Based on the committee’s recommendations, the Criminal Code was amended in 1970 to include s. 318 (the criminal act of “advocating genocide� defined as supporting or arguing for the killing of members of an “identifiable group�), s. 319 (“public incitement of hatred� where a person communicates statements in a public place and incites hatred against an identifiable group in such a way that there will likely be a breach of the peace), and s. 320 (allowances for the seizure of hate propaganda material for distribution or sale which, after 2001, included computer files and web sites). Charges under these three provisions cannot be laid without consent from provincial attorneys general.

A couple of other landmarks dot the road of the current debate. The Canadian Human Rights Act, passed in 1977, included that controversial s. 13 provision making it discriminatory for a person or group to “communicate telephonically� any matter “that is likely to expose a person or persons to hatred or contempt.� That too was amended in 2001 to include communicating via the Internet.

Under the Human Rights Act, you can be guilty of a s. 13 offence even if you didn’t intend to cause harm, and truth cannot be used as a defence. Opponents say this unfairly hobbles those accused of breaching s. 13, but advocates say since it’s nearly impossible to get hate crime charges laid under the Criminal Code, s. 13 is critical for stifling the rancorous and potentially harmful actions of neo-Nazis, white supremacists, and others. A young human rights activist-cum-law student named Shane Martinez is adamant about that, but more on him later.

After the passage of the Canadian Charter of Rights and Freedoms in 1982, some free speech devotees saw an opportunity to slay s. 13, Doug Christie among them. Representing John Ross Taylor, who was found guilty by the Canadian Human Rights Tribunal of disseminating hate messages via a telephone answering machine, Christie appealed the case to the Supreme Court of Canada in 1990. He lost — but barely. The court ruled, in a 4-3 decision, that s. 13 was a reasonable and justifiable limitation of rights under the Charter. “I think they went the wrong way. And I think they realize they went the wrong way and they’re going to reverse it if it ever gets back there,� says Christie. “If the government or the courts decide to regulate what we think and what we speak, they will be inherently corrupted by their own biases and bring the administration of justice into disrepute. . . . It’s an area they should stay out of.�

The federal Conservatives agreed. At its November 2008 convention, it adopted a resolution to remove authority from the Canadian Human Rights Commission to investigate and adjudicate s. 13 complaints. But a beleaguered Stephen Harper has nudged that resolution to the back burner. When asked by Maclean’s in January whether the government planned to amend the act, Harper told editor Ken Whyte, “The government has no plans to do so.� He explained: “It is a very tricky issue of public policy because obviously, as we’ve seen, some of these powers can be abused. But they do exist for valid reasons, which is obviously to prevent public airwaves from being used to disseminate hate against vulnerable members of our society.� The PM’s use of the word “airwaves� was confusing since s. 13 deals only with the telephone and Internet, but nonetheless, his intentions seemed clear.

That hasn’t stopped Keith Martin, a Liberal MP from Esquimalt-Juan de Fuca, B.C., from taking up the torch, introducing a pair of motions in November calling for s. 13 to be deleted and for public hearings to review the act, the commission, and its tribunal. Martin says he hadn’t paid close attention to the Human Rights Commission until he got a call from a constituent. “I was quite appalled at how the act was being used to, in some cases, bludgeon freedom of speech,� he says. “The act was going far beyond protecting individuals from hate speech and at times, making almost arbitrary decisions to go after people who said things that were deemed by a small group to be offensive.� Sweeping generalizations like that make Warman flush red with aggravation.

According to the commission’s web site, 70 s. 13 complaints were filed between 2001 and April 2008 and, as of that month, only 13 had been upheld by the tribunal. Eleven of the 13 were filed by Warman, who worked as a human rights officer and legal counsel for the commission from 2002 to 2004. Warman says he filed complaints before he started working for the commission, during, and after he left, but adds he was not involved with the complaint process or the investigations. His detractors insist otherwise and accuse him of abusing his power and connections to grind axes. According to one insider, Warman’s preoccupation with s. 13 makes some commission members uncomfortable. His response is simple: the legislation is there so why not use it? “If you know there are people calling for the genocide of your neighbour, you have a fundamental moral and ethical duty to do whatever you can to stop it,� he says. “I think it would be a failing to my profession as a lawyer not to.�

Peruse the tribunal’s recent decisions and it’s hard to find any of the “arbitrary� cases Martin refers to. In each decision, the tribunal cites examples of online cultural conspiracies (by “Niggers,� “Injuns,� “Chinks,� etc.), vile depictions of First Nations, gays, Hindus, blacks, Muslims, Jews, etc., and threats to harm members of those “sub-human� groups. Postings to a Canadian Nazi Party web site were the subject of a 2007 complaint by Warman against Bobby Wilkinson. The tribunal’s decision cited repeated calls to kill “niggers, Jews, and faggots,� including this post: “The only faith I have left in this country is that the KKK and White Power grops [sic] all across the nation will fix this terrible mess with genocide.�

It is nasty, threatening content, says Doug Christie, but just words in the end, emitting from the fringes of society. “You’re never going to have free speech issues in regard to popular people because no one’s ever going to shut them up,� he says. “Controversy is where free speech becomes an issue. And you’re not going to have controversy if what the person says is popular. Free speech is for the unpopular. It’s never free speech until it is unpopular — it’s just accepted speech.