Defining hate in extreme times
Contradictory rulings suggest law is due for an overhaul
National Post – April 10, 2010
By Joseph Brean

Bans on hate speech in human rights law are often justified in part because they can be overturned by fully fledged courts of law, where the rules are more strict.

But that oversight is becoming problematic as judges grapple with Canada's legal test for hatred, famously defined by the Supreme Court as "unusually strong and deep-felt emotions of detestation, calumny and vilification."

As they have done so, some recent rulings suggest the legal threshold of hatred is being moved higher, drawing ever more extreme speech into the protective fold of free expression, and blurring the peculiarly Canadian distinction between human rights and criminal hate laws.

Now, one of those decisions will be challenged at an appeal court, where it will be argued that hate-speech laws should not be narrowed by judges.

Another such case, about the anti-gay activist William Whatcott, was decided last month at the Saskatchewan Court of Appeal, which found his practice of distributing flyers stating that tolerance for "sodomites in our public schools" will lead to the deaths of children must be understood as a permissible contribution to a public policy discussion.

It recalled the similar case of Hugh Owens, a Saskatchewan man who published newspaper advertisements quoting Bible passages against homosexuality, and was also convicted in a human rights case, but cleared on appeal.

Federally, where the Canadian Human Rights Commission has jurisdiction over hate speech on the Internet, the controversial Section 13 hate law is also due for examination in federal court, after a tribunal last year judged it unconstitutional.

As ever more prominent human rights hate speech convictions fail on judicial review, the credibility of human rights commissions is not the only thing at stake. The contradictory rulings suggest Canada is overdue for a comprehensive analysis of its approach to hate speech, to resolve the Supreme Court's own disagreement about how to regulate the darkest emotion.

That 1991 case, about the neo-Nazi John Ross Taylor, was split 4-3, and included the objection of Justice Beverley McLachlin, now chief justice, that hate and contempt are "vague and subjective, capable of extension should the interpreter be so inclined." As she put it, "Where does dislike leave off and hatred or contempt begin?"

"You can sooner grasp steam in your hands, or nail Jello to a wall, than know with certainty what this bar for hatred is," said John Carpay of the Canadian Constitution Foundation, who argued as an intervenor in two recent hate speech cases.

"Our argument is that provinces do not have the right, the constitutional authority, to restrict speech," he said.

That argument carried some weight in the case of Stephen Boissoin, once a youth preacher in Red Deer, Alta., who wrote a letter to the editor about the "wickedness" and dangers of homosexuality.

Convicted of hate speech by the province's human rights panel, Mr. Boissoin won on a recent appeal, in which a judge ruled that, despite Mr. Boissoin's metaphors of raised banners and declarations of war, "no one could reasonably read the letter as an actual 'call to arms.' "

The judge also scolded the panel for relying on "hearsay" about an alleged assault on a gay teenager, and deciding, in the absence of any evidence, that it resulted from the letter.

"I disagree with any implication that the Province has jurisdiction to regulate hateful expressions that may lead to violence," Mr. Justice E.C. Wilson wrote. "That is a matter governed by the criminal law power reserved solely to Parliament."

This week, Alberta's Culture Minister, Lindsay Blackett, offered his opinion that the Boissoin case should never have been heard at all.

Human rights law is "not there to mediate hurt feelings caused by some words or not. If it's hateful, then that's a hate crime. And that's something for the Crown attorneys and the police services to investigate," he said.

Darren Lund, the University of Calgary education professor who brought the complaint against Mr. Boissoin, has filed a notice of appeal, arguing the judge "narrowed" the interpretation of the hate-speech law by requiring tribunals to evaluate the writer's intent, and to determine a causal connection between the message and an actual instance of discriminatory conduct. Absent this connection, the judge ruled, the province has no authority to restrict speech.

"If [the human rights hate-speech law] is virtually unenforceable, if the bar is being set impossibly high, as high as criminal cases, then what's the justification for keeping it in the legislation?" he said.

But he also thinks the panel made mistakes in its original judgment, especially with Mr. Boissoin's punishment of a lifelong ban, now rescinded, on making "disparaging" remarks about gays. Mr. Lund found this "problematic," and likely legally meaningless.

The Boissoin case almost wasn't heard. It was dismissed after an initial investigation, but Mr. Lund appealed and was permitted to "take carriage" of the case, meaning he would be responsible for investigation and legal work.

This is a peculiarity of human rights hate-speech law, that people with no connection to the alleged discrimination may pursue complaints on behalf of reluctant – or even unknown or unspecified–victims.

In practice, this quirk also provides an opportunity for activists to martyr themselves, intentionally or not, in the service of equality, with huge risks and questionable benefit, given the legal failures. For example, Richard Warman, the Internet hate activist, has famously been the target of death threats and organized harassment.

Mr. Lund has received similar attentions. He was even sued for libel by Mr. Boissoin, represented by free speech crusader Ezra Levant, over a newspaper article about his complaint, in which he was quoted comparing Mr. Boissoin to convicted hatemongers. Mr. Lund denied making the statements, which he said were in fact part of a reporter's question, and Mr. Boissoin dropped the case before trial.

Mr. Levant said yesterday that, faced with the same alleged libel today, he would advise a client against suing, partly because of the recent Supreme Court decision that Canada is a "free country where people have as much right to express outrageous and ridiculous opinions as moderate ones."

"Canada's a little bit freer now," Mr. Levant said.

That freedom, however, increasingly relies on the seemingly arbitrary application of awkward laws, with little in the way of bedrock principle. As Mr. Carpay of the Canadian Constitution Foundation said, "Extremism, like beauty, is in the eye of the beholder."

At the University of Ottawa this week, soon after the Ann Coulter debacle, an equally controversial figure came to speak about freedom of expression. Doug Christie is a lawyer who has argued for such hatemongers as John Ross Taylor, Ernst Zundel and James Keegstra, and is involved in the Marc Lemire case that will probe Section 13.

His lecture was not inflammatory like Ms. Coulter's well-known schtick, and focused on the law, rather than the issues. As he put it: "I have been trained by the Supreme Court not to engage in hate speech, even though no one can define it in advance."