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"It may mean that mass distribution is not actually the most significant factor," says Richard Moon, a University of Windsor law professor who authored an October 2008 report on s. 13 for the Canadian Human Rights Commission. "In fact, what might be a concern are these isolated, insular groups that are exchanging and feeding off each other's increasingly extreme claims, assertions, challenges, and so forth. . . . What gets said is outside of critical public scrutiny." Despite his concerns — and much to the surprise of Christie and his cohorts who thought it would be a whitewash — Moon's report recommended s. 13 be deleted and hate crimes be left to Criminal Code prosecution. "There are, of course, some potential drawbacks to an exclusive reliance on the Criminal Code hate speech provisions," Moon wrote. "These include the higher burden of proof, the requirement that the attorney general of the particular province consent to prosecution, and the lack of experience on the part of police and prosecutors in pursuing hate speech cases." To mitigate these drawbacks, the report — researched and compiled under a three-month time constraint — recommends studying why attorneys general, for instance, have been reluctant to give consent for hate crime prosecutions. Moon also suggests each province establish a hate crime team like Ontario's, composed of experienced police officers and Crown prosecutors. "I always wanted a pony growing up and I never got one," says Warman. "I would love for every province to have a dedicated hate unit that co-ordinated with Crowns, that had reasonable access to the attorney general in their province or territory, that doesn't rotate its staff every couple of years, and that has an appreciation that words can be used for evil purposes to create the preconditions that are necessary for attacks and violence against the target community and that understands the history of that. But it ain't gonna happen. "Dick Moon talked to me when he was doing his report," Warman continues. "He said, 'Some people have suggested this should all be left up to the police,' and I said, 'I'm sure they have and the only people who could ever possibly suggest such a thing would be people who've never actually tried to have criminal charges laid in connection with hate group activity.' I have, in a number of cases, and I don't want to say it's virtually impossible but it is so close as to be nearly indistinguishable." Even Ernst Zundel, Canada's most infamous Holocaust denier and one of Christie's clients, was spared. "It's said that at the time that Ernst Zundel was operating in Canada, and members of the Jewish community of Ontario really wanted a prosecution brought against him under the hate promotion provision," says Moon, "that then-attorney general Roy McMurtry declined to give his consent because he was concerned the prosecution would just become a vehicle for Zundel to promote himself and his ideas. Now, maybe there was something to that. I'm not sure I think that's right, but it's a legitimate perspective." Zundel was convicted only of "spreading false news," a crime that was later struck down as unconstitutional by the Supreme Court. And speaking of unconstitutional, Marc Lemire, an outspoken Canadian white supremacist and former leader of the now-defunct Heritage Front, is taking aim at s. 13 by forcing the Canadian Human Rights Tribunal to consider whether the section infringes his Charter rights. He also claims ss. 2(a) and 7 of the Charter — freedom of conscience and religion, and the right to life, liberty, and security of the person — are also compromised by the Canadian Human Rights Act. (Lemire is facing a s. 13 complaint filed by Warman for material posted on his freedomsite.org web site.) Lemire's challenge caught the attention of Shane Martinez, a supporter of the Anti-Racist Action collective in Toronto and now a law student at St. Thomas University in Fredericton. He recently wrote a research paper on Lemire. "The dangerous irony presented by Lemire's Charter challenge must be exposed for what it truly is: an 34 M ARCH 2009 www. C ANADIAN Law ye rmag.com attempt by a leading member of Canada's far-right movement to use the country's most powerful human rights legislation to protect his continued violation of the human rights of others," Martinez wrote. Martinez feels community activism is the best way to staunch the growth of hate groups. If that doesn't work, legislation comes in handy. "When hate manifests itself in our communities — through hate crimes, vandalism, recruitment in the streets — definitely organizing action at the grassroots level is a necessity, but for hate on the Internet, s. 13 is arguably one of the best tools we have right now. It's an "There are, of course, some potential drawbacks to an exclusive reliance on the Criminal Code hate speech provisions." — Richard Moon, University of Windsor important piece of legislation which keeps these groups from reaching as broad an audience as they otherwise would." While the passion, personal sacrifice, and commitment from both sides of the debate are admirable and even astonishing, the struggle between opposing rights is sometimes sullied by righteousness, caricature, and one-upmanship. Warring web sites post accusations about their nemeses; mainstream media pick up the thread; defamation suits flutter like leaves in autumn. Average Canadians are likely more concerned about the plummeting value of their mutual funds than the intellectual acrobatics of who has the right to say what about whom — at least the ones not threatened by hate-mongers. Regardless of where you stand on the debate, and until Canadian law changes, those who promote and disseminate hateful propaganda will face censure. For every person offended or angered by that fact, there are other Canadians who probably feel tremendous relief.