Analysis of Quebec Bill 59 Anti-Hate-Speech Legislation, August 24, 2015

An Act to enact the Act to prevent and combat hate speech and speech inciting violence and to amend various legislative provisions to better protect individuals

Quebec’s Bill 59 purpose purportedly is to combat hate speech and speech inciting violence.

There are some very serious flaws in this proposed legislation. The flaw which is the most obvious is that “hate” and “speech inciting violence” are not defined in the bill. Consequently its interpretation will depend on the personal views of the members of the Quebec Human Rights Tribunal who will make this decision.

The absence of such a definition was likely designed to give more latitude to the Commission, but it certainly creates a serious problem for anyone living in Quebec as there is no way of predicting how their words will be subsequently interpreted or defined.

Under Section 319 of the Criminal Code the incitement to hatred is already prohibited. Why then was it necessary to bring in Bill 59 in Quebec when the Criminal Code already makes provision for this?

The courts in the past have had an extraordinary difficulty in defining “hate” under Section 319 in the Criminal Code.

In the Keegstra case (1990) the Supreme Court of Canada considered the meaning of hate in Section 319. It concluded that hate connotes emotions of an intense and extreme nature that is associated with “vilification and detestation”. Whatever that means.

In the Wattcott case (April 2014) Mr. Justice Rothstein, speaking for a unanimous Supreme Court of Canada, stated that hatred occurred when it was likely to expose a person or persons to enmity and extreme ill will, which goes beyond mere distain or dislike. Whatever that means.

The difficulty in defining hate was apparent in the Wattcott case in that Saskatchewan Court of Appeal, presumably comprised of well-trained intelligent lawyers, concluded that the material distributed by Mr. Wattcott did not constitute hate. However, the Supreme Court of Canada, also presumably comprised of well-trained intelligent lawyers, concluded that Mr. Wattcott’s material did in fact constitute hate. Hate is all apparently in the eyes of the beholder.

A question is raised, therefore, whether Bill 59 could be used to shut down the expression of religious views in the public square in that the comments could be construed as hatred regarding the issues of marriage, homosexuality, etc.

The response to this is, yes – it can occur depending upon the whims or ideology of the Tribunal members. If nothing else, Bill 59 will most certainly have a chilling effect on public debate on these and other issues.

Bill 59 also refers to speech that is “publically” disseminated. The important question is what constitutes “public” expression of hate? Obviously it is intended that private conversations would not be actionable, but would commentary on social media be considered part of the public domain? A good question for which, at this time, there is no answer.   Consequently, individuals will have to be extremely careful about their comments on the social media if Bill 59 becomes law, at least, until this point is clarified.

Another concern is that Bill 59 requires that those guilty of hate speech, or speech inciting violence, will have their names posted on the website of the Commission on Human Rights – a list that is publically accessible. That is, not only would one have to pay a fine imposed for the hate speech, which fine can be anything between $1000 to $10,000, but also, the punishment would include the publishing of their name for committing such an offence, for a period of time as determined by the Human Rights Tribunal.

This provision is a means of shaming and shunning a person and is reminiscent of the shaming and shunning that occurred in the 17th century in Salem, Massachusetts where the community determined that some women were witches and were shamed and shunned by the local residents.

One’s views and perspectives at age 20 may well not be the same views and perspectives held by that person at age 30. Yet their name will be publically recorded for a period of time, as determined by the Tribunal, for promoting hatred.

Bill 59 also provides amendment to the Quebec Education Act that any educational institution from pre-school to university must not tolerate any “threat for the physical or emotional safety of the student”. What does this expression mean? Again the threat will only be in the eyes of the beholder. This threat also permits the Minister to withhold or cancel any subsidy for a school board and/or private school etc. if this “offence” should occur. The Commission therefore seems to have authority over any parental involvement or right and can override a parent’s view of a threat to the student’s physical or emotional safety.

In summary, Quebec’s Bill 59 is an alarming bill which places one’s utterances at risk, depending the ideology of a handful of appointed individuals on the Quebec Human Rights Tribunal. It will unquestionably have a severe chilling effect on public discourse in Quebec.

The bill has not been well thought out, as there appears to be no discernment of the bill’s long range implications. The bill seems to be more of an emotional reaction, not a rational one, to the current problems in Quebec society.

See Article by Pete Baklinski in LifeSiteNews:
Proposed Quebec ‘hate speech’ bill raises serious alarm among pro-life and pro-family advocates August 20 2015