Of course there are limits to free speech. For example, the laws against fraud are a limit to free speech, the laws against forgery, and the laws about copyright. We accept these. Uttering a death threat has been in our Criminal Code for centuries.
In all of these instances, though, speech is incidental. The substance of what is legislated is an actual crime, a harm, or a violence. But having hate speech in our Human Rights Act turns the ideas and the words themselves into a crime.
You say the punishments are light. I put it to you that a lifetime publication ban, $40,000 worth of penalties and fines, and no legal aid are not light, especially for the people who are caught in that system, with no legal aid allowed.
But you outline some of the differences between the Criminal Code and the Human Rights Act. Under the Criminal Code, if you're too poor to afford a lawyer, you will be given one, whereas more than 90% of the people before the Human Rights Commission are too poor to have a lawyer. In the Criminal Code, there is “beyond a reasonable doubt”; not so in the Human Rights Commission. In the Criminal Code, truth is a defence; not so in the Human Rights Commission. In the Criminal Code, honest belief is a defence; not so in the Human Rights Commission. In the Criminal Code, we have procedural checks and balances; the police have to live up to an ethics code, there's an internal affairs organization and you can't entrap people. But that's not so in the Human Rights Commission. These procedural differences, sir, are not a trifle; they are the petri dish in which these terrible things have happened.
Let me close by remarking on the Dickson decision you referred to. In 1990 the Supreme Court, in a narrow four-three ruling, said this law was acceptable. But here's the difference between then and now: back then the law, according to Dickson, would be targeted only at “evil” ideas. Now they're targeted at publishers who publish cartoons or at columnists who have something to say about radical Islam. So it has strayed into politics, which is what Chief Justice Dickson said would never happen—but it has.
Point two, the huge punitive fines, the aggressive behaviour, the entrapment were never imagined by Justice Dickson back then.
And number three, Canada has moved more towards freedom of speech. The dissenting opinion in 1990 was written by Justice Beverley McLachlin. She is now our Chief Justice.
I put it to you that even Justice Dickson would now abolish this law because it would offend him, let alone a 2009 court that is embracing freedom of speech.
Thank you for letting me answer that at some length.