Summary of Recommendations
Moon Report on Section 13 of the CHRA

This is a summary of recommendations that were provided by Professor Richard Moon, in a report that will be issued on November 24, 2008.

Discriminatory expression – general

• The use of censorship by the government should be confined to a narrow category of extreme expression – that which threatens, advocates or justifies violence against the members of an identifiable group, even if the violence that is supported or threatened is not imminent.

• The failure to ban the extreme or radical edge of discriminatory expression carries too many risks, particularly when it circulates within the racist subculture that subsists on the Internet. Less extreme forms of discriminatory expression, although harmful, cannot simply be censored out of public discourse.

• Any attempt to exclude from public discourse speech that stereotypes or defames members of an identifiable group would require extraordinary intervention by the state and would dramatically compromise the public commitment to freedom of expression. Because these less extreme forms of discriminatory expression are so commonplace, it is impossible to establish clear and effective rules for their identification and exclusion. But because they are so pervasive, it is also vital that they be addressed or confronted.

• We must develop ways other than censorship to respond to expression that stereotypes the members of an identifiable group and to hold institutions such as the media accountable when they engage in these forms of discriminatory expression.

• The purpose of hate speech law, as the protection of the members of identifiable groups from the risk of violence generated by hate speech, is narrower than the more familiar justification which emphasizes the protection of dignity and the right to equal respect within the community. It may offer a better account of the actual practice of hate speech law in Canada, which focuses on the most extreme and hateful instances of expression. The few section 13 cases sent to Tribunal and in which the Tribunal has found a breach of the section have almost all involved expression that is so extreme and hateful that it may be seen as advocating or justifying violence against the members of an identifiable group.

• However, a narrowly drawn ban on hate speech focussing on expression tied to violence does not fit easily or simply into a human rights law that takes an expansive view of discrimination, emphasizes the effect of the action on the victime rather than the intention or misconduct of the actor and employs a process that is designed to engage the parties and facilitate a non-adjudicative resolution of the "dispute".

Professor Moon’s recommendations

Professor Moon’s recommendations, which are developed in sections 4 and 5 of the report, may be divided into three parts:

1. The first recommendation is that section 13 of the Canadian Human Rights Act (CHRA) be repealed so that the CHRC and the Canadian Human Rights Tribunal (CHRT) would no longer deal with hate speech, in particular hate speech on the Internet.

Hate speech should continue to be prohibited under the Criminal Code but confined to expression that advocates, justifies or threatens violence. In the fight against hate on the Internet, police and prosecutors should make greater use of section 320.1 of the Criminal Code, which gives a judge power to order an Internet service provider (ISP) to remove "hate propaganda" from its system.

Each province should establish a provincial "Hate Crime Team," composed of both police and Crown law officers with experience in the area to deal with the investigation and prosecution of hate crimes including hate speech under the Criminal Code.

2. The second part of the recommendations concerns changes that should be made to section 13 of the CHRA if it is not repealed.

These changes would reshape section 13 so that it more closely resembles a criminal restriction on hate speech.

They include:

1. changes to the language in order to clarify that the section prohibits only the most extreme instances of discriminatory expression, that threatens, advocates or justifies violence against the members of an identifiable group;.

2. the amendment of section 13(1) of the CHRA to include an intention requirement; and

3. the amendment of the CHRA to establish a distinct process for the investigation of section 13 complaints by the CHRC. Under the amended process, the CHRC would receive inquiries and information from individuals or community groups but would no longer investigate and assess formal complaints.

The CHRC would have the exclusive right to initiate an investigation in section 13 cases. If, following an investigation, the CHRC recommends that the case be sent to the CHRT, the CHRC would have carriage of the case before the Tribunal.

This would remove the significant burden that under the existing system falls on the complainant. It would also enable the CHRC to dismiss (decide not to pursue) a "complaint" earlier in the process, when it finds that the communication at issue does not breach the section 13(1) standard and is unlikely to succeed at Tribunal.

3. The third set of recommendations concerns the role of non-state actors in the prevention of expression that is hateful or discriminatory in character.

The major Internet service providers (ISPs) should consider the creation of a hate speech complaint line and the establishment of an advisory body, composed of of individuals with expertise in hate speech law, that would give its opinion as to whether a particular website hosted by an ISP has violated section 13 of the CHRA or the "hate propaganda" provisions of the Criminal Code.

If this body were to decide that the complaint is well founded, the ISP host would then shut down the site on the basis of its user agreement with customers.

Newspapers and news magazines should seek to revitalize the provincial/regional press councils and ensure that identifiable groups are able to pursue complaints if they feel they have been unfairly represented in mainstream media.

If this does not happen, consideration should be given to the statutory creation of a national press council with compulsory membership. This national press council would have the authority to determine whether a newspaper or magazine has breached professional standards and order the publication of the press council’s decision.

A newspaper is not simply a private participant in public discourse; it is an important part of the public sphere where discussions about the affairs of the community takes place. As such it carries a responsibility to portray the different groups that make up the Canadian community fairly and without discrimination.