In Canada (Human Rights Commission) vs. Taylor, its 1990 ruling upholding Section 13 of the Canadian Human Rights Act as a constitutionally valid limit on free expression, the Supreme Court contentedly predicted the decision would not lead to any severe repercussions for speech.
The section expanded the legal definition of discrimination to include speech, at least of the “telephonic” kind (later updated to include internet-based communications), that was “likely to expose a person or persons to hatred or contempt … on the basis of a prohibited ground,” ie. sex, race, religion, etc.
It was not necessary, under Section 13, to show that anyone actually was so exposed – only that they were likely to be. Neither was it necessary (as it is under a similar provision in the Criminal Code banning “willful promotion of hatred”) to show the speaker intended to do so. Nor was it even a defence that what the speaker said was true.
None of this troubled the court unduly. As for that amorphous phrase “hatred or contempt,” the court was confident that it “provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity.” Provided human rights tribunals confined themselves to cases involving “unusually strong and deep-felt emotions of detestation, calumny and vilification,” the court wrote, “there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.”
That was in 1990. The following decades saw a parade of individuals and organizations hauled before the tribunals, federal and provincial, for publishing, inter alia, Danish cartoons (caricatures of the Prophet Muhammad, whose publication by a Danish newspaper became an international free-speech flashpoint) or excerpts from a bestselling book on the threat to Western countries allegedly posed by Islamic fundamentalism. It fell to Parliament to do what the court would not: a private member’s bill repealing Section 13 was passed in 2012.
And now it is back again. Bill C-36, whose unveiling was delayed until after Parliament had risen for the summer, possibly never to return – there is talk of a fall election, if you hadn’t heard – may never be passed into law. It may be intended only as a bit of pre-election posturing, framing opponents as soft on hate and the Liberals as champions of those most vulnerable to it.
But in substance it would return online speech to the tender mercies of the hate police. And that’s not even the worst part of it.
There has been some updating. The new bill, drawing on Taylor, defines hate speech for the first time as expressions of “detestation or vilification,” where these are “likely to foment” the same “detestation or vilification” among others.
And, like the Supreme Court, the government is confident this will not lead to any chilling effect on free speech. But “detestation or vilification” and “likely to foment” are not a great deal more precise than “hatred or contempt” and “likely to expose.”
To be sure, the bill stipulates that hatred is “stronger than dislike or disdain.” Neither is it enough for speech to qualify as hate speech that it “discredits, humiliates, hurts or offends.” But that still leaves a great deal of leeway to the enterprising judge or human rights arbiter out to prove a point.
And to what end? When most people think about such things, they imagine the point is to prevent violent attacks on minority groups. But there are already at least two provisions against incitement to violence in the Criminal Code: Section 318 (advocating genocide) and 319 (1) (public incitement to hatred, “where such incitement is likely to lead to a breach of the peace”).
The additional 319 (2) ban of “promotion” of hatred has always seemed superfluous in this regard. But at least such charges are brought in a court of law, with the usual rules of evidence and protections available to the accused, as part of the normal concern for due process.
No such rules apply in human rights hearings. No one who witnessed the “Trial of Maclean’s,” the 2008 case in which the magazine was brought before the B.C. Human Rights Tribunal (for publishing that book excerpt), could ever forget the experience. Public interest in the case was such that it was held in an actual court, instead of the airless seminar rooms in which these things are usually conducted.
Environment affects behaviour, and so, perhaps without thinking about it, the lawyers all dressed in robes, and did the things that lawyers do in court, like jumping up from time and time to shout “objection.” Objection? To what? Based on what? No one knew, least of all the three tribunes. Nevertheless, they would huddle together to come up with a decision, based on rules of evidence they made up on the spot.
The chance of seeing this scene repeated at the federal level does not fill one with nostalgia. This isn’t to deny that there is a problem – loads of loathsome material are published on the internet every day. But there are other ways of dealing with it than censorship, whether of the criminal or civil kind.
Worse yet, Bill C-36 hands would-be censors a whole new hammer: not just to punish speech after the fact, but to suppress it before it has even appeared. As explained in a government background paper, anyone who “reasonably fears they could be a target,” not just of a hate crime but of “hate propaganda,” could apply to a judge for a “peace bond” to prevent its publication.
Yes, they’d have to get their local attorney-general to sign off on it, and yes, the judge would have to agree. But given how readily both the executive and judicial branches seem to assent to restrictions on speech, this, too, is not of enormous comfort.
Prohibitions on speech are not the same as other laws. Speech is so central, not just to politics or society, but to our very selves that the bar must be set very high indeed – not just at “harm,” but at demonstrable, verifiable harm, harm so great that it outweighs the enormous harm done by restricting speech.
Speech that incites violence – where word and deed are so closely connected that the word, in effect, becomes the deed – clearly crosses that line. Speech that “is likely to foment detestation,” not so much.
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