“The Supreme Court of Canada has, it turns out, ruled on a key question in this matter: the constitutionality of Section 13(1) of the federal human rights legislation, the part dealing with published or broadcast communications deemed to incite hatred against identifiable groups. And their 1990 decision in the John Ross Taylor case makes for fascinating reading.
“The court ruled 4 to 3 that Section 13(1), while a restriction of the Charter right of freedom of expression, was a justifiable limitation on the part of the government. That would seem a problem for proponents of a rollback of Section 13(1), except for two factors.
“One, the court’s majority set the bar quite high for human rights bodies. A finding of hatred or contempt, the judges said, ‘refers only to unusually strong and deep-felt emotions of detestation, calumny and vilification.’ With that understood, there was ‘little danger that subjective opinion as to offensiveness will supplant the proper meaning.’ But exactly what the majority said would not happen, in fact has.
“Two, the dissenters on the court said Section 13(1) was ‘too broad and too invasive and catches more expressive conduct than can be justified by its objectives.’ In essence, the three dissenting judges warned the section’s wording could result in overreach by the human rights body, which is, in fact, what we’re seeing. They also feared ‘the vagueness of the law may deter more conduct than can legitimately be targeted.’ In other words, putting a chill into people’s desire to speak freely.
“I can’t get into detail, but the decision also noted a question of perceived bias with human rights tribunals and the commissions that appoint them. That defence remains open.”