The recent introduction of Bill C-63, the Online Harms Act, has focused attention on hate and its supposed attempted regulation. While much well-deserved attention and criticism of Bill C-63 has been aimed at the Bill’s draconian censorship mechanisms and bureaucratic empire building, there as yet appears to be little discussion of the bête noire that lies at the heart of the Bill, namely, hate.
Hate by any other name is still hate
For all the attention paid to hate, there seems to be little appreciation for what “hate” actually means. For starters, those who talk about hate often do so in complete ignorance that “hate” and “hatred” are two different words , with different meanings. According to the Merriam-Webster’s, “hatred” is a noun, meaning “1: extreme dislike or disgust; 2: ill will or resentment that is usually mutual : prejudiced hostility or animosity”. On the other hand, “hate” as a noun means “1 a: intense hostility and aversion usually deriving from fear, anger, or sense of injury; b: extreme dislike or disgust : ANTIPATHY, LOATHING; c: a systematic and especially politically exploited expression of hatred; 2: an object of hatred”. As a transitive verb, “hate” means: “1: to feel extreme enmity toward : to regard with active hostility; 2: to have a strong aversion to : find very distasteful.”
These dictionary definitions, however, only begin to scratch the surface. As any observer knows only too well, “hate” has been, and is being, redefined on a number of levels not for etymological or philosophical purposes but for legal and political purposes.
Legal Definition
The Supreme Court of Canada’s 2013 decision in Saskatchewan (Human Rights Commission) v. Whatcott, provided an expanded-narrowed definition of “hatred.” In Whatcott, the Court ruled that
“hatred” or “hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”. This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.
On its face, it appears that the Court has added some definitional limitations around what is and is not “hatred”. On closer examination, however, we see that it is an illusion. The Supreme Court’s test remains vague and impressionistic, relying upon subjective assessments in its determination. The fact that the Whatcott case took 16 months to decide the issue involving just four flyers speaks volumes as to the subjective nature of the court’s decision especially given the fact that the Supreme Court overturned a unanimous decision of the Saskatchewan Court of Appeal. To view the issue in terms of what would the “reasonable person” find to be hatred also misses the point. Certainly, the Saskatchewan Court of Appeal’s decision bears all the hallmarks of “reasonable” and yet six other judges came to another “reasonable” conclusion. We wonder why?
One also wonders what then Chief Justice McLachlin, who signed off on the Court’s opinion in Whatcott, was thinking given her vigorous dissents in the trilogy of free expression cases in 1990: Canada (Human Rights Commission) v. Taylor, R. v. Andrews and R. v. Keegstra. So much for judicial consistency on fundamental rights! What has become apparent is that Whatcott signals a clear shift toward the object of the speech rather than on the speech itself.
Despite the inherent problems with the Whatcott decision, Bill C-63 merely doubles down and adopts Whatcott’s definitional understanding of “hatred”. Bill C-63, proposes to amend both the Criminal Code and Canadian Human Rights Act to include the following definition of “hatred” and “hate speech” respectively. In the Criminal Code:
hatred means the emotion that involves detestation or vilification and that is stronger than disdain or dislike;
For greater certainty, the communication of a statement does not incite or promote hatred, for the purposes of this section, solely because it discredits, humiliates, hurts or offends.
In the Canadian Human Rights Act:
In this section, hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.
For greater certainty, the content of a communication does not express detestation or vilification, for the purposes of subsection (8), solely because it expresses disdain or dislike or it discredits, humiliates, hurts or offends.
Such a definition merely begs the question of what does “detestation or vilification” mean and does their meaning turn on an objective or subjective standard? How does one measure the likelihood of such an event occurring?
