Juno News - June 25, 2021


Liberal “hate speech” bill is anti-speech, anti-expression, and anti-technology


Episode Stats


Length

9 minutes

Words per minute

160.98

Word count

1,535

Sentence count

81


Summary

Summaries generated with gmurro/bart-large-finetuned-filtered-spotify-podcast-summ .

In this episode, we're joined by Christine Van Gein, Litigation Director of the Canadian Constitution Foundation, to discuss the Canadian Human Rights Act Bill C-51, which expands the scope of hate speech in Canada's human rights law.

Transcript

Transcript generated with Whisper (turbo).
00:00:00.000 Let me bring into the show Christine Van Gein,
00:00:07.060 who is the litigation director for the Canadian Constitution Foundation,
00:00:10.960 which has said this is a bill that will limit discourse.
00:00:15.120 No two ways about it.
00:00:16.200 Christine, good to talk to you.
00:00:17.480 Thanks for coming on today.
00:00:19.000 Thanks for having me on, Andrew.
00:00:20.680 So we have a couple of things here that I think are very important.
00:00:24.940 And one has been, I think, the most predictable discussion about this bill,
00:00:29.080 even before it was introduced,
00:00:30.680 and that is how is government going to define hate speech?
00:00:34.360 And the bill does include a definition of it here,
00:00:37.480 which just for context is, quote,
00:00:39.720 the content of a communication that expresses detestation or vilification
00:00:44.380 of an individual or group of individuals
00:00:47.600 on the basis of a prohibited ground of discrimination, unquote.
00:00:51.700 And that's, you know, race, gender, gender identity,
00:00:54.100 all of these things that we know are protected grounds
00:00:57.240 in the Canadian Human Rights Act.
00:00:59.080 And it also adds to that that it doesn't meet this threshold
00:01:02.760 for detestation or vilification just because it, quote,
00:01:07.400 discredits, humiliates, hurts, or offends, unquote.
00:01:10.600 And I've seen a lot of people talk about this in the context of,
00:01:13.420 oh, it's, you know, trying to make sure it's not just going after speech
00:01:16.420 that has the potential to be offensive.
00:01:17.960 But are these things really clearly defined
00:01:21.480 from what we know about this bill now,
00:01:23.280 as far as when something crosses that threshold
00:01:26.080 from discrediting and humiliating to vilification?
00:01:30.500 I mean, all of these things are just inherently subjective.
00:01:33.900 And that's the problem with trying to create a statutory definition
00:01:37.260 for a subjective concept like hatred.
00:01:41.960 And, you know, there's a lot of existing case law
00:01:44.220 that has dealt with the difference between these two notions,
00:01:48.780 the detestation and vilification versus hurt feelings and things like that.
00:01:53.860 But one of the things that is so notable about this bill
00:01:57.560 is it's brought back the civil remedy,
00:01:59.960 which means you can, as an individual,
00:02:02.420 bring a claim to a tribunal
00:02:04.620 about someone who has used what you believe is hate speech.
00:02:11.360 So if the definition is as it is,
00:02:15.820 which I think has a huge amount of subjectivity in it,
00:02:18.640 you're asking the public at large
00:02:20.600 who can make use of this tribunal mechanism
00:02:23.660 to understand the real nuanced difference
00:02:28.540 between what is and isn't hate speech
00:02:32.220 under this statutory definition.
00:02:34.160 And if you and I are struggling with it,
00:02:36.200 and we are pretty deep into this stuff,
00:02:38.400 I think your average Canadian is really not going to know the difference.
00:02:42.620 You're going to have a lot of frivolous
00:02:44.320 and disruptive claims brought under this new civil remedy.
00:02:50.540 Yes, and that was exactly what happened
00:02:52.900 when the Section 13 1.0 was around prior to 2013.
00:02:58.060 You had people that were using it.
00:02:59.580 They were shopping complaints to the Canadian tribunal
00:03:02.560 and to provincial ones.
00:03:04.060 They were going after columnists they didn't like,
00:03:06.600 bloggers and authors.
