There is a racist misogynist money-grubbing cheeto in the White House who has recently and very publicly expressed his sympathy for White Supremacists and Neo Nazis and his contempt for those who fight them. His influence has spread northward to us, emboldening the most morally repulsive people in Canada to come forward and express their desire to see women ground into submissiveness and visible religious and sexual minorities killed.

When these pathetic excuses for human beings face public censure they always cry “free speech”. This article will look at what free speech protections there actually are in Canada and the United States, the laws governing hate speech and propaganda – if any, and the consequences therein.

As the United States is looking like a hotbed of racism, intolerance, and incompetence, let’s start with them.

Free speech protections fall under the First Amendment of the Constitution which says:

“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.”

The First Amendment protects a wide range of speech no matter how distasteful, untrue, or hateful. Just about any time a city or state passes a law banning hate propaganda of any kind, a First Amendment challenge is brought to the courts.

The Supreme Court of the United States has sided with the hate-mongering petitioners almost every time. As it stands, you could publish or distribute something saying for example, that women or African Americans are stupid and don’t really deserve well-paying jobs and face no criminal legal consequences that would be upheld in a court of law.

In Canada, the situation is very different.

Though Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, and expression, the Canadian Criminal Code has a whole section devoted to censuring hate propaganda. The laws in question prohibit public incitement of hatred and the advocating of genocide against an “identifiable group”. The law carries penalties ranging from a fine to between six months to five years in jail. The law calls an “identifiable group”: “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability.”

The prohibitions on hate speech do have a defense written into them which allows a defendant to beat a charge if they can prove on a balance of probabilities that the statements were true, they in good faith attempted to establish an argument on a religious subject, “the statements were relevant to any subject of public interest” or the person “intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada”.

Our Supreme Court recognizes that laws punishing hate propaganda violate our right to freedom of expression but in R v. Keegstra in 1990 a majority of judges agreed that the violation was justified and therefore constitutional.

James Keegstra was a teacher in Alberta who taught his students that Jews were (among other things) treacherous and child killers. Any students who contradicted his conspiracy theories got their marks docked. He was finally fired in 1982 after four years of complaints. A year later he was charged with promoting hatred. Keegstra was convicted and appealed the conviction.

In their decision, the majority Supreme Court justices said that the law was a proportionally reasonable limit on freedom of expression and that the objective of the law – “to reduce racial, ethnic and religious tension and perhaps even violence in Canada” – was rationally connected to the prohibitions in it.

Keegstra, for his part, remained an unrepentant anti-Semite and holocaust denier until his death in 2014. May he rest in Hell.

Although the United States has no criminal prohibitions against hate speech, there are other ways of censuring hate propagandists. As in Canada, the acts often associated with hate propaganda such as arson, assault, murder, theft, rape, and vehicular homicide are against the law in every state in the union. In addition, victims of hate propaganda can sue for libel, and though lawyers are costly, many in the US will work for the publicity alone.

In Canada, the rules for suing are different as provinces retain jurisdiction over civil law. In Quebec, you can sue for material damages, physical damages – meaning damages to your person, or moral damages – damages to your psyche. The burden of proof is a balance of probabilities and not beyond a reasonable doubt. All you have to do is prove that the hate monger and the propaganda they pushed are at fault for your damages.

Arguments against laws punishing hate propaganda range from the notion that punishing hate speech is being intolerant to the notion that criminalizing hate exacerbates the problem by furthering hate mongers’ narratives of victimhood. While the latter may be true, hate mongers generally adopt a narrative of victimhood regardless of whether there is real persecution or not. With the former, one must look at the paradox of tolerance.

The paradox of tolerance is the notion that part of being tolerant is tolerating intolerance. Historically it’s been proven that tolerance does not necessarily breed tolerance. Tolerance of intolerance all too becomes appeasement of the most evil elements in society, emboldening them further – the lessons of the Second World War and Nazi Germany are the clearest cases of this.

In these troubled times, we need to remember these lessons more than ever, or one day we’ll be the ones run over by a car, or lynched, or gassed.

The other shoe has dropped. Barely a few days after Harper’s Conservatives, with the help of the Liberals, pushed Bill C-51 through the House of Commons, we get more proof that this government is, in fact, all about silencing dissent by any means necessary.

Top government officials indicated that they would enforce their zero-tolerance policy towards criticism of the State of Israel by treating the promotion of the Boycott, Divestment and Sanctions (BDS) movement as hate speech.

