The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: orgs/canadian/bc/university-of-victoria/hatred-in-canada/C1-Pentney


Archive/File: orgs/canadian/bc/university-of-victoria/C1-Pentney
Last-Modified: 1998/09/21                                 
                                 
                         WORDS THAT WOUND:
    HUMAN RIGHTS PROCEEDINGS AS A RESPONSE TO HATRED IN CANADA
                                 
                        William F. Pentney
                          General Counsel
                 Canadian Human Rights Commission

Paper presented at the Conference "Hatred in Canada: Perspectives,
                      Action and Prevention",
           Victoria British Columbia, September 18, 1998
                                 
INTRODUCTION
     
The challenges posed by expressions of hatred directed towards groups
defined by race, colour, religion or sexual orientation are complex
and highly emotive. When viewed in light of modem history, and in
particular as we pause to commemorate the 50' anniversary of the
Universal Declaration of Human Rights, which was inspired in part by
the Holocaust in Nazi Germany, it is clear that the social challenge
is to prevent the harms done by hatred while at the same time seeking
actively to deal with its root causes and to prevent its recurrence or
growth in the community. Any legal mechanism, including human rights
laws and procedures, can obviously only address part of this
challenge. Having said that, it is also important not to underestimate
the significant benefits associated with setting out legal standards,
and of enforcing them.

In this paper I will examine the Canadian human rights structures
which have been developed to address hatred, and the case-law which
has interpreted these provisions. This review must take account of the
international human rights context, and the Canadian constitutional
framework, which both inspire and guide these laws. Finally any
assessment of the legal mechanisms used to address incidents of hatred
based on grounds such as race, religion, colour, or sexual orientation
must include a review of the effectiveness of these approaches to the
problem of expressions of hatred on the Internet.

At the outset, however, I would like to step back from the immediate
technical legal questions, in order to examine some core components of
Canadian human rights law and practice, and to reflect upon the
relevance of this for an assessment of human rights laws as a
response to hatred.

I.  HUMAN RIGHTS LAWS AND "THE PROMISE OF COMMUNITY"

A key message from the very beginning of the adoption of modem human
rights laws has been that a violation of an individual's equality
rights is more than a mere private wrong. Discrimination wounds the
community, and through the passage of human rights laws the community
has said to victims of discrimination: we will stand with you, we will
get involved in your problem, because we think that your problem is
really our problem too. That is because discrimination undermines the
very essence of our idea of community: the acceptance of others as
people equally deserving of concern and respect, just by virtue of
their humanity.<1>

I believe that human rights laws are a tangible sign of this society's
commitment to maintain and cement our basic bonds of community,
through the promotion and protection of the idea of "belonging".
Equality claims begin and end with a desire for belonging, for
community, and in Canada, a core element of our idea of community is
the idea of equality.

These laws are often associated with prohibitions of particular types
of activity, and with individual remedies, usually dollars and cents -
- and in truth that takes up most of the time and energy of human
rights Commissions across Canada. But it would be a mistake to think
that this is all that these laws are about, first because it ignores
the important public education and advocacy mandates given to human
rights Commissions, and more importantly because it ignores the very
important reality that the existence of a law administered by a
Commission is a tangible sign of the community's willingness to side
with victims of discrimination and to seek to ensure that they are
truly accepted as full members of the community.<2> This obviously
does not mean that every complaint must or should be upheld; but it
does imply that simply having access to the complaints mechanism, and
to the promotion, education and advocacy components of a Commission,
are meaningful benefits which must not be overlooked, regardless of
the outcome of a particular case. I believe that this applies with its
fullest force in the area of expressions of hatred, and I will now
turn to a review of the applicable provisions, and to their
interpretation in actual cases.

