Canadian Hate Laws

Great Debates
21

Sam, I’m now unsure if you’re even reading my posts.

My point is not that hate crimes legislation is a good thing, or even necessary. My point was that YOUR CLAIM that hate crimes legislation is being used in Canada as “a tool that people use to squelch debate, humor, or politically incorrect speech.” - your words - is simply false. You have failed to support it in any way. You have thus far provided no example of humour or real debate being “squelched” by use of the hate crimes law, and you haven’t even provided any particularly good examples of even politically incorrect speech being squelched. Your cites so far have included one person who was never even contacted by the authorities (Thobani) and one incorrect cite to a civil case.

Yes, the laws aren’t well written. The fact remains that your characterization of them as being routinely used to squelch public discourse is bullshit. If you’re surprised I’d say that, then I apologize for basing my posts in fact, as opposed to fantasy.

I see absolutely no evidence whatsoever this is true. At least in Canada, the public’s revulsion and propensity for jumping down the throats of people voicing hate speech is usually enough to shut people up, as it should be. (Which frankly is one of the reasons the law is probably unnecessary.) I live here too, and my honest assessment of the situation is that nobody feels the slightest bit “squelched” by the hate crimes legislation. I would in fact venture a guess that a great many Canadians are unaware it exists. You are attempting to characterize the situation as being something is very obviously is not. Nobody feels “squelched” or that they’re living in an Orwellian state, except, perhaps, the odd neo-Nazi like Ernst Zundel. You’re making it up.

[QUOTE]
Politicians and others can and have used the threat of hate speech prosecution to squelch opinion. [/.QUOTE]
Can you actually provide some cites of this happening? And please don’t trot out Conan O’Brien, who you and I both know probably never heard the bureaucrat’s comments and wouldn’t give a flying leap if he did. Or Don Cherry, who was never threatened with any sort of prosecution and has nothing to complain about if his employer wants to slap a 7-second delay on his comments.

More specifically, I’d like to see a single example of someone who actually had a real joke, or a real comment, who was “squelched.” I will grant a few crackpots and Nazis have been “squelched” by the law. Any real, legitimate discourse?

22

Well, it happened in America, not Canada, but there was the Janice Barton case. Four days in the pokey for saying something bitchy about Hispanics seems to fit your criteria.

Obviously, one case does not establish a pattern, but in my own experience, I feel that the range of circumstances under which one can express unpopular opinions without fear of retribution is becoming narrower and narrower. The corporate “diversity patrol” is a much greater threat than anything the government is doing.

23

I can’t see how this Janice Barton is the least bit relevant. Besides not being an application of Canada’s hate laws, it’s entirely unclear how her case could possibly be prosecuted under the Canadian statute. It’s a question of what constitutes ‘disturbing the peace’, not a question of free speech.

I myself am extremely ambivalent about the hate laws. There are some days I mostly agree with Sam’s take on things: that speech should not be curtailed for anything short of actually inciting a riot, etc. On other days I am more sympathetic to mnemosyne’s position, that the hate laws are much akin to “uttering a threat” laws, just applied to groups rather than individuals.

I do think that it’s the case that these restrictions on speech are the same in kind as other more broadly accepted restrictions - like inciting a riot or uttering a threat. They merely differ in degree. As such, it’s unreasonable to revile them as some monstrous restriction on an inalienable natural right, or whatever. Clearly we think some sorts of restrictions on speech are necessary. The question becomes one of where one draws a line between one person’s right to speech and another’s right to not be harmed by the speech of another.

I will not attempt stake out a definitive position here. I will merely note that so long as there are no gross misapplications of the existing laws, repealing them is very unlikely to become a high priority for me.

A possible example of un-PC-speech quashing - David Ahenakew. I’ve been looking for cites, but I can’t find much. It does seem as though charges were laid last year, but I can’t find any references to an outcome.

24

The fundamental difference, from what I understand, is that American individual rights are inalienable, un-trumpable, basically. Canadian individual rights are weighed against collective rights. This enables courts to recognize your right to say XXX, but point out that everybody else’s right to a society that’s free of people saying XXX is more important. Therefore you cannot say XXX.

25

But, of course, that is quite false.

Americans simply do not have unfettered right to free speech; the rather obvious case that proves that is the many U.S. laws and obscenity and pornography, which the Supreme Court has upheld as Constitutional defined along the notions of “community standards.” There you have an absolutely clear-cut case of individual right to free speech in the USA being curtailed by the collective “right” to, presumably, not have to put up with certain things because they’re obscene.

Personally, if it was a choice between banning hate speech or banning porn, I’d ban the hate speech first. Granted, Canada has laws against both, I believe.

