Irwin Cotler: HRCs need some adult supervision

Jonathan Kay and Barbara Kay have both wondered aloud whether their old friend Irwin Cotler, the former Liberal Justice Minister and current Liberal Critic for Human Rights, would be true to his civil libertarian roots and join his fellow Liberal MP, Keith Martin, in proposing an amendment to delete the section 13 thought crimes provision from the Canadian Human Rights Act. That's the provision that has recently entrapped Maclean's magazine, and has been used to abuse other Canadians deemed to be politically unpalatable.

Cotler hasn't replied to their public letters yet, but I am informed by a law student at Dalhousie University that Cotler gave a speech there last week that addressed this subject.

From what my correspondent tells me, Cotler indeed has lost a lot of the civil libertarian spirit that he showed as a younger man. Too bad for that. But Cotler told the students that he has spoken with Dr. Martin about the latter's private member's motion, and believes that some changes to the Act are needed.

Specifically, Cotler said that section 13 "hate message" prosecutions should only be permitted with the express permission of the Justice Minister. This is currently the rule with the Criminal Code provisions regarding hate crimes.

My correspondent did imply that Cotler was interested in working with Dr. Martin to introduce a private member's bill (as opposed to a merely symbolic motion) to this effect.

I have two conflicting responses to this news.

On the one hand, I am delighted that Cotler sees a need to reform the out-of-control HRCs in Canada. The fact that he supports a requirement for the Justice Minister's consent before the laying of section 13 charges is a stunning rebuke to the CHRC. It's saying that they are incapable of exercising discretion on their own, and that it's time for "grown ups" to take over -- grown ups who believe in public accountability, unlike the disgraceful, secretive approach shown by the CHRC. If I were a commissioner or staffer at the CHRC, I'd be humiliated by this vote of non-confidence. As I've said before, this is as much about the rule of law as it is about the substance of the law itself, and Cotler has essentially said the HRCs can't be trusted to administer justice. 

Cotler is probably Canada's leading human rights expert, second only to Alan Borovoy who has already called for the overhaul of the HRCs. For Cotler to publicly express his concern about CHRC abuses, and recommend that legislative amendments are needed, is politically important. The fact that he is an old-time Liberal, and Jewish to boot, is only more persuasive for those who care about the pedigree of people making an argument, as opposed to the argument itself.

Cotler brings with him moral authority; he brings the respect of many in Parliament, not just in the Liberal benches but amongst other parties, too, who see him as a relatively non-partisan man who is driven more by his own philosophy of justice, as opposed to party dictates. His imprimatur is important -- although one wonders how many more seals of approval are necessary, after the Canadian Civil Liberties Association, PEN Canada, the Canadian Association of Journalists and a dozen newspapers from across the political spectrum have already weighed in on the matter.

In that regard, it's great news.

But another part of me is deeply disappointed. From the report I received, Cotler is still clinging to the notion of human rights commissions as a tool for justice, which is a dangerously obsolete point of view. He believes that the emotion called hate can be regulated, and that mere words can be crimes. And, just as bad, with his one new caveat, he still believes in the illiberal processes of the HRCs, stacked with radical activists, devoid of the rule of law, and lop-sided in the extreme against the accused. He would cut a leaf or two off the noxious plant, rather than prune it to its trunk, or uproot it as is really needed.

The provision for ministerial consent has surely cut down on frivolous application of the Criminal Code provisions regarding hate speech. In fact, that's precisely why the HRCs took up "hate messages" with such gusto -- they're a way for activists to get around the checks and balances in the Criminal Code, such as silly, old-fashioned ideas like the presumption of innocence and natural justice.

Adding a requirement for political consent would likely have spared mainstream Maclean's magazine from a section 13 charge. But would it have spared me and the Western Standard magazine, further out on the edges of mainstream society? Or how about the bulk of the section 13 cases, which are even further removed from the center? I'm not sure if a Justice Minister, with one eye on the electorate, would nix cases against clearly racist websites. And that's an important point here; I'm not just looking for vindication of the Western Standard for our reasonable publication of the Danish cartoons in 2006; I'm looking to preserve my right -- and even the right of people I disagree with -- to be unreasonable, wrong, and even bigoted or motivated by hate. I don't want a Justice Minister -- even a mythical reasonable one, a benign one, a non-partisan one -- to be the editor-in-chief of what I write or what I think, or what anyone else does, either. I don't want people who exhibit bigotry regarding someone's religion, or sex, or appearance, to be answerable to the law -- only to the pressures of polite society. I don't even want folks who publish anonymous anti-Semitic comments on websites to be bothered by the law -- only by their conscience.

On balance, though, I'll take Cotler's comments as a step forward. As with so much in Canada these days, incremental gains are to be celebrated. It took forty years for the human rights commissions to sink so low. It's likely unrealistic to expect a generation of wrongs to be righted in a year.

Let's get the boulder of reform slowly rolling; getting it from a dead stop to one mile an hour is likely harder than getting it from one mile an hour to twenty.