II. HUMAN RIGHTS PROVISIONS DEALING WITH HATRED
     
There are provisions dealing with expressions if hatred in both
federal and provincial human rights laws, and other related laws which
provide the legal framework for addressing this problem in Canada.
These will be summarized, and then the key decision setting out
definitions and interpreting these statutes will be analyzed?<3> All
of these laws have been described by the Supreme Court as "quasi-
constitutional", and all are accepted as expressing fundamental values
of over-riding importance in our society. They are remedial, not
punitive, and they all share the same basic administrative model:
complaints are received or initiated by the Commission, investigations
are then undertaken, and if the matter is not dismissed on its merits
and cannot be resolved by a settlement , the case may be referred to
an independent human rights adjudicator, who holds a full public
inquiry, where all sides have the right to call witnesses, cross-
examine witnesses called by others and to present legal arguments.
These procedures are meant to be flexible and accessible, and the
overall purpose and context is conciliatory rather than punitive.

     (1)  Canadian Human Rights Act

     Section 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6,
     is the key section in the federal law:

     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 telecommunications 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.

Sub-section 13(2) states that this provision does not apply in respect
of any matter which is communicated by means of the facilities of a
broadcast undertaking, while ss. 13(3) clarifies that no owner or
operator of a telecommunications undertaking is liable solely by
reason of the fact that a person transmitted the messages over this
facility (a common carrier exception). Under the federal law a cease
and desist order can be issued by a Tribunal if it finds a
contravention of the law, and amendments proclaimed on June 30, 1998
(S.C. 1998, c. 9) also permit a Tribunal to make two other types of
awards: if a person is "specifically identified in the communication
that constituted the discriminatory practice" an order of compensation
can be made to a maximum of $20,000 (ss. 54(1)(b)); in addition a
Tribunal can order the respondent to "pay a penalty of not more than
ten thousand dollars." (ss. 54(1)(c)) In deciding whether to make a
penalty order, s. 54(1. 1) of the Act requires a Tribunal to take
account of:

     (a) the nature, circumstances, extent and gravity of the
     discriminatory practice; and
     
     (b) the wilfulness or intent of the person who engaged in the
     discriminatory practice, any prior discriminatory practices that
     the person has engaged in and the person's ability to pay the
     penalty.
     
     (2) British Columbia Human Rights Code
     
Perhaps the broadest statutory provision in respect of expressions of
hatred in Canadian human rights law is contained in s. 7 of the
British Columbia Human Rights Code:

     7(1) A person must not publish, issue or display or cause to be
     published, issued or displayed any statement, publication,
     notice, sign, symbol, emblem or other representation that
     
     (a) indicates discrimination or an intention to discriminate
     against a person or group or class of persons, or
     
     (b) is likely to expose a person or a group or class of persons
     to hatred or contempt because of [a prohibited ground of
     discrimination].
     
     7(2) Subsection (1) does not apply to private communication or to
     a communication intended to be private.

The Human Rights Tribunal has wide remedial authority to issue cease
and desist orders, and to compensate for actual losses or "injury to
dignity, feelings and self-respect' (s. 37(2)),but there are no
special remedial provisions that apply to s. 7 alone.

     (3)   Saskatchewan Human Rights Code

The Saskatchewan Code contains a provision which is slightly narrower
than the B.C.

model, but it is also wider than comparable provisions dealing with
"notices, signs and symbols"

in other statutes:<4>

     14(1) No person shall publish or display, or cause or permit to
     be published or displayed, on any lands or premises or in a
     newspaper, through a television or radio broadcasting station or
     any other broadcasting device or in any printed matter or
     publication or by means of any other medium that he owns,
     controls, distributes or sells, any representation, including
     without restricting the generality of the foregoing, any notice,
     sign, symbol, emblem, article, statement or other representation:
     
     (a) tending or likely to deprive, abridge or otherwise restrict
     the enjoyment by any person or class of persons of any right to
     which he is or they are entitled under law; or
     
     (b) which exposes, or tends to expose, to hatred, ridicules,
     belittles, or otherwise affronts the dignity of any person, any
     class of persons or a group of persons:
     
     because of [a prohibited ground of discrimination] .