26

Of course, if the XXX in question in involves children in XXX, you will still go to jail in the US I believe. :wink:

[Yes I know that RickJay already made the same point. But the notion that anyone, anywhere enjoys unfettered individual rights is false - at least, in a society with laws]

27

Just an interesting case:
About Hate Crimes in Toronto this week

Although the law we are discussing has to do with hate propaganda, I think in most cases a spray painted message would qualify as propaganda. Anyways, this person was NOT charged with the relevent hate crime charge, but merely counts of michief. The article does say that this event was probably unrelated to others in the Toronto area lately, but it goes to show that the law is not being used directly to threaten people into curbing their thoughts. Not even after thousands of dollars worth of damage to cars, houses and headstones has occured in the past week.

OTOH, if the people responsible for the previous attacks are charged only with vandalism and michief, I will be VERY upset, since there is much more of a crime happening here!

I do not want laws to curb WHAT people have to say, but I do want laws to curb HOW they say it.

28

Yeah, I’ve been reading about that shit in the paper and hearing about it on the radio - bastards. :mad: And after I was bragging about how free of anti-Semitism Toronto is.

Still, it is probably the work of a couple of neo-Nazis, and certainly not indicative of widespread Jew hatred in my fair city.

29

As surprised as I am to find myself on the same side of the line with Sam Stone, I have to say that I’m very uncomfortable with our hate laws.

This is a difficult subject for me. I happen to be a member of two groups targeted for hate: one very rarely (Wiccan), and one so often that hate literature attacking it is practically a major industry (gay).

While “sexual orientation” hasn’t been added to our hate speech legislation yet, I suspect it will be in the not-so-distant future. In fact, my own political party is pushing for it. And this makes me tremendously uncomfortable, because even though my first reaction to reading hate literature aimed at me is an almost blinding anger, I worry about the effect of creeping and expanding government censorship.

My first experience with real, government-mandated censorship was during the Little Sisters Bookstore case. I was a journalism student then, working on a feature story about the trial for the campus paper. For those of you who don’t know, Canada Customs was enforcing obscenity laws that made it illegal for books depicting certain sexual acts to make it across the border. I don’t mean that these books couldn’t be sold to minors – I mean they weren’t even allowed in the country.

I did some research trying to figure out where these laws came from, to add some background to my story. My expectation was that they were holdovers from some earlier age. Partly this was true, but Canada Customs was relying heavily on the 1992 Butler Decision to bolster its case. In the Butler Decision, the court concluded that certain sexual acts – including S&M, and anal sex – were automatically considered degrading, even where they appeared to be consensual. At issue was the believed “harm” pornography of this kind caused to women. On the strength of a brief written by an American anti-porn feminist (Catherine MacKinnon), “harm” became the new standard of obscenity, and obscenity laws – once regarded as dinosaurs – were made politically correct again.

It didn’t take long for Canada customs to decide that literature or image portraying any of the more adventurous forms of homosexual sex was degrading. Little Sisters saw its shipments stopped at the border and sued. It didn’t matter that the things that were stopped were well within queer community standards, and harmless, it was the Butler Decision that Canada Customs invoked. At the end of the trial, Little Sisters got its books back, but the Butler Decision – and Canada Custom’s right to hold back virtually anything it decided was “harmful” – remained intact.

I apologize for the long anecdote, but the reason I bring this up is that it was my first lesson that censorship could never be the tool of a good cause. After all, a group of well-meaning people (who were only seeking to protect women) set back another worthy cause (the equality of gays and lesbians and our right to build a cultural community). I’ve since seen this dynamic play out in other places: well-meaning group tries to use censorship for good ends, and it backfires.

One last thing before I end this. One of the people who spoke out in favour of Little Sister’s was Doug Collins, an extreme anti-semitic and homophobic newspaper columnist in Vancouver whose views on homosexuality can be likened to those of Fred Phelps. His less-than-stunning support: “No books should be banned, even fag books.” That got me thinking how there are some values – including the value of free speech – that cross across all political lines.

30

Nonsense! you’re doing just fine! [Piper pins “Great Debates Survivor” button on mnemosyne].

One elaboration on your summary of the Charter: The Charter doesn’t apply directly to individuals; rather, it recognises the constitutional rights of individuals and requires governments to respect them. So, a private party who uses hate speech against you is not infringing your rights under s. 15 of the Charter; it’s only if the government discriminates against you that is there a breach of section 15.

However, section 15 is relevant to the discussion in that it provides constitutional recognition of the importance of human dignity and freedom from stereotypical discrimination, on par with freedom of expression in s. 2. So, if the government chooses to pass a law that is to protect that human dignity, for example by enacting a human rights code or prohibiting speech advocating genocide, it can rely in part on the basic Charter values set out in section 15 as part of the support for the law.

