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Ruling reserved in case to strike down section of Human Rights Act

Date: 20 Feb, 2014


Globe and Mail Update

September 17, 2008

TORONTO — Behind every genocide and pogrom in history lies a trail of racially intolerant screeds that helped distort the way a minority group was viewed, a human rights tribunal hearing was told Wednesday.“The road to Auschwitz was paved with hate propaganda, Mein Kampf and the Protocols of the Elders of Zion,” said Marvin Kutz – a lawyer for B’nai Brith Canada – on the final day of a hearing into alleged hate material posted on an Internet message board operated by defendant Marc Lemire.

Mr. Lemire and his supporters have asked tribunal commissioner Athansios Hadjis to strike down Section 13 of the Human Rights Act, which permits a complainant to launch a human rights proceeding against anyone has allegedly promoted contempt or hate towards an identifiable group.They claim that the section infringes the Charter right to free speech, chilling open debate and leaving individuals vulnerable to harsh punishment simply for participating in heated discussion.

However, Mr. Kurz argued that Section 13 is a vital weapon in the Internet age, when minorities can be mocked, belittled and threatened instantaneously with a single key-stroke.“It isn’t a matter of scare-mongering to say that the Holocaust wasn’t a unique event in history,” Mr. Kurz said. “Allowing the spread of hate is what permits the next level to occur. Society needs to deal with it in a civil context first, so that it doesn’t get to a criminal context.”

Steven Skurka, a lawyer for the Simon Wiesenthal Centre for Holocaust Studies and the Canadian Jewish Congress, rejected the idea that Section 13 stifles honest debate: “Only the most virulent and poisoned kind of expression” gets caught by the section, Mr. Skurka said.“We support the right to offend and the right to be offensive,” Mr. Skurka said. He said that Section 13 only comes into play after healthy debate has been manipulated into the active promotion of hatred toward a vulnerable group.“Our ultimate submission is that hate propaganda does nothing to advance freedom of expression and is antithetical to the values of Canadian society,” Mr. Skurka said.

A lawyer for the federal Justice Department, Simon Fothergill, endorsed the notion that hate speech can have a tangibly negative effect on those who hear it.“Hate speech does, indeed, cause crime – and crime of a very serious nature,” he said.Mr. Fothergill said that it is absurd to suggest that it impossible to debate major historical events without running the risk of offending a particular religion or cultural group: “There’s so much one could say without ever getting close to that line,” he said.He also laughed off the notion that Internet messages boards will become impossible to operate if Section 13 complaints are allowed to continue. Webmasters or operators can place disclaimers on their site and apologize for offensive material that inadvertently gets on their site, he said.

“If you are operating a website that deals with [offensive] subject matter … you might want to take extra precautions,” he added.Barbara Kulaszka, a lawyer for Mr. Lemire, told the tribunal that the mainstream media paid no attention to unfairness of Section 13 complaints until Macleans magazine columnist Mark Steyn was targeted by a Muslim group earlier this year.“Every religion is going to start using it,” she warned. “Just look at the first Muslim complaint in 30 years. Everyone went nuts. The media woke up, and said: ‘It isn’t just Ernst Zundel and his creepy right-wingers being attacked. They are going to come after us.’

“You’re going to be caught in the cross-hairs,” she cautioned.An intervenor who supports Mr. Lemire – Paul Fromm – told Mr. Hadjis that virtually all of those targeted in Section 13 complaints have been modestly educated, “lower-class” individuals who tended to phrase objections to immigrants or particular groups in crude, hyperbolic “bar talk.”“Not everyone can speak like an Osgoode Hall-educated lawyer, with nuances and exceptions, and so on,” Mr. Fromm said.
He also denounced a CHRC lawyer for saying earlier this week that racial jokes ought to be fair game for Section 13 complaints: “My response is that to condemn jokes is going pretty far down the road to the old Soviet Union,” he said.Mr. Fromm also criticized the fact that 100 per cent of the Section 13 complaints referred to tribunals by the Canadian Human Rights Commission have been successful. “A 100 per cent success rate?” he said. “That doesn’t happen this side of North Korea.

However, Mr. Kurz said that Mr. Fromm’s “scurrilous attack on the tribunals’ integrity” was misplaced. Rather, the CHRC success rate shows that it only targets material that contains “incredibly awful” elements of hatred, Mr. Kurz said.Mr. Kurz also argued that a recent complaint by Muslim groups against was dismissed by the Commission not because it had been cowed by a public and media backlash, but because it was without merit.

Mr. Hadjis has reserved his ruling.