Josh Dehaas: It's not so easy to define "hate"

The Online Harms Act is reconstituting an old debate

By: Josh Dehaas

In June 1950, the Supreme Court of Canada heard the appeal of Aimé Boucher, a Quebec farmer who had been imprisoned for his allegedly hateful words. Boucher was a Jehovah’s Witness. His pamphlet entitled “Quebec’s Burning Hate for God and Christ and Freedom is the Shame of all Canada,” didn’t hold back in its criticism of Quebec’s cozy relationship with the Catholic Church.

Lucien Gendron for the Attorney General argued that the conviction against the farmer be upheld. “If you sow the seeds of disaffection, ill will and hostility, you must foresee that violence may follow,” Gendron told the court.

Boucher’s defence counsel Glen How responded by invoking free speech. “If we are to have freedom of the press and freedom of speech we must put up with its drawbacks — that things will be said that will sometimes annoy us,” How argued.

Boucher won 5-4. “Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life,” wrote Justice Rand. “The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality,” he added. “A superficial examination of the word shows its insufficiency: what is the degree necessary to criminality? Can it ever, as mere subjective condition, be so?”

Rand saw speech as so essential to the search for truth in democracy, and the meaning of words as so inherently subjective, that hate speech (in that case “ill-will”) couldn’t be outlawed.

Now that the Liberals are planning to crack down on so-called “hate speech” with their new Online Harms Act, Canadians must once again ask whether something like “hatred” can ever be objectively defined in such a way that we can clearly see a line between controversial speech and “hate speech” that can cost you money or land you in jail.

It’s a pressing question. The bill targets some things that are both relatively easy to define and obvious public harms: threats of violence, revenge porn, child-sex abuse material, and the like. (Already illegal, but still, fair targets for legislation, and also, again, relatively easy to spot.) But it also would increase the maximum penalty for the speech crime of “advocating genocide” to life, and create a new standalone “hate crime” offence that comes with a maximum sentence of life for any hate-motivated crime. It’s bringing back section 13(1) of the Canadian Human Rights Act, which will give the Canadian Human Rights Commission the power to fine people up to $50,000 and award up to $20,000 in damages for hateful speech expressed online. It’s creating a new offence in which people can be jailed for up to 12 months just because other people fear they may commit future hate speech. Yes, merely proposing to hold a rally where someone might commit transphobic hate speech could land them in jail.

As a civil liberties lawyer, I should be able to tell you where the magic line is between between hate and merely controversial or offensive speech. Sadly, even under the current legal framework, I can’t. “Hatred” really is too subjective a concept to ever properly define, and I don’t think it can be done without chilling a large amount of valuable speech.

Allow me to explain. In 1990, Justice Rand’s view that hate speech is too subjective to outlaw was overruled by a majority of the Supreme Court, which upheld the criminal hate speech laws in R v. Keegstra and the pre-Internet version of section 13(1) in Canada (Human Rights Commission) v. Taylor.

Justice Beverley McLachlin echoed Justice Rand in one of Canadian history’s great defences of free expression — but lost. Outlawing “hate speech” is unconstitutional because of this chilling effect, McLachlin argued. “The combination of overbreadth and criminalization may well lead people desirous of avoiding even the slightest brush with the criminal law to protect themselves in the best way they can — by confining their expression to non-controversial matters,” she wrote. “Novelists may steer clear of controversial characterizations of ethnic characteristics ... Scientists may well think twice before researching and publishing results of research ... Given the serious consequences of criminal prosecution, it is not entirely speculative to suppose that even political debate on crucial issues such as immigration, educational language rights, foreign ownership and trade may be tempered,” she added. “These matters go to the heart of the traditional justifications for protecting freedom of expression.”

Chief Justice Dickson, for the majority, wrote that hatred is not too subjective of a concept to be defined and outlawed. Hatred is only those “unusually strong and deep‑felt emotions of detestation, calumny and vilification,” he claimed.

That didn’t end the discussion. After section 13(1) was used to go after Maclean’s writer Mark Steyn for his 2006 article “the Future Belongs to Islam,” the public was outraged and the section was ultimately repealed.

