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The Complications of Criminalizing Speech That May Spread Hate

Speech in Canada has long had reasonable limits placed upon it. It is illegal to incite violence against a person or group. One can’t encourage others to commit a criminal act nor, as the old cliche goes, can a person shout “fire” in a crowded theatre with impunity. When the path from speech to direct harm can be clearly established, people can be held criminally responsible. When we try to criminalize speech that may spread hate, things become complicated.

As the spring parliamentary session was just about to come to a close, the Liberal government introduced Bill C-36. The intent of the bill is to amend both the Criminal Code and the Human Rights Act to include provisions for online hate speech. The Liberals have made it clear that they want to regulate online speech through C-10 and C-36, both of which are currently before the Senate.

It is looking likely that there will be a federal election this fall and if so these bills will die on the order paper, but that doesn’t mean such legislative efforts to control speech will disappear. It means they will turn into campaign planks.

Defending free speech can be a dicey business, particularly in an election period. Proponents of unfettered speech are often unfairly accused of supporting the propagation of hate itself. Defending a person’s right to say something offensive is not the same as supporting what was actually said, but that line is often blurred when political brinksmanship is involved. This puts supporters of free speech on the defensive and makes them reluctant to even go into the issue. That makes election periods the worst time to go into an issue as loaded and nuanced as the regulation of speech.

Bill C-36 is essentially a reincarnation of what was once Section 13 of the Canadian Human Rights Act. Section 13 used the term “likely to expose a person or persons to hatred or contempt” when referring to hate speech. The ambiguity and subjectivity of that definition led to numerous actions against journalists and publications, including Maclean’s magazine, for having published content that some felt was hateful. While all of the charges against Maclean’s were dismissed eventually, it was costly for the magazine and the chilling effect upon journalists and publications was undeniable.