Angry in the Great White North

Most of us have heard of the release of the Moon Report, commissioned by the Canadian Human Rights Commission to report on infamous Section 13, which gives the CHRC the power to regulate hate speech on the Internet.  Richard Moon's recommendation caught a lot of people by surprise:

The first recommendation is that section 13 of the CHRA be repealed, so that the CHRC and the Canadian Human Rights Tribunal (CHRT) no longer deal with hate speech, and in particular hate speech on the Internet. Hate speech should continue to be prohibited under the Criminal Code but this prohibition should be 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.

Now Jonathan Kay does note that a close reading of the report includes too many conditionals, but there is no denying the fact that Richard Moon is recommending a fundamental redefinition of the role and power of the CHRC.

Good thing, too.  And congratulations to Ezra Levant for being as responsible as any one person can be for bringing us to this point.

But I wonder about the damage already done.  Many people have been dragged through tribunals run by bureaucrats and patronage appointees with little understanding of law, rules of evidence, or even basic constitutional guarantees.

No doubt that miserable record played an important part in helping form Richard Moon's conclusions. 

So what of the people who have paid thousands to defend themselves in front of these tribunals?  What of the thousands that have been doled out as fines by people found guilty by a tribunal that is not a court of law?

Worse yet, what of the people who have been humiliated by the CHRC, forced to pen apologies or more.  By more I mean forced to go beyond apologizing for a specific incident, and instead promise to not speak again on a given subject.

Using the Moon Report to fundamentally redefine the CHRC is a great first step, and I'm hoping we'll see action on it soon.

But I think there has to be a look back as well.  Incompetence at the CHRC has inflicted a lot of damage.  If a crown attorney or a judge was found to be corrupt or incompetent, every case touched by that person would be subject to review.  And yes, in all likelihood, people who deserved to be punished would go free because of the taint that could not be scrubbed off.  But we'd accept that for fear of the hurt suffered by innocent people because of this corruption or incompetence.

I think we ought to do the same here.  Yes, it'll be expensive.  Yes, some bad people will benefit.  But I think any judgment or decision handed down by the CHRC in which Section 13 played a role ought to be reviewed by a proper commission made up of members of the legal profession.  The CHRC's role would be that of a defendant, attempting to justify the judgment or decision against the standards in the Criminal Code, such as those concerning rules of evidence, hearsay testimony, and the definition of hate speech itself.  In other words, what it should have been in the first place.  I'm willing to bet a fair number of CHRC decisions would fail to measure up to those standards.  In those cases, the decision ought to be undone, and awards reversed.  I'd accept having the taxpayer foot the costs for reversing awards, since in all likelihood awards might not be recoverable, and in any case, the CHRC is a government body.

It is almost certain that people have been wronged by the actions of a tribunal created by the community, and as a community, we have to set it right.

Maybe we can take the final bill and deduct it from the CHRC budget.  Eliminating some of the patronage appointments (especially those individuals who might be revealed to be responsible for some of the most egregious decisions once this commission has completed its work) might help balance the books.

The point is that the CHRC has made a mess of things.  It has to be cleaned up.