As in British Columbia, a Board of Inquiry may make a wide range of
remedial orders upon a finding of a contravention of this provision,
but no special remedies are set out for this type of activity alone.
In addition to the usual human rights remedies, the Saskatchewan Code
provides that if no other penalty is imposed, a person who contravenes
the statute can be convicted of a summary conviction offence.

III.  INTERPRETING THESE PROVISIONS

Two key questions have arisen in respect of these provisions: first,
do the contravene the right to freedom of expression set out in the
Charter of Rights and Freedoms, and if so, are they a reasonable limit
under s. 1 ?; and second, what do the key terms mean? These are
obviously related questions, and so I will address them by reviewing
the two leading authorities in the area.

     (1) John Ross Taylor and the Canadian Human Rights Act

In 1979 a Canadian Human Rights Tribunal upheld the complaint filed
against John Ross Taylor alleging that his telephone answering service
communicated messages which contravened section I of the Canadian
Human Rights Act. The complaint related to a series of messages on
Taylor's answering machine, which alleged a Jewish conspiracy to
influence the media, the entertainment industry, businesses and
government, and in particular to obtain money and influence by
inflating the harm done to Jews during the Holocaust. His messages
also dealt with non-white immigration and various social problems this
allegedly creates, and a variety of other subjects.

When Taylor repeatedly ignored the Tribunal's cease and desist order,
the Canadian Human Rights Commission sought and obtained a finding
that he was in contempt of court, and ultimately a jail sentence was
imposed on Taylor. He challenged both the Tribunal decision and the
contempt finding, and the case wound its way to the Supreme Court of
Canada. The focus of the hearing before that Court was whether the law
violated his right to freedom of expression. The Court was unanimous
that section 13(l)prima facie infringed on the right to freedom of
expression guaranteed by s. 2(b) of the Charter of Rights and
Freedoms, since it seeks to regulate the content of messages
communicated repeatedly through the means of telecommunications
undertakings. However, by a 4:3 majority, the Court ruled that this
was a reasonable limit on freedom of expression, based on the narrow
interpretation of the provision, the civil and remedial nature of
human rights proceedings, and the constitutional and historical
context.

There are two key interpretive challenges posed by the text of s.
13(l): how should the terms "hatred" or "contempt" be read, and what
is the proper approach to the concept of "likely to expose"? Chief
Justice Dickson, for the majority of the Court, adopts an approach to
the terms "hatred" and "contempt" which was developed by the Human
Rights Tribunal in John Ross Taylor, and confirmed by it in Nealy v.
Johnston:<5>

     The reference to "hatred" speaks of "extreme' ill-will and an
     emotion which allows for "no redeeming qualities" in the person
     at whom it is directed. "Contempt" appears to be viewed as
     similarly extreme, though it is felt by the Tribunal to describe
     more appropriately circumstances where the object of one's
     feelings is looked down upon. According to the reading of the
     Tribunal, s. 13(l) thus refers to unusually strong and deep-felt
     emotions of detestation, calumny and vilification, and I do not
     find this interpretation to be particularly expansive...
     Moreover, as long as the Human Rights Tribunal continues to be
     well aware of the purpose of s. 13(1) and pays heed to the ardent
     and extreme nature of feeling described n the phrase "hatred or
     contempt, there is little danger that subjective opinion as to
     offensiveness will supplant the proper meaning of the section.<6>

The other key concept to be interpreted in s . 13 (1) is "likely to
expose"; this may be contrasted with other provincial laws, or the
Criminal Code, which require proof of intentional "incitement" of
hatred, or the expression of "an intention to discriminate". In John
Ross Taylor the majority do not address directly this element of the
section. McLachlin J., writing in dissent, refers to the breadth of
this concept as one key factor in her determination that s. 13(l) was
not a reasonable limit on free expression under s. I of the
Charter.<7>

These words have been elaborated upon by the Tribunal, in both the
Taylor and Nealy v. Johnston cases. The key elements of the
interpretation of this clause are set out in the following passage
from Nealy v. Johnston:

