Looking more into this, I found these interesting links:
First up is a letter to the editor from 'Canuckstan Bob' at
Salon over Glenn Greenwald's 'consequences of hate speech laws' piece.
Link
I want to clear a few things up here, but before I do that, I should make it clear that I think that both Canada's Hate Crimes laws and Human Rights tribunals are pretty much a bad bad ideas, that I do not support them.
But the distinction is important. The Criminal Code does indeed make hate speech a crime; there have been very few prosecutions under it, and the results of those prosecutions have been such that subsequently very few prosecutions have been brought. (Incidentally, such prosecutions are at the discretion of the Crown, and cannot be brought by individuals or groups.) The first problem is that convictions are exceedingly difficult to get (we still do have a court system that is if anything generally less political and allied with the Executive than in the US, though still rather conservative). The worse problem is linked with this: a court trial gives the hate-monger a massively bigger megaphone-- the Ernst Zundel trial proved that, with the media repeating the ludicrous defence claims at face value.
But that is beside the point, because the Human Rights tribunals are a different kettle of fish entirely. (Full disclosure: I have a personal acquaintance with Mr. Levant, and rather strong opinions about his character and conduct; also, I myself have been involved with several matters before the Alberta Human Rights Tribunal.) Basically, they mostly deal with housing, employment, etc. issues, the US has pretty much the same sort of thing under different names. In fact the complaint against Mr. Levant was not actually about hate speech per se, which is as I said a criminal matter, though in effect that is how it is working out. The Human Rights Commissions do not in fact deal with things like hurt feelings, but real actual substantive losses.
First of all, yes, the tribunals do have a rather minimal power to fine, but mostly, by design, in theory anyway, their biggest sanction is to drag ugly conduct into the light of day (ugly conduct, that is, by all parties). In practice, this has not worked out so well, because like every government bureaucracy, they move at a glacial pace. Levant's case being a case in point; the complaint is at least a couple of years old.
But the proceedings are not quite as Levant portrays them. First of all, the process is pretty much entirely pro se; lawyers are typically not involved, and really aren't much help. This is why I have been involved: any disgruntled former employee or tenant can file a complaint (hand-scrawled on the form, said hand-scrawling being something that Mr. Levant for some reason feels is highly pertinent; well, he is a bigoted asshole after all).
When the tribunal gets around to it, it investigates, with a view to either dismissal or mediation (which is the stage that Mr. Levant is currently in) or failing that, moving to a full hearing. He was dealing with an investigator, not the tribunal itself. He in fact did not have to meet with her at all. Generally, this meeting (I have been through several) is held at your office and at your convenience; you are not dragged in anywhere, unless you want to grandstand, and once again, do not have to participate. Generally, it is in your interest to do so, because the vast majority of complaints are wound up at this stage.
So no, this is not some sort of secret star-chamber hearing, it is a meeting with an investigator/mediator who is trying to figure out what is going on. And just like a meeting with an insurance adjuster or a tax auditor or yes, even a police detective, a request to bring an audience and tape the proceedings and so on would likely be met with some resistance. In fact it seems to me that the investigator was bending over backwards to be accommodating.
Based on my experience, I would expect that, outside of Mr. Levant's grandstanding, the whole matter would have been dismissed at this point. If it goes forward, under current practise, precedent, regulation, and legislation, the whole thing will wash out pretty quickly. And I don't think that Mr. Levant has in any way been hurt by it; on the contrary, he rather looks like the cat that swallowed the canary at this point.
Something that as a Canadian (and incidentally, also a dual citizen American) I have to explain once in a while: the US was founded on the principles of "life, liberty, and the pursuit of happiness;" Canada was founded on the principles of "Peace, Order, and Good Government," which what you see working here. While as an American I actually share the maximalist position on free-speech, and think my other country is a bit wrong-headed on this issues, I do not take it as a given that those who do not share this approach are necessarily on a slippery slope to tyranny. Maybe they are just seeking a reasonable balance (which is why the Canadian Charter of Rights and Freedoms is such a boring read), exercised in a thoughtful, reasonable and accommodating manner.
