Mr. Richard Moon: Okay. I assume that I was asked to speak to you because I recently wrote a report for the Canadian Human Rights Commission dealing with section 13 of the Canadian Human Rights Act, and that’s the section of the act that prohibits Internet hate speech, understood as communication that is likely to expose the members of an identifiable group to hatred or contempt. In a minute, I’ll say something about my report and its recommendations, but first I wanted to comment on the current debate in Canada concerning the regulation of hate speech in the Human Rights Code.
Let me start by saying there is certainly a serious debate to be had about the legal regulation of hate speech: about whether it should be regulated, about the scope of regulation and about the legal mechanisms for regulation.
But the debate in Canada has been infected by a style of political comment that’s relatively new in Canada but better known in the US. There are a number of right-wing critics in Canada who, instead of offering serious and plausible criticism of the Human Rights Code regulations, engage in baseless personal attacks. Without compunction, they accuse the civil servants who are mandated to implement human rights legislation of corruption. They use the term “corruption” freely and very loosely, but always in a way that suggests a significant breach of public trust. The accusations have no substance; they are pieced together out of nothing. But what they achieve, what the commentators want them to achieve, is a general sense that there is a serious problem, even if the specifics of the problem are unknown.
I suspect that my invitation to speak to you today shows that these commentators have been successful in their smear campaign against human rights commissions. I urge the committee not to be taken in by these individuals. They don’t care about the truth; they make things up.
I want to give an example of this : The night before my report was released in November, Ezra Levant posted on his blog a comment about the report. The title of his posting was, “Richard Moon’s report was redacted by Jennifer Lynch.” Jennifer Lynch, as many of you may know, is the chief commissioner of the Canadian Human Rights Commission. The claim or suggestion was that the report was not my own work—that I was told by the commission what to say.
The claim was false—I was given complete independence—and when my report was released the following day and recommended the repeal of section 13 of the Canadian Human Rights Act, the falsity of Levant’s claim was obvious. Levant had just made it up.
He thought he knew what I would say and he sought to discredit the report in advance by attacking me and the commission rather than the arguments I might make. Had I recommended something different, that section 13 be retained with certain amendments—a perfectly reasonable position—then Levant’s false claim and the commission rather than the arguments I might make. Had I recommended something different, that section 13 be retained with certain amendments—a perfectly reasonable position—then Levant’s false claim about the report might have seemed plausible to some people and would have been difficult for me to refute decisively.
This is his general style and that of others. Over the last few years, these commentators have made a series of baseless accusations against the members and staff or the Canadian Human Rights Commission, and these claims have leaked into the mainstream media, into the National Post, and into the columns of the Globe and Mail. Believe none of it. As I said at the outset, there are some serious questions to be addressed, but I have come to the conclusion that certain individuals who have played a large role in the campaign against human rights laws and human rights commissions, particularly in the context of hate speech, have no interest in serious debate or in the truth.
...Now another issue, I suppose—and I will say I had not actually originally intended to make an opening statement of sorts and certainly not with the content that this one had until I realized that Mark Steyn was also to be speaking to you today. So another issue, it seems to me, has to do with the role of the commission in monitoring and commenting on patterns and instance of hateful or discriminatory speech in the province. The comments made by Barbara Hall regarding the Mark Steyn article were criticized by some.
The commission decided that it did not have jurisdiction, but nevertheless observed that the article was discriminatory.
In my report I argued that the law—and I’m speaking of course about the and my focus was on the federal act—should not prohibit expression that defames the members of an identifiable group; that we should instead consider other ways to respond to such speech.
The Mark Steyn article, in my view, should not be censored but nor should it go unanswered. It was an unfair and deceptive in its content and glib and sometimes juvenile in its style. How are the members of the Muslim community to respond to the suggestion in Canada’s national news magazine that they are violent or sympathetic to violence? They do not have Mark Steyn’s platform.
There may be a role for the commission to play in response to defamatory, discriminatory speech in the community. Its mandate is to educate and advocate. As an institution, as it’s currently designed, I am not sure how well-suited the commission is to such a role. In my report I advocated a strengthening of the voluntary press council system, but I certainly would not want to rule out the possibility that the commission may also have a role to play. Those are my opening remarks.
The Chair (Mrs. Julia Munro): We’ll begin, then, with the official opposition.
Here's Joseph Brean's story in today's National Post:
Didn't I say at the time the Moon Report came out that, despite his chief recommendation to repeal Section 13, that it still had a censorious tone about it? His argument seemed to be at the time that Section 13 was too difficult from a practical standpoint. For some reason, Moon brings to mind the Journalism Doctor. Maybe its because of the odor of political correctness they exhale with every utterance.
Richard Moon, the University of Windsor law professor who last fall became a darling of right-wing free speech advocates when he recommended scrapping the federal human rights hate-speech law, on Monday lashed out at his admirers.
He accused them of launching a "smear campaign" against human rights commissions and "baseless personal attacks" against their staff.
"I urge the committee not to be taken in by these individuals. They don't care about the truth. They make stuff up," he said in a submission to an Ontario government committee reviewing the Human Rights Tribunal of Ontario.
Conservative pundit Mark Steyn drew fans to hear his arguments about the trampling of "real human rights" in the name of "pseudo-rights."
But it was Prof. Moon who stole the show with an impassioned defence of human rights commissions and their staff, who he said are people of "integrity" pursuing their statutory mandate.
His criticisms, which he followed with an overview of his November report about the federal human rights hate speech law, vexed the Progressive Conservative MPP who had invited him on the understanding he would discuss the dangers of government censorship.
