Canada’s hate speech laws collide with reality

For those of you who are noticing an alarming trend in my writing, I will come clean: I really like Canada. So much so, that I can’t seem to shut up about it. I’d apologize, but a) I’m not sorry, and b) I know that this glut of Canadiana is a passing phase, and I’ll have a new pet topic in a few weeks for you to get sick of. Anyway, as I was saying, I really like my country. There is, however, one aspect of Canadian life that I wish was more, dare I say, American – our stupid approach to hate speech:

The country’s highest court heard arguments pitting freedom of expression against laws banning hate speech Wednesday, setting the stage for an eventual ruling on what is more in need of protection: groups targeted with hatred, or a citizen’s right to speak freely. It could take the Supreme Court months to decide on which side they fall in the case of the Saskatchewan Human Rights Commission versus William Whatcott. The commission is appealing a decision that overturned its original ruling against Whatcott, who published and distributed four anti-gay flyers in towns and cities in Saskatchewan in 2001 and 2002. They led four people to file complaints with the commission.

As someone who feels most at home talking about things that make polite society squirm – religion, racism, poverty, the idea that people can actually be wrong about things – I place a premium on free speech. Penn Jillette likes to talk about the Second Amendment to the United States Constitution (the right of every citizen to own bear’s arms), saying that it’s the one that protects all the others. This, quite frankly, is militaristic nonsense. A gun doesn’t protect your right against unreasonable search and seizure – you pull a gun on a cop and that search all of a sudden becomes pretty fucking reasonable, amirite?

Mr. Jillette is pretty close to the mark, though. It is in fact their first Amendment that is the bulwark against infringement against any of the others. When speech, even speech that is critical of the government that is tasked with enforcing the rights of its citizens (and often especially then), is unrestricted any and all ideas can be debated and expressed. Rights can be fought for in the open, and public opinion can be swayed by the force of the arguments in those fights. It’s how all the amendments after the original Bill of Rights came to be.

Canada doesn’t have a free speech right in the same way that the United States does. Yes, our charter explicitly protects the practice of free speech, but it couches that right in the caveat that one’s speech can be restricted if it qualifies as hateful. No definition of hateful is provided – you’re just supposed to know what that means. For the most part, this means that liberals win and bigots lose. Sadly, it’s still the wrong position for a country to hold.

For a few months when I first started this blog, I went on a tear about free speech – my position hasn’t changed since then. I even led a talk with CFI Vancouver on the topic of Canada’s stupid approach to hate speech regulation. Until a consistent standard for hate speech can be identified and applied, I am worried that any speech that offends someone can be argued as ‘hateful’. I am more concerned that any speech that is critical of the political establishment can be branded as ‘hateful’, thus suppressing legitimate opposition.

The thing that I hate most of all about our candy-ass approach to hate speech is that it forces me to argue in defense of assholes like William Whatcott – a man who I wouldn’t even otherwise break stride to spit on. Canada’s Supreme Court is now going to  have to wrangle with the intrisic hypocrisy of recognizing a right to speak the content of a free conscience, but to prosecute people if that conscience offends others.

Don’t get me wrong, I am not saying that there aren’t demonstrable harms to hateful speech. It is certainly the case that hateful speech has the effect not only of offending and hurting the target of the speech itself, but of alienating entire communities of people whose only crime is existing in a bigoted world. Hate speech should be roundly and vociferously condemned whenever it is uttered, and there should be a serious social penalty paid by those who would call for the mistreatment of any group, marginalized or otherwise.

It is also certainly the case that the content of Mr. Whatcott’s speech is hateful. I have little patience for the politic-speak of “he is simply expressing his religious beliefs.” Christians: if your beliefs tell you that your god hates fags, then your god is an asshole, and so are you for listening to him. Trying to obscure your bigotry behind the language of “well it’s not me, it’s that durn voice in the clouds” is the most transparently ridiculous attempt at scapegoating that I’ve ever seen. You don’t get to pass the buck for your idiocy to your imaginary friend – not if you want me to take you seriously.

That being said, I still don’t feel comfortable with the state regulating that certain ideas are allowed to be said and not others. The premiere of Saskatchewan is free to go up in front of the media and denounce Mr. Whatcott – a move that would certainly earn Whatcott a significant level of public condemnation – using the same rights to free expression that the rest of us have. That being said, speech is not a criminal issue, or shouldn’t be at least.