31

While this is an interesting and informative anecdote, it should be pointed out that it undercuts the thesis implicit in the OP - that there is a fundamental difference between the US and Canada. As I understand it, the US also has anti-obscenity laws, so this is not a strictly Canadian issue.

Totally agree on the thesis expressed here though - that well-meaning attempts at censorship often backfire, and for this reason there should be as little as possible.

32

That situation **Hamish ** describes isn’t even unique. The US Postmaster General’s office took the role of censor of morality upon itself for much of the 20th century, banning not only imports but internal mailings of any materials it thought might offend a prude. There weren’t even any legal guidelines, just the PG’s own judgment. That of course only made some classic books even more enticing - *Lady Chatterley’s Lover * and *Tropic of Cancer * come to mind. That authority was only cancelled in the 60’s when the Supreme Court took it on.

Constitutional rights in the US aren’t supreme, either, except by default - how could they be, when in so many situations they’re in conflict with each other? There is no absolute free-speech right to publicly advocate hatred down here, either - other civil rights trump that, just as public safety trumps one’s right to yell “Fire!” in a crowded movie house (the traditional example).

So could someone explain what’s actually different up there? I don’t see it.

33

I assume you mean “what’s actually different” in terms of our constitution. I could write a few books on the differences between our history, culture, and values.

When it comes to constitutional law, I know the most about the Charter of Rights and Freedoms – our equivalent of the Bill of Rights. My father is a crown attorney specializing in Charter challenges, so I grew up hearing about it, and I’ve had to learn a lot about it because of my work as a gay activist.

Right off the top of my head:[ul][li]We have non-discrimination clauses written into our Charter (section 15, subsection 1).[/li][li]Our Charter specifically allows for affirmative action (section 15, subsection 2).[/li][li]Our Charter allows governments to opt out out of certain sections (the “notwithstanding clause”) if deemed truly necessary (section 33).[/li][li]Of course, we have various bilingual language and schooling protections in there.[/li][li]Powers are divided differently in our constitution. Our federal government handles criminal law, our provincial governments handle social programs.[/ul][/li]
As for Canada Customs, they’re just gits. And I think most people realize that they’re gits, but not enough people care to raise a stink about it.

34

Thanks, but I don’t see a difference at ground level between having things in your Charter and having them mostly in regular statutes like we do. Either way can get you arrested. I was looking for what’s really different on the ground - what can one say or do in one country that one can’t in the other? What basic attitudes are different in this context? That’s what I don’t see.

35

If I could add a few more …

Why is it that massively right-wing talk radio is so prevalant in the US but not at all here? Purely a cultural thing, or a legal thing as well?

How mightErnst Zundel, Internet-based holocaust denier, have been dealt with in the US?

36

US right-wing talk radio rarely (not never) crosses the line into hate speech, or advocacy of physical harm, toward anyone. Being fundamentally entertainers rather than informers or true commentators, marketing themselves to a particular demographic, the hosts generally know how to keep themselves out of legal trouble (if not embarrassment).

Holocaust deniers don’t get any more sympathy here than they do there IMHO, but perhaps they get treated more with scorn than with legal tangles. Zundel would probably not have been prosecuted here unless he went on to advocate actual harm toward or hatred of today’s Jews - nor can a native-born US citizen be stripped of citizenship for any reason AFAIK. If this case is representative, your threshold for legal action might be lower, and the punishments higher, than here - but that’s a difference only of degree, it still seems to me.

37

Zundel is not, and never has been, a Canadian citizen. He’s a citizen of the German Federal Republic, who emigrated to Canada several decades ago as a “landed immigrant.” (Don’t know what the U.S. equivalent is - green card, maybe?) He was denied citizenship when he applied for it some years ago. At any rate, when he voluntarily left Canada and moved to the U.S. a few years ago, under our federal law he was deemed to abandon his right to live here as a permanent resident, so he wasn’t stripped of anything. So as far as the citizenship issue goes, I don’t see much difference between north and south.

He was prosecuted under an obscure provision of the Criminal Code, “spreading false news.” The Supreme Court of Canada held that that provision was unconstitutional because it infringed on his freedom of expression under the Charter - again, not much difference there. The outcome may have been different if he had been charged under the offence of spreading hatred, but that’s just speculation - the SCC has upheld that provision in the Keegstra case Sam Stone mentions, but we don’t know if the Crown could have proved a charge under that provision against Herr Ernst.

