Canadian Human Rights Commission Free Speech Controversy - November 2008 Report By Professor Richard Moon

November 2008 Report By Professor Richard Moon

In 2008, University of Windsor law professor Richard Moon was commissioned by the CHRC to prepare a report on the CHRC's mandate under Section 13 of Canadian Human Rights Act which deals with hate-speech. In November 2008, Moon released his report in which he recommended that Section 13 should be repealed so that online hate speech is a purely criminal matter. Moon wrote that "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." Moon argued that "it's not practical to deal with what one might generously describe as group defamation or stereotyping through censorship. It's just not a viable option. There's too much of it, and it's so pervasive within our public discourse that any kind of censorship is just overwhelming."

Regarding the current legal test for violations of Section 13, which is whether messages were "likely to expose" identifiable groups to "hatred or contempt," neither truth nor intent is a defence, unlike libel law. Moon recommended that intent to advocate or justify violence be made a requirement for Section 13, replacing the test of "likely to expose." However, he did not recommend that truth be allowed as a defence since it could result in tribunals becoming forums to debate, for example, the veracity of the Holocaust, the genetic inferiority of blacks, or the dangers of homosexuality."

Prof. Moon noted that the current complainant-driven system is unequal, in that only well-resourced and determined complainants can see their case through to a conclusion. In this, he was referring to Richard Warman, an Ottawa lawyer and former CHRC employee who has brought more than a dozen cases, far more than any other complainant.