     "incite' means to stir up; "promote' means to support actively.
     "Expose is a more passive word, which seems to indicate that an
     active effort or intent on the part of the communicator or a
     violent reaction on the part of the recipient are not required
     ... We note... that there is no need for the complainants to
     prove an active effort or intent on part of the respondents to
     produce the adverse consequences contemplated by the section.
     Moreover, the use of the wording "likely to expose a person or
     persons to hatred or contempt means that it is not necessary that
     evidence be adduced that any particular individual or group took
     the messages seriously and in fact directed hatred or contempt
     against another or others, still less that anyone has in fact
     been victimized in this way. is enough to prove that the matter
     in the messages is more likely than not to spark a positive
     reaction amongst some of the listeners to it which will likely in
     turn manifest itself in "hatred" or "contempt" towards the target
     of the messages. Furthermore, in making the case on the potential
     impact of matter on recipients of it, the test is not the
     "reasonable listener" but whether there is anybody, even the most
     malevolent or unthinking person, who might be inspired to treat
     the targets with hatred or contempt.<8>

From these cases it is clear that while the interpretation of "hatred
or contempt" is a stringent one, requiring extreme expressions of
ill-will and detestation of a target group, the test of whether such
messages are "likely to expose" individuals to these feelings is a
more lax one.

On the basis of this interpretation, the Supreme Court moved to an
analysis of whether s. 13(l) was a reasonable limit on freedom of
expression, it having been conceded that the provision prima facie
violated the right to freedom of expression. The Court accepted and
affirmed the point conceded, but divided as to whether the
infringement was justifiable.

For the majority, Dickson U.C. upheld the provision. He examined s.
13(l) in the context of the facts of the case, international human
rights standards which accept the need to "protect minority groups
from the intolerance and psychological pain caused by such expression"
and the recognition in the Charter itself that equality (s. 15) and
multiculturalism (s. 27) are fundamental constitutional values in
Canada.

Two key elements of this analysis merit particular attention. First,
Dickson C.J.C. pays particular attention to the purpose of human
rights laws, as contrasted with that of the Criminal Code:

     The aim of human rights legislation, and of s. 13(1), is not to
     bring the full force of the state's power against a blameworthy
     individual for the purpose of imposing punishment. Instead,
     provisions found in human rights statutes generally operate in a
     less confrontational manner, allowing for a conciliatory
     settlement if possible and, where discrimination exists, gearing
     remedial responses more towards compensating the victim.<9>

The second important element in this analysis is the  recognition that
the freedom of expression analysis could not occur in a vacuum: it was
essential to examine the extent to which the expression targeted by s.
13(1) conforms to the values which underlie the protection of free
expression itself. Dickson C.J.C. rules that hate propaganda
contributes little to the quest for truth, the promotion of individual
self-development or the fostering of a vibrant democracy. He
continues: "The unusually extreme extent to which the expression at
stake in this appeal attacks the s. 2(b) rationale, however, requires
that the proportionality analysis be carried out with the recognition
that the suppression of hate propaganda does not severely abridge free
expression values.<10>

Finally, it is worth noting that Dickson C.J.C. expressly rejected the
argument that these types of laws would be ineffectual in stopping
expressions of hatred, and therefore are not rationally connected to
the lofty aims of Parliament:

     The process of hearing a complaint made under s. 13(1) and, if
     the complaint is substantiated, issuing a cease and desist order
     reminds Canadians of our fundamental commitment to equality of
     opportunity and the eradication of racial and religious
     intolerance. In addition, although criminal law is not devoid of
     impact upon the rehabilitation of offenders, the conciliatory
     nature of the human rights procedure and the absence of criminal
     sanctions make s. 13(1) especially well-suited to encourage
     reform of the communicator of hate propaganda.<11>

(b)  Doug Collins and the R C Human Rights Code

In March 1994 a newspaper columnist named Doug Collins published an
article in the North Shore News entitled "Swindler's List: Hollywood
Propaganda". In this article Collins discussed the movie Schindler's
List, and linked it with an ongoing effort by the Jewish community to
exaggerate the harms done during the Holocaust. He also discussed the
alleged influence of the Jewish community in the entertainment
industry, which he described as a core component of its efforts to
spread the "myths" about the Holocaust.. Complaints were filed
alleging that this article contravened s. 7 of the B.C. Human Rights
Code, and the case was referred to the Human Rights Tribunal for
hearing. Before the Tribunal a constitutional challenge was raised to
the provision of the Code, on both division of powers and Charter of
Rights grounds.

