Section 13, the controversial hate speech provision in the Canadian Human Rights Act, should be repealed, according to an independent review by University of Windsor law professor Richard Moon.

"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," Prof. Moon writes in the review, released today, five months after it was commissioned by the Canadian Human Rights Commission.

"Less extreme forms of discriminatory expression, although harmful, cannot simply be censored out of public discourse... Censorship of expression that stereotypes or defames the members of an identifiable group is not a practical option and so we must, as a community, develop other ways to respond to this expression," Prof. Moon writes.

Section 13 is a federal law -- initially written for telephone hate lines but expanded in 2001 to include the Internet and, by extension, almost all modern media -- that prohibits the repeated distribution of messages that are likely to expose an identifiable group to hatred or contempt. Some provincial human rights commissions have similar laws that deal with printed material.

Although it represents only about 2% of the workload at the Canadian Human Rights Commission, Section 13 has become a flashpoint for controversy, and Prof. Moon's recommendation to repeal it is sure to invigorate a debate about human rights law and free speech that has moved from the fringe to mainstream in the last year.

That debate was initially focused on a series of failed human rights complaints against Maclean's magazine by the Canadian Islamic Congress -- whose national president, Mohamed Elmasry, coincidentally today announced his resignation -- but quickly expanded to include other cases of alleged hate speech, at both the provincial and federal level.

The repeal of Section 13 has already been proposed by Liberal MP Keith Martin, and adopted as policy by the governing federal Conservative Party, but has yet to be voted on in Parliament.

If it is not repealed, which would require an act of Parliament, Prof. Moon recommends that Section 13 be changed to more closely resemble criminal prohibitions on hate speech with a focus on messages that advocate or justify violence. He also proposes a requirement "that the communicator intended to threaten, advocate or justify violent action against the members of an identifiable group, or recognized that her or his communication would reasonably be understood by its audience as threatening, advocating or justifying violence."

He also provides recommendations for non-governmental actors. Internet Service Providers, for example, should create hate speech complaints hotlines and advisory bodies to decide whether material hosted by the ISP is in violation of the law. For their part, media should consider revitalizing provincial press councils to deal with complaints of discrimination in their journalism, Prof. Moon suggests. Failing that, he said consideration should be given to a national press council with mandatory membership.

more to come...

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