In Canada, speech is policed by two parallel justice systems, which have significantly different rules of appointment, legislation, evidence and procedure.
- 1. The court system, which administers the anti-hate provision of the Canadian Criminal Code, Sections 318 and 319 and
- 2. The provincial and federal human rights commissions (HRCs), which were established by each jurisdiction under its own legislation.
It is the contention of this paper that although the commissions were founded to address insupportable abuses in the areas of employment and accommodation, their mandate has been unwisely expanded to include what is, in effect, a censor’s role. Of special concern is that in comparison to those accused of hate crimes in a court of law, respondents before HRCs have virtually no defence and are disadvantaged in several other ways.
Free speech is a core Canadian value, an essential element in a free and prosperous society, and it is significantly endangered by the growing body of unchallenged precedent that has been accumulated by an agenda-driven HRC system. Canadians are becoming unsure of what words may safely be said and which may not. Debate on vital matters of public policy has been chilled, as valuable voices are silenced along with those of marginal utility. Those functions of HRCs that remain useful to society should be transferred to the regular court system and the HRCs retired.
Failing this ideal solution, human rights codes should be amended by the removal of speech-restrictive sections or, if this too is beyond the reach of timid politicians, the specific inclusion in legislation of common law defences such as truth and fair comment. The onus is on the federal government to take the lead.