This is only the first breaking of the ice on this story, since the court hasn’t ruled on it yet. I will be keeping an eye on this, as I’m sure will be every asshole with an axe to grind in the country, but who can’t swing it around in public yet. If I had to guess, I’d predict that the court will uphold the laws banning hate speech. Maybe I’ll be wrong. How perverse is it that I hope I am?

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  1. Graham Martin-Royle says

    Free speech should always be defended, especially when it’s hate speech. I completely disagree with the sentiments espoused by Mr Whatcott by I endorse his right to articulate them (it’s very easy to defend free speech when you agree with the speaker). Hate speech is hurtful, but I still believe that it is better to allow it than to ban it. Who decides what hate speech is, how do you define it? If hate speech laws are allowed then criticism of religion, of pseudo science, of all types of woo could be deemed to be hate speech and could be banned.

    I much prefer to know who is spouting the hate speech, exactly what it is they are saying, to have them in front of me so that I can argue the point, maybe even getting them to change their views. If hate speech is banned, the opinions of the hater will not change, their views will not be challenged, they just go underground.

  2. says

    If people never changed churches or creeds, if no one ever lost their faith because of the atrocities endorsed by their religion, then there might be a case for “just expressing my religious beliefs.” As things stand, there is no difference between your religious beliefs and your personal beliefs. Religion isn’t a shield for that kind of behavior.

    As an honorary Canadian, I’m enjoying your current obsession.

  3. Crommunist says

    That’s not how we spell it in Canada. Honour, yes. Honourary, no. I am going to assume this was a rather clever joke.

  4. Beauzeaux says

    I’m pretty much a free speech absolutist. Personally, I’d be happy to push Mr. Whatnutt over a cliff if the opportunity arose but I still feel he’s entitled to say what he wants. Of course, he should be followed around and refuted, rebuked and laughed at. That’s free speech too.

  5. Etcetera says

    I’m of two minds on this. In theory, free speech is great. In theory, hate speech laws are also great. They both have their excesses and you can’t point to the slippery slope argument for one side without having to admit that same argument for the other.

    In Canada, we don’t have Fox News or its equivalent. We don’t have Rush Limbaugh or its equivalent. We have right-wing media outlets,(Sun News, National Post) but they aren’t comically over-the-top in the same way. Unfortunately, there are those who are easily influenced by charismatic news personalities, flashy graphics and sensational stories. No-one can deny that Fox News has the largest viewership despite their very obvious lack of veracity. Spouting lies, even if they are exposed and derided by the rest of the media doesn’t change the fact that a significant portion of the population will believe them because they saw it on T.V. or printed in a pamphlet.

    As full disclosure, I’m gay. I see and hear about my friends and peers being beaten, raped or threatened with rape because of their sexual orientation on a regular basis. It’s a fact of life living in Alberta. If certain hateful individuals are allowed to start broadcasting their anti-gay vitriol, I have a legitimate fear that we’ll be the first place to get a station. I have enough problems curbing the anti-gay slurs at school without having them reinforced on a popular radio or news show.

    The bottom line is that when some asshole is raping you to “teach you a lesson” and his views were shaped by a particular media personality, it’s a rather cold comfort to know that someone will be writing an angry blog post detailing point-by-point why that particular commentator was wrong while the police quietly lose your rape-kit.

    For a recent example, a 14 year-old chased a woman down and beat her to the point of requiring reconstructive surgery because she was gay. The police were about to drop it but persistent pressure made sure it went to court. The defendant showed no remorse (to the point of spitting on the courtroom floor after the verdict) and the judge still refused to classify it as a hate-crime.

    I fully admit that hate-speech laws, taken to their extreme could possibly curb legitimate criticism of the government but I have yet to see that excess. The only excesses I have seen are those that come from unrestrained free speech.

  6. says

    Etcetera, what we have in the U.S. are hate crime laws. Essentially, they recognize the difference between hate speech and terrorism by making a crime accompanied by hate speech a worse offense. While some localities have their own hate crime laws, some classes of hate come under the heading of federal law, which also means that investigation and prosecution are no longer up to the local officials who may or may not be enthusiastic about their duties.

    Hate crime laws are controversial here, particularly with free speech advocates, but for a number of reasons, I think they’re a pretty decent idea.

  7. says

    Again, apologies for not reading even this whole post. Just skimming to get a sense of the background of your next post, but

    I am more concerned that any speech that is critical of the political establishment can be branded as ‘hateful’

    sounds to me a bit like opponents of same-sex marriage worried that the law will lead to marriage to kids or goats being legalised next (not that I’m comparing opposition to hate speech legislation to opposition to marriage rights, just the slippery slope aspect of the statements).

