Virtually Indefensible?

March 9, 2024

HERE'S MY TAKE

The line between defending free speech and protecting individuals from hate speech is a delicate one. Freedom of speech and expression are “fundamental” rights in Canada’s Charter of Rights and Freedoms, but as we’ve learned through many issues, that does not mean they are “absolute” rights. The Charter only “guarantees” our rights subject to “reasonable limits” that “can be demonstrably justified in a free and democratic society.”

Plenty of judicial ink has been spilt on this theme and while I’ve read my share of it, I don’t claim legal expertise. What I do know is that the Online Harms Act (Bill C-63) introduced in late February reignites debate over how to combat hate speech while protecting free speech. Wherever one sits on that see-saw, even the Globe and Mail editorialised that this was “a fatally flawed online harms bill.”

I fear the Globe’s editorial board is right.

The proposed Online Harms Act really seems to be several separate initiatives bundled into one bill. Most seem to agree that the sections which strengthen the ability to fight pornography involving minors, or so-called “revenge porn,” are useful and necessary. The legal process can be time-consuming, so orders to take down images within 24 hours do seem an appropriate recognition of the irreparable harm such crimes can cause to victims. Of course, we can quibble about some details, but on the whole, that part of the bill seems appropriate.

On hate speech, it’s a different story. Three areas seem to be causing the greatest concern:

• The definitions of hate and genocide since the bill includes potential life sentences for some hate crimes
• The creation of a new crime that involves being “motivated by hate”
• The enforcement mechanism involving human rights tribunals, which are bound by a “balance of probabilities” standard of proof that’s easier to meet than a criminal court’s “beyond reasonable doubt”  

There are tricky legal issues involved and I don’t pretend to have all of the answers. (For those interested in a more technical exposé, I recommend Joanna Baron’s or Michael Geists’s more informed analysis.) But in sorting through the competing takes over the past few weeks, here are four factors I found myself weighing in making sense of Bill C-63.

• First, whatever law is in place, it needs consistent enforcement. Lately, we've seen many protests with placards and speeches spewing hate–not only expressing disagreement with identifiable groups but celebrating the deaths of some and expressing the wishes that more would die.  There do not seem to be many hate law consequences. From 1977 through 2014, Canada’s Human Rights Act had Section 13 which functioned as a hate law, but was discredited by its misuse. We still have Section 319(1) of the Criminal Code which describes “communicating statements in a public place or actions that incite hatred against any identifiable group where such incitement is likely to lead to the breach of the peace” as a criminal offence.
• Second, speech and thoughts are different from actions. The law and legal processes and standards for proof are unable to deal with speech and thought as well as they are able to deal with actions. We know that words can hurt and do matter, so we can’t be indifferent about them. (There is a place for “conspiracy to commit and other laws that do not involve actions." But we also need to be aware of the tools available to us. We can’t ask the law to solve things that are beyond its capacity to deal with properly.
• Third, we can’t be naively one-sided in our assessment of the dangers of not acting. Yes, there are problems relating to misinformation and hateful communications that have real consequences in society with real victims. But history also tells us that when governmental authority is involved in regulating information, there is almost always pressure to tip the balance towards the information that is friendly to the government’s interest. There are no ways of doing this that are totally free of political pressures. So, there will always be the temptation for political misuse of these powers.
• Lastly, that misuse is real when it comes to the formal institutions and structures tasked with administering speech regulations. However, it is even more real when it comes to the politics of the issues. Just as identifying hate speech that deserves legal consequences is difficult to pin down, so is identifying the opposition to hate speech that in some cases is born of legitimate concerns for justice. In other cases, it is a political tactic to influence public opinion against a disfavoured point of view.

Reliable sources are raising important legal concerns regarding the government’s proposals. Those concerns in my mind are amplified by my take on history when it comes to state powers regulating speech and how I understand basic human nature. Noble-sounding claims about protecting the vulnerable against hate don’t seem to make appropriate accommodation for the ever-present condition Lord Acton identified: “Power tends to corrupt. Absolute power corrupts absolutely.”  There is a gravitational pull of human nature to misuse power. Justice requires giving those with authority the tools to do what is right, balancing that power with checks on authority to prevent the tools’ misuse.

There may be a wise way to implement hate laws that get at some of the evident challenges our society faces. The strategy proposed in Bill C-63 is not it. And on an issue as consequential as this, especially considering the penalties being considered, passing a law without the right balance would probably lead to greater injustice than leaving the problems unaddressed would. I realise that this puts one in the awkward position of having to “defend” hate, at least to the extent that we say it isn’t always the government’s responsibility to address it with the limited tools in its toolbox, but such is life in a broken world.

