By Conrad Black
Bill C-9, the Combating Hate Act, which passed the House of Commons this spring has been controversial because of widespread fears that its broad definitions of hate speech and intimidation threatened fundamental democratic rights. Almost everybody opposes incitement to group hatred but almost everybody also supports the widest definition of freedom of human conduct that does not lead to chaos or promote or defend sociopathic behaviour. Opponents of C-9 are particularly concerned at the removal from the Criminal Code’s protection of people acting in good faith in reciting religious texts that could be construed as incitements to hate, even if unintentionally.
The Canadian Civil Liberties Association (CCLA) and other civil rights advocates have expressed concern that the definitions of intimidation and obstruction in the bill are so broad that peaceful and otherwise irreproachable protesters may be subject to severe prosecution for hate crimes just for assembling near places of worship or other sites for demonstrations. Another delicate point is the extension of increased discretionary power to police by adopting a threshold for what amounts to the incitement or expression of hate. There is particular concern over the bill’s proposed removal of the requirement of the attorney general of the province to consent to a prosecution. It is certainly understandable that many reasonable groups would have serious reservations about leaving this power exclusively up to the police and neither the bill nor the official explanations of it give a remotely satisfactory justification for unleashing the police to indict whomever they wish.
This concern has been particularly emphasized by Indigenous and some other racially identified communities. On this point we see the classic abrasive intersection of those who fear themselves oppressed and harassed by hate-mongers and those who self- righteously claim mistreatment and are fearful of being deprived of an adequate level of energetic protest. Many conservative politicians and centrist and conservative organizations object that the government is arbitrarily attempting to define what constitutes acceptable ideas and speech and that it is infringing on freedoms guaranteed by the Canadian Charter of Rights and Freedoms and the fundamental areas of liberty of expression. They fear that the effect of adoption and enactment of this bill, whether intended or otherwise, will be improperly to subdue legitimate debate.
The Canadian Civil liberties Association notes that “antisemitism, Islamophobia, and racism are on the rise.” Certainly, antisemitism is on the rise, and militant Islam has a good deal to do with that. It is not as obvious that other forms of racism are in fact increasing in their extent or intensity in this country, and to some extent, the disgusting increase in antisemitic activity is being masked behind a mistakenly perceived antagonism to various minority groups. Jews are the chief victims, and other minorities, including Indigenous people, have not been unsympathetically treated. Canada has shown Job-like patience in tolerating the defamation of our founding European peoples and the demonization of the chief founder of this country, John A. Macdonald, (who also accorded the Indigenous the right to vote, among many other munificent acts).
The CCLA certainly supports protection for all legitimately concerned groups but debunks Bill C-9 handing “the government a blunt instrument that history tells us will be turned against the very people it is supposed to help.” The CCLA purported to speak for more than 40 organizations representing various different communities united by their concern about the pending legislation. It demands that language be made much more precise to prevent the capricious and unjust criminalization of peaceful protests and the gagging of legitimately if unrepresentative expression. It chastised the relevant parliamentary committee for making no serious effort to improve the bill and in fact worsening it by striking out the Criminal Code’s deference to the excuse of good faith recitation of acceptable if aggressive religious opinions. The CCLA makes the excellent point that any legal changes that affect freedom of expression do deserve careful consideration and that the government failed in this duty by forcing an over-hasty procedure of approval at committee stage.
The CCLA accurately couches the problem: “Punitive laws that criminalize expression don’t stop hatred; they hand governments a tool that, time and again, gets used against Indigenous peoples, racialized communities, protesters and dissidents.” That is essentially correct as far as it goes, but it does not specifically address the problem of how to defend those groups that are in fact victims of deliberate incitements to hatred and potential violence and intimidation. The Canadian Labour Congress, which is far from a constant source of enlightened public policy proposals, makes the point that “Canada already has criminal offences in place to combat hate like mischief, intimidation, and harassment.” It accuses the bill of threatening “labour rights, fundamental freedoms, the right to protest, and public accountability,” with its proposal for three new crimes: hate crime, for when an offence has been “motivated” by hatred, intentionally instilling fear to impede access to protected places like houses of worship, and the banning of inflammatory symbols like Nazi insignia. Bill C-9 also gives the statutory definition of hatred as an emotion involving “detestation or vilification” that is stronger than disdain or dislike.
This bill does need refinement. Traditional good faith religious exhortations should be permitted as long as they are not misused to incite illegal activity; and the requirement of approval by authentic prosecutors before indicting people for criminal offences subject to lengthy imprisonment should be restored. If policemen were prosecutors, we could dispense with the courts. It should not be beyond the wit of our legislators to distinguish between expressions of dislike, and the incitement of hateful acts against racial and sectarian groups. And the fact that all deserve to be protected should not be used to disguise the fact that in contemporary Canada the ancient and talented race and denomination of Judaism has been uniquely and disgracefully victimized by the infamous behaviour that this proposed statute is designed to deter and to punish.
First published in the National Post