Government Policy is Not a Person

Canada’s hate speech laws are a very good thing. They prevent promoting discrimination based on gender, race, religion and sexual orientation. Unfortunately, the way Harper now plans to use them is an insult to those who are actually victims of hate speech.

Last year, national origin was added to the list, presumably to make it easier for the government to follow the approach they are now following. Previously, they would have had to prove a correlation between criticism of Israel and anti-Semitism, which may be possible when talking to their base, but not in a court of law. Also try calling Jewish people who support BDS anti-Semites and you’ll be in for quite the argument, to say the least.

Harper and company have opted instead for the dubious route, but they still don’t have any real footing. Encouraging economic boycott of Israeli products is not a criticism of or discrimination against the people who produce those products based on national origin or anything else.

Those people could produce the same products in a different country and not be under boycott. In fact, if they voted out the current government and replaced them with one that eliminated the policies the BDS movement is protesting, or if the current government went that route, the people could produce the same products in Israel and not be under boycott.

The boycott is against goods produced under the current government policy in the State of Israel and government policy is not a person and therefore cannot be the victim of hate speech.

Double-Standard for Israel

One thing staunch supporters of the current Israeli regime’s policies love to bring up is the notion of a double-standard. In fact, a few years ago, the Harper Government was trying to get everyone who criticized Israel to also criticize another country at the same time, otherwise be labelled an anti-Semite.

Well, when it comes to double-standards, this could turn out to be a whopper. If it’s hate speech to urge boycott of Israel, presumably because the country’s population is majority Jewish, even though their government has some horrible policies, does that mean it would also be hate speech to boycott the products of a country whose population is largely Muslim whose government has some ethical issues to account for?

ethical oil
Hate speech? Ezra Levant’s Ethical Oil campaign

Let’s take Saudi Arabia as an example and imagine people in Canada urging a boycott based on ethical grounds. Wait, we don’t have to imagine such a scenario, thanks to Ezra Levant.

Wouldn’t the former Sun News, now independent, pundit’s Ethical Oil campaign be considered hate speech under this new definition? He is urging us to boycott Saudi oil, after all. Come to think of it, wouldn’t any Buy Canadian campaigns be considered hate speech against the country we are buying from instead of Canada?

I really don’t think so, because, after all, this isn’t actually about right and wrong or hate speech. It’s about using the law to silence political opponents of our government at home or allies abroad.

The Politics of BDS

Since this is an election year, it’s important to remember that the only type of discrimination Stephen Harper cares about is discrimination against his party at the ballot box. This new approach didn’t become public knowledge at this time by accident.

Harper is playing to his base, that much is clear. But this is also an attempt to derail one of his opponents. C-51 took care of Trudeau (plus Trudeau is in lockstep on BDS), now all but hardcore Liberals will admit his is pretty much just Harper with better hair. This plan is aimed at Mulcair.

netanyahu_harper

The NDP leader has garnered quite a bit of support for his principled, logical and, at some points passionate opposition to C-51. I sincerely hope that he doesn’t take Harper’s bait on this one.

Personally, Mulcair is a strong supporter of Israel. This nearly cost him the support of the NDP base a few months ago when his response to Israel’s assault on Gaza came very close to the one-sided approach both Mulcair and Trudeau were espousing. Fortunately for the party and for him, he changed his tune in an op-ed in the Toronto Star.

That only came after the party faithful occupied NDP offices and forced his hand. This time around, he doesn’t have the luxury of time to realize he has to support what his party wants.

If some reporter asks Mulcair for a comment on the CPC plan to use hate speech laws against BDS supporters, I sincerely hope that his response doesn’t focus on his personal views on BDS which, as far as I know have not been declared, but one can guess.

Instead, I hope he uses his logical and constitutional mind and attacks the gross misinterpretation of a law meant to help the real victims of hate speech. He can even admit his views on the actual subject, just not dwell on them.

To do otherwise would waste a good chunk of the unity fostered by the NDP being the only party (with a chance of winning) strongly against C-51. With all three parties appearing as basically the same to some, many on the left will stay home and Harper will win.

I also hope that those critical of the BDS movement realize that Harper is trying to use you. Even if you don’t agree with boycotting Israel, arguing that those who do support it are uttering hate speech is a stretch that defies all logic.
Economic boycott is one of the most peaceful and accepted methods of dissent. Now, Harper is trying to take that away in order to earn a few cheap political points. Don’t let him.