The Tribunal ruled that the legislation fell within the constitutional
competence of the province, since it was enacted pursuant to
provincial jurisdiction in relation to "civil rights", and did not
trench upon the federal criminal law power. In addressing the claim
under the Charter, the Tribunal reviewed the broader context,
including the history and current impact of anti-Semitism, the fact
that this expression occurred through the medium of a local newspaper,
and the community within which it was distributed. A key element in
the Tribunal's review of the constitutional issues was the fact that
while the Charter serves to limit government action, it is equally
true that sometimes governments may act in a way to reinforce or
protect rights and freedoms. Human rights laws are a prime example of
such action by the government, and significant weight must be accorded
to this objective of this legislation, as one means of protecting
constitutional equality values.

The Tribunal adopted the definitions of "hatred" and "contempt 'which
were developed
under the Canadian Human Rights Act, but it rejected the approach to
the concept of "likely to
expose'. The Tribunal found that the provision in B.C. should be
interpreted somewhat more
narrowly, given the breadth of expression covered, and the
constitutional value of freedom of
expression. The Tribunal summarized the tests for a violation of s. 7
of the B.C. Code in the
following passage:

     First, does the communication itself express hatred or contempt
     of a person or group on the basis of one or more of the listed
     grounds? Would a reasonable person understand this message as
     expressing hatred or contempt?
     
     Second, assessed in its context, is the likely effect of the
     communication to make it more acceptable for others to manifest
     hatred or contempt against the person or group concerned? Would a
     reasonable person consider it likely to increase the risk of
     exposure of target group members to hatred or contempt?"<12>
     
Based on this interpretation, the Tribunal then examined the
constitutional validity of the provision under the Charter, and it
concluded that the section constituted a reasonable limit on freedom
of expression and was thus justifiable. Without reviewing in detail
all of the elements of the comprehensive analysis undertaken by the
Tribunal, it is worth noting several aspects which focus on the human
rights context (as opposed to civil or criminal schemes).

The Tribunal noted that the objective of seeking to prevent the harm
done by hateful expression has been a matter of serious concern for
the international community, as is reflected in key international
human rights instruments, and has been recognized as a valid and
pressing goal by the Supreme Court of Canada in prior decisions.<13>
Despite the fact that it may not be scientifically possible to
establish a causal link between hate propaganda and the harms the law
seeks to prevent, the Tribunal nevertheless finds that "it is not open
to me to dispute the well-established jurisprudence that expression
can harm. In particular, it is clear that hateful expressions produce
both individual and societal harms that are inconsistent with the
goals of human rights laws."<14> The Tribunal relied on its narrow
interpretation of s. 7 as a basis for finding that the law was valid,
in that it was a rational response to the problem of harmful
expression, and was not an over-broad invasion of free speech.

In rejecting the argument that the lack of procedural guidelines
tainted this provision, the Tribunal noted that earlier decisions have
found that the administrative flexibility and remedial nature of human
rights proceedings are particularly appropriate and indeed may be an
advantage over criminal sanctions or formal civil court procedures.

