For supporters of free speech in Canada, this year has certainly been a nervy one. From Prime Minister Trudeau’s signing of the “Christchurch Call to Action” and the “Digital Charter” against “hate speech”, to the Justice and Human Rights Committee’s draconian recommendations for combatting “online hatred”, 2019 has presented the biggest potential for rolling back Canadian speech rights to the pre-Section 13-days.
The reinstatement of that law, in fact, which to remind had barred online speech that could expose identifiable groups to mere contempt, had been front-and-centre on the Justice Committee’s recommendations-list. Going by Andrew Scheer’s treatment of fellow MP Michael Cooper following that Committee’s hearing on the issue and his general silence on the Liberals’ speech-restriction push this election, concerned Canadians have much reason to be on edge.
What makes prohibitions against hate speech potentially dangerous is their inherent imprecision
What makes prohibitions against hate speech potentially dangerous is their inherent imprecision. To show how arbitrary they’ve operated in Canada, bestselling authors Leon Uris and Salmon Rushdie have had books of theirs investigated by authorities on hate incitement grounds. Similar levels of arbitrariness were on display when customs officials blocked the Patrick Swayze film Red Dawn as well as a film about Nelson Mandela from entering Canada. As for rank politicization of our speech restrictions, handing out anti-Vietnam war pamphlets with “Yankee Go Home” printed on them has also led to charges of hate incitement.
Even an official arbiter of what constitutes hate speech, Ontario’s chief human rights commissioner, faced formal complaints for promoting intolerance, specifically when she compared taxpayer funding of faith-based schools to South African apartheid.
None of this was exactly unforeseen. Before the government created criminal hate-speech laws in the mid-1960s (the human rights code’s section 13 came later and was a civil, not criminal, offense), it convened the so-called Cohen Committee to explore the issue—The panel actually included then-law professor Pierre Trudeau as a member. When NDP MP David Orlikow complained about the panel’s slow progress, committee leader and Liberal Justice Minister Guy Favreau pinned the problem to there being “no formula devised [to] deal adequately with the problem without affecting the general freedom of expression of opinion in an adverse way.” He’s was right then, and still is now.
While laws at the criminal level were ultimately developed by the Trudeau government in 1970 (becoming today’s ‘Public Incitement of Hatred’ offense enshrined in section 319 of the Criminal Code), this problem of application still stands today. Former Supreme Court Justice Beverley McLachlin recognized this in her dissent in the landmark case R v. John Ross Taylor, stating: “[t]he notion of hatred does not send a clear and precise indication to members of society as to what the limits of impugned speech are.” Clarity. Precision. Key concepts that separate good from bad law.
Pushers of hate-speech laws
What pushers of hate-speech laws are concerned about is the psychological trauma that can apparently be experienced by targets of hate speech and its potential to incite violence in third parties. But in the 2006 case of Warman v. Lemire (the only case up to that point where a Section 13-claimant didn’t win), the defendant pointed out that the American Psychiatric Association’s definition of psychological trauma includes only incidents which are “physical in nature, such as serious injury, rape, and assault” and excluded things like “verbal abuse, emotional abuse and social alienation, such as nonphysical racist incidents.”
And as for provoking violence, academics who followed the infamous Zundel trials in 1980s found no evidence of increased levels of hate crime or incitement during or after the trials ended. In any case, to believe that the public’s cognition has to be policed lest they get whipped up into a maddened frenzy is to have a severe lack of trust and respect for people and to be altogether too fearful.
Back in the 2000s, when a fight broke out between members of the York Regional School Board’s race-relations committee after a member publicly endorsed The Holocaust Industry by anti-Zionist activist Norman Finkelstein, a critic rightly pointed out, “If a duly constituted race relations committee cannot itself agree to know what is hate propaganda… how is the rest of society to know, without risking punishment for error?” This is precisely the problem with hate speech laws. They are fundamentally uncertain. And without knowing what the law is and how it will be applied, Canadians will turn inward and default to keeping quiet about issues they feel are important. That’s the opposite of the open society Canadians value and I sincerely hope they communicate this to their local candidates this election.
Sarah Chung is a former immigration and foreign service officer, economist, teacher, Olympian, and PhD candidate, Sarah is currently running this election in Ontario’s Markham-Unionville riding for the People’s Party of Canada.
For supporters of free speech in Canada, this year has certainly been a nervy one. From Prime Minister Trudeau’s signing of the “Christchurch Call to Action” and the “Digital Charter” against “hate speech”, to the Justice and Human Rights Committee’s draconian recommendations for combatting “online hatred”, 2019 has presented the biggest potential for rolling back Canadian speech rights to the pre-Section 13-days.
The reinstatement of that law, in fact, which to remind had barred online speech that could expose identifiable groups to mere contempt, had been front-and-centre on the Justice Committee’s recommendations-list. Going by Andrew Scheer’s treatment of fellow MP Michael Cooper following that Committee’s hearing on the issue and his general silence on the Liberals’ speech-restriction push this election, concerned Canadians have much reason to be on edge.