But in 2014, in the case Saskatchewan (Human Rights Commission) v. Whatcott, Justice Rothstein for a unanimous Supreme Court upheld Saskatchewan’s version of section 13(1). Justice Rothstein wrote that hatred “is to be interpreted as being restricted to those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification’.” Hatred was not, according to Justice Rothstein, expression that “ridicules, belittles or otherwise affronts the dignity of any person or class of persons.” Merely “hurtful or offensive” ideas “are not sufficient to ground a justification for infringing on freedom of expression.”

That’s all well and good until we try to apply it. “Ridiculing” someone because they’re Black? You’re free to go. “Vilifying” someone for being Black? Off to prison! “Affronting the dignity” of women? Case dismissed. Showing “detestation” of women? Pay a huge fine!

Justice Rothstein wrote that, when in doubt, we can look to the “hallmarks of hatred.” They also really don’t help much.

“Hate speech often vilifies the targeted group by blaming its members for the current problems in society, alleging that they are a ‘powerful menace’,” Rothstein wrote. Sounds a lot like D.E.I. training. Or just another column in The Guardian.

Another hallmark is alleging a targeted group is “plotting to destroy Western civilization.” That’s usually not nice, but what if some group is plotting to destroy Western civilization? Some have applied this kind of claim to Christian nationalists, for example.

The next hallmark he mentions is trying to “delegitimize a targeted group” by “suggesting its members are illegal or unlawful.” Is this why mainstream media called the people flooding across the border at Roxham Road “irregular”? Is opposing transgender women in girls’ changerooms hate speech?

Another thing to watch out for: “expression that equates the targeted group with groups traditionally reviled in society, such as child abusers, pedophiles.” Sorry Gays Against Groomers, but you’re going to have to disband. The G-word is hate speech, and we don’t need to listen your arguments that gay kids are at risk of being pushed into gender transitions.

Finally, there’s the biggest hallmark of them all: comparing a group of people to “animals.” This includes references to a group as “horrible creatures who ought not to be allowed to live,” “incognizant primates”, “genetically inferior” or “lesser beasts.”

My apologies to the citizens of the Islamic State. I know you want to throw me off a building for being gay, but I shouldn’t have called you “animals.”

While it’s true that these examples might not get very far with a court, that doesn’t mean the law isn’t terribly chilling of speech. We know from the last time we had section 13(1), in the days before Twitter, that the government appointees adjudicating these kinds of cases were likely to be very sympathetic to accusations of racism or transphobia. And there’s no reason to suspect that Conservatives, given the powers in these laws, won’t be similarly heavy handed in opposing speech that offends them. Would Conservative appointees declare “From the river to the sea” a statement inciting genocide, and thus subject to life in prison?

Even if people aren’t found guilty, the process is punishment because the accused is force to hire a lawyer to defend their reputation.

Meanwhile the accuser doesn’t need a lawyer and is incentivized by the potential for a $20,000 cash award to, in some cases, pursue the case anonymously! Considering the panel will have only 20 members to hear complaints, we can expect it to immediately become bogged down with mean tweets, which means it could take years to get a resolution.

The bigger problem is that if even a civil liberties lawyer like me has trouble knowing what constitutes hate speech, busy Canadians will hear about these new laws and future tribunal prosecutions and decide it isn’t worth the risk to discuss controversial topics like immigration, gender or religion.

That chilling effect is, well, chilling, because the whole point of free speech protections is to allow us to speak our minds on controversial topics. Free expression is what allows us to debate difficult issues and settle on policies that most of us can live with, using logic and reason rather than force. Protecting free expression allows us to recognize that some of today’s radical ideas will turn out to be correct tomorrow, and change can only happen if we’re free to speak our minds. Boucher, for example, wasn’t wrong about his criticism of the Catholic church in Quebec — he was just ahead of his time.

If C-63 passes, the new law is unlikely to change anyone’s mind about issues of race, gender and sexuality, but it will prevent us from having important debates. Most reasonable people will look at the potential fines and jail time and decide it’s best to stay silent. Perhaps that’s the point.

Josh Dehaas is counsel with the Canadian Constitution Foundation, a charity dedicated to defending rights and freedoms, and co-host of the podcast Not Reserving Judgment.

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