On In a decision decision that came out on January 31st, the Federal Court of Appeal ruled that Section 13 of the Canadian Human Rights Act, which makes it a crime to communicate something which “may” result in someone feeling hated, is both constitutional and in accord with freedom of expression.
e need only look at debates in Parliament and s from the tribunals and courts to see that what qualifies as a right, or a violation thereof, is as murky as the private life of Justin Bieber. There is a lot of talk, but very little substance to give that talk a concrete foundation.
In other words, according to this , there is no legal reason to scrap Section 13, even if there are other good reasons for doing so. This ruling flies in the face of a review conducted by the Canadian Human Rights Tribunal itself, which found that Section 13 was unconstitutional. And it also comes on the heals of Parliament voting to scrap this very section.
What this means is that the court is giving a green light to BC, Alberta, and Saskatchewan to maintain their existing human right codes which have similar problematic sections about “hate speech.” It also means that the door is left open for a new federal government to introduce Section 13 under a different name.
And it comes around the same time as the CHRC criticized Quebec’s Values Charter on the grounds that it would violate Quebec’s Charter of Rights and Freedoms. When the Canadian Human Rights Act, the Canadian Charter of Rights and Freedoms, and the Quebec Charter of Rights and Freedoms are brought to bear on the Quebec Values Charter, it is of little surprise that we will hear a hundred different conclusions about whether the legislation is “constitutional,” whatever that means.
The problem is that the legal community is used to referencing itself as the authority and not having to dig deeper and explain its own foundations and answer even the most basic questions such as “what is a right” and “who grants rights” or “who decides the hierarchy of rights.” This comes, at least in part, because we have a legal system that has done its best to remove any Divine authority and yet still wants to uphold the concepts (e.g. rights) which only came to our legal tradition because of our Judeo-Christian heritage (such as the 1215 Magna Carta). Our secular society can’t stand the notion that the concepts we hold dear require a religious foundation to give them meaning. You can find a lot more on this topic here.
Canadians of all stripes should be able to agree that now, more than ever, our government officials, judges, and tribunals need to define their terms. Then we can at least know where we disagree. As it stands, rights are becoming an empty concept. And that is a shame, since they need not be.