One of the differences between the US and Canada is that in the US pretty much everything seems to get politicized. Everything from extraordinarily gerrymandered electoral divisions to municipal corrupt municipal commissions seem omnipresent, and simply would not be tolerated in Canada. Given that background and political culture, I think that the US as every right to deeply fear such things as Human Rights Commissions. I too have read the history of HUAC.
His last sentence sums up my position on free speech pretty clearly.
Given the current administration's predilection to classify even the most innocuous things, I shudder to think what'd happen if the Feds had the power to decide 'hate speech' was illegal and censor it.
Next up is a speech given by the Right Honourable Beverley McLachlin, P.C., Chief Justice of the Canadian Supreme Court on 'Protecting Constitutional Rights: A Comparative View of the United States and Canada'.
It's fairly long, so I'll post some highlights.
The entire transcript can be found
here
But let me come to one area where people of both countries not only see important differences but are currently engaged in a vigorous debate about which approach is preferable: I refer to the fundamental freedoms protected by our respective constitutions. The case can be made that Americans and Canadians have different perceptions of the relationship of the individual to the state and as a consequence, a quite different approach to the fundamental freedoms and liberties our constitutions guarantee to each citizen.
To illustrate this difference in approach, I would like to briefly highlight three aspects of the constitutional protection of fundamental freedoms in Canada: First, the Canadian Charter of Rights and Freedoms contains an explicit recognition that rights are subject to reasonable limits flowing from public or collective interests. Second, the Canadian constitution guarantees rights that are intended to recognize minority communities and enhance their vitality. In both respects, the Canadian constitution is a product of Canada’s history. Third, many rights and freedoms in Canada are subject to a legislative override, found in the notwithstanding clause of section 33 of the Charter.
Canada, like the United States, has a constitutional guarantee of free expression. Our Charter of Rights and Freedoms guarantees freedom of expression, subject to such reasonable limits as are "demonstrably justifiable in a free and democratic society". In other words, we have free speech, but the state can limit it in reasonable ways. This may be contrasted with the absolute language of the First Amendment of the United States Bill of Rights, which states: "Congress shall make no law ... abridging the freedom of speech or of the press." The words of the Canadian guarantee acknowledge the state's right to limit free speech; the words of the American guarantee forbid the state from doing so.
Free speech plays out differently above and below the 49th parallel in other less publicized yet significant ways. Hate speech finds significantly more protection in the United States than in Canada. Provided hate propaganda laws are tightly enough drafted, they pass muster under the Canadian Charter. In the United States, by contrast, little short of incitement to violence can be legally limited.
She goes on to discuss other aspects where Canadian law is different from US law, such as government support for religious schools and group rights.
At the risk of over-generalization, it might be ventured that, as a general rule, individual rights in Canada are more circumscribed, and collective or “group” rights, protecting linguistic, religious or aboriginal communities, are more generous than in the United States. In the United States the ethic of the individual is foremost; in Canada there is more concern for the general public welfare and members of disadvantaged groups.
The third major distinction in the way our respective constitutions treat rights lies in the legislative override provision found in section 33 of the Charter. Section 33 permits Parliament or a provincial legislature to “override” decisions of the Supreme Court invalidating laws for violation of the Charter. This gives an infringing government two lines of defence. First, the government can argue that the infringement is justified under section 1 of the Charter, as I have already discussed. Second, if that doesn’t work, the government may uphold the infringement by so stipulating in a law. This applies to all rights, with the exception of basic democratic rights, mobility rights and linguistic rights. The override is effective for five years, but can be renewed.
At first impression, the Canadian override provision stands in stark contrast to the absolute finality accorded to the constitutional pronouncements of the United States Supreme Court. In fact, the actual situation in the two countries is not dissimilar, thus far in any event. The section 33 override has only seriously been invoked on one occasion, by the Province of Quebec, to maintain language legislation the Supreme Court had found incompatible with the Charter guarantee of free expression. The Charter enjoys broad popular support, and governments appear reluctant to be seen as depriving citizens of constitutional rights. Only time will tell if section 33 represents, in fact, an important qualification on Charter rights. But at least in theory, it supports the view that the Canadian approach to rights is less individualistic, and more collective and deferential to government, than the American.
She ends it by examining how the US and Canadian perceptions grew from our different historical experiences.
All in all, her speech seems to be a credible explanation of why the US and Canada regard things such as hate speech differently.
