A Virus in a Compromised Immune System

Bill C-36 and Freedom of speech in Canada

Bill C-36 which was introduced by the Liberal government shortly before the summer recess, proposes to amend the Canadian Human Rights Code to give the Canadian Human Rights Commission the power to investigate and take action against “hate speech” communicated by electronic means. It re-introduces, with some changes, the former Section 13, which was repealed by the Conservative government in 2013.

The former section had been part of the Act since 1976. Proceedings under the section were relatively rare and mainly involved extremist and neo-Nazi organizations. It did not amount to a serious restriction on freedom of expression in Canada then and it would be too easy to assume that neither will the new version.

But things have changed. One is the scope of activities covered by the law. Back in 1976 it applied mainly to pre-recorded telephone messages, which were often used by extremist groups to recruit members. Serious discussion took place mainly in print media, which was outside the jurisdiction of the federal Human Rights Commission. The new section would apply to communications on the internet which is where virtually all debate and discussion now takes place.

The other change is in the mindset of the people who will staff the human rights commissions and tribunals that will decide what is or is not hate speech. There has been a seismic shift which has greatly narrowed the scope of acceptable debate and expanded the scope of potential hate speech.

This shift can be seen in the analysis in two cases, six years apart, involving William Whatcott, a Christian minister who was strongly opposed to homosexuality and transgenderism.

Saskatchewan (Human Rights Commission) v. Whatcott is a decision of the Supreme Court of Canada on a complaint against Whatcott under Section 14 of the Human Rights Act of Saskatchewan, which made the publication of so-called “hate speech” a discriminatory practice. The cases concerned a series of pamphlets that Whatcott had distributed concerning the teaching of homosexuality in public schools. The Saskatchewan Human Rights tribunal found that four of the pamphlets constituted hate speech and ordered him to pay compensation.

The Supreme Court found that the Saskatchewan legislation did restrict Whatcott’s freedom of expression under Section 2(a) of the Charter of Rights and Freedoms but concluded that the restriction of hate speech constituted a reasonable limit on freedom of expression under Section 1 of the Charter. However, it also found that two of the pamphlets did not amount to hate speech and reduced the compensation payable.

The Supreme Court decision had these comments on the meaning of hate speech:

The distinction between the expression of repugnant ideas and expression which exposes groups to hatred is crucial to understanding the proper application of hate speech prohibitions. Hate speech legislation is not aimed at discouraging repugnant or offensive ideas.  It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups in society.  It only restricts the use of expression exposing them to hatred as a part of that debate. It does not target the ideas, but their mode of expression in public and the effect that this mode of expression may have. [Par 52]

Hate speech legislation could restrict only language which would expose a person to “detestation and vilification” which means hated in its strongest form. This is the language which has been adopted in Bill C-36.

The two pamphlets which were found to be hate speech, both concerned the proposed sex education curriculum in Saskatchewan schools. The court found that while the appropriateness of teaching homosexuality was a legitimate subject of debate, the pamphlets contained the “hallmarks of hate.” They were larded with biblical quotations, to give them a sense of authority and referred to “sodomites” sharing “filth” with young children.

The flyers that the Supreme Court found did not amount to hate speech were no less strongly worded. They consisted of a page copied from a gay magazine which included an ad for men seeking boys. There was a handwritten note which reads ,in part, “Saskatchewan’s largest gay magazine allows ads for men seeking boys! ‘If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea.’ Jesus Christ.” The last sentence is a paraphrase of a scripture passage found at Matthew 18:6, Mark 9:42 and Luke 17:2.

The court found that these flyers were “potentially offensive but lawful contributions to the public debate on the morality of homosexuality.”

It is clear that the court intended to leave a very large latitude to debate controversial issues using strong language.

A few years later Whatcott confronted transgender activist Morgane Oger before the B.C. Human Rights Tribunal. The final decision is Oger v. Whatcott (No. 7).

Oger was a candidate for the British Columbia New Democratic Party and Whatcott distributed a pamphlet entitled “Transgenderism vs. Truth” in the riding where Oger was running.

Here are some highlights of the pamphlet:

Ronan Oger (picture left) is a biological male who has renamed himself "Morgane Oger" after he embraced a transvestite lifestyle. Ronan is running for the NDP in the Vancouver-False Creek riding and B.C.'s media and the NDP are promoting a false narrative that Ronan is a woman born into a male body …

The truth is there are only two genders, male and female and they are God given and unchangeable. Ronan may have government ID that refers to him by the French female name 'Morgane' and the media, NDP and everyone in the riding might try to pretend Morgan is a woman. But the truth is Ronan's DNA will always be male, he will never have a uterus, and no amount of cosmetic surgery, fake hormones, or media propaganda is going to be able to change these facts.

After a lengthy hearing, the tribunal found that the pamphlet constituted hate speech under Section 7 of the B.C. Human Rights Code (which was similar in wording to the Saskatchewan code) and ordered Whatcott to pay Oger substantial damages and legal costs.

The tribunal decision refers to the Supreme Court case but fails to address the very restrictive definition of hatred. in contains. The Supreme Court started from the premise that Whatcott was entitled to express his opinions on the subject of homosexuality, however objectionable they might be, so long as his manner of expression did not cross the boundaries of hate speech.

The B.C. tribunal, on the other hand, was much more concerned with the content of Whatcott’s opinions. It finally defined the key issue as whether transpeople “exist” and stated,

The question of whether transgender people exist and are entitled to dignity in this province is as valuable to ongoing public debate as whether one race is superior to another. This does not mean that all expression that criticizes or questions the existence of transgender people violates the Code. Here I distinguish between public debate about, for example, the scope of rights that different groups in society may be afforded, and commentary like that which is in the Flyer, which denies the very existence of transpeople. Understood in its proper context, it is simply not accurate to place this type of expression at the core of s. 2(b) values.

