Canada high court upholds hate speech laws

by Walter Olson on February 28, 2013

In a serious blow to speech rights north of the border, the Supreme Court of Canada has upheld so-called hate speech laws as consistent with Canadian constitutional guarantees. The decision partially upheld the legal punishments applied by a Saskatchewan tribunal to a man who distributed anti-gay literature. [The Globe and Mail]

P.S. As has been pointed out, precedent in Canada on this issue was already pretty bad before the latest decision, so “serious blow” may not be the right phrase, except in the sense of hitting someone who’s already down. More: Howard Friedman via Volokh; Jacob Sullum.

{ 12 comments }

1 William Nuesslein 02.28.13 at 10:45 am

During the sentencing phase of Jeffrey Dahmer’s trial, a sister of one of Dahmer’s victims said to him “I hate you Jeffery.” Was that hate speech?

How about my disgust with gay rights activists when they went after Dr. Gallo. Was that hate speech?

I hate the concept of hate speech.

2 Richard Nieporent 02.28.13 at 11:23 am

The court, however, decided to strike “calumny” from its definition, saying it was unnecessary because hate speech need not be false, and that the word is rare in “everyday vocabulary.”

Hate speech need not be false. Just think about that for a moment.The Supreme Court of Canada has said that they will tell you what you are allowed to say, the truth be damned. And to add insult to injury, they think you are too stupid to know what the word means anyway.

3 Eric 02.28.13 at 11:35 am

Most Americans have a tough time understanding Canada’s approach (or, indeed, any country’s approach, which doesn’t regard every single constitutional right as completely inflexible, immutable and stuck in the 1700s) to hate speech laws. That said, your very brief drive-by post which calls the ruling “a serious blow” to free speech in our fantastic country, is simply ignorant.

The first comment, posted above by William just adds more evidence to show that you clearly don’t have a clue about what you’re talking about. Perhaps with how overlawyered you are down in the good ol’ land-o-the-free, standards for lawyers are falling, but let me still suggest that if you could possibly find the time to tear yourself away from your empty blog re-posting of other sources’ articles, without the addition of any of your own research or knowledge to back up your snarky add-on comments, you should try reading the actual decision: http://scc.lexum.org/decisia-scc-csc/scc-csc/scc-csc/en/item/12876/index.do

If that fails, you can just take my word for it (especially you, William) that the complex jurisprudence and constitutional interpretation that forms the basis for Canada’s hate speech does not, in fact, regard your silly and flippant examples as hate speech.

Maybe you’d even find my own article on the matter helpful: http://ericvallillee.ca/2013/02/canadas-hate-speech-policy-upheld-by-the-supreme-court/

4 Erik Magraken 02.28.13 at 11:56 am

I have read through this decision.

While I applaud the goal of protecting those vulnerable in our society from the harmful actions of others, it seems there are some practical limitations in determining what is hateful.

Looking at paragraph 41 words that create “disdain” for a targeted group are ok, but words that create “enmity and extreme ill will” cross the line. In practical terms, what’s the difference?

5 Eric 02.28.13 at 12:15 pm

Hi Erik,

Earlier jurisprudence like R vKeegstra can be helpful in understanding the definitions of these kinds of terms, and what the courts look for in a practical sense. Generally, my understanding is that the actions have to be public (not between two private individuals), have to go beyond ridicule to vilification and have the real potential to push others into taking actions that would violate the target individual or group’s own rights in some way (the court talks about a spectrum moving from discrimination to state action like deportation).

6 William Nuesslein 02.28.13 at 12:53 pm

I read the post of Eric’s.

There is verbiage that confines hate speech to true crime. In practice hate speech is said by people you don’t like. The anti-defamation work by our Jewish friends in the United States handles hate speech and actions in thoughtful ways without using directly the police powers of the State.

7 Erik Magraken 02.28.13 at 1:20 pm

What the Courts look for in a criminal sense needs to be contrasted with what provincial Human Rights Tribunals now have the authority to address.

From a human rights perspective, the SCC says speech that creates ‘disdain’ for designated groups is ok. Speech that creates ‘enmity’ crosses the line.

Enmity – The state or feeling of being actively opposed or hostile to someone or something

Disdain – The feeling that someone or something is unworthy of one’s consideration or respect; contempt.

Seems like to fine a distinction to know what is constitutionally protected speech and what runs afoul of the law.

8 Richard Nieporent 02.28.13 at 1:58 pm

No Eric, we understand Canada’s views towards hate speech. We just don’t agree with it.

Section 1 of the Charter states that it “…guarantees the rights and freedoms set out in it only to such reasonable limits prescribed guarantees the rights and freedoms set out in it only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

How Orwellian! Maybe you can borrow a few slogans from 1984 such as Freedom is Slavery and Ignorance is Strength. They certainly would fit right in with your “fantastic” country. Too bad that Canadians are so delicate that they need the government to shield them from “hate” speech.

9 Matt 02.28.13 at 4:56 pm

Maybe you’d even find my own article on the matter helpful

Helpful indeed, albeit only in illuminating your own biases and proving false your laughable assertions about the house writing style at Overlawyered.

Finally, Eric, relentless self-promotion and snide, patronizing remarks about others’ purporte “empty blog re-posting of other sources’ articles” or “snarky add-on comments” and another country’s purportedly “stuck in the 1700s” Constitution are particularly unbecoming when they originate from somebody who finds it necessary to end his own blog posts with a conspicuous disclaimer proclaiming his own lack of experience and judgment in relevant matters.

10 Eric 02.28.13 at 5:15 pm

At least I back up my opinions with fact Matt. There’s nothing here but a snide comment and link to someone else’s work. That’s not a blog, it’s a pointless link farm.

11 Walter Olson 02.28.13 at 5:35 pm

Eric Vallilee seems determined to dispel single-handed the stereotype of persons from Canada as polite and constructive. “Link farm” has a specific meaning on the web which is not the meaning he ascribes to it here. He finds it “pointless” to alert the site’s readers to a breaking news development I knew would be of interest to many of them, and somehow improper for me to encourage them to learn more by pointing them toward the account of the case in Canada’s leading newspaper. To top it all, he affects an aversion to “snide comments.” What a galoot.

12 Hugo S. Cunningham 03.01.13 at 12:24 am

@ Richard–

Orwell was just a copycat. From the 1936 Stalin Constitution:

ARTICLE 125. In conformity with the interests of the working people, and in order to strengthen the socialist system, the citizens of the U.S.S.R. are guaranteed by law:
freedom of speech;
freedom of the press;
freedom of assembly, including the holding of mass meetings;
freedom of street processions and demonstrations.
[end of quote]

Guess who decided what was in “the interests of the working people”?

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