Expanding Hatred

Yesterday, the federal government unveiled yet another omnibus criminal law bill, Bill C-13, which would become, if enacted, become the Protecting Canadians against Online Crime Act. Although it presented as a law to fight cyber-bullying, it would do a great many other things besides. In particular, it would give law enforcement much greater powers of electronic surveillance than they currently have. Michael Geist and David Fraser explain these changes in detail, and I urge you to read what they have to say. But there is one other clause of the bill, which has nothing at all to do with cyber-bullying, or computer crime, or surveillance, or anything really, which I thought I would briefly discuss here: clause 12, which expands the definition of genocide propaganda and hate speech , which are criminalized, respectively, by s. 318 and s. 319, of the Criminal Code.

More precisely, s. 318 criminalizes “advocat[ing] or promot[ing] genocide,” defined as the killing of the members or the deliberate infliction of “conditions of life calculated to bring about [the] physical destruction” of an “identifiable group.” “Identifiable group,” in turn, is defined in subs. 318(4) as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.” S. 319, for its part, criminalizes the incitement, “by communicating statements in any public place,” of “hatred against any identifiable group where such incitement is likely to lead to a breach of the peace,” and the wilful promotion of “hatred against any identifiable group” “by communicating statements, other than in private conversation.” Its definition of “identifiable group” refers to subs. 318(4).

It is this definition that Bill C-13 would expand. An “identifiable group” would now mean “any section of the public distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, or mental or physical disability.” In other words, the enactment of Bill C-13 would make it criminal to advocate genocide or promote hatred on the basis of “national origin,” “age,” “sex,” or “disability.”

I have argued, in a number of posts (collected here), that prohibitions on hate speech are useless, both because they only punish what I described as “the rear-guard of hatred” and because the truly noxious speech is that of sophisticated and influential politicians who can easily evade the narrow prohibitions of the criminal law, and that they are dangerous, because of their chilling effect and vulnerability to abuse. Needless to say, the greater the scope of the hate-speech provisions of the Criminal Code, the greater their chilling effect and potential abuses are.

Of course, I don’t think that ― from a moral perspective ― it is any less wrong to advocate, say, the hatred of women, or the massacre of babies, than any of the things which ss. 318 and 319 already criminalized. And, if we are going to have hate speech provisions in the Criminal Code at all, it is not particularly rational not to apply them to gender, age, or disability-related hatred (to the extent that, these things exist; I do not doubt, alas, the existence of misogyny, but is age-based hatred ― as opposed to “mere” discrimination ― a real problem?). But criminal law does not and should not perfectly track morality. Not everything that is morally wrong, even deeply wrong, should be criminalized. Hate speech is one of these things.

On this front too, Bill C-13 is a move in the wrong direction. The fact that this move is buried in an omnibus bill dealing with important and completely unrelated topics, so that the likelihood that it will be seriously debated seems close to nil, makes it even worse.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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