Freedom of Speech in Canada

There are consequences to allowing unfettered freedom of speech.

In Canada, since 1977, the Canadian Human Rights Act has contained a reference to Hate Speech as a restriction on totally free speech.

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of  discrimination.
Interpretation
(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.
Interpretation
(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

The penalties are laid out in Section 54

54. (1) If a member or panel finds that a complaint related to a discriminatory practice described in section 13 is substantiated, the member or panel may make only one or more of the following orders:
(a) an order containing terms referred to in paragraph 53(2)(a);
(b) an order under subsection 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice; and
(c) an order to pay a penalty of not more than ten thousand dollars.
Factors
(1.1) In deciding whether to order the person to pay the penalty, the member or panel shall take into account the following factors:
(a) the nature, circumstances, extent and gravity of the discriminatory practice; and
(b) the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person’s ability to pay the penalty.
(2) No order under subsection 53(2) may contain a term
(a) requiring the removal of an individual from a position if that individual accepted employment in that position in good faith; or
(b) requiring the expulsion of an occupant from any premises or accommodation, if that occupant obtained such premises or accommodation in good faith.

Last week, Section 13 was struck from the Act with the passing of a short private members in the House of Commons. Bill C-304, also known as An Act to amend the Canadian Human Rights Act (protecting freedom)

This enactment amends the Canadian Human Rights Act by deleting section 13 to ensure there is no infringement on freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms.

As you would expect, this has a very polarizing debate in those few Canadians who have noticed. A couple of responses are summarized here.

Ezra Levant in the Edmonton Sun:

For more than 30 years, Section 13 had a 100% conviction rate for the thought crime of hurting someone’s feelings.
What an abusive law. What an un-Canadian law. What a ridiculous law in the age of the Internet.
Last week that law was pulled out, like a noxious weed. In 20 years time, I predict it will be regarded as one of the Conservatives’ greatest legacies: Freedom.

An opposing view from Warren Kinsella in the Toronto Sun:

Close your eyes and imagine for a moment you are a Jew, and your upset kids announce they’ve received e-mails covered in swastikas and “DEATH TO THE JEWS.” Or imagine you’re a person of colour, and you turn on your work computer and your e-mail inbox is full of KKK propaganda. Or, imagine you are a gay kid — living in the closet and living in fear — and you open your Facebook page, and someone has written “GOD HATES FAGS” all over it.
It’s just words, some say; it’s just some symbols. Big deal. No one has hit you, no one has beaten you up.
But, to me, some words and some symbols should never, ever be used with impunity.
No useful “idea” is conveyed by calling someone a kike, or nigger, or faggot, or paki or chink. In Canada, online, it has now become a lot easier to do.

Still in force are the hate provisions in the Criminal Code.

Publications.

320. (1) A judge who is satisfied by information on oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within the jurisdiction of the court, is hate propaganda shall issue a warrant under his hand authorizing seizure of the copies.
Summons to occupier
(2) Within seven days of the issue of a warrant under subsection (1), the judge shall issue a summons to the occupier of the premises requiring him to appear before the court and show cause why the matter seized should not be forfeited to Her Majesty.

Specific Protection for Religious Structures

430. (4.1) Every one who commits mischief in relation to property that is a building, structure or part thereof that is primarily used for religious worship, including a church, mosque, synagogue or temple, or an object associated with religious worship located in or on the grounds of such a building or structure, or a cemetery, if the commission of the mischief is motivated by bias, prejudice or hate based on religion, race, colour or national or ethnic origin.

And increased sentences for violent crimes committed with specific hate or prejudice.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor.

Several questions arise:

  • How do we define hate speech?
  • Are religious leaders exempt?
  • Is criticism of religion permissible?
  • Are calls to violence protected?
  • Do we need additional protection beyond that established by the Criminal Code?

The first is the most problematic, relates to the others, and demonstrates the very selective way the restrictions have been used. Is hate speech just the use of pejoratives such as “kike, or nigger, or faggot, or paki or chink? Does it include calls for the restrictions of the rights of any groups, as we have so often seen in the fight for rights for the  LGBT community? This leads into the second question where most of the time these rights are fought on religious basis. Potentially destructive words and ideas are espoused by those such as Bilal Philips who is speaking in Calgary later this month.

On the other side of that is criticism of religion. We have seen many examples of this, especially in the Muslim world, where many examples such as the cartoons of Mohammed published in the Danish Newspaper Jyllands-Posten in 2005. There was censorship of the publication of these cartoons on this side of the Atlantic, to the extent that anyone who wanted to understand the controversy, had to retrieve the cartoons from  non-Canadian Internet sites. Those of us who frequently post criticisms of the actions of religious figures and beliefs realize that the Human Rights Act was vague enough to cover our writings. We risk running afoul of the Act because we recognize that the chances of prosecution are slim although not non-existent.We certainly have seen innumerable examples of restrictions on criticism of Islam around the world.

On the other hand, specific calls to violence are not protected under the Criminal Code. At the very least, they warrant investigations by the police, and if substantiated, can result in criminal penalties.  These penalties can be increased from the norm if prejudice against a group can be identified.

Along with the names identified by Kinsella, we see supporters of reproduction freedom, sealers, farmers and abattoir workers, vaccine promoters, and others called murderers. Although these groups do not have a history of fighting battles at human rights commissions, there is nothing to stop them from doing so. On the other hand, I and others, constantly call out bigots, quacks, anti-vaxxers, and others. Should any of this be restricted? I don’t think so.

However, calls for killing those who perform abortions or conduct animal research or destruction of their property is appropriately covered under the Criminal Code.

Yes, words are important, and the names we are called can hurt and impede recognition of rights, but these need to be fought using words, not by restricting the speech. I need protection from violence, not from words.

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