Jennifer Lynch, Q.C., the Chief Commissioner said last month,

The Commission is dedicated to ensuring that the Canadian Human Rights Act remains effective. Legislation must evolve – when necessary – to respond and reflect changes in our society. We take seriously the role envisaged for us in section 27 of the Act, which permits us to act in an advisory role to Parliament.

But first, in order to lead and influence an informed debate we must ensure that we have insight into the issues.

Therefore, this morning I am announcing the immediate launch by the Canadian Human Rights Commission of a comprehensive policy review of how to best deal with hate on the Internet. This will include a review of section 13 and the role of the Commission.

As an integral component of the broader policy review, the Commission has retained leading constitutional law expert Richard Moon to conduct an independent study.

Professor Moon is a prominent expert on freedom of expression, freedom of conscience and religion, and the structural aspects of constitutional rights protection. He is the author of the seminal book, “The Constitutional Protection of Freedom of Expression”.

His many publications on freedom of expression and freedom of religion are widely read and respected and his work has informed generations of law students in Canada and United States. Professor Moon teaches Law at Windsor University.

His study will include an examination of existing statutory and regulatory mechanisms. It will also consider the mandates of human rights commissions and tribunals, and other government institutions involved with addressing hate messages on the Internet. Also important, his study will consider whether other governmental or non-governmental organizations could play a role in addressing hate on the Internet.

His independent expert report will, together with our own research, inform the Commission’s future representations to Parliament.

However, as cognizant of the effects on hate speech as Moon, I personally expect that he will find that the courts cannot properly adjudicate it.

I also anticipate that the OHRC will probably conduct its own study with other legal expects that will probably come out with the opposite conclusion.

But it’s the nuanced and far deeper analysis that each will take that makes for a much more interesting legal discourse than the unintelligent flaming going on elsewhere.

Richard Moon of Windsor Law said in SYMPOSIUM: 20 YEARS UNDER THE CHARTER: Freedom of Expression and the Canadian Charter of Rights, (2002) 21 Windsor Y.B. Access Just. 563,

In the United States debate about the appropriate limits on speech revolves around the question of whether or not the speech goes “too far” and disrupts the security or stability of the community by inciting members of the public to harmful action or deceiving them on an important public matter. The paradigmatic speaker in American free speech jurisprudence is the lone dissident who confronts or challenges state power or dominant ideologies. She/ he should be free to speak and to challenge convention, unless her/his words go too far and provoke violence or threaten community security or stability.

In Canada, freedom of expression debate is often framed in similar terms. Yet it may be that an entirely different sort of concern underlies the freedom of expression decisions of the Canadian courts. While the courts describe certain in-stances of racist, pornographic or commercial expression as “going too far” and as appropriately subject to restriction, these forms of expression can only be understood as harmful if we see them as part of a systemic practice. The courts support the restriction of “extreme” expression or expression that “goes too far” (ads for dangerous products, violent sexual images, or extreme racist statements). However, the justification for restriction of these “extreme” statements depends not simply on their form, but also on the domination of public discourse by a narrow range of voices and views: the overwhelming presence in our public discourse–the mass marketing–of degrading sexual imagery or racist stereotypes or lifestyle product associations.

We do subscribe to the marketplace of ideas, but the threshold for hate speech is considerably lower in Canada, and evaluates slightly different criteria, which is why our American readers have such difficulty with the concept.

But these concepts are not entirely foreign to American jurisprudence either. In his review of The Irony of Free Speech, Moon says (48 Univ. of Toronto L.J. 125),

A state restriction will be justified, if the restricted speech is shown to have a silencing effect on some members of the community and leads to an overall reduction in the scope of public discourse. The state is justified in protecting the equal opportunity of minority groups to participate in public discourse not ‘to further their self-expressive interests but only as a way of furthering the democratic process’ (18). In all cases the critical issue is whether the particular regulation makes a net contribution to the First Amendment goal of a more open and diverse public discourse. A state restriction on hate speech, for example, ‘might promote . . . the speech rights of . . . minorities . . . but it necessarily diminishes the speech rights of racists’ (17). The state should be permitted to pursue the legitimate purpose of fostering full and open debate — of ‘making sure that the public hears all that it should’ (17).

These infringements on 2(b) rights are considered justifiable under s.1 as it promotes the goals of a democratic society. In speaking about Keegstra, Moon said (26 U.B.C. L. Rev. 99 – 143),

59 Finally, Dickson C.J.C. considers the contribution of hate propaganda to Canadian democracy. His version of the democratic justification of freedom of expression emphasizes the contribution of expression to the quality of public decision-making as well as the intrinsic value of participation in the decision-making process. Chief Justice Dickson accepts that the suppression of hate propaganda muzzles the participation of a few individuals in the democratic process. However, he considers that the degree of this limitation “is not substantial.” On the other hand, he notes that hate propaganda, although political, involves “ideas anathemic to democratic values.” It argues “for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics.”57 Chief Justice Dickson finds it difficult “to see the protection of such expression as integral to the democratic ideal so central to the section 2(b) rationale.”

Therefore, the characterization of some opponents to human rights tribunals is patently false. Infringements on speech are only justifiable in the interests of creating a more inclusive and tolerant society, and are very much compatible with our legacy in Western traditions.