Truth is no defence under new hate speech rules
As much as the Liberals want everyone to believe that the proposed online harms act is focused almost exclusively on protecting children from predators, and that, as Justice Minister Arif Virani said, “It does not undermine freedom of speech,” that simply isn’t true. While the legislation, tabled Monday, could have been much worse — it mercifully avoids regulating “misinformation” — it opens up new avenues to censor political speech.
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Under the bill, condemning the Hamas massacre of 1,200 people on Oct. 7, could, under some circumstances, be considered “hate speech,” and therefore subject to a human rights complaint with up to $50,000 in penalties. As part of the new rules designed to protect Canadians from “online harms,” the bill would reinstate Section 13 of the Canadian Human Rights Act, the hate speech provision repealed by the Harper government.
The new version is more tightly defined than the original, but contains the same fatal flaws, specifically that truth is no defence and that what counts as hate speech remains highly subjective.
Under the new Section 13: “it is a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or any other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.”
It is distressingly easy to imagine scenarios where everyday political speech finds itself under the purview of the Canadian Human Rights Commission. Criticizing Hamas and the murderous ideology that motivates it could, to some, be seen as “likely to foment detestation or vilification” against a group, especially if the condemnation of Hamas notes that Palestinians generally support the terrorist group or that Hamas is driven by religious fanaticism.
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Meaning, if someone views criticism of Hamas as fomenting hatred towards Muslims, or Palestinians or Arabs more generally, they could file a complaint with the human rights commission. Similarly, it is easy to see how criticizing protesters who chant “from the river to the sea,” as advocating genocide against Jews would be viewed by some as hate speech. Same goes for those who advocate for Israel’s right to defend itself, or who point out that Islam initially spread through wars of conquest.
It is possible that such complaints would be thrown out, as the new legislation has caveats against frivolous cases, but that is no guarantee. The bill does indeed state that an expression does not count as hate speech “solely because it expresses disdain or dislike or it discredits, humiliates, hurts or offends.”
However, even though the government is using language from the Supreme Court to define hate speech, the difference between “detestation” (hate speech) and “disdain or dislike” (not hate speech) are hardly easy or obvious distinctions, even for lawyers. They come down to the subjective opinions of, first, those filing the complaints and second, government bureaucrats tasked with deciding whether such complaints are valid enough to be subjected to a full inquiry. Ask yourself, what’s the difference between “detestation” and “disdain”?
Even when there is a human rights judgement that Section 13 was not violated in a particular case, forcing Canadians to defend their opinions and justify their right to express them is a betrayal of the values this country should stand for.
While the government may try to insist that only the worst expressions of hatred would violate the Canadian Human Rights Act, the reason why the hate speech provision was repealed in the first place was because of the ease with which complaints can be made, and the potential to stifle what would otherwise be considered political speech.
What does seem certain is that the commission will be inundated with complaints alleging this or that social media post, or this or that opinion column, constitutes hate speech.
Whereas before there was no process for these complaints, there now will be someone tasked with making a judgment call. Unless the human rights commission is comprised of those with perfect judgment, cases involving what should be protected speech will inevitably end up facing a formal inquiry.
A person is found “guilty” in human rights law when it’s shown that they are more than 50 per cent likely to have committed a wrong, a much lower standard of proof than required in criminal law. Under the previous Section 13 regime, judgements siding with the complainant was near 100 per cent. Unlike cases of civil defamation and criminal promotion of hatred, truth is no defence, and so people could face hefty fines for saying entirely true things, if those facts are determined to “foment” hatred.
For cases that are screened out, it isn’t hard to imagine scenarios where people advertise on social media that they are making a complaint and then, by the time it is eventually dismissed, the accused may have already faced career consequences, or hired a lawyer.
All of which will result in a chill on speech, or self censorship, while Canadians wait for higher courts, which are becoming increasingly progressive and hostile to civil liberties, to rule on where the line actually is.
Elsewhere in the online harms act, “hatred” is defined as an “emotion,” further demonstrating just how subjective the regulation of speech is. Essentially, the government is aiming to censor speech that could cause people to feel negative emotions towards other people. This ought to be scandalous even among the government’s supporters, but the Liberals stopped being liberal long ago.
National Post
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