Prime Minister Justin Trudeau introduced the treacherous Online Harms Act, Bill C-63, on February 26, 2024. It included the alarming re-introduction of s. 13 of the Canada Human Rights Act, which will allow complaints of “hate speech” to be made to the woke federal Human Rights Commission. One of the Commission’s more recent woke assertions is found in its Discussion Paper on Religious Intolerance (23 October 2023) which viewed the celebration of Christmas as discriminatory because it is based on our colonial history.
On the one hand, in the wake of October 7 and the Hamas attack on Israel, shouts of hate have become all too common in Canada as pro-Palestinian elements denounce Israel’s very existence. On the other hand, deteriorating confidence in Trudeau and the Liberal/NDP coalition government is resulting in justifiable criticisms, which some have interpreted as expressions of hate. Indeed, any criticism of the latest woke agenda from the World Economic Forum (WEF)/globalist elites, or homosexual/trans lobbyists or open border immigration proponents, will invariably result in those making such criticisms being accused of engaging in hate speech.
It is necessary therefore, in order to keep out of trouble, that Canadians understand exactly what the word “hate” means. Unfortunately, the definition of “hate” provided by the courts does not provide much comfort to us in this regard.
Supreme Court of Canada and Hate
In 2013, the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott considered “hate” in the context of defining “hatred” as used in legislation prohibiting hate speech. This decision, however, has proven to be all but useless in providing an objective formulation of “hate”. The case dealt with four flyers published and distributed by Mr. Bill Whatcott on the issue of homosexuality. The Saskatchewan Human Rights Commission had held that the flyers violated The Saskatchewan Human Rights Code because they exposed persons to hatred and ridicule on the basis of their sexual orientation. The commission concluded, therefore, that the restriction on Whatcott’s speech was reasonable under the Charter of Rights and Freedoms. But the Saskatchewan Court of Appeal held that the flyers did not contravene the Saskatchewan Human Rights code. In other words, the Saskatchewan Court of Appeal unanimously decided that the flyers were not hateful.
The Supreme Court of Canada took over 16 months to unanimously conclude the opposite, that Mr. Whatcott’s flyers were, in fact, “hateful”. The fact that so many people could look at the same “speech” and come to different conclusions regarding its hatefulness is a red flag that “hate” is in the eye of the beholder. It seems the decision on what is “hate” may be decided differently based on the location of the court—Ottawa or Regina— and the political agenda/perspective of the judges hearing the case.
Supreme Court Gives Up on an Objective Definition of Hate
In Whatcott, the Supreme Court effectively gave up on establishing a principled and objective analysis of “hate”. Instead, the definition of “hate” appears to be a moveable goalpost, depending on the politics of the judges. Nor can we count on the consistency of the judges to determine the definition of “hate”. Former Chief Justice of the Supreme Court, Beverley McLachlin, argued vigorously on behalf of the accused’s right to free speech in three cases of hate in the 1990s. Yet, in Whatcott, she and the other judges did not speak with an unambiguous confirmation of the importance of free speech in a “free and democratic society” or that hate speech was a rare and extraordinary occurrence. Rather, the Supreme Court decision in Whatcott seems to have depended on its context – namely that the alleged hate occurred because it was against the politically correct LGBTQ agenda. Whatcott is a confirmation of hate speech’s decidedly political dimension, where in determining whether hate speech exists, the inquiry has shifted to the subject of the alleged hate, rather than the speech itself. This would not be surprising in regard to Judge McLachlin, for example. In her 29 years on the Supreme Court, rarely, if ever, did she uphold the Judeo-Christian values on which our laws are based. Rather, she reached conclusions based on shifting progressive trends. In doing so, she was confident that the left wing, including the mainstream media, would enthusiastically roll their drums and blow their trumpets in support of her decisions.
In the Whatcott case, the Supreme Court tried to explain its decision by concluding that “hate” should be defined as an extreme emotion which can be described by the words “detestation” and “vilification” that risks causing discrimination, rejection, or other harmful effects. The Court explained that this filters out expressions that, while repugnant and offensive, do not incite the level of abhorrence that risks delegitimizing or causing discrimination or other harmful effects. But what do the words “detestation” and “vilification” actually mean? The Supreme Court’s reference to “risks causing discrimination or other harmful effects” is no more objective than reliance on “detestation” and “vilification.”
We can conclude from this definition of “hate” that it is a subjective determination, rather than an objective one. Lawyers are paid to argue about the meaning of words. Therefore, it can be expected that there is going to be extensive litigation in the future, caused by the re-introduction of s. 13 to the Canadian Human Rights Act.
Bill C-63 is not a Step Forward
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 say, “I know it when I see it.” It seems we are in the same predicament in defining “hate” in Canada today.
Despite the problems inherent in the Whatcott case, Bill C-63 amends both the Criminal Code and the Canadian Human Rights Act in a manner that adopts the flawed reasoning found in Whatcott.
This means that a predictable outcome of a complaint of “hate” cannot be assured, except that those of a more conservative disposition are likely to be the targets. This is not a very promising future for free speech in Canada as we cannot be sure about how restrictions on it will be determined. What we can know is that the uncertainty created by Bill C-63 will have a chilling effect on freedom of speech at a time when the freedom to speak is needed most.