The futility of hate-speech prosecutions

Earlier this week, Sun News TV commentator Ezra Levant apologized for a vile anti-Roma rant he had delivered on air many months previously. “I must admit that I did more than just attack a crime or immigration-fraud problem,” he wrote. “I attacked a particular group, and painted them all with the same brush.”

Indeed, attacking “a particular group” seemed to be the point of Mr. Levant’s infamous nine-minute Sept. 5, 2012 segment. So it was rather intriguing to see this belated epiphany.

Also this week, Toronto Star columnist Haroon Siddiqui broke intriguing news: Gina Csanyi-Robah of Toronto’s Roma Community Centre, who had filed a criminal hatespeech complaint against Mr. Levant, claims that police and Crown attorneys were willing to proceed with charges — but that the provincial AttorneyGeneral’s office nixed it. She claims deputy Attorney-General Patrick Monahan said the case would be “challenging,” and that Mr. Levant would turn the proceedings into “a bit of a circus.”

If this account is true, it speaks to at least three issues surrounding Canada’s hatespeech legislation, both in its Criminal-Code and humanrights-code variants.

First: If Mr. Monahan said what Ms. Csanyi-Robah claims he said, the deputy AttorneyGeneral was right: Assuming Mr. Levant had the means to fight the prosecution, it is reasonable to assume he would have turned the proceedings into a circus. And in the process, he likely would have brought far more negative attention upon the Roma community than it has ever experienced in Canada — not least from Mr. Levant’s blogging-and-tweeting army of zealous fans, who would gleefully re- peat his views and likely much worse. (In theory, they could all be prosecuted. But in practice, they likely wouldn’t be.)

Canada is a rare island of peace and tolerance for the Roma. By no means should they feel compelled to sit quietly and suffer Mr. Levant’s slurs. But a quick, forceful, factual response would have been a far better course of action. After all, very few people watch Mr. Levant’s Sun News show (though his choicest tirades do make the rounds on social media). Vastly more Canadians now have been exposed to the rant he now claims to regret thanks to the drawn-out process that followed.

Second: Ms. Csanyi-Robah claims police were stunned at the Auditor-General’s reluctance. Perhaps so. But criminal hate-speech prosecutions are in fact quite rare. And even when prosecutions do go forward, punishments are light: Section 319 of the Criminal Code provides for imprisonment of up to two years, but even that thin book rarely is thrown.

Donald Andrews and Robert Smith, leaders in the white-supremacist National Party of Canada, were convicted of promoting hatred in 1985. They were sentenced to a relatively

A quick, forceful, factual response from Roma activists would have been a far better course of action

whopping 12 and seven months, respectively, which was hacked down to three months and one month on appeal.

And that’s really the pointy end of the stick. At various points along the way, anti-Semitic teacher James Keegstra faced a $5,000 fine. But that eventually became a $3,000 fine, and then just probation and community service. Disgraced former national chief of the Assembly of First Nations David Ahenakew only ever faced a $1,000 fine for his antiSemitic rant to a reporter — an appropriately low amount, the judge said, so as not to make a “martyr” out of the convicted. At his second trial, Mr. Ahenakew was acquitted. Any martyr status he achieved, he achieved through prosecution.

That brings us to the third issue. The principle of trying hate speech in quasi-judicial human-rights tribunals, upheld by the Supreme Court in the recent Whatcott decision, often is justified on grounds that the threshold for redress, and for sanction, ought to be lower than justifies criminal prosecution. And yet, Canada’s various human rights tribunals are wont to hand out much stiffer financial penalties than the criminal ones mentioned above.

The British Columbia Human Rights Tribunal fined comedian Guy Earle $15,000, and restaurant owner Sam Ismail, $7,500, in connection with a mid-performance harangue Mr. Earle hurled at some lesbian hecklers in 2008. The Canadian Human Rights Commision awarded $4,000 “for hurt feelings” to a Health Canada employee whose new boss said he “liked visible minorities.” Alberta’s commission fined Reverend Stephen Boissoin $5,000 for an anti-gay letter to the Red Deer Advocate. And Saskatchewan’s famously fined anti-gay pamphleteer Bill Whatcott — he of the recent Supreme Court decision — a whopping $17,500. That’s to say nothing of people like Mr. Levant, who claim to have been left with massive legal bills after their ridiculous cases were eventually dismissed.

There are any number of half-measures that might make this speech-policing mess less incoherent and unfair. But generally speaking, the prosecution of hate speech in this country carries a distinct whiff of futility. The good thing is, forcefully combatting hate speech with true speech is every bit as effective with hate speech laws in place as without. There’s nothing to stop any Canadian from taking that approach. And if notoriety and flamboyance are in fact enough to keep someone like Ezra Levant out of court, that approach may now have become a matter of necessity.