The problem with this formulation is in the meaning being given to the term the “existence” as it relates to transpeople. What the pamphlets say is that human beings cannot change sex. The issue is not whether transpeople exist but whether they exist as a class apart from the sex into which they identify.

The argument put forward by Oger, and accepted by the tribunal, is that by denying that transwomen are women, you deny that they exist at all and therefore deny them all rights. This disregards the possibility that transpeople can exist and enjoy rights as transpeople, without erasing the distinctions based on sex.

Of course, erasing distinctions based on sex is Oger’s agenda and the decision helps to advance it.

You cannot have a debate about the scope of rights of a group unless you can distinguish it from other groups. All of the debates about transgender participation in sports and access to women’s spaces depend on the recognition of a difference between transwomen and women. If asserting that there is a distinction between determined gender identity and sex is, by itself, hate speech, then there is no possibility of any further discussion.

The decision is simply a tribunal decision which could be overturned by a court and is not binding anywhere outside of B.C. Whatcott has filed a petition for judicial review, but it has not yet been heard.

It could also be distinguished on its facts. Whatcott’s pamphlet goes far beyond simple misgendering. It contains inflammatory terms which come close to meeting the test for hate speech in the Supreme Court decision. Despite what Oger has claimed, it is very unlikely that another tribunal would regard a statement that transwomen are male, absent Whatcott’s extreme rhetoric, as hate speech.

It is also important to note that Whatcott was attacking Oger simply for being transgender. The tribunal did not have to address the questions of whether a transwoman is entitled to access to spaces where women and girls undress or to women’s sports.

Furthermore, the statutory language which would allow this kind of complaint to be brought before a human rights tribunal does not exist in most provinces. Alberta, Saskatchewan and the Northwest Territories have provisions in their human rights codes which are similar to section 7 of the B.C. code. The language in other provinces and territories is much narrower. The applicable section generally states that a publication which states an intention to discriminate, in an activity to which the code applies, may amount to discrimination, but there is no general power to investigate hate speech.

If Bill C-36 is adopted, the Oger case could by applied on a national basis. The new version of Section 13 of the Canadian Human Rights Act implements some of the safeguards proposed by the Supreme Court. It replaces the term “hatred” with the phrase “detestation and vilification” which the Court said applied only to hatred of the strongest kind. It also adds a qualification that a communication is not hate speech “solely because it expresses mere dislike or disdain or it discredits, humiliates, hurts or offends.”

The Bill shows the best of intentions to protect against undue limitations on public debate. The problem is, it won’t work. Since 2013 ideas based on post modern thought such as query theory, deconstruction, intersectionality and critical race theory have seeped from the fringes of elite humanities faculties to the political mainstream. They are found throughout government, the mainstream media, corporate public relations and non-governmental organizations advocating for human rights.

Helen Joyce describes the underlying mindset in Trans: When Ideology Meets Reality:

“Intimidation and harassment are carried out openly and proudly. Like all social-justice activists, gender-identity ideologues reject the concepts of viewpoint diversity and open debate. In their worldview, speech either opposes or upholds oppression, according to who is speaking and whether their words align with the narratives promoted by historically dominant groups …. Your opponent’s speech reinforces injustice and silencing them is moral even if that takes violence or the threat of it. Control the discourse, and you control reality.”

In order to control the discourse and generate the results that “social justice” demands, the new ideologues discard logic, fixed meaning in language and even the concept of objective truth itself.

Queer theory and deconstruction deploy the concept of breaking down binaries to undermine systems of oppression. However, binary distinctions are what the legal system relies on to protect against the abuse of state power. When queer theorists call misgendering “literal violence” they are not engaging in hyperbole. They are literally saying that there is no moral difference between offensive words and physical violence. This undermines the whole rationale for protecting freedom of expression.

Faced with this mindset, tweaking language offers no protection. Definitions can be expanded and exceptions narrowed without limit.

Canada is especially vulnerable capture by social justice ideology. In the United States, where many of these ideas originated, they have been kept in check by strong protection of free speech under the First Amendment. In Canada, where the Charter explicitly states that rights are subject to “reasonable limits,” they are like a virus entering into a compromised immune system.

While the United States admits many exceptions to First Amendment rights but they have been created by the courts in the context of an individualistic value system which permits restriction of individual rights only on the basis of urgent necessity. The legal and political tradition in Canada has been a more communitarian and paternalistic. However, this tradition has been based on respect for relatively stable shared values which placed high priority on individual liberty and equality before the law. The Canadian political system is much more exposed to sustained attack by an ideology which devalues liberty and seeks to remake society by any means necessary.

Social justice warriors will not be persuaded by argument or deterred by legal language. The only way to control them is by disrupting the power structures which enable them to exercise power. This means keeping the power to regulate speech out of the hands of the human rights tribunal or any similar administrative body.

There is no need for a civil remedy for hate speech in Canada. If hate speech is bad enough to justify legal sanctions, then it should be dealt with under the Criminal Code. The hate speech provisions contain two key safeguards.

First, any prosecution requires the approval of the Attorney General. It seems counterintuitive to give a politician the power to control prosecution for political speech, but it is deterrent to abuse. The Attorney General is going to have to accept responsibility for any prosecution and the government cannot shift responsibility, as would be the case under the proposed Section 13, to an anonymous complainant.

Second, the case will be heard before a judge who holds office until age 75 and can only be removed with great difficulty. Since the Act of Settlement of 1701, an independent judiciary has been a critical safeguard against the abuse of power by the state. Judges are not perfect. Some of them have said appalling things, especially in sexual assault cases, but their opinions are their own. They can be persuaded by argument and stand up to political pressure.

This article is for general information only and should not be relied on as legal advice.