WHAT I’M READING

Trump on the Ballot

The US Supreme Court ruled that attempts by Colorado to remove Donald Trump from eligibility for this fall’s presidential election because of his alleged involvement in the January 6, 2021 riots on Capitol Hill are unconstitutional. This means that the voters, not the courts, will be the ones determining the outcome. Whatever the legal arguments that might have been raised, and as noted earlier in this newsletter, from afar they appear pretty weak since Mr. Trump has not been convicted of anything related to January 6^th by a court, this is a welcome deference by the courts to ensure that political processes will ultimately decide political matters. There is always overlap between the jurisdiction of the three branches of government, and our day seems to be one in which each branch is seeking to expand its reach. Leaving this as a matter for the American voters to decide is a necessary first step for democratic confidence. Now it’s up to those administering the elections to ensure they are not only fair but seen to be credible and fair, and then to the candidates ultimately to respect the outcome of those processes.

Can the Media Save Itself?

Wendy Mesley is a former anchor of the CBC’s flagship news program, The National. For those of us who did politics in the 90s and aughts, she was a media personality of significant influence. I had lost track of her until last Saturday when her byline appeared in the Globe and Mail with the heading, "I was a broadcast journalist. Now TV is the last place I go for news." Hit the link if you want to see her arguments. They aren’t that novel, but what is significant is who is making them. Tara Henley, another former CBCer, has written an interesting piece in TheHub.ca, where she shares her testimony to a House of Commons committee conducting hearings on the future of media in Canada, as well as some of her own reflections on the process. Her conclusion was unambiguous: “The government cannot save (the media). We have to save ourselves.”

University Governance

This Policy Options piece highlights the importance of vibrant university boards as a strategic area for seeing needed change in the university sector. Jim Farney rightly observes how the historic accountability mechanisms for the university sector–peer review for academics, the market of enrollment for students, and provincial governments funding and legislation–are all proving inadequate to answer present challenges. Farney argues that revitalised boards have the advantage both of being able to look at each local context with customised solutions, as well as engage in the necessary “frank discussions” about the strategic leadership so badly missing, conversations that we seem to be incapable of holding in the public sphere.

State of the Union

The Washington Post provides an interesting summary of the 24 proposals that were in the 2023 State of Union address and where things are at a year later. As for looking forward, beyond being a “pep talk for US global leadership,” the theme that came out of Thursday’s State of the Union was economic optimism. This event is probably more about messaging and signalling than substance. Still, in an election year, it deserves attention. Meanwhile on the other side of the globe, China's 30-year practice of holding a media availability with the president at the end of the parliamentary session (not quite the same thing as a state of the union but performing a similar function) was discontinued this week. This seems to be a tactic for the Chinese to avoid too much attention on the most pessimistic growth targets the government has put forward in some time.

Church Burnings

Stuart Parker's piece on church burnings not only sheds light on the 80 or so church burnings that have taken place in Canada in recent years, but even more significantly challenges the reluctance to discuss this issue publicly. Referencing a February 13^th House of Commons incident in which some Liberal and NDP MPs objected to the passage of a motion condemning a church attack, Parker (as a former member of the NDP) describes the political pressures which prevent leaders, especially on the left, from taking on this issue.

MEANINGFUL METRICS

Statistics Canada released the 2022 charitable donations data this week. Just over 17% of Canada’s 28.9 million tax filers had a claim on the charitable donation line with donations totaling just over $11.4 billion. The reported median donation was $380 (on a median income level of $71,250). There is a definite demographic factor with 34% of donors over the age of 65 making a donation, while only 10% of those between 25 and 34 donated. Cardus has been active on this file for some time, recognizing the importance of civil society institutions including charities in the delivery of social goods and services. The chart above, taken from a 2020 poll we commissioned with the Angus-Reid Institute, indicates that there is public support for increased partnership between government and charitable organizations.

TAKE IT TO-GO

A Fishing Expedition

I’ve been herring a bit about deep sea fishing of late as some friends were anticipating their March break to sunnier climes. Fishing doesn’t hold much allure for me but I still thought, “Why not take the bait and use fishing for our wordplay theme this week?” So permit me to cast just a few lines here. It turns out not to be such an ex-squid-sit theme–the puns that come to mind don’t exactly get my laugh gills flapping. But the every-week promise for this paragraph is wordplay, not success. This seems totally in line with my own limited fishing experience. You go out for the adventure but that doesn’t guarantee you will catch anything. I seem to be floundering, so I’ll quit here, lest I be left with not even a sole reader. It’s better just to declare this expedition fin-ished with the promise for a fresh voyage that will hopefully net a better humour catch next Saturday morning at sunrise. Until then. Gone fishing. Well, maybe not.