Our constitution protects this freedom because of the core values which underly it, namely democratic discourse, truth finding, and self-fulfillment.
In a recent case called Ward v. Quebec, a majority of judges at the Supreme Court of Canada explained that the right to freedom of expression is about protecting a public good as opposed to protecting the individual. However, unless we are willing to protect speech that is highly offensive to many or even to the majority, we will not have a free society.
Our former Chief Justice of Canada, Beverly McLaughlin, previously made this point in a dissenting judgment when she said “the view of the majority has no need of constitutional protection.” This same idea has now been adopted by the Supreme Court in Ward v. Quebec, where the majority stated that “freedom to express harmless opinions that reflect a consensus is not freedom.” In other words, freedom of expression only begins when we tolerate views with which we disagree.
Despite the protection our constitution affords free expression, our laws sometimes place limits on that freedom. Legally defined hate speech is one example of a limit to freedom of expression that has been recognized by our courts as reasonable and necessary.
Under the Criminal Code, it is an offence to communicate statements, other than in private conversation, that wilfully promote hatred against any identifiable group. The objective of this law, as stated in R. v. Keegstra, is to protect people from discrimination and to foster harmonious social relations.
Obviously, there is a tension between Criminal Code restrictions on speech and the right to freedom of expression. However, that tension is partially relieved by the fact that criminal hate speech does not reinforce the values which underly free speech as it tends to be vile and misleading. In addition, the Attorney General must consent to the prosecution of the offence. Finally, the crime must be proved to a high legal standard and there are statutory defences available to the accused, such as the defence that the impugned statements were true.
In the civil context, hate speech usually arises in relation to human rights codes. In a case called Saskatchewan v. Whatcott, the Supreme Court of Canada upheld a provision of Saskatchewan’s Human Rights Code that prohibited expression that would expose a person to hatred. The court defined hate speech as expression that would likely expose persons to detestation and vilification based on a prohibited ground of discrimination such as race or religion. The court was clear, however, that hate speech is a “most extreme type of expression” and that it did not include expression that ridicules, belittles or otherwise affronts the dignity of any person on the basis of a prohibited ground.
Recent Attempts to Extend Hate Speech Laws
In June 2021, Canada’s Minister of Justice introduced Bill C-36 which would have changed the law on hate speech. Had the bill not died on the Order Paper when Prime Minister Justin Trudeau called an election, it would have amended the Canadian Human Rights Act to establish a new discriminatory practice of communicating hate speech online.
Bill C-36 would have also amended the Criminal Code to allow a person to ask a judge for a restraining order if the person had reasonable grounds to fear that another person would commit the crime of wilfully promoting hatred. If the Attorney General consented to the commencement of this process, a judge would be empowered to place conditions on the suspected person, including the imposition of a curfew, the wearing of an electronic monitoring device, the abstaining from alcohol, and the forced provision of a bodily substance sample. All of this would happen without any criminal charges being laid.
Do we need more laws on hate speech?
Lately we have seen that politicians and other political opportunists will make false accusations of hate speech against their opponents in attempts to vilify and silence them. Some politicians, for example, broadly labeled members of the Freedom Convoy as hateful and racist despite the fact that there was little or no evidence for this claim.
False allegations do serious damage to the concept of hate speech and to freedom of expression. The concept of hate speech is weakened when it is used to denounce activity that does not rise to the level of unlawful speech as defined by our courts. It is not unlike someone using the term “genocide” or “crimes against humanity” to describe events which fall short of actual atrocities. As an English Bishop once said, “everything is what it is and not another thing.”
When allegations of hate speech are weaponized for political or other gain, public perception of the meaning of hate speech may be redefined. One potential consequence of this redefinition is that opposition to hate speech laws may increase as the concept becomes diluted, increasingly separate from its original purpose, and as people begin to suspect ulterior motives. In this situation, fringe groups, who would not otherwise command an audience, may take up the banner of free speech to occupy a legitimate place in public discourse.
Another potential consequence to redefining hate speech is that it will limit dialogue and the free exchange of ideas as people self-censor for fear of saying the wrong thing. Freedom of expression does not require us to say repugnant things, but it offers us the opportunity to respond to difficult and controversial ideas. Our ability to think critically requires us to confront challenging ideas. As our ability to think critically decreases, our susceptibility to bad ideas increases, and that is not a good thing when one opposes hate and discrimination.
When deciding whether we need more hate speech laws, we should ask ourselves whether our current laws are sufficient, how the new laws will be used, and whether the new laws will create a more tolerant society without unduly infringing upon free expression.