The climate for hate speech regulation in Canada appears to be shifting.
Traditional free speech advocates are reconsidering the status quo they helped create, in which hate speech is only a Criminal Code charge that requires political approval, and so is rarely prosecuted. There is even talk of resurrecting the defunct and much maligned ban on internet hate speech, Section 13 of the Canadian Human Rights Act.
The latest example was a lecture this week by Omar Mouallem, an Edmonton journalist and board member of free expression group PEN Canada, in which he argued online racists have “weaponized” free speech against Muslims, and Canada should consider a new anti-hate law to stop them.
Mouallem told a University of Alberta audience that public discourse is “fatally flawed,” and overrun with hate propagandists who traffic in lies and provocations in order to pose as censorship victims.
The far right has “co-opted” the issue of free speech, and their activism is not a principled defence of a Charter value, but “a sly political strategy to divide opponents on the left, humiliate them and cast them as hypocrites and unconstitutional, to clear a way for unconstitutional ideas,” Mouallem said in an advance email interview.
The traditional liberal response of public censure and rebuttal is no longer effective because it just “devolves into a pissing match that goes nowhere and only makes people double down on their opinions,” he said. “Given that Facebook groups and social media are the meeting point for hate groups to organize, and that online hate speech has a great ability to spread wider and faster, I think special regulation is worth considering.”
It is striking to hear that from a board member of PEN Canada, which is devoted to fighting censorship and defending freedom of expression, and was instrumental in the legislative repeal of Section 13, a law in the Canadian Human Rights Act that banned repeated messages, by phone or internet, that were “likely to expose” protected groups to hatred or contempt.
The lecture follows news that the federal Liberal government is openly mulling bringing back Section 13, which was repealed by Parliament in 2014, but later found by courts to be constitutionally valid. It allowed for legal orders banning offenders from engaging in further hate speech, on pain of criminal contempt charges, and provided for fines of $10,000.
It also follows the backtracking of another press freedom group, Canadian Journalists for Free Expression, which launched a petition for Prime Minister Justin Trudeau to “disinvite” U.S. President Donald Trump from a G7 Summit on the grounds that his administration’s attacks on press freedom have harmed American democracy. That petition was deleted soon after it was announced, amid criticism that it hypocritically also violated the principles of free expression.
Even libraries have illustrated the shift. A memorial held in a Toronto library last year for Barbara Kulaszka, a prominent lawyer for Canadian hate propagandists, led the Toronto Public Library to change its room-booking policy, allowing officials to refuse bookings that are “likely to promote, or would have the effect of promoting, discrimination, contempt or hatred of any group.”
Tasleem Thawar, executive director of PEN Canada, said she encourages diverse perspectives on the board. There has been no change to the group’s official position “that an educated, thoughtful, and vibrantly expressive citizenry is the best defence against the spread of hateful ideologies,” she said.
“If the federal government were to propose a new law (against hate speech), we would certainly comment on the specifics and its possible effects,” she said. “However, PEN is also committed to dispelling hatreds, as stated in the PEN International Charter, including on the basis of identity markers like class, race, gender, and nationality. And it is true that hateful, marginalizing and even demonizing speech can chill the freedom of expression of the groups who are being subjected to such public bigotry.”
All this might be evidence that the culture war over Canada’s uniquely balanced approach to hate speech is set to flare up again. Old arguments are being repurposed to fit modern media. Laws that were written in the age of telephone hotlines and printed newspapers are being reconsidered in the context of Twitter, Facebook and Google.
As ever, religion — especially Islam — is at the core of the debate, according to Richard Moon, the University of Windsor law professor who authored an influential 2008 report for the Canadian Human Rights Commission that urged it to stop regulating online hate via Section 13.
In his forthcoming book Putting Faith in Hate: When Religion is the Source or Target of Hate Speech, Moon describes the traditional distinction between speech that attacks a belief, which is typically protected by law, and speech that attacks a group, which can rise to the level of banned hate speech. He argues that our understanding of religion complicates this distinction, because religion is both a personal commitment and a cultural identity. Hate speech, then, often works by falsely attributing an objectionable belief to every member of a cultural group.
“Most contemporary anti-Muslim speech takes this form, presenting Islam as a regressive and violent belief system that is incompatible with liberal democratic values. The implication is that those who identify as Muslims – those who hold such beliefs – are dangerous and should be treated accordingly. Beliefs that may be held by a fringe element in the tradition are falsely attributed to all Muslims,” Moon writes.
Mouallem, who does not identify as Muslim, is a former rapper, freelance writer, and co-author of a book on the Fort McMurray wildfire. He said he does not advocate the return of Section 13 exactly as it was. It often worked, he said, but it is “too tainted.”
Section 13 was a “messy, if not farcical process,” he said, made more so by the “manipulation” of Richard Warman, the lawyer and former Canadian Human Rights Commission staffer who effectively monopolized the law, filing nearly every case and eventually winning them all, sometimes after posing online as a neo-Nazi to gather evidence. It was also “misused,” he said, by Canadian Muslim leaders on the “wishy-washy” case of alleged anti-Islam hate speech in Maclean’s magazine.
But Canada should have some kind of “online clause” that addresses both the “uniqueness of online content” and this current historical moment in which there is “widespread vilification” of Muslims and “rapid mobilization of extremist groups.”
Now there are “flagrant” examples that would be caught by such a law, he said, such as Ezra Levant’s use of the term “rapefugees.”
“Allowing hate speech to remain in the public sphere actually signals that it’s socially acceptable, which gives licence to perpetuate it, and eventually can make it mainstream,” Mouallem said.
The expression that “sunlight is the best disinfectant,” meaning hate speech is best countered by more and better speech is “ineffective when you’re dealing with majority tyranny and certain discrimination is widely accepted. This is the unique moment of hate speech in Canada and much of the ‘West’ right now,” he said. “Society has made an exception for Islam.”
Multicultural Meanderings 