Yves Boisvert is a columnist with La Presse.
Quebec is the only province in Canada where almost all the mainstream media, in a show of solidarity last week, published a Charlie Hebdo cartoon of the Prophet Mohammed.
But if we listen to our provincial human rights commission, those who oppose free speech could have a shiny new tool to challenge the legality of such "offensive" material.
In a little-noticed intervention last month, the Quebec human rights commission asked the government to amend Quebec's Charter of Human Rights and Freedoms.
In an era of massive and ultra-rapid communication, bullying and hate speech have to be tackled with new legal weapons, says the commission, in its well-meaning proposal. When a group is targeted, it says, libel laws are irrelevant and the Criminal Code hardly applies.
The criminal "wilful promotion of hatred" requires extreme language against an "identifiable group." Charges are rarely laid and convictions are scarce. So, the commission would like to make it a civil offence to "expose someone to hatred" on illegal grounds of discrimination. These include gender, language, ethnic origin, race, religion and political convictions.
Unlike other provinces, Quebec's human rights commission does not have jurisdiction over what is published in the news media, on the Internet or in artistic productions. However, the commission could have looked at the rest of Canada, which has been a legal laboratory on a very touchy subject.
Remember when Maclean's went through a five-day day human rights tribunal in British Columbia in 2008 to justify so called "Islamophobic" articles? The complaint was dismissed. Earlier, it was rejected by the Canadian Human Rights Commission before going to tribunal. In Ontario, the human rights commission said it did not have jurisdiction over the case, but nonetheless issued a statement saying the incriminated articles were of the kind that cultivate prejudice against religious minorities.
When Ezra Levant and the Western Standard published the Danish Mohammed cartoons in 2006, a complaint was filed in Alberta by a Muslim cleric – and later withdrawn. Forget about the costs and the trouble. What about the chilling effect on freedom of speech?
For that very reason, in 2012, Parliament voted to take away the federal Human Rights Commission's power to hear complaints about hate speech. The provision that made it discriminatory to communicate any material that "exposed a person to hatred or contempt" was removed from Canadian Human Rights Act and left for the courts to decide, not tribunals.
This is not to say that "anything goes," or should go. Simply, Quebec doesn't need a cheap version of hate propaganda laws.
The road toward a conviction under the Criminal Code is very steep – and rightly so. If only polite and consensual speech were to be protected, we would not need to guarantee it in the Constitution.
As former French president Nicolas Sarkozy said in 2006, he preferred "an excess of caricature to an excess of censorship." France, though, has a very strict criminal law against hate and racist speech that arguably would not stand up constitutionally in Canada.
Arguably? Well, just maybe. In 2013, the Supreme Court held that the Saskatchewan Human Rights provision against hate speech was a reasonable limit to freedom of expression, in an attempt to fight against discrimination "likely to expose" some groups to hatred. But the court erased the part of the section making it illegal to "ridicule, belittle or otherwise affront dignity."
On the other hand, former Supreme Court justice Ian Binnie wrote in 2008 that "the law must accommodate commentators such as the satirist or the cartoonist who seizes on a point of view, which may be quite peripheral to the public debate, and blows it into an outlandish caricature for public edification or merriment. Their function is not so much to advance public debate as it is to exercise a democratic right to poke fun at those who huff and puff in the public arena. This is well understood by the public to be their function."
Set aside criminal speech – threats, hate propaganda, abetting violent acts – and libel: Wrong ideas should be attacked the classical way – with contradictory debate. New means of communication may allow for more stupid speech, but also for quicker replies.
We should still bet on human reason, even if some days it seems harder to find.