00:03:08.400 And in seeing this,
00:03:09.600 the one glaring issue here
00:03:11.240 when you talk about the civil remedy
00:03:12.560 is that the threshold for a civil wrong
00:03:15.480 in the eyes of the law
00:03:16.400 is lower than it is for a criminal wrong.
00:03:18.780 So the hate speech definition that we have in criminal law,
00:03:21.860 which is very high by design as a threshold,
00:03:25.320 is necessarily lower in this, is it not?
00:03:29.280 I believe it would have to be.
00:03:31.600 I haven't reviewed the bill in detail,
00:03:33.520 but it is a civil remedy
00:03:35.480 which would suggest a civil standard
00:03:37.400 rather than a criminal standard.
00:03:40.340 But, you know, that old remedy,
00:03:43.460 this old civil remedy,
00:03:44.920 Section 13 of the Canada Human Rights Act,
00:03:46.840 was repealed for a reason.
00:03:48.780 The reason was that the government of the day
00:03:51.300 believed that that remedy was being abused.
00:03:54.100 It had been highly politicized
00:03:56.080 that the remedy was being used
00:04:01.200 to target certain types of speech
00:04:02.880 and not other types of speech
00:04:04.300 based on sort of like a political correctness standard.
00:04:08.040 And I think that there was a good reason
00:04:10.820 to have removed that remedy.
00:04:13.080 This government is bringing it back,
00:04:15.200 proving once and again,
00:04:16.820 and expanding its scope
00:04:18.160 to now include all kinds of online content.
00:04:20.260 So they're proving once and again
00:04:21.640 that they are one of the most anti-speech,
00:04:25.400 anti-expression, anti-technology governments
00:04:28.600 we've ever seen in this country.
00:04:30.320 And I think that this type of arrogance
00:04:34.560 by this government
00:04:35.480 on imposing their views
00:04:38.000 about what Canadians should
00:04:39.800 and should not be allowed to say
00:04:41.220 and how they should communicate it
00:04:42.660 and creating even more government overreach
00:04:44.880 and how to monitor it,
00:04:47.460 Canadians should be very concerned.
00:04:49.640 I would agree.
00:04:50.740 And we can talk about the subjectivity
00:04:52.400 of fomenting detestation or vilification,
00:04:56.440 but there's another word in there
00:04:58.080 that was in the original section 13
00:05:00.100 and is back,
00:05:00.940 which is likely to foment detestation
00:05:04.300 or vilification.
00:05:05.560 And when you hear likely to do something,
00:05:08.240 it brings up images of minority report to me
00:05:10.900 and prosecuting people for things
00:05:12.900 that haven't even taken place,
00:05:14.260 but might take place.
00:05:16.480 Yeah.
00:05:17.180 So I think that that's a big,
00:05:18.460 another part of the problem
00:05:19.940 is this vagueness standard in the law
00:05:24.520 and the whole subjectivity.
00:05:25.880 And there's also another portion on this
00:05:32.320 that has even more to do
00:05:34.400 with this sort of minority report aspect,
00:05:37.900 which is this conditional,
00:05:41.240 I forget what it's,
00:05:42.320 the word is slipping my mind now,
00:05:43.840 but it relates to youth.
00:05:47.740 But there are restrictions on conduct
00:05:51.180 before they actually happen.
00:05:53.160 I'm sorry, it's slipping my mind.
00:05:54.860 Oh, is this the peace bond section?
00:05:56.720 Yes, it's the peace bond.
00:05:58.060 Yeah, it's the peace bond aspect,
00:06:00.140 which is really, really troubling
00:06:03.840 for a lot of civil libertarians,
00:06:06.560 this notion of peace bonds,
00:06:07.960 which restrict conduct
00:06:09.500 as a condition of release
00:06:13.400 for a criminal act.
00:06:15.220 So, but this is something
00:06:18.620 that a lot of civil liberties organizations
00:06:20.740 have raised concerns
00:06:22.300 over this new peace bond.
00:06:24.240 And this is something
00:06:25.280 that's also included in the legislation.
00:06:27.360 Yeah.
00:06:27.520 And just for context,
00:06:28.500 so someone can go
00:06:29.500 if they're concerned
00:06:30.620 about someone's speech,
00:06:32.180 theoretically,
00:06:32.860 to a court
00:06:33.700 and apply to have a peace bond applied.
