the original act passed in 1977, was updated after the Sept. 11, 2001 terrorist attacks. The fed- eral government's anti-terror Bill C-36 contained a series of omnibus amendments includ- ing expanding the scope of 13 from hate speech communicated "telephonically" to that "com- municated by means of a com- puter including the internet." Critics of the section have called for its abolition, saying it tramples upon free speech. The scope of the terms of ref- erence handed to Moon is large: in sum to conduct "a compre- hensive policy review of how best to address hate messages on the internet." He is to con- sider whether existing statutory and regulatory provisions are adequate, the mandates of gov- ernment agencies like human rights commissions that already handle hate complaints, and the role of other government and non-government bodies. Moon himself would not comment on his appointment, suggesting any interview might provide information that "might be seen as pointing to a certain view on this issue." But Bruce Elman, dean of law at Windsor, says the commis- sion made a wise decision. "He is without a doubt the foremost scholar in freedom of expression," Elman says. He adds it's an "in- spired choice," because "it took the politics out of the controversy and it put the task in the hands of someone who is thoughtful, hon- est, independent." The publisher's description of 7/8/08 2:44:30 PM Shopping Centre Leases, Second Edition Harvey M. Haber, Q.C., LSM, and contributing authors who are leading practitioners in the field Revised and updated, the Second Edition includes a collection of new articles and precedents on various topics of current interest written by the best commercial leasing practitioners in Canada. Covering new topics such as ingredients of a lease to statutory considerations, operation of a business to insurance, this Second Edition improves upon what has already been considered the definitive text on the subject. www.canadalawbook.ca LT0714 www.lawtimesnews.com Haber_shopping centre(LT1-4x3).indd 1 7/8/08 2:41:30 PM Moon's book, which the commis- sion calls "seminal," says Moon argues that the "social dynamic of communication is critical to understanding the potential val- ue and harm of language and to addressing questions about the scope and limits on one's rights to freedom of expression." As well, the book "examines the tension between the demands for freedom of expression and the structure of constitutional adjudication in the Canadian context." Critics suggest Moon's ap- pointment reflects the com- mission's uncertainty about whether s.13 casts too wide a net and threatens freedom of expression in a much more ex- pansive way than the old "tel- ephonic" description ever did. Indeed, commission officials acknowledge the section covers not only the content of inde- pendent web sites by marginal political groups but also that of mainstream media sites. Doug Christie, a Victoria lawyer who has defended nu- merous far-right activists and publishers against Canadian hate crime laws and is an inter- vener in the Lemire case, says the CHRC has taken the action simply because of growing con- troversy. He says it desires to "stop a public discussion about it by saying, 'It's all being re- viewed,' and, 'A respected aca- demic is taking a look at it.'" Christie also says the commis- sion finds it "embarrassing" be- cause Lemire has launched a con- stitutional challenge against s. 13. Liberal MP Keith Martin, who earlier this year intro- duced a private member's bill that would see s. 13 "scrapped" completely, suggests the re- view has come from the com- mission's reading of the public mood. "I think they're hearing from Canadians that a lot of Canadians are very disturbed from the direction that the commission has taken," he says. "So perhaps the com- mission is saying, 'Maybe we should be a little proactive and do a little introspection.'" Meanwhile St. Catharines Coservative MP Rick Dykstra in June asked the House of Com- mons standing committee on justice to review the commission as well as undertake a specific re- view of the CHRC's "application and interpretation" of s. 13. "I think knowing exactly how the commission interprets this sec- tion, what it means for Canadi- ans, would be very helpful for the public," Dykstra says. Section 13 has also been pointedly criticized by promi- nent Canadian civil libertarian Alan Borovoy. He says the sec- tion "creates unwarranted risk" to a broad cross-section of the pub- lic not traditionally identified as marginal hate-mongers. Borovoy also said a key problem is that it allows "no defence for reasonable belief in the truth." Borovoy gives as an example an article in the New Republic magazine that said it was not only President Slobodan Milosevic but "ordinary Serbians" who sup- ported ethnic cleansing. "Is that not likely to expose Serbs to ha- tred and contempt?" he says. Warman, who has become notorious in extreme-right cir- cles for bringing the s. 13 com- plaints, says hate speech is un- like other speech and therefore does not deserve protection. "Hate propaganda adds noth- ing or virtually nothing to the marketplace of ideas and in fact it undermines the marketplace of ideas because it has the goal of excluding groups of people from the community as a whole and from that discussion." Warman's take on the review is that the commission is "try- ing to head off at the pass a lot of the really malicious lies that have been put out about s. 13.1 over the past couple of months, such as the fact there are no defences against it, that it is a squelching of free speech." He says he thinks the purpose be- hind the review isn't to alter or tighten the section but "is a sort of review of best practices." Chief commissioner Jennifer Lynch shrugs off accusations the CHRC is running scared from a barrage of criticism. She says the review was inaugurated internal- ly, and with outside "stakehold- ers" such as the police, well before the recent public debate gathered speed. Far from running from the controversy, she says, the com- mission, which has power under the act to launch studies of its operations, seeks to "lead public debate on this topic." LT

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