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Have Canada's "hate speech laws too far?
One can be forgiven for wondering if “hate speech” rules have overwhelmed the ability of Canadians to enjoy “free speech” rights in their own country. It would seem that this is clear given the stories that have surfaced over the course of the past few weeks. These articles managed to bubble up through the “chill” that now precludes the discussion of any controversial subject material. This is particularly the case with the discussion of new social pieties that have come into existence in a new, post-modern Canada – a Canada that eschews past truths while embracing new ones with little consideration of the consequences they pose. The articles in question are Father Raymond J. de Souza’s, “Canada's police crack-down on peaceful free speech”, and Amy Contrada’s, “Free Speech Is Dead in Canada: The Persecution of Christian Activist Bill Whatcott”.
“Situational law” and the case of Father Tony Van Hee
Father de Souza tells the story of Father Tony Van Hee. Fr. Van Hee has been protesting Canadian abortion laws, or lack thereof, for the past 30 years and has been opposed by the law at every turn for trying to have his say. The latest law he is in breach of is former Premier Wynne’s Bill 163 - the “Safe Access to Abortion Services Act, 2017”. As de Souza notes, this law is so draconian that you could be arrested “two blocks down from an abortion clinic, (if) you wore a T-shirt saying, ‘Canada should adopt Sweden’s abortion laws.’”
The law might be restrictive but its enforcement is even more so. This, as Fr. Van Hee was actually charged for wearing a sandwich board that had nothing to do with abortion but simply protested the infringement of the right to speak freely against it. After all, the law is the law unless, as Fr. De Souza notes, you are protesting in support of a favoured social piety - such as “climate change”. The good Father notes, ironically, that while Van Hee goes to court for his quiet, unobtrusive efforts others go unpunished for shutting down city cores and transnational highways. These latter protesters were engaged in rallying against efforts to construct a western pipeline. They, unlike Van Hee, were supported by the police rather than hindered. The question needs to be asked, “why are free speech rights so situational and who decides “whom the police will police”?
Truth in law and the case of Bill Whatcott
Amy Contrada tells the tale of Canadian, pro-family activist, Bill Whatcott, and worries that Canada’s “kangaroo justice system” will seep southward to infect the United States of America. She notes that he is currently involved in two court cases that stand to ruin his life through both jail time and financial penalty. The first case involves his refusal to call a person, he believed to be a man, a woman. The second involves the distribution of material at a gay pride parade that highlighted the health risks associated with homosexuality. Both cases use “Section 1” of the Charter to place “reasonable limits” on Mr. Whatcott’s right to free speech - limits that need to be demonstrated as justifiable in a democratic society. This clause, in conjunction with “hate speech” provisions that accommodate the sensibilities of “identifiable groups”, has put Mr. Whatcott in the bind he now finds himself in.
Both cases against Mr. Whatcott are frightening as their prosecution proceeds on the premise that truth is not a viable defense. This concerning development in Canadian law comes from a Supreme Court of Canada ruling against the same Bill Whatcott in 2013. This case saw the Justices alter the definition of “hate speech” to remove the need for it to include “a false and malicious misrepresentation of the words or actions of others”. More than this, though, the same Court decided that the use of truth as a defense in Human Rights proceedings, rather than criminal, was inappropriate as such were meant to be remedial and non-confrontational in nature. After all, the truth can be used to spread hate just as can lies and “the vulnerable group is no less worthy of protection because the publisher has succeeded in turning true statements into a hateful message”.
"Hate speech" in Canada - a short history
When their underpinning narratives are combined, the Van Hee and Whatcott cases present a disturbing view of free speech in Canada. In the former, we see the possibility that related laws can be “situational” and applied unevenly in accordance with the political priorities of the day. In the latter, we see that, at the Human Rights Tribunal level, truth or benign intent offers no defense when the sensibilities of an “identifiable group” have been offended. Even truthful speech can be seen as hateful in this Canadian context. Given the subjective nature of assessing the intent of speech that conveys emotions such as “hate”, related laws clearly put the individual at a disadvantage and free speech on a decidedly slippery slope.
