YES

It will also capture innocent speech

The federal government’s latest attempt at tackling the problem of online hate is both too much and not enough. Not enough because we know that even if there was some way to scrub the internet of all its hateful content, it would address some effects but zero causes of hate.

Too much because — as with almost any law that tries to curb how people express themselves — it risks capturing and even criminalizing speech that is merely controversial or offensive.

At the Canadian Civil Liberties Association (CCLA), we believe it is entirely consistent to stand up against racism and for equality, while respecting free speech.

In fact, at least one prescription for hateful speech is not censorship but more speech. And it is much harder to counter and respond to hate if it is driven underground by inevitably overbroad criminal prohibitions. We prefer our haters where we can see them.

Beyond our general resistance to censorship, we also believe it’s dubious for Parliament to imagine that it can legislate a prohibition on harmful speech that does not end up capturing innocent speech. Hate speech is, to an extent, in the eye of the beholder.

Even our courts, which have used essentially the same legal definition of hate speech for over 30 years, come to different conclusions about whether a particular piece of content crosses the line.

The legal definition of hatred mostly consists of synonyms: detestation, vilification. If you aren’t sure whether something amounts to hatred, asking if it amounts to detestation is unlikely to help.

And it does too little. Hate is too subjective a concept to effectively be prevented and punished by the criminal law. It’s one of the reasons why our criminal hate speech law is so rarely used.

Any new anti-online hate law charges, or new “restraining orders,” would require the consent of the (provincial) attorney general. This is supposed to avoid over-prosecution — only a few people should get to decide whether someone goes on trial for something they said or wrote.

Canada has seen its fair share of grandstanding attorneys general, so this requirement may not fulfil its purpose. Or, attorneys general will remain as reluctant as ever to use these new provisions.

It creates false hopes, especially for minority communities wrongly imagining that the new bill creates new opportunities for combating hate, by reinserting a provision in the Canadian Human Rights Act allowing complaints about hate speech to go to its commission and possibly the tribunal. The procedure, even in its amended form, is likely to prove too cumbersome to use.

Minority communities seeking redress at the tribunal are likely to be disappointed. What constitutes hate speech is intended to be a truly narrow category. The proposed law even makes it explicit: expressing “mere dislike or disdain” is not hatred. Neither are communications that “discredit, humiliate, hurt or offend.”

And yet it’s also too much. Who might be inadvertently caught, or chilled by this law? Someone who is expressing something for the purpose of getting people to think, or laugh, or feel differently about a subject, but who has no hateful intent.

We can expect that this new law will chill innocent speech — from YouTubers, artists, comedians, bloggers, academics. The very people who are trying to combat hate could well be tangled up in this law — speaking truth to power can look a lot like hatred if you’re in the speaker’s verbal crosshairs.

To engage in civic dialogue about racialized minorities, or Indigenous people, or gender is where this law is engaged. We fear that, if the bill passes, the safest way to speak one’s mind will be to stick to recipes, fashion and bargains.

It is valuable to debate this subject. But it is also playing along with the political theatre at work here. The federal government knows that this law will not pass before the next election. And it knows that even if it did, it will be very rarely used.

So rather than doing something radical about the problem of hatred, they try to convince us they are doing something about it. The media and we contributors are amplifying that democratic ruse.

We are in a moment where transformative change could happen, but the government’s hate speech bill is, sadly, not that. Whatever may come of the hate-fuelled tragedies of the past few years, this anti-online hate law will likely do more harm than good.