Shelina Ali
Whose freedom of expression is the Harper government protecting?

| January 30, 2014
Whose freedom of expression is the Harper government protecting?

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Last week, in Prime Minister Stephen Harper's address to the Israeli Knesset, he equated criticisms of the Israeli state and its policies with anti-Semitism. He stated that "most disgracefully of all, some openly call Israel an apartheid state," continuing on to say that "it is nothing short of sickening."

Mr. Harper's strong condemnation of individuals who criticize Israel's policies and practices raises serious concerns about his government's commitment to protecting political speech in Canada. His comments should be seen in light of his government's claw‑back of hate speech legislation in the name of freedom of expression. In acting as a champion of freedom of expression, while targeting critics of the Israeli government and its policies, Mr. Harper has attempted to redefine political speech as speech that would meet the definition of hate speech under the Criminal Code. These contradictory actions should raise serious doubts about whose expression the Harper government is actually committed to protecting. 

Hate speech laws in Canada

Just last year, the government repealed section 13(1) of the Canadian Human Rights Act (CHRA). This section of the CHRA targeted hate speech communicated through telecommunications facilities in Canada, including the Internet. Hate speech referred to communications likely exposing a person or group to hatred or contempt based on a prohibited ground of discrimination.

Hate speech under the CHRA did not create a criminal offence, but allowed courts to address hate speech through civil remedies.

Section 13(1) was repealed under the guise of protecting the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter). This was despite a finding by the Supreme Court of Canada that the hate speech provision in the CHRA was a justifiable limit on freedom of expression, and therefore constitutional. 

In repealing section 13(1) of the CHRA, the Conservative MP who tabled the bill, Brian Storseth, took the position that the Criminal Code provided appropriate protection from hate speech. Section 319(2) of the Criminal Code makes it an offence to communicate statements, except in private conversation, that willfully promote hatred against any identifiable group. 

An identifiable group under the Criminal Code does not include individuals or groups targeted because of sex, age and disability. Therefore, the repeal of the hate speech provision under the CHRA created a legislative void, and arguably, prioritized the right to freedom of expression at the expense of equality rights under the Charter.

It is within this more serious criminal law framework that the Harper government chose to address hate speech in Canada going forward.

Political speech as hate speech

Stephen Harper raised the importance of political speech in Harper v. Canada (Attorney-General). In that case, Mr. Harper brought an action for a declaration that certain sections the Canada Elections Act infringed rights under the Charter, including section 2(b) on the right to freedom of expression.

In discussing the importance of political speech, Chief Justice Beverley McLachlin stated that political speech "lies at the core of the guarantee of free expression… For this reason the Supreme Court of Canada has assiduously protected the right of each citizen to participate in political debate." The right of each citizen to participate in political debate includes "permitting an effective voice for unpopular and minority views -- views political parties may not embrace."

By contrast, according to the Supreme Court in R v. Keegstra, hate speech under the Criminal Code captures activity where there is a deliberate intent to promote hatred and where the activity brings about "the most severe and deeply-felt form of opprobrium."

This very issue -- whether criticism of the state of Israel, and in particular the term "Israeli Apartheid," was constitutionally protected political speech or anti-Semitic hate speech -- was considered by a panel of arbitrators as part of the Pride Toronto Dispute Resolution Process in June of 2012.  

A complaint was brought by the League for Human Rights of B'nai Brith Canada against Queers Against Israeli Apartheid (QuAIA). B'nai Brith argued that QuAIA's participation in the Pride Parade, together with its messaging and its name, violated the anti‑discrimination policies of both Pride Toronto and the City of Toronto. 

The Panel concluded that QuAIA's participation in the Pride Parade did not violate the anti‑discrimination policies of the City of Toronto or Pride Toronto, and that QuAIA's message did not incite others to commit acts of anti‑Semitism or violence.  The Panel went on to state that "simply adopting a political view that a court, or its government, is engaging in policies which creates something akin to apartheid, or apartheid itself, affecting an identifiable group cannot possibly fall within the accepted definition of discrimination." QuAIA's activities and its use of the word apartheid did not "promote, condone violence, hatred, degradation or negative stereotypes of a person or group."

Harper's speech to the Israeli Knesset, however, clearly lays the foundation for characterizing QuAIA's name and message, together with other kinds of political speech, as hate speech under the Criminal Code. His statements, including describing criticism of Israel as "a mutation of the old-disease of anti‑Semitism and the emergence of a new strain," aim to associate this type of political speech with a "severe and deeply‑felt form of opprobrium," an association that is essentially meeting the definition of hatred under the Criminal Code.

The Harper government's characterization of this type of political speech is especially troubling given its actions in legislating hate speech in Canada. It has left certain identifiable groups without the protection of hate speech legislation in order to safeguard freedom of expression. At the same time, the Harper government is openly attempting to chill speech that is clearly political, by associating it with anti‑Semitism. This inconsistent position on freedom of speech in Canada threatens the democratic values underlying our Charter.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

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