Having set out its interpretation of the provision, and upheld its
constitutional validity, the Tribunal then moved to the merits of the
complaint. Although it accepted that Jews have been subjected to
historical discrimination and that ant-Semitism continues today, the
Tribunal concluded that the particular messages at issue in this case
were not so extreme as to constitute "hatred" or "contempt". The
Tribunal accepted that these messages "all invite the expression of
anti-Semitic prejudices", and thus the second element of the test for
a violation of s. 7 was made out; the case failed because the messages
were not so extreme as to fall within the first element of the test:

     Turning to the tone of the column, I do not find in it the
     quality of emotion signified by the phrase "hatred or contempt."
     I find the tone of the article to be nasty: it is deliberately
     provocative and insulting. It is mean-spirited and expresses a
     smug self-satisfaction in the author's apparent success in
     freeing himself from the grip of the "propaganda" by which the
     rest of society is still duped. The style of presentation is
     informal. In my view, considering the column as a whole, the way
     the content is presented (its tone) does not capture the degree
     of calumny, detestation or vilification signified by "hatred or
     contempt' as the phrase is used in s. 7(l)(b) of the Code.<15>

It should be noted that other complaints have been filed against Mr.
Collins, alleging that a number of his columns violate the B.C. Code,
and these are currently before a Tribunal.

IV. HUMAN RIGHTS AND THE INTERNET
     
A great deal of attention has been paid lately to the challenge of
regulating the Internet, and in particular to the issue of hate
propaganda and the Internet. I will describe a case which is currently
before a federal Human Rights Tribunal on this issue, and then raise
some questions which need to be examined if any new legal mechanisms
are to be created to deal specifically with hate on the Internet. But
first I will mention two matters which help to set the context for
this discussion.

While I do not in any way wish to downplay the importance of examining
the issue of hatred on the Internet, it is easy to lose sight of some
basic points given the pressure to create some form of "control" over
this new means of sharing information. The Internet poses new
challenges, but it does not exist in a legal vacuum: it is not some
new "wild west" where the law does not run. There can be no doubt that
if one plans a murder, or to import drugs into Canada, and
communicates these plans via the Internet, the criminal law will
attach to this conduct. There may be issues of effective enforcement
and nice legal questions about jurisdiction which arise, but these are
neither particularly new nor novel in Canadian law.

The second preliminary point is that while attention should be paid to
the question of legal regulation in the form of prohibitions of
certain forms of conduct, some thought should also be given to
regulations which could provide greater access to the medium - for
women, for people whose disabilities make it impossible for them to
"surf" websites heavily based on graphics, and for those who do not
have ready access to computers. As we examine this issue, we should
remember that over half of the world's population has never made a
phone call, and there are sectors within the Canadian community for
whom access to the Internet is simply not possible. Perhaps any effort
to "regulate' the Internet should address the question of access,
whatever else it does.

Finally, the Internet offers immense possibilities to communicate
positive information about human rights, including hate propaganda.
Examples of this abound: visit the site run by Ken McVay and the
Nizkor project, or that of the Canadian Human Rights Commission which
provides access to the "Stop the Hatred" game, or see the B'Nai Brith
Canada site.<16> As we discuss efforts to create or apply new forms of
regulation to this medium, it is important to remember its immense
potential for positive contributions to the cause of human rights, and
to ensure that any discussion of legal regulation seeks to craft a
carefully calibrated instrument.

     (1)  Ernst Zundel and the Canadian Human Rights Act

The first attempt to apply s. 13 of the Canadian Human Rights Act to
communication through the Internet is now underway before the Human
Rights Tribunal. The case involves complaints filed by Sabina Citron
and the Toronto Mayor's Committee on Community and Race Relations,
alleging that a website using the name of Ernst Zundel, and
communicating messages apparently written by him, contravene the
section. The website is allegedly run by a woman in California, and is
located on a computer there, so this case raises issues of
jurisdiction in general, and in respect of the international aspect of
the website. As well, the Tribunal will have to determine whether the
messages complained of, which fall within the category of "Holocaust
denial" are sufficiently extreme so as to be likely to expose Jews or
others to hatred or contempt.

The Commission and complainants have lead their evidence, and the
respondent has begun his case. To date there is evidence before the
Tribunal about the Internet as a means of communication (how it
operates and its basic components), an analysis of the messages and
their likely effect, and information about the actual operation of the
Zundelsite itself It is expected that more evidence on some of these
issues will be introduced by Zundel as he completes his case, and then
final argument will occur, perhaps in January 1999.

