Director of Fundamental Freedoms Program
Equality rights need teeth. Criminalizing expression violates freedom of speech. Both ideals are true and need not be incompatible. But equality trumped free speech in a rights clash last week because Canada’s parliament has long been in the business of criminalizing hate speech.
Last week, in a Toronto courtroom, two individuals were found guilty of wilfully promoting hatred contrary to the Criminal Code. It’s believed it is the first time that a conviction has been handed down for wilfully promoting hatred against women – and the two were also convicted of promoting the hatred of Jews.
The two accused – now convicted – are the editor and publisher of Your Ward News (YWN) – a hateful rag of a paper which is offensive not only to Jews and women but to almost anyone who has any respect for humanity. While I am reluctant to give these men more free press, I feel compelled to say that I think their criminal prosecution does more harm than good. It undermines the value we as a society place on free expression, ignoring the fact that we have protections not for speech that is popular and mainstream, but for precisely the opposite reason. The prosecution is also unlikely to do much – if anything – to protect the targeted groups from more hatred.
Many years ago – as the 1980s were coming to a close – CCLA went to bat in R. v. Keegstra to argue that the criminal prohibition on hate speech was unconstitutional. At that time, we pointed out that the provision was clearly targeting the content of expression strictly for the purpose of preventing the communication of certain messages – an endeavour anathema to freedom of expression. While criminal law is usually focused on actions and harmful outcomes, the hate speech provisions focused on words and speculation. There was no evidence that hate speech was likely to contribute to discrimination in society, much less violence or civil disorder. The problem was heightened by the fact that the language of the provision is vague since the concept of hatred includes a wide spectrum of emotions. This vagueness risks chilling the expression of many who were never intended to be the targets of hate speech laws – particularly minorities who may wish to air legitimate grievances about their treatment by the majority. And there is always a risk that the state will prosecute with a view to protecting some groups while leaving less popular or vocal ones to fend for themselves. Ultimately, the Supreme Court upheld the hate speech law. Fortunately, it has been used rarely – and when used, has rarely been successful. In a mature democracy like Canada, I think this is a good thing.
I hope the YWN case is an anomaly and not the beginning of a new trend in favour of criminal prosecutions for hate speech. While I tend to believe that this “newspaper” is catering to a very particular audience made up largely of individuals who either already share the views expressed, or view it as a completely ridiculous satire, it is possible that the messages contained in YWN may have some real-world effect (outside the minds of its readers). I don’t know whether some who read the paper may feel empowered to act, possibly in hateful or even violent ways, because of what the paper says. I don’t think the prosecution could pretend to know this either. What I do know is that giving these men a criminal trial has substantially increased not only their profile but also the profile of their paper and its contents. There is little doubt that at least some people who read about the case will go online to see what this publication is all about, and so the prosecution for the promotion of hatred actually serves to further spread the hateful content it is intended to suppress. I also know that, like so many of today’s haters, the criminal prosecution of these men will allow them to publicly claim their place as martyrs of free speech – further sullying the name of what I believe to be a true hallmark of a democratic society.
Everyone I know coming across YWN are shocked by the content. Many initially think: something needs to be done about this. But the next step need not be to dial 911.
Canada is not a fragile or fledgling democracy. Yes, we have deep-seated problems of sexism, racism and discrimination in our society. But they are generally of the more subtle, systemic variety, pernicious in its own way. Rarely does it take the form of the outlandish and fringe expression prosecuted in the YWN case. We can and should use means other than the criminal law to put hate speech in its place. If we rely too much on penal law to solve this problem, we may miss valuable opportunities for counter-speech, and may also end up placing on a podium those who, as Alan Borovoy used to say “should be left to wallow in the obscurity they so richly deserve.”