Debating Hate Speech Regulations in Canada: A History

News story from the Globe and Mail, 28 February 1981, p.5.

Jennifer Tunnicliffe

On December 13, 2019, Justin Trudeau sent out a series of mandate letters to his newly appointed Cabinet ministers, outlining their policy objectives for the upcoming session of Parliament. In several of these letters, Trudeau urged initiatives to combat online hate and counter hate speech.[1] Heritage Minister Steven Guilbeault was instructed to develop new social media guidelines requiring all platforms to remove hate speech within 24 hours, and Minister of Justice David Lametti was told to look into measures to support victims.

The letters were sent amidst global concerns over the growth of alt-right extremism and fears over the potential of the Internet as a tool to promote hatred. Last year the United Nations launched its Strategy and Plan of Action on Hate Speech, which argued: “Hate speech is a menace to democratic values, social stability and peace.”[2] Canada’s Standing Committee on Justice and Human Rights conducted its own study on online hate, and its June 2019 report recommended that Ottawa formulate a clearer definition of what constitutes “hate,” work to better track its spread online, and develop a legal remedy for victims of hate speech.[3]

Both this report and Trudeau’s mandate letters have caused alarm among free speech advocates in Canada, who worry the Liberals are working to reinstate Section 13, the controversial hate speech provision of the Canadian Human Rights Act (CHRA) that was repealed in 2013. Recent events have fuelled questions as to the prevalence and impact of hate in Canada and resurrected a longstanding debate over the appropriateness of regulating hateful speech. Speaking as a witness to the House of Commons Justice Committee, well known and controversial free speech advocate Lindsay Shepherd argued that hate speech laws “punish Canadians who, in exercising their right to peaceful, free expression, might offend a member of a protected, marginalized group,” and that they silence “those who speak their mind peacefully and non-violently.”[4] In response, Committee member Randall Garrison argued,

We all know the old cliché that there are limits on speech, that you can’t shout fire in a crowded theatre. The problem is defining where that crowded theatre is these days. Quite often, that crowded theatre is online and is the Internet. What this committee is trying to do in these hearings is to figure out where to draw that line. What’s the appropriate place? It’s not trying to ban speech or ideas.[5]

This exchange, with its conflicting understandings of the purpose and effect of hate speech legislation, echoes debates that have taken place in Canada since hate speech laws were first proposed in the 1950s. Yet, despite renewed public and media attention, discussions over regulating hate and hate speech often lack proper historical or legal context. There is a role for scholars to play in situating current debates in the legal and cultural traditions of free expression in Canada, and in revealing how tensions between free speech and hate speech laws have manifest themselves throughout Canada’s history.

One place to start is with Section 13, the revival of which is at the centre of so much concern today. Section 13 was a provision of the 1977 Canadian Human Rights Act, which prohibited the use of telephones to communicate messages “likely to expose a person or persons to hatred” based on a person’s membership in an identified group. This “hate speech” clause was expanded in 2001 to include the Internet.

There is a close relationship between current discussions over online hate and those over the “telephonic messaging” covered by Section 13.  In the 1970s, telephones provoked many of the same questions that Internet technology does today: how do we differentiate “private” from “public” communications; what is the significance of the medium through which messages are communicated; are some mediums more ideally suited to the effective transmission of prejudicial beliefs than others; and what steps (if any) should we take to regulate content? Historic cases, such as that against John Ross Taylor in the late 1970s, provide a lens through which to examine how these questions have been discussed in the past.

Taylor was a self-described fascist who helped found the Western Guard Party, a white supremacist group based out of Toronto. In 1979, he was charged under Section 13 with using a telephone message system to distribute pre-recorded messages that promoted hatred against minorities, and particularly Jews. The Canadian Human Rights Tribunal’s investigation into Taylor’s actions focused on both the content of the messages (and whether or not they promoted hatred), and the medium itself. The Tribunal found that the combination of the telephonic medium and content of the messages was “particularly insidious” because, while it was inherently public, it gave the impression of “direct, personal, almost private, contact” with virtually no means to question the information or views provided.[6] Taylor and the Western Guard Party were found in violation of Section 13 and ordered to cease their practice of using the telephone to communicate hateful messages.

In 1981, Taylor was jailed for refusing to comply with the Tribunal’s order. For the next decade he appealed his conviction, arguing that Section 13 was a violation of his right to free speech. Archival documents relating to his case provide an excellent source for historians to explore the many facets of the conflict between free expression and hate speech laws, including its significance to democratic practice, to individual and minority rights, and to human dignity. While the Supreme Court ultimately dismissed Taylor’s appeal, its narrow 4 to 3 decision mirrored more public divisions over how to balance the seriousness of furthering equality and preserving human dignity with safeguarding freedom of expression. The repeal of Section 13 in 2013 and the current potential for its revival also speak to how these debates are situated in particular historic moments.

International law defines all human rights as equal in importance, yet cases such as that of John Ross Taylor expose conflicting understandings of which rights should take precedence, a perceived hierarchy that continues to shape how rights are balanced today. In defending the decision to find Taylor guilty, a spokesperson for the Human Rights Tribunal stated, “We believe that in our society there should be limits of freedom of expression and freedom of speech, that there is a line, not one that we draw, but one that must be drawn nevertheless.”[7] Canadians such as Randall Garrison and Lindsay Shepard continue to debate how, and where, to draw that line.

Jennifer Tunnicliffe is the author of Resisting Rights: Canada and the International Bill of Rights, 1947 – 1976 (UBC Press, 2019). She currently teaches in the Department of History at King’s University College in London, Ontario.

Notes

[1] Online hate or hate speech was mentioned in the letters to the Minister of Justice, the Heritage Minister, the Minister of Diversity and Inclusion and Youth, and the Minister of Public Safety and Emergency Preparedness. All of the letters can be found online at: https://pm.gc.ca/en/mandate-letters

[2] United Nations, “Strategy and Plan of Action on Hate Speech,” available online at https://www.un.org/en/genocideprevention/documents/advising-and-mobilizing/Action_plan_on_hate_speech_EN.pdf

[3] Government of Canada, Just Committee Report, “Taking Action to End Online Hate,” (June 2019) 42^nd Parliament, 1^st Session, available online at https://www.ourcommons.ca/DocumentViewer/en/42-1/JUST/report-29/

[4] Lindsay Shepherd, House of Commons Standing Committee on Justice and Human Rights Meeting, Tuesday, June 4, 2019. The text of the meeting is available online at https://www.ourcommons.ca/DocumentViewer/en/42-1/JUST/meeting-154/evidence

no 154, 1st session, 42nd Parliament

[5] Ibid. Randall Garrison, NDP MP for Esquimalt-Saanich-Sooke.

[6] Canadian Human Rights Tribunal v. Taylor and Western Guard T.D. 1/79, (1979) The final decision of the Supreme Court of Canada case can be found online: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/697/index.do

[7] Ian Fine, Senior General Counsel for the Canadian Human Rights Tribunal, quoted in the National Post, “Rights group defends itself,” 17 June 2008, http://www.nationalpost.com/news/Rights+group+defends+itself/423135/story.html