Signs of the times
What Scotland can learn from Canada’s culture war laws
CONSERVATIVES are raging about new hate crimes legislation. Their leader says they are part of a “woke authoritarian agenda”. His media and social media proxies talk up an “Orwellian” future where freethinking citizens could be jailed for life for exercising their right to free speech.
I am not talking about the Scottish Conservatives, their boss Douglas Ross, or the spruced-up hate crimes laws to come in force in Scotland on April 1.
No, the Conservatives ramping up the rhetoric about “woke” authoritarianism are Canadian.
Their leader is a 44-year-old, self-styled libertarian called Pierre Poilievre. And the proposal that has got his followers so worked up is something called the Online Harms Bill.
This is a piece of legislation championed by the ruling liberals of Justin Trudeau, who has long become an international punchbag for the global right and far right while disappointing, it has to be added, leftier social progressives.
Trudeau’s government proposes tougher regulation of social media – including creating an independent ombudsman – and stiffer penalties for hate propaganda. People advocating genocide could, in theory, get life in jail.
“What does Justin Trudeau mean when he says the words ‘hate speech’? He means the speech he hates,” Poilievre said last month. “You can assume he will ban all of that.”
Canada’s justice minister Arif Virani, echoing the lines of SNP ministers, has stressed the new law isn’t designed to target the merely offensive or insulting.
“People insult groups or people or races or religions all of the time. That’s going to continue to be awful but lawful,” he said on Canada’s CBC TV last month. “But when you call for the extermination of a people, you’re hitting a hate standard that’s already been entrenched by the courts.”
New legislation
THE Canadian bill, unlike Scotland’s latest reforms, is far from becoming law. It was only introduced to the country’s federal parliament last month.
But the bill has sparked a very similar culture war to our own, with battle lines and rhetorical devices that are strikingly familiar.
Indeed, some of the noise generated by the coming implementation of the Scottish law has been heard across the Atlantic. Our controversies are bleeding into theirs.
Earlier this week, Scotland’s new hate crime rules – and how they might be policed – were highlighted by opponents of Canada’s
Online Harm Bill.
“I don’t know if
Scotland’s chilling piece of legislation represents Canada’s future under our own online harms legislation,” wrote columnist Chris Selley in The National Post, “or a future we managed to avoid by not going as far as many terribly misguided people wanted – and still want.” On one level this kind of cross-Atlantic rhetoric makes sense. We are talking about two largely Englishspeaking jurisdictions with lots of shared cultural and political narratives.
This, as Selley articulated in his National Post article, includes common angst, or “confusion” as he put it, about freedom of speech.
His concern was about how the laws – on either side of the Atlantic – would be policed.
Where will the lines be drawn between incitement to hatred and harm – and free speech?
“Essentially, in Canada and Scotland alike, nobody knows what landmark legislation on free speech is going to do,” Selley wrote. “That’s a terrible feature in any legislation, never mind a bill concerning such a fundamental freedom. And it’s every bit as chilling as more explicit restrictions on what we can say and what we can’t.”
On another level, however, Canadian warnings about Scotland look a bit weird.
That is because the few innovations in the Scots law – most obviously extending
Despite what the most deranged right-wingers say on X, Canada is not authoritarian, not by any serious measure
“stirring-up hatred” from race to people with some other protected characteristics – already have approximate Canadian analogues.
Scottish study
INDEED, Canada was one of the countries whose hate crime regime was studied before Holyrood deliberated the legislation about to come into force.
The new Scots law came after a serious of recommendations from a retired judge, Lord Bracadale.
But the legislative process was also informed by a whopping 147-page comparative report on hate crime legislation around the world by two law professors at Glasgow University, James Chalmers and Fiona Leverick. The pair paid particular attention to Canada’s existing crimes of “hate propaganda”, the same offences for which the new Trudeau bill, among other things, moots tougher sentences.
These, according to the country’s criminal code, include inciting and promoting hatred against a whole series of groups – wider than in Scotland. Canada also has a specific prohibition on encouraging genocide.
International legal comparisons are never easy. Different jurisdictions, of course, have different sets of checks and balances. That’s not saying our new laws are exactly the same as Canada’s. They are not and could not be.
For opponents of Canada’s Online Harm Bill, Scotland’s hate crime law might serve as a rhetorical warning.
For supporters of the Scottish legislation, the fact Canada and other countries have had wide-ranging, stirring-up hatred offences on their statute books might be a reassurance.
Despite what the most deranged right-wingers say on X, Canada is not authoritarian, by any serious measure.
In fact, the country is comfortably close to the top of world league tables for freedom and rule of law – above the UK and the United States.
However, there are voices in the conservative media in England, Canada and America who think that tyranny is where Trudeau’s Online Harms Bill will lead.
Writing in Spiked-Online, Brendan O’Neill, a former Revolutionary Communist, called Canada a “cauldron of authoritarianism”.
His particular bugbear was a proposal that judges be able to impose “house arrest” on people who, as he put it, “might” commit a hate crime. He compared this with a pre-crime from the movie and film Minority Report about mutants who predict future murders.
O’Neill is not alone. This same narrative has been pushed by pro-Trump figures in America and parts of the Canadian right. But is it a fair comment?
Hate offences
SUPRIYA Dwivedi does not think so. An adviser to Trudeau, she sees this is a distorted picture of “peace bonds”, essentially court orders for a person to stay out of trouble for a period of time. These are not new – but they would be for hate offences.
Writing in the Toronto Star, she added: “Unfortunately, a lot of the commentary on the bill has been light on facts and heavy on hyperbole.
“For example, let’s look at the way the newly-proposed peace bond for hate has been framed. If you were to believe, for example, the right-wing online ecosystem, peace bonds are a novel concept created by the Liberal government to appease the woke overlords while punishing regular Canadians with pre-crime offences, like thinking the wrong thing.
“A quick perusal of any number of certain political outlets that have weighed in on the matter reveals invocations of the movie Minority Report and a looming dystopia.
“Peace bonds have long been established by both statute and common law in our criminal justice system.”
Dwivedi believes critics of the new bill are “rage farming”. Her Toronto Star column was in defence of proposals which are not the same as Scotland’s. But she addresses very similar rhetoric devices to those raised against our hate laws. And her response mirrors that of Scotland’s social progressives, including those from the four out of five of our country’s parties which supported the new legislation.
“Critics are once again engaging in bad faith tactics and are trying to frame the issue of online harms as a false dichotomy between freedom of expression and clamping down on online harms, including online hate speech,” she said. “Don’t let them.”