Since the case is still before the Human Rights Tribunal, there is
little that I can add to this description of the matters in dispute.
There are also parallel proceedings in the Federal Court, where Mr.
Zundel is challenging the jurisdiction of the Canadian Human Rights
Commission to refer the matter to a Human Rights Tribunal, and is
questioning a number of rulings made by the Tribunal itself The
decision in this case is widely expected to create a precedent in this
area, and it is being watched within Canada and in other countries
where similar cases are either contemplated or underway.

     (2)  New Regulation of the Internet: Some Questions

As we examine the question of whether new forms of legal regulation of
the Internet are required, I believe that it may be worthwhile to
reflect upon a series of questions. I do not purport to provide
answers to these questions, but I do believe that the discussion will
be improved by a consideration of them. For ease of reference, I will
simply list the questions, with a few points made in relation to each:

(1)  what purpose is the regulation designed to serve?

     Do we wish to punish the hard-core racist? Convert him or her?
     Prevent the recruitment of impressionable youth, or force servers
     or sites to provide opportunity for counter-argument?

(2)  what is to be regulated?

     There really is no single entity called the "Internet"; it is
     akin to a living organism, with many ever-changing components; do
     we wish to have our hand in all types of communication between
     computers? Or only the most public forms of communication such as
     chat rooms or websites? Will e-mail messages be protected as a
     form of "private speech," and if so, how do we deal with racist
     "spamming"  -- sending offensive e-mail messages to anyone with a
     "Jewish-sounding name' for example?

(3)  what process is to be used to decide whether to take any
enforcement steps under any new law?

     Who is to be given authority, and what checks and balances will
     be built into the system?
     
     Is it possible to create a sufficiently balanced system, yet
     still have some steps taken to enforce the law? What role should
     ordinary members of the public, or interest groups have in the
     enforcement activity? What "penalties" should exist to discourage
     misuse of the law?

CONCLUSION

The human rights system for dealing with hate propaganda which I have
described in this paper is one element in the efforts of Commissions
to combat hatred and to provide assurance to targeted groups and
individuals of their right to live secure in the knowledge that they
are equal members of the community. I have not dealt with the many
other activities undertaken by Human Rights Commissions, and by other
government and non-governmental actors, such as educational activities
in classrooms and community events, days of action and remembrance, or
lobbying or media campaigns. All of these are important, and one of
the challenges is to ensure that efforts continue to be made to
coordinate these activities.

One feature of human rights enforcement is the very concrete
opportunity if offers for sustained public education and advocacy
around a specific cases -- instead of abstract theorizing about
possible effects and problems, a human rights case offers an
opportunity to educate the community about the actual messages that
are being spread, and their effect on the community.

There is no doubt that those who wish to communicate these messages
have an important argument about their freedom of expression, but it
is also important that those who are victimized by these words have an
opportunity to be heard too - to give voice to their rights to live in
a society as equal members, free from attacks upon their racial or
religious heritage, or sexual orientation.
     
Many years ago, Daniel Hill (the first full-time Human Rights
Commissioner in Canada) spoke about human rights laws as offering a
unique mix of education and enforcement; more recently, the late Mr.
Justice Walter Tamopolsky put it more colourfully when he said that
human rights laws, and the agencies that administered them, were meant
to act as "the iron hand in the velvet glove", seeking to conciliate
and resolve disputes if possible, but with the ultimate aim of taking
whatever steps are needed to eradicate discrimination and to provide
relief to its victims.

These goals still apply today, and the challenge is to implement these
laws in a manner which is sensitive to the values of freedom of speech
and liberty, while at the same time giving full effect to the equality
and diversity interests which are so fundamental to Canadian society.
In all of this the simple fact remains: a delicate balance needs to be
achieved, but we must acknowledge that words can wound, and the
prevention of such harm, and providing relief to those who are harmed,
has been and remains a core responsibility of human rights law and
agencies in Canada today.


Home ·  Site Map ·  What's New? ·  Search Nizkor

© The Nizkor Project, 1991-2012

This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.

As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.