    The law is very clear that political stance is not something subject to hate speech restrictions. There are only a few protected groups:

    In this section, “identifiable group” means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.
    – Criminal Code (R.S.C., 1985, c. C-46), section 318

    Unless your political stance is that Japanese people should be rounded up into internment camps or gays should be stoned for breaking OT law, you’re not going to be charged under the Hate Propaganda statute. Plus, only the AG can bring charges, so it’s not like this is applied willy-nilly. In addition, there are several safeguards to being convicted:

    3) No person shall be convicted of an offence under subsection (2)

    (a) if he establishes that the statements communicated were true;

    (b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

    (c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

    (d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

    As for hate speech complaints via HR Tribunals (which result in fines and/or injunctions for offenders), I’m all for ’em. In fact, I wish that they could (would?) be applied in schools. Let’s get rid of bullying and save people like Jamie Hubley.

  8. Crommunist says

    That is fair, and I should perhaps put aside my fear of a Zimbabwe-type situation of l’état, c’est moi coming from any Canadian PM. At the same time, I can see many of the topics I discuss wrt racism being seen as ‘hateful’ by a number of white people. I take great pains when I write those topics to speak in terms of sociological constructs and attack ideas rather than people, but all it takes is one skinhead with a perverse sense of humour to put me in front of a tribunal. Whether or not I am found guilty is immaterial – the defense isn’t free (or is it? I know some criminal cases require the plaintiff to pay the legal fees of the defendant should that party be found innocent).

    Let’s get rid of bullying and save people like Jamie Hubley.

    Again, I will agree with you when I am shown evidence that HRTs actually accomplish this goal. Punishment as deterrent doesn’t seem to work for a great many crimes.

  9. says

    It’s not about deterrent via punishment per se. The idea is to put hate speech* clearly in the category of Things That Are Not Permissible in Our Society. Hate speech causes harm. That harm cannot be done away with by “more free speech”.

    I also don’t buy into the whole “allowing hate speech makes the haters more obvious and that’s a good thing” argument. If a person is a racist but never shows it because to do so is Not Permissible, then do we really care? It’s rather like the Christian who prays in secret like Jesus commanded, never pushes his doctrines on anyone including his kids or mixes his religion with politics. Isn’t that preferable to the Harold Campings and the Rick Perrys?

    And maybe, if the racists and the homophobes are restricted from preaching their hate, there will be fewer and fewer of them as time goes on. That crap has to be taught. At the very least, they have far, far less political power. I wonder if we’d have had the advances in gay rights here as quickly as we did without the restrictions against hate speech. Less hate speech means the less hate can grow and fester.

    * along with other forms of restricted expression: slander, libel, harassment, lying in the news or in advertising etc.

  10. Crommunist says

    That harm cannot be done away with by “more free speech”.

    You are demonstrably wrong in that regard. The United States did not have to pass hate speech laws to restrict racial epithets. They became unpopular through concerted social pressure and advocacy – more free speech. The reduction in the popularity of anti-gay rhetoric started well before the Human Rights Tribunal began prosecuting cases in 2002, and it happened through relentless advocacy – more free speech. Involving the justice system is either redundant or counterproductive (since those who are charged become martyrs for the cause).

    If a person is a racist but never shows it because to do so is Not Permissible

    I disagree with your conception of “never shows it”. That person, in all likelihood, will show it, just in ways that aren’t as overt. I would rather know that my gun-toting neighbour is a Confederate than think I can knock on his door late at night for help and get shot “in self-defense”. The correct answer to the Harold Campings of the world is to laugh at them, and support those who are victims of their stupidity. Putting legal manacles on them only forces them to be more clever about how they spread their hate.

    Less hate speech means the less hate can grow and fester.

    I don’t think that’s necessarily true, but I’d be interested to see evidence of its truth. I’m not challenging you to produce such evidence – I am pretty sure it doesn’t exist. Besides, hate is taught from church pulpits and at dining room tables. We’re not going to start investigating that – too messy. Hate shouted from the rooftops invites other people to get on rooftops of their own to counter it – far more effective than charging people to send a message to everyone else.

  11. says

    While having hate speech out in the open can be harmful, I think it can be said that it’s also easier to confront that way. So having it out in the open can do some good, too.

    One’s own experiences probably will determine whether you think the good outweighs the bad. As a religious minority, I usually think it does.

  12. Crommunist says

    Would you feel comfortable sharing your religious beliefs? I so rarely see religious folks here that I am always curious.


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