The Liberal attack on free expression

To compare much of social media to a swamp, a sewer, a cesspool or an old-fashioned outhouse is to miss the point.

There is without question an off-putting stink to all those entities, enough to discourage people from hanging around any longer than essential. But mere nature lacks something at which online communications excel: the malevolence, the cruelty, the bitterness, the truthlessness and the all-encompassing anger that typifies so much of what gets channelled into cyber discourse in the guise of discussion, commentary, debate, opinion or simple free speech.

So pervasively awful has much of the online world become that it's easy to understand why many people are keen on finding a way to control, limit, regulate or otherwise teach it some respect. Online enthusiasts may argue you don't have to look if you don't want to, but ignoring a disease doesn't make it go away, and cancelling your Facebook or Twitter account doesn't stop the ugliness from growing, spreading and potentially infecting the innocent.

It's not unreasonable, therefore, that the federal Liberals would try once again to find a way to stem the tide of hate speech. Bill C-36 was introduced in the final hours of the last sitting day of a Parliament that will go down in nobody's books as one to remember fondly. It's an attempt to replace a section of the Canadian Human Rights Act that was repealed seven years ago over fears it was being abused by specific groups to silence views they disagreed with. To that end the new bill attempts to tighten up the definition of hatred: “Hatred,” it says, “means the emotion that involves detestation or vilification and that is stronger than dislike or disdain.”

“For greater certainty,” it adds, “the communication of a statement does not incite or promote hatred, for the purposes of this section, solely because it discredits, humiliates, hurts or offends.” The bill also amends the Criminal Code to enable an individual to go to court — with the attorney general's assent — if they fear “on reasonable ground” that another person may commit an offence “motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or expression, or any other similar factor.”

In other words, hate speech is not hate speech if all it does is upset or offend people. It has to go beyond that to some greater level of malfeasance before it becomes a crime.

If, after reading that last sentence, you ask yourself, “OK, but what precisely identifies that new level, and who decides?” you have identified the fundamental weakness of C-36, and any other law that seeks to throw a rope around hatred and haul it away. It's the very same problem that prompted the change in the human rights act seven years ago. As Cara Zwibel, director of the Canadian Civil Liberties Association's fundamental freedoms program, told National Post this week: “The concerns that we had (then) continue to be concerns.”

Despite the new wording, she said, the bill may be abused in much the same way, by using it as a tool to silence people by threatening to haul them before a judge over views that may be unpopular or controversial, but nothing more. What's more, observed University of Windsor professor Richard Moon, the vast growth of social media sites in recent years could see authorities swamped in a way no one previously anticipated.

“The volume of hate speech out there that individuals or groups could make complaints about is so great that I don't see how the system can function or operate,” he said.

To qualify as a violation of the human rights act, hate speech would have to be made in public, via social media, personal websites, mass emails, or online comment sections. Private emails and direct messages would not qualify. Yet, wherever it appears, whether an assertion crosses the invisible line into a hate crime would still depend on the subjective interpretation of unelected officials or appointed judges, who are already supposed to be guided by past court interpretations in any case.

As Zwibel noted, the continued uncertainty about where the line is drawn means “you don't know if you have crossed it until it's too late.” And while the bill would apply to individuals, it contains no new penalties for the giant companies like Facebook or Twitter through which so much of the malevolence travels.

The many flaws in the bill, and the fact it was introduced after Parliament had adjourned and nothing more could be done to repair it, has prompted charges it's intended mainly as a Liberal election slogan, something the party can wave around without any fear of it becoming law.

Given how brazenly Prime Minister Justin Trudeau has been clearing the decks for what he hopes will be a victorious march to a majority, it's impossible to dismiss the thought it's just another example of the party's deep addiction to virtue signalling. Why else squeeze it out when the House has already quit for the summer? Why not just wait until it reconvenes, when it could be subject to closer examination?

Justice Minister David Lametti insists he would “never play politics with our national security.” It would be nice if we were able to take him at his word, but the Liberal record is long since past the point where it's possible to accord them that distinction.

HATE SPEECH IS NOT HATE SPEECH IF ALL IT DOES IS UPSET OR OFFEND PEOPLE. IT HAS TO GO BEYOND THAT.