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On June 6, Canadians lost a valuable tool in the fight against discrimination and hate. Through a backdoor private member’s bill, the Conservative government repealed Section 13 of the federal Human Rights Act, which gave the Canadian Human Rights Commission the power to hear complaints about public hate speech over the telephone or on the Internet. Although the repeal bill is not yet law, it is now in the hands of the Conservative-dominated Senate where it is fully expected to become law.
The campaign to repeal the bill was led by right-wing extremists and free speech absolutists, who were also about the only ones celebrating the repeal. The Criminal Code is now the only tool we have left to combat hate speech on the Internet, where most hatred is expressed nowadays.
One possibly valid objection to the hate speech provision in the Canadian Human Rights Act (CHRA) was that a separate clause (Section 54) provided for financial penalties against transgressors, which the Canadian Bar Association said was an inappropriate power for an Act that primarily has a “remedial and conciliatory” purpose. Although the CBA supported keeping Sec. 13 and repealing Sec. 54, both were repealed. Hate speakers now face a possible prison sentence, a criminal record, and fines under the Criminal Code, rather than just paying a fine under the CRHA. Why would they be happy about that?
For one thing, hate speech charges under the Criminal Code are much more difficult to prosecute and prove. Only three convictions have been obtained since 1970. More ominously, the next goal may be to gut the Criminal Code hate speech provisions as well. The Canadian Civil Liberties Association wants to ensure that these provisions “focus on the prevention of violence and not on the expression of hatred.” Further, right-wing extremists have vowed to get rid of the Human Rights Commission entirely, even though the vast majority of its work relates to employment discrimination.
I agree with commentators such as Yosie St. Cyr, who says: “Taking away the Human Rights Commission’s authority over hate speech will make it much harder to prevent hate speech online, will continue to encourage racism, and could lead to more racial violence and intolerance.” Other recently published viewpoints in favour of maintaining hate speech legislation include this strong one from Pearl Eliadis, as well as Warren Kinsella, to some extent Mercedes Allen, and of course, the Canadian Human Rights Commission itself.
Opponents of hate speech laws advance a number of arguments for their position, which I will summarize as follows:
1. Who decides what is hate speech? Definitions are too vague and subjective. It’s impossible to draw the line on when freedom of speech should be restricted.
2. Hate speech laws can be abused and used against vulnerable groups, the very people the laws are supposed to protect.
3. Prosecuting hate speech gives hate speakers another platform for their views and allows them to play the martyr.
4. Criminalizing hate speech drives it underground where it may fester and become ever more dangerous. The answer to hate speech is to keep it in the open where the public can scrutinize it and refute it.
5. The law is too heavy and punitive of a tool. Reducing hate speech and discrimination in society is best done through education, government policies and programs, community initiatives, more effective use of existing defamation law, and the like.
6. Hate speech laws remove accountability from those who commit hate-motivated crimes, turning violent perpetrators into “victims” of hate speech.
7. There is no proof that hate speech laws actually work to reduce hatred, discrimination, or violence. Similarly, there is no causal link between hate-motivated violence and hate speech (except perhaps where it directly urges violence).
A few of these arguments may have some merit at least in part, but in general I believe most are overstated, misleading, or entirely mistaken. I refuted most of them last year in a comprehensive article titled “The Limits of Free Speech.” In contrast, I believe that arguments to support hate speech laws are much stronger. One factor that helped convince me was the reaction of my detractors, the majority of whom misrepresented or simply ignored my points, or were ad hominem (and sometimes viciously hateful). I also came to realize that some of the shibboleths of free speech absolutists are nothing but unsupported dogma, such as the claims that laws against hate speech drive it underground and make it more dangerous, and that hate speech does not directly lead to violence or even helps prevent it.
Laws in general are strongly supported by our society because they serve valid and essential purposes, and hate speech laws are no exception. We pass laws to deter behaviours that harm others, punish wrongdoers, protect rights, provide justice and redress to victims, bring order and promote social welfare, and officially sanction the values that most citizens support. The purpose of the Canadian Human Rights Act is to promote equal opportunity unhindered by “discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted…” In terms of hate speech, the purpose of Section 13 of the CRHA was to provide remedies to victims, foster respect for target groups, change behaviour, and capture conduct that falls short of criminal behaviour but still poses harm to vulnerable groups.
Canadian society has a clear consensus on the legitimacy of using laws to counter hate speech. Indeed, why should we tolerate hate speech when it directly undermines our human rights laws that protect vulnerable groups from discrimination? Of course, laws should be only one tool among many to fight hate speech. But they should stand as the tool of last resort for at least the most egregious cases, as a backup to social and political measures.
Other key arguments in favour of hate speech laws can be summarized as follows:
1. Words have power. Influencing others to act is a primary purpose of communication in general. Not only does hate speech have the ability to harm, it creates conditions in which violence becomes much more likely to occur, especially if hate speech continues unchecked over time. Further, words do not have to explicitly incite violence to cause violence, as proven by the assassinations of abortion providers in the United States.
2. Hate speech hurts, marginalizes, intimidates, and silences the vulnerable groups targeted by it. They do not have a level playing ground on which to respond because they are already discriminated against in society and do not have equal access to the media. (Perhaps one of the reasons racism and sexism are still so prevalent in modern society is because free speech is exercised largely by the privileged at the expense of the unprivileged.)
3. Hate speech, especially extreme hateful expression, has no redeeming value and plays only a destructive role in debate.
4. It’s possible to define reasonable and fair criteria for defining hate speech and what should be prosecutable. The CRHC used the “Taylor test” for this purpose (“hatred or contempt…refers only to “unusually strong and deep-felt emotions of detestation, calumny and vilification.”)
5. Many other western liberal democracies have anti-hate speech legislation, as well as criteria or tests for determining what is hate speech.
6. Courts and tribunals are capable of weighing evidence appropriately, evaluating the context of alleged hate speech, and applying tests and criteria objectively to ensure that legitimate free speech or merely offensive speech are not captured.
7. The preservation and enhancement of multiculturalism is a fundamental principle in our Canadian Charter of Rights and Freedoms (Section 27), which justifies hate speech laws to protect vulnerable groups.
8. Canada has international obligations to combat racism and the advocacy of genocide and racial superiority, which requires enacting hate speech legislation.
9. No right is absolute, including freedom of expression. Section 1 of our Charter allows reasonable limits on a fundamental right in order to balance it against other rights.
10. Free speech is already restricted in a myriad of ways, which society generally accepts. Examples include bans on threats, sedition, defamation, false or misleading advertising, profanity on public airwaves, and protests around abortion clinics. Tolerated types of censorship include gag orders and publication bans, publication refusals and censorship by the media, company confidentiality policies, quiet zones near hospitals or schools, and many other examples. There is no reason hate speech laws cannot be added to this long list.
Repealing Section 13 of the Canadian Human Rights Act will likely slow down the advance towards equality by fostering prejudice and reinforcing discriminatory practices. Even worse, it has the real potential to increase the risk of violence against vulnerable groups. The repeal is a dangerous mistake, one which we have allowed right-wing extremists to dictate at our peril.
Joyce Arthur is the founder and Executive Director of Canada’s national pro-choice group, the Abortion Rights Coalition of Canada (ARCC), which protects the legal right to abortion on request and works to improve access to quality abortion services.