Human rights lawyer Richard Warman, who embodies Canada’s discomfort with its own hate speech laws, talks about his online undercover work against white supremacists the way some people talk about a youthful drug habit, as a foible not quite eclipsed by maturity, but distant enough to seem like someone else’s problem.
“There was a brief period in 2004-2005 where I created pseudonyms on a couple of neo-Nazi forums in order to try and gather further information that would help to identify the individuals that I felt were violating [Section 13, the hate speech section of the Canadian Human Rights Act],” he said in an interview this week. “I tried to be very careful.”
Though later denounced by the Canadian Human Rights Tribunal as “disappointing and disturbing,” this freelance espionage was nevertheless a legal method of gathering information on people who were ultimately found guilty of hate propaganda and ordered to stop. And just like Mr. Warman’s dominance of Canadian hate speech tribunals over the last decade, it was an unintended consequence of a hate speech law that allows anyone to complain about messages that are “likely to expose” identifiable groups to “hatred or contempt.”
Mr. Warman, who has brought a total of 16 hate speech cases to the Canadian Human Rights Tribunal over the last decade, has only lost once, but he lost so big he may never win such a case again.
“I tried to make sure that I was not approaching that line [of entrapment, or participation in hate speech], and I did my best to avoid anything that might look that way,” he said of his Nazi posing. “In hindsight, there are easy ways to look back and dissect whatever actions you’ve taken seven or eight years ago…. It was always a means of last resort, but I think [in future] it would be a very far-off distant means of last resort, because the benefit did not outweigh the issues that it subsequently created.”
That is an understatement. Ever since the federal government announced its intention to repeal Section 13, and two courts heard cases that could also kill it, Canada’s noisy hate speech debate appears to be all over but the crying. Even Mr. Warman’s big loss, in the case of webmaster Marc Lemire, could prove little more than a convoluted sideshow.
So when Mr. Warman took the stage in Toronto this week to argue in support of Section 13 against the head of the Canadian Civil Liberties Association at an event sponsored by a new Jewish group, the Centre for Israel and Jewish Affairs, there was a sense of futility in the room. This was no “congress,” as the host grandly said, coyly usurping the name of CIJA’s predecessor, the Canadian Jewish Congress, which once gave Mr. Warman a major award. This was not even a seminar. This was a pantomime, with Mr. Warman as the villain.
He may be the only person to successfully use Section 13 in the last decade, and the focal point of its criticism, but Mr. Warman is cagey about accepting blame for its likely death. His undercover work is only a scandal for people who are “looking for a new club to beat the human rights system with,” he said. In those cases it is not even a legitimate argument, merely “subterfuge” for an anti-human rights agenda.
He knows his cartoonish reputation, and the “mystical” powers of censorship that are ascribed to him by critics. But he also knows the legal system, and that in reality it is near impossible to censor even the most vile voice. This is his basic justification for Section 13, because nothing else works.
To the point that the Criminal Code already has a hate propaganda section, which is mostly uncontroversial because it offers all the traditional legal safeguards and prosecutions require government approval, he said: “Only someone who has never tried to get criminal hate propaganda charges laid could ever say that… There is an institutional reluctance to lay these charges.”
That reluctance is also evident at the Canadian Human Rights Commission, which suspended Section 13 cases pending the outcome of a legal review. Although it can launch cases of its own, it has done so only once, which is how Canada ended up with a hate speech monitoring regime operated by a civilian, a private inquisition of one, with all the risks that entails, including real threats to Mr. Warman’s own life.
‘They were all self-nominating targets. I didn’t go particularly looking for anyone. They were already out there posting their hate propaganda on the Internet’
— Richard Warman
“It’s subjective opinion, right,” Mr. Warman said when asked about his confidence in what he was doing. “I was 100% confident in my own abilities,” he said. A few minutes later, he pointed out he was being facetious. Even still, it is hard to doubt the sentiment, given that he won 15 in a row.
“They were all self-nominating targets. I didn’t go particularly looking for anyone. They were already out there posting their hate propaganda on the Internet,” he said. “I would do it, in effect, on a triage basis. So I would take the worst offenders, or the individuals and groups who were in a leadership position, and then say ‘How do you structure this in a way that you address the worst problem initially, and work your way down. In a sense, I never got beyond the black letter law, because virtually all the cases I dealt with involved either the promotion or incitement to ethnic cleansing or genocide. I never ran out of bright red targets to address, so I never had to question myself, as to saying whether, well, this is getting a little grey, it’s a little weak, maybe this is something that doesn’t merit a human rights complaint. It was always situations where there was a crystal clear violation of the law.”
Mr. Warman said he thinks Section 13 has made it harder for hate groups to organize in Canada. This may be so, but as it teeters toward final judgment in Parliament and the courts, the only certainty about Section 13 is that Mr. Warman’s clarity is a thing of the past.