Leslie Rosenblood

The Canadian Commission for Democratic Expression (CCDE) is a project of the Public Policy Forum, which seeks to “study and publish advice on how to prevent and mitigate the negative effects of illegal and other forms of harmful online content on democracy in Canada while encouraging robust democratic debate and dialogue.” Seven Canadian luminaries, including former Supreme Court Justice Beverly McLachlin, will act as Commissioners to evaluate submissions from across Canada.

The CCDE is focused on five areas of inquiry:

  1. The Scale and Scope of the Challenge in Canada
  2. The Impact on Democracy in Canada
  3. The Role and Responsibilities of Digital Platforms
  4. The Effectiveness of Existing Legal and Regulatory Provisions
  5. The Balance Between Countering Hate and Disinformation and Safeguarding Free Speech

The Canadian Secular Alliance (CSA) was invited to provide a written submission, based on its contribution to the House of Commons Committee on Justice and Human Rights study on online hate. We were limited to 1,000 words, so our submission focused on the CSA’s area of expertise, addressing the fourth and fifth items on the CCDE list, and leaving the other important issues to other organizations.

Here is the submission of the Canadian Secular Alliance to the Canadian Commission on Democratic Expression:

In June 2019, the House of Commons Standing Committee on Justice and Human Rights published its Taking Action to End Online Hate report. Several witnesses claimed “we must stop people trying to legitimize hate speech using freedom of expression as a disguise to do so.” This view is echoed internationally, with organizations such as the Organization of Islamic Cooperation equating offending the character of the Prophet Muhammad with hate speech and referring to a cartoon contest as a “provocation on the pretext of so-called principle of freedom of expressions” in its 12th Islamophobia annual report (2019). While bigotry against Muslims (and other faiths) is real, this prejudice is not a valid justification to censor speech, even expression deemed offensive by some.

Religious beliefs are ideas, and should not be treated any differently than any other philosophical doctrine — political, economic, metaphysical, or otherwise. Disputing the ideas in a book should not be considered equivalent to an attack on the people who revere those words.

The Canadian Secular Alliance’s fundamental position is: People deserve protection from harm; ideas do not warrant protection from criticism. This distinction is crucial and it is imperative that these are not conflated. Assaults on religious people must be deterred, prevented, and prosecuted. But criticism of religious tenets, no matter how vitriolic, must be fully permissible.

While legitimate constraints to unfettered speech exist — including libel, impersonation, threats and incitement to violence — any exceptions must be limited, well-defined, and serve the public interest.

The goal of hate speech laws must be to protect individuals from physical harm. However, they rarely achieve this aim. After studying the issue in many countries, Human Rights Watch stated “there is little connection in practice between draconian hate speech laws and the lessening of ethnic and racial violence or tension.” The same conclusion was reached by the European Parliament and the UN High Commissioner for Human Rights. Any proposal that seeks to further limit free expression must pass a high burden of proof in order to counter legitimate concerns about effectiveness, overreach, ambiguity, and selective enforcement.

The key problem with hate speech laws is that hate speech is impossible to define in such a way as to meet the twin goals of targeting a significant portion of unacceptable expression while respecting the principle of free speech. If its scope is very narrow and specific, any new law will have minimal impact on Canadian public discourse. But a broadly worded Act would necessarily encompass much speech protected by section 2(b) of the Canadian Charter of Rights and Freedoms. Additionally, in many countries (including established democracies) hate speech laws have often been disproportionately enforced against members of the very minority groups they were designed to protect.

Overly broad hate speech laws also have a non-trivial chilling effect on all public criticism. The Supreme Court has described “hatred” as speech “that is likely to expose” people to “hatred or contempt”: “unusually strong and deep-felt emotions of detestation, calumny and vilification”; and “enmity and extreme ill-will […] which goes beyond mere disdain or dislike.” How can a person know whether their strong negative opinion of an idea, person, or group will be considered “disdain” (permissible) or “detestation” (punishable)? In a dissenting opinion on the Keegstra case, Supreme Court Justice McLachlin wrote, the “sanction of the criminal law may pose little deterrent to a convinced hate-monger who may welcome the publicity it brings; it may, however, deter the ordinary individual.”

Hate speech laws leave three options for those inclined to engage in hateful, discriminatory speech: taking the forbidden expression underground; couching their ideas in more subtle rhetoric to evade punishment; or leaving the message unchanged (or perhaps make it even more provocative) as the speakers seek the publicity that results from prosecution. Perhaps that is why Canada has so rarely invoked its existing hate speech law.

Canada has made progress in recent years. Canada’s legislature repealed its blasphemous libel law in December 2018, recognizing that treating religious ideas as a form of thought warranting special protection is detrimental to society. This action was a significant step forward. The majority opinion of the Supreme Court of Canada wrote in 2018 that “Accommodating diverse beliefs and values is a precondition to the secularism and the pluralism that are needed to protect and promote the Charter rights of all Canadians. State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief. Either way, state neutrality must prevail.” Our country should not retreat from its commitment to humanitarian values that apply equally to all Canadians.

There is still room for improvement regarding hate speech. Canada’s Criminal Code currently contains a patently unjust provision that provides preferential treatment to religious individuals. Section 319(3)(b) of the Criminal Code exempts a person, who would otherwise be subject to an indictable offense, if their hate speech is “based on a belief in a religious text.” This is a clear violation of the principle of state neutrality in matters of religion. The harm suffered by vulnerable persons and groups is identical whatever inspired the hate monger. The victims of hate speech based on religious belief are generally the same groups hate speech laws are intended to protect. The Canadian Secular Alliance recommends that Canada repeal Section 319, subsection 3(b) of the Criminal Code.