April 11, 2024
The hate speech provisions of the federal Online Harms bill C-63 trigger the most common policy argument against content regulation, on the Internet or anywhere. It’s the “slippery slope” metaphor depicting the idea that any regulation of free expression teeters at the top of a steep precipice greased to deliver us to a waiting police state. Or a waiting thought-police state.
What’s more, if the worst fears of hate speech laws creating a freedom-killing regime of national censorship in Canada come to pass, the State will have become so powerful that it will be impossible to roll it back. The judgment of “I told you so” will come too late.
To accept this worst-case scenario, one has to evaluate the plausibility of Canadian democracy circa 2024 making the long political journey to a police state, or something too close to a police state, and to contemplate what role hate speech regulation would play in making that happen. One has to evaluate how steep and slick the C-63 slippery slope is.
That’s the task of Parliamentarians evaluating C-63. One of the key provisions in the bill is the definition of “hate speech.” It’s effectively transcribed from Supreme Court jurisprudence into clear statute law that can be enforced by police, Attorneys-General, courts and human rights tribunals. The gist of the definition is to draw a line between illegal vilification and degradation of target groups and milder bigotry (explicit or imputed):
Criminal Code amendment;
hatred means the emotion that involves detestation or vilification and that is stronger than disdain or dislike. For greater certainty, the communication of a statement does not incite or promote hatred, for the purposes of this section, solely because it discredits, humiliates, hurts or offends.
Human Rights Act amendment:
hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination. For greater certainty, the content of a communication does not express detestation or vilification solely because it expresses disdain or dislike or it discredits, humiliates, hurts or offends
Last week MediaPolicy posted a summary of an expert panel parsing the hate speech provisions. Law professor Sunil Gurmukh argues the C-63 hate speech provisions are not going to enable a wide-open persecution of haters, both real and imagined. He points to the Supreme Court’s endorsement of the “hallmarks of hate,” mapping out the line between the vilification of targeted Canadians and, on the side of the line, non-vilifying bigotry.
A key federal human rights precedent that illustrates the hallmarks is the 2006 federal Tribunal finding against Edmonton’s Peter Kouba who posted repeatedly for three years to the Canadian page of the Nazi white power website, Stormfront. Kouba’s posts were chock full of explicitly racist vocabulary and an ongoing series of “true stories” that put forward the case for white power and persecution (including expulsion, violence and execution) of Jewish, Indigenous, Black, LBGTQ and Muslim Canadians.
The Tribunal listed the hallmarks of vilifying hate speech, reduced here to point-form:
- The communication uses not only racial epithets but dehumanizing vocabulary by associating members of the targeted group with animals, vermin, excrement, i.e. sub-human.
- The communication trivializes or celebrates past tragedy suffered by the targeted groups (e.g. the Holocaust, but could be other events).
- The use of “true stories” that are either not true or are presented as the targeted group’s characteristics, using racist vocabulary.
- Members of targeted groups are described as predators of the old, vulnerable, women, young etc.
- Members of targeted groups are the cause of society’s problems, generally.
- Members of targeted groups are dangerous or violent by nature.
- Members of targeted groups are devoid of typical human qualities and are innately evil, e.g. “… it’s in their DNA to be bad.”
- The “take action” is violent action against members of targeted groups, to banish, segregate or kill them.
The hate is indelible and historic. The hallmarks include vilifications assigned to each group: Jews are described as a powerful menace at every level of society and contriving a lie about the Holocaust in order to extract financial reparations; LGBTQ Canadians are falsely accused of seeking to legalize pedophilia; Indigenous peoples are depicted as sub-human and fabricating a narrative of colonial injury in order to collect federal funds, etc.
I repeat these odious lies only to remind myself and everyone of how bad it can be.
Here’s the Tribunal’s pithy observation on Kouba’s posts:
The messages conveyed the idea that Black and Aboriginal people were so loathsome that white Canadians could not and should not associate with them. Some of the messages associated members of the targeted groups with waste, sub-human life forms and depravity. By denying the humanity of the targeted group members, the messages created the conditions for contempt to flourish.
Moreover, the level of vitriol, vulgarity and incendiary language contributed to the Tribunal’s finding that the messages in the case were likely to expose members of the targeted groups to hatred or contempt. The tone created by such language and messages was one of profound disdain and disregard for the worth of the members of the targeted groups. The trivialization and celebration in the postings of past tragedy that afflicted the targeted groups created a climate of derision and contempt that made it likely that members of the targeted groups would be exposed to these emotions. Some of the posted messages invited readers to communicate their negative experiences with Aboriginal people. The goal was to persuade readers to take action. Although the author did not specify what was meant by taking action, the posting suggested that it might not be peaceful. The Tribunal found that the impugned messages regarding Aboriginal Canadians and Jewish people attempted to generate feelings of outrage at the idea of being robbed and duped by a sinister group of people.
The outcome of the Kouba case may be instructive: the Tribunal issued a cease-and-desist order against his repeated hate speech that had rung the bell on virtually every “hallmark of hate” listed above. Also it fined him $7500 because of the relentless posting over three years, as opposed to a one-of.
The hallmarks of hate do raise a difficult question for the rest of us: what are we prepared to do for Canadians who, despite the free-marketplace-of-ideas, continue to be publicly vilified and threatened by haters?
The rebuttal to that question so far has been that expanding hate speech prohibitions against an army of bigots and haters posting to social media will be futile and beyond the means of the legal system.
More on that in the weeks ahead. At the moment, the House of Commons Justice committee has yet to take up the bill.
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