The rule of statutory construction that requires words to be interpreted in their ordinary sense unless a contrary intend is evident, merely shifts the argument to one of semantics. Given the fact that lawyers are paid to argue about the meaning of words, one can expect a good deal of litigation before the Courts settle on “one” interpretation. Of course, even with that “one” interpretation, given the “contextual approach” jurisprudence that the Supreme Court likes to wallow in, that “one” interpretation is likely to result in different outcomes given the context of litigation. Moreover, the Court’s reliance on “context” rings completely hollow when you read the Whatcott decision and realize that nowhere does the Court set the proper context with an unambiguous confirmation of the importance of free speech to a “free and democratic society” and that restrictions are therefore to be rare and extraordinary things.
A perusal of the Supreme Court’s jurisprudence on hate speech and freedom of expression does not leave one with much confidence in a predictable outcome. Given the Charter of Rights analysis undertaken when a violation of a Charter right is alleged, it is little wonder that favourable outcomes upholding fundamental rights are anything but assured.
The politicalization of hatred
The real problem with hate speech regulation is not only a definitional one, it also consists in trying to regulate emotion and the behaviour associated with that emotion. What is “hate” per se? We know from the legal definition that it is an emotion, but the Court doesn’t stop there. The Supreme Court’s analytical approach, a.k.a, contextualization, means that “hate speech” will of necessity take on a political dimension. As such, there will be endless arguments as to what constitutes the allowable limits of political speech which some might find hateful but others not so much.
Some sixty years ago, in a slightly different context, in the case of Jacobellis v. Ohio, United States Supreme Court Justice Potter Stewart couldn’t define “hard-core pornography” other than to opine, “I know it when I see it.” Since then, pornography has morphed into a multi-billion dollar racket, polluting the internet and home alike. It is no good blaming the pornographers, as those who watch and pay for such “entertainment” are equally to blame. Yet, despite all the evidence of the harm that pornography causes to women, men, children and families, it remains largely unregulated, and worse of all, has become socially acceptable by far too large a segment of society. The main reason for this is that we have become desensitized and have forgotten to practice such virtues as chastity, modesty and self-restraint. This lack of virtue has easily resulted in the commercialization of sex, made all the more prevalent because we have divorced love from sex, treating the former as an impediment to “self-fulfilment” and the latter as a mere commodity.
We are in danger of doing exactly the same thing with hate speech for exactly the same reason: a lack of fundamentally misunderstanding the nature of hate.
In order to properly understand hate—and thereby better combat its corrosive and corrupting effects on civil discourse, perhaps it is best to understand that it is the opposite of love—not “love” in a sentimental or romantic sense, but ”love” understood in terms of wanting the fundamental goods for another—the goods that allow us to flourish as human beings, as free, self-governing moral agents.
While there are many individual subjective understandings and misunderstanding of what constitutes “goods”, an objective approach frees us from those subjective errors and allows us to consider the question in terms of “fundamental goods”, applicable to all. The noted scholar, John Finnis, proposed understanding those “fundamental goods” in terms of: 1) Life; 2) Knowledge (for its own sake); 3) Friendship and Sociability; 4) Play (for its own sake); 5) Aesthetic Experience; 6) Practical Reasonableness, i.e. the ability to reason correctly about what is best for yourself, and to act on those decisions; and 7) Religion i.e. a connection with, and participation with, the orders that transcend individual humanity.
Obviously, space constraints do not allow for a fuller exposition of Finnis’ argument, suffice it to say that hate speech and hatred in the public square can only be achieved by exposing the lies that are at the heart of hatred and hate speech. Finnis’ approach allows for “love talk” in the true sense of what constitutes human flourishing, which stands in mark contrast to its opposite, hate speech. Exposing those lies requires education and the free exchange of ideas, it is not achieved by the blue-pencil of government censorship, especially by a government as corrupt and incompetent as Justin Trudeau’s Liberal-NDP coalition.
So far, the government policy and the chosen legislative mechanisms have shown no awareness of this reality. Given the open corruption and incompetence of the last 8 years of the Trudeau Government, there is every concern that Bill C-63 will never address the social ill it seeks to remedy.