By Bernie M. Farber and Marvin Kurz
Sticks and stones may break our bones, the old children’s rhyme reminds us, but words can never hurt us. Well, not exactly. If the history of the last century has taught us anything, it is that words can do more damage than sticks or stones.
Words, more than deeds, have become the weapons of choice to bully the vulnerable, as so many recent stories about cyber-bullying remind us. And for those who want to harm vulnerable groups instead of individuals, words are the first line of attack.
Think of Rwanda, where genocide was precipitated by labelling the target group as “cockroaches” to be exterminated. Remember the former Yugoslavia, where nationalist leaders stoked ancient hatreds by using old ethnic lies. Never forget the Holocaust, where the anti-Semitic slanders of newspapers like Der Sturmer paved the way to the gates of Auschwitz.
Because of the recognized harm that hate speech can cause to vulnerable groups, an international consensus has arisen that every county must eliminate hate speech within its borders. Canada has signed a number of treaties that oblige us to do so, including the International Covenant on Civil and Political Rights.
One way that Canada has complied with its duty is to bring in Section 13 of the Canadian Human Rights Act. This law sees hate speech, particularly on the Internet, as a form of discrimination. It seeks to prevent that discrimination so that all Canadians can be treated equally. And yet, British Columbia MP Brian Storseth has introduced a private member’s bill that seeks to scrap Section 13, while the Federal Court is now considering its constitutionality.
Opponents of Section 13 argue that it is an assault on free speech. They claim that it targets speech that may merely offend those with thin skins. If the target of the law were merely “offensive” statements, we would wholeheartedly agree. But this is not the case. The law aims at expression that causes members of our society to be treated as less worthy than their neighbours merely because of who they are, rather than what they have done. The small number of cases that have made it to the act’s tribunal stage have been among the worst of the worst: hateful, malicious propaganda.
Another argument against Section 13 is that, unlike libel law, truth is no defence. But can it ever be “true” that victims of hate speech deserve hatred and contempt? Should someone be entitled to use a tribunal hearing to “prove” that, say African Canadians are inferior, that Jews are rapacious, or that all gays are pedophiles?
Section 13 tells us that we must find civil ways to prevent bigotry. That is the Canadian way. But if Storseth’s bill is passed, the state will rely exclusively on criminal prosecution to deter those who wilfully engage in promoting hatred. By ridding ourselves of Section 13, we diminish the hope that we can change attitudes through education and dialogue. We may very well unleash the blunt force of the criminal law on those who are guilty of nothing but ignorance.
There remains a bitter divide on Section 13. But the debate has helped clarify the changes necessary to keep it in line with its original conciliatory intention. The decision to add financial penalties to the act should be repealed because it runs counter to the spirit of the law. We agree with the Canadian Bar Association, which supports the law but says that costs should be awarded against complainants who attempt to abuse the process.
There must also be a way to summarily dismiss frivolous and vexatious complaints before they get very far. Commission staff must be crystal clear about the need to use human rights legislation against only the very worst expression.
Canadians have a human rights system that actually supports tolerance rather than simply criminalizing intolerance. Abandoning the law merely because it needs to be updated will not make our society more free. It will only deprive us of a tool to prevent words from taking the place of sticks and stones in breaking our bones.
Marvin Kurz is a Brampton lawyer who has worked on numerous human rights cases. Bernie M. Farber is a former CEO of the Canadian Jewish Congress. The opinions expressed here are their own.