Finally, the problem he ran into under the Canadian Human Rights Act was a civil issue, related to his use of interprovincial telecommunications to spread hate. Don’t know if the FCC or equivalent U.S. regulator has a similar power? (But if they have the power to ban seven dirty words, would they not also have power to ban racist speech?)

As for punishments - general rule is that Canadian criminal punishments are, by and large, almost always lighter than they are in the U.S. No death penalty, no life without parole, for the really serious mattters, and similar lesser sentences for less serious offences - the tariff is lower pretty much across the board.

38

It helps to understand that the US Constitution trumps all other laws and treaties in the US. All legal powers in the US derive from it. Thus something specifically enumerated in the Constitution is very VERY difficult to restrict, even for the “common good”.

It is in many ways a list of things the Gov’t MAY NOT do. For any reason. Period.
Thus the First Amendment reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. "

Which means, that fundamentally, the FEDERAL gov’t CANNOT, for any reason (excepting safety, national security and a few other limited cases) restrict the freedom of speech. Remember that obscenity or incitement to violence is NOT considered speech. In any case, provided the speech is not obscene or violently inciteful, You have no right to not-be-offended. Because the right to not-be-offended isn’t enumerated ANYWHERE in the Constitution. Which means, the right to freedom of speech trumps your right to not have to hear garbage spewed by morons.

However, it is critical (in the view of most civil libertarians) that such views be allowed to be expressed, even though they may annoy or discomfort you. Primarily because if no one were allowed this freedom then gays would never ever have been able to get their message out. Because it made a majority of straight folks uncomfortable.

Consider that flipside for a moment. If the Canadian standard is so much based on what the audience decides is offensive, then just about any controversial speech could be in trouble. And it is, after all, that kind of speech, the kind which makes you squirm as it challenges your views, that is MOST in need of protection.

None of that gives you the right to trespass on private property or vandalize though by spray painting swastikas. We have criminal laws for that sort of thing. I would be concerned about any gov’t having that sort of power to restrict speech, precisely because I don’t trust government not to excercise that power for political reasons at some point.

And perhaps that’s where part of the difference lies. If you ask an American on average, most will probably tell you they don’t trust their own gov’t as far as they can throw them. Regardless of which party is in power. I wonder if most Canadians or europeans feel the same way or not. I was absolutely stunned to discover a few months ago that most agency budgets issues in the UK and in much of europe are simply not open to the public. The average tax payer in the UK has no way of knowing what their gov’t is spending their money on. And that didn’t seem to bother most of the UK’ers I spoke to.

That just boggles the mind of this American.

Regards,
-Bouncer-

39

Okay, that wasn’t clear from the article.

Yes, or “resident alien”. One who is convicted of a serious crime here is subject to deportation at the will of the Immigration and Naturalization Service. A naturalized citizen who falsely claimed on his citizenship application not to have a criminal record can have that citizenship stripped and be subject to deportation as well.

Agreed.

Now *there’s * something we might be able to copy from you. I can picture Rupert Murdoch and Rush Limbaugh standing in the dock right now …

They do, but enforcement is a different matter. Things that would trigger action up there seem to slide down here. The power of the dollar?

Generally, yes, few countries have harsher sentences than the US. But for hate speech itself, the thread topic? I don’t see it. As I said before, I don’t think Zundel would be in much trouble here (and he apparently isn’t).

Thanks again for the facts.

40

This, of course, just goes back to what ElvisL1ves asked; what the hell is the difference between the USA and Canada in terms of actual practice?

What you appear to be saying here is that the federal government cannot restrict speech - unless, of course, common law and precedent and courts decide it’s not speech. How convenient THAT is. “Well, this may appear to be a restriction of free speech, but, you see, we’ve decided that it’s not speech at all!”

I trust you understand that this makes the American situation, in practice, exactly the same as the Canadian situation; free speech in most cases but not in some where the community strongly objects. You’re using different legal mumbo-jumbo; in Canada we say it’s a restriction befitting a free and democratic society. In America, you just say that certain things aren’t even speech at all and so you needn’t protect it.

Whether you choose to accept it or not, restricting porno is restricting free speech and the freedom of the press. Period, end of story. It’s a form of freedom of expression you’re disallowing; the government is using force to prevent people from publishing things they want to publish. You can couch this in weasel words like “it’s not speech, prurient interest, community standards” (USA version) or weasel words like “it’s a reasonable restriction” (Canada version.) Either way the result is the same.

Every porno law on the books in the United States proves you’re wrong.

Exactly, and the U.S. situation is identical. The Supreme Court of the United States has actually used this sort of WORDING to uphold restrictions on freedom of expression - “community standards.” I still am not seeing a difference.