00:06:36.020 And if you have one of these applied to you,
00:06:38.500 I was looking through this section,
00:06:40.300 you could have lawfully owned firearms taken away,
00:06:42.960 you could be forced to do drug tests,
00:06:45.400 you could be as well subjected
00:06:47.180 to wearing a monitoring bracelet.
00:06:48.880 So you have very real limitations
00:06:51.200 of your freedom.
00:06:51.980 And you're right,
00:06:52.740 based on a crime or an offense
00:06:54.900 for which you have not been convicted
00:06:56.540 or perhaps even charged.
00:06:58.300 Yeah.
00:06:59.400 So this is why there are a lot of concerns
00:07:00.960 with peace bonds,
00:07:01.820 like sort of generally,
00:07:02.840 but in this particular context
00:07:04.420 where it relates to expressive activity,
00:07:08.040 it's extreme,
00:07:09.980 seems like extreme government overreach.
00:07:11.920 I apologize,
00:07:12.540 the word slipped my mind.
00:07:13.540 I don't know how that happened.
00:07:15.460 No, at least I trust me,
00:07:16.760 I try to get these things out of my mind
00:07:18.180 as quickly as they can.
00:07:19.480 So no judgment on that.
00:07:21.900 I guess the question
00:07:23.200 that I would ask you,
00:07:24.400 and I know we're getting long
00:07:25.780 ahead of ourselves here
00:07:26.740 because a bill like this
00:07:27.880 will not even be debated
00:07:29.400 in Parliament before summer.
00:07:30.820 And if there's an election,
00:07:31.840 it completely goes away
00:07:33.420 and would need to be reintroduced.
00:07:35.140 But are things like this,
00:07:37.100 in your view,
00:07:38.360 likely to be struck down
00:07:39.780 as unconstitutional?
00:07:41.120 Or is there enough of a wiggle room
00:07:43.540 from reasonable limits
00:07:45.120 and other forms in the jurisprudence
00:07:47.660 that suggest something like this
00:07:48.940 could actually be upheld?
00:07:50.680 Well, I certainly think
00:07:51.640 it will be challenged,
00:07:52.920 but I will say that the hate speech,
00:07:55.140 the criminal hate speech laws
00:07:57.460 have been upheld
00:07:58.240 and it's a decision called what caught.
00:07:59.960 And then there was a challenge
00:08:01.460 to the previous Section 13,
00:08:03.480 the civil remedy,
00:08:04.260 which was also upheld.
00:08:06.280 So I do think that this bill is different.
00:08:09.540 It's more expansive.
00:08:11.260 And I also think
00:08:12.360 in the revised version of the bill,
00:08:14.660 we're likely to see something related
00:08:16.500 to takedown orders for platforms
00:08:18.300 that makes it different as well.
00:08:20.360 That doesn't appear to be included
00:08:21.700 in this bill,
00:08:22.220 but I do think that that is likely to come
00:08:25.060 in perhaps a revised version of it
00:08:27.160 that we may see later.
00:08:28.540 But I think that there's going to be
00:08:30.700 a big interest in challenging
00:08:32.560 this legislation.
00:08:34.500 And I will say that, you know,
00:08:36.520 I view hate speech as abhorrent.
00:08:39.220 I view racism, homophobia.
00:08:42.000 These things are abhorrent.
00:08:43.360 And these are ideas
00:08:44.500 that are nasty ideas
00:08:46.960 that we should explain
00:08:49.100 why they're nasty ideas.
00:08:51.480 And if you have people
00:08:52.220 just lurking on the internet,
00:08:54.480 secretly sharing terrible ideas
00:08:58.120 and concepts
00:08:59.040 without confronting them
00:09:00.680 and explaining
00:09:01.200 why those notions are wrong,
00:09:02.720 you'll never end up
00:09:04.480 with a better society.
00:09:06.560 Instead, you'll have a society
00:09:07.620 that criminalizes teenagers
00:09:09.740 for burning pride flags.
00:09:11.820 And that's not a good direction
00:09:13.440 for society.
00:09:14.600 Very well said.
00:09:17.080 Christine Van Gein,
00:09:17.980 Litigation Director
00:09:18.820 for the Canadian Constitution Foundation.
00:09:21.700 Christine, thank you so much.
00:09:22.720 Always a pleasure.
00:09:23.740 Thanks for having me on.
00:09:24.900 Thanks for listening
00:09:25.540 to The Andrew Lawton Show.
00:09:27.060 Support the program
00:09:27.780 by donating to True North
00:09:29.020 at www.tnc.news.
00:09:31.600 Noons.