Hate speech laws in Canada have progressed in line with both international and national developments. On the international scene, the United Nations International Covenant on Civil and Political Rights (ICCPR) of 1967 has been particularly influential. It called for signatory nations to legislate against “hatred that constitutes incitement to discrimination, hostility or violence”. This vague wording, accepted by Canada, was caveated by the United States such that “it could not be interpreted as authorizing or requiring restrictions on freedom of speech and association in contravention of the U.S. Constitution or other laws”. Where America moved to secure the fundamental right to free speech, Canada moved in line with Europe to apply subjective limits to it. In the same time frame and on the national scene, Canadian legislative authorities commissioned a Special Committee to study the rise of hate publications in the country. Their efforts gave rise to changes in the criminal code that introduced the phrase, “identifiable group”.
Free speech sails into the "perfect storm"
The combination of the Charter’s “Section 1”, the loss of truth as a defense in Human Rights Tribunals, the importation of vague international concepts into Canadian “hate speech” legislation, the recognition of “identifiable groups” as an entity to be protected from “hatred”, and the willingness of enforcement agencies to situate which groups receive, or are excluded from, protection under the law has created the “perfect storm” for free speech in Canada. This fact has not gone unrecognized and a number of “identifiable groups” have formed in the recent past to take advantage.
Their tactics in doing so have become predictable and are almost formulaic. They involve forming a group identity, claiming victim status, appealing to legal authorities for protection from discrimination under equality rights provisions of the Charter, and advocating vigorously against those who would dare speak out against their enterprise. The advocacy portion of the process extends from start to finish and beyond and calls for the suppression of any speech that counters the group’s accepted narrative. In the end, authorities are encouraged to “balance away” the fundamental right of individuals to express themselves freely in order to satiate the equality rights of the “identifiable group”. These tactics have been successful. This success has been evidenced by compliant political, judicial and security elites acquiescing for decades to avoid frenzied criticism and political penalty.
Can free speech sail out of the "perfect storm"?
Sailing out of the “perfect storm” will be difficult as some of its component parts have been baked into the Canadian legislative matrix for some time now. Rolling back the impact of the ICCPR, as the Americans initially did, is not possible. We could, however, prevent such instances from occurring in the future. Canada might, for instance, choose to back out of the recently signed United Nations Global Compact on Migration – a Compact that calls for the curtailment of free speech in related matters. Why not, “once bitten, twice shy” when it comes to this and other Compacts that diminish the fundamental Canadian Charter Rights of individual Canadians?
Likewise, Canadian “hate speech” legislation is already baked into the cake but amendments, particularly in the Human Rights Codes of Federal and Provincial legislatures, may be entertained to limit the damage being done. For example, Provincial human rights codes have expanded beyond protection from discrimination in the areas of housing and employment to include “services”. In doing so, they have subjected basically all public and business activities to “Big Brother” overview by the human rights juggernaut. The provinces could change this and might very well do so given political pressure from everyday Canadians. After all, Canadians have the power to vote their political leaders in or out of power. Likewise, this same political leverage could be employed to convince political, judicial and security agencies to do their jobs and recognize the priority status of “fundamental” Charter Rights and ensure that all are treated equally before the law.
Ongoing operations and trends
C3RF will continue to connect the dots in this election year even as it pushes back on attempts to further diminish the Charter Rights, with free speech being prime among them, of rank and file Canadians. As proven throughout the history of Canada, these rights are not free and need to be fought for if they are to be maintained. In order to aid this fight, C3RF will continue to educate, advocate and act on behalf of individual freedoms.
Speaking of fighting back, the “reject the Islamic Party of Ontario” petition from last week is going great guns with thousands of signatures. If you haven’t signed, please consider doing so now.
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Major Russ Cooper (Ret'd)
Co-Chair C3RF
