Hate speech creates a “silencing dynamic” that excludes disadvantaged groups from civil participation, according to Mohamed Elmasry, national president of the Canadian Islamic Congress.
In a submission to Richard Moon, a University of Windsor law professor hired by the Canadian Human Rights Commission to review its online hate speech mandate, Prof. Elmasry writes that “the state should act to empower those who are disadvantaged by hate speech, and that may mean lowering the voices of some in order that others may be heard.”
He called for mandatory press councils, and an end to “media monopoly,” and said the CHRC was wrong to dismiss his recent complaint of Islamophobia in Maclean’s magazine, which “aired its opinions to more than two million readers, but CHRC did not hold a hearing for Canadian Muslims and experts to voice their views.”
His comments are a rare departure from the public silence the controversial Muslim leader has taken on an issue in which he is deeply invested.
Since initiating hate speech complaints last year against Maclean’s in Ontario, British Columbia and federally, Prof. Elmasry has delegated spokesmanship to lawyer Faisal Joseph and a group of young articling lawyers. Only British Columbia heard the case, but has yet to rule.
The lawyers also prepared a brief for Prof. Moon, in response to questions he provided: what would be lost if the hate speech provision of the Human Rights Act, Section 13, were repealed; how might it be improved; should it require an intent to spread hate; and what other complaint mechanisms for hate speech might be enhanced.
Prof. Elmasry compared hate speech laws with speed limits as examples of “worthwhile” exercises of state power.
“The old idea that the state is an enemy of freedom should not be replaced with the idea that it can be a friend of freedom by not dealing with hate speech regulation,” Prof. Elmasry writes.
“The current mantra that ‘the remedy for hate speech is more and better speech’ is in fact both false and misleading. The reality is that those who are expected to respond with ‘more and better speech’ cannot do so in today’s public forum. Or if they do speak out, their words are often dismissed as lacking credibility.”
The CIC legal brief argues that removal of Section 13 “would remove the only practical avenue available for addressing hateful and racist speech in the media.”
It also blames “political pressure” for the CHRC’s decision not to refer the federal Maclean’s complaint to a tribunal, and cites this as a reason for the CHRC to emulate Ontario’s newly revamped human rights legal system, in which access to a tribunal is much more direct.
The CIC dismisses the suggestion of an intent requirement for hate speech law, and says the complaint process does not put undue burden on respondents.
Complaints of hate speech, it argues, “by their very nature feature underprivileged complainants who in most cases have experienced an infringement of their human rights, pitted against well-re-sourced entities.”