"I'm very disappointed," said Lisa MacLeod (Nepean-Carleton, Ont.). "I didn't call you in to make accusations and call people liars."
Prof. Moon targeted Ezra Levant in particular, whose blog is a clearinghouse for skepticism of human rights law, and who claimed the day before Prof. Moon's report was released that it had been "redacted by Jennifer Lynch," the chief commissioner of the Canadian Human Rights Commission.
Of course Ezra Levant shot back, though with it seems amusement rather than anger:
First, Moon's review specifically barred him from investigating the unethical conduct of the CHRC -- including, for example, their memberships in neo-Nazi organizations. He simply didn't look into it. Yet he pronounces that those accusations were "made up".
I think he makes a perfect HRC shill, don't you? Don't bother with an investigation -- just issue the conclusions. No ethical problems here!
Second, I think the real reason why Moon is sore at me is because I highlighted his enormous payment for his work, and that embarrassed him. More to the point, I sent him dozens of questions for his inquiry, every single one of which he studiously ignored. So I think I proved his review a sham. You can see my questions here, and his report here.
Third, he says it's false that his report was reviewed by Jennifer Lynch before it was released, and he claims to have had full independence. But his written contract shows that his protestations of independence just aren't true. As you can see here, he was in fact required to run his report by the CHRC, and he was required to accept their changes
Fourth, he says I falsely stated he would whitewash the report, saying I just "made that up". A prediction isn't really true or false when it's made -- it's only later proved right or wrong. And I was delighted that my prediction was wrong, to a degree -- Moon in fact recommended the repeal of section 13 censorship provisions, before spending dozens of pages explaining how more censorship provisions are needed.
Mark said the following that I wish to flag:
The ultimate minority is the individual
A committee member noted that the Ontario Human Rights Commission case brought against Steyn and Maclean's had dominated discussion among the human rights appointees, and she asked if they believed that free press trumped discrimination. The same question was asked earlier today of the chair of the Ontario Human Rights Tribunal, and the response was "Neither trumps either." She wanted to know Steyn's view on this.
Steyn: With respect to the witness the morning, that has become a standard equivocation at the Ontario Human Rights Tribunal. Whenever Tribunal judges take away individual [unintelligible], they do so under the guise of balancing, what they call "balancing"or competing rights. So, going back to the Scott Brockie* case, they claimed to be balancing freedom of religion with the right of the gay people seeking printed materials to be free from discrimination. But in practice, they almost never balance those rights. They always defer to collective rights, group rights, in favour of individual rights. I am an absolutist on this. I am of the view that the ultimate minority is the individual. And classically, historically, common law has been entirely antipathetic to group rights. Because who can speak for a group?
The notion of group rights should be an abomination to a settled democracy.
Denyse O'Leary has often written about the sleight of hand that has replaced real human rights with false human rights, such as the right not to be offended. I believe the same thing has happened with the concept of group rights. A sleight of hand has replaced a proper understanding of group rights with notions of equality of outcome for all groups, freedom from being offended and so on. So, with that understanding of false group rights at play, I agree with what Mark said.
That notion of group rights should be an abomination. But there is a proper notion of group rights that needs to be defended. The rights of families over and against the state is a group right that needs to be respected. Families must have a sphere or zone around them that, unless there is some egregious violation or abuse, needs to be respected. Parents within this sphere, need to have the rights to educate their children and to discipline them. Very illiberal forces are trying to stand up for the rights of children in such a way that will tear familial bonds asunder and remove the rights of parents to have prime responsibility for educating their children. You already see this happening in Quebec where parents don't have the legal ability to opt their children out of the pernicious, relativist religion and ethics course imposed by the province.
There are also very illiberal moves to remove the group aspect of religious freedom and make religious belief a totally individual and private affair. Religious freedom has both an individual conscience and a group dimension. There are those who would take away the group aspect, or use the power of the state to enforce an individual right against a group right as in the case of Christian Horizons. This charity had a faith and morality code that it asked employees to sign onto. In order to participate in their evangelical Christian ministry to intellectually disabled adults, you had to believe in the Christian faith, and lead a Christian lifestyle that involved no sex outside of a traditional, heterosexual marriage. An employee who had signed this code became involved in a lesbian relationship and when she ran afoul of the code she filed a human rights complaint and won. Thus Christian Horizon's religious freedom as a group right has been infringed, and by extension so has the individual religious freedoms of those who want to cohere with that kind of group ministry.
There are those who would say the tax exemptions should be removed from say the Catholic Church because it does not ordain women priests. That would be individual rights trumping the group dimension of religious freedom. There are profound theological reasons why there is a male priesthood and it is not the purview of the state to interfere with religious matters. The tax exemptions are not some kind of privilege the state grants, but a recognition of the limits of the state. Alas, there are those with very illiberal, anti-freedom aims that seek to use individual rights in such a way as to dissolve all the group rights that allow for intervening institutions that provide a bulwark against total state power. Of course, when it is handy for them, they will use group rights, as in the group right not to be offended towards the same aim.
But objective moral criteria needs to have a natural law foundation, a foundation in some kind of objective reality or truth about which all people of good will tend to agree.
For example, a family's group rights should not allow that family to engage in honor killings of teenaged daughters, or for a husband to take multiple wives or for parents to physically abuse their children. A religion's group rights should not allow human sacrifice even if the human was willing. Nor should these group rights allow religions to preach violence against other groups or the violent overthrow of the state.
The individual is powerless against the state when there are no buffers. Group rights help to maintain those buffers. Alas, however, those with totalitarian impulses have taken taken the language of group rights to dissolve individual freedoms when they can, and the language of individual rights to dissolve group freedoms.