Freedom of Expression and Hate Speech – RMCLA’s Position

This article is a reposting of an RMCLA position paper. On October 17th 2017 an event at the University of Calgary discusses free expression and hate speech. This article summarizes RMCLA’s position on the issue.

RMCLA Position Paper

In 2013, the Rocky Mountain Civil Liberties Association campaigned to have section 3 of the Alberta Human Rights Act repealed. This section refers to expressions of discrimination and hate speech. The following document outlines RMCLA’s most recent position on the Alberta Human Rights Act as it refers to matters of free expression.

RMCLA is not only mandated to ensure the protection of expression for Albertans— it is also within its mandate to promote the fundamental dignity and worth of all Albertans. As such, it abhors acts of discrimination and hate. RMCLA realizes that conflicts and dilemmas may arise when the protection of differing rights may be required, such as protection of both fundamental dignity and free expression. RMCLA’s position on free expression is not only intended to best protect free expression, but also to forward what we believe to be the best way to also uphold the fundamental dignity of all persons.

RMCLA’s Position

After considerable study of the Act and its possible consequences, RMCLA suggests that Section 3 is far too broad and infringes on citizen’s free expression. Section 3 of the Alberta Human Rights Act should be repealed. Failing its full repeal, the minimal repeal of Section 3 (1) (b) should occur.

Section 3

The applicable portions of section 3 of the Alberta Human Rights Act read:

3 (1) No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that

(a) indicates discrimination or an intention to discriminate against a person or a class of persons, or

(b) is likely to expose a person or a class of persons to hatred or contempt

because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons.

(2) Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.

Objection to the Act

The fundamental reasons for RMCLA’s position are related to use of the words “likely to expose” in the statement of 3(1)(b): “likely to expose a person or class of person to hatred or contempt.” RMCLA is of the position that the wording of section 3 has two fundamental problems.

  • “Likely to expose”  is far too broad and captures offensive, humiliating, disdainful or hurtful speech that is subjectively held by the target of the speech, or by an audience in receipt of the speech; and
  • “Hate or contempt” is not clearly worded. These terms are complexly interpreted in law and not well understood by the public; the public’s common understanding and legal interpretation are quite different. As they are written, the wording is vague and remains undefined for the public leading too often leading to overly broad and subjective interpretations that include speech (as noted above) that is not defined legally as hate or contempt.

Issues related to the above objections

As written, Section 3 may lead to an overabundance of complaints because the section is open to subjective interpretation. Despite Supreme Court of Canada and other court rulings on hate speech, the human rights complaint process is a complaint-driven system. As such, the Human Rights Commission must accept and consider all complaints, even those that are not hate speech per se and merely offensive, humiliating, disdainful or hurtful speech. It may be that such complaints are rejected by the human rights commission, but once a complaint is submitted, resources must be allocated to review these files; scarce resources that could be used to deal with other cases that are more appropriately the focus of the Commission.

The section can also have a counter intuitive effect. Rather than protecting people vulnerable to discrimination, it could be applied to speech intended to counter hateful or offensive speech. If a well-intentioned person hopes to counter/critique discrimination or hateful speech and the recipient of the message is offended, then the recipient could lodge a human rights complaint against the well-intentioned person. This of course would have the effect of squelching forms of counter speech and critique of hate/discrimination. The section of the Act also provides no defences to the complaint, such as truth, which may lead to the anomalous situation that a true comment, made to counter discrimination, may nonetheless be found to impugn s. 3.1. Further, that true comment would not be protected by the Charter of Rights due to s. 3.2 deeming that nothing in the section interferes “with the free expression of opinion on any subject”.

In both of the above scenarios, we can see many possible examples of suppression of free expression. The theme of suppress the messenger, including the message, is clear. It becomes very difficult to police which messages are objectionable and which are not when terms of the legislation are not well defined or invite overly subjective and broad interpretation.

It should also be noted that the Human Rights Commission and complaint process is also not well understood by the public. It is often seen as having a quasi-judicial process that is assumed to be far less process-oriented or to require less bureaucratic response than a court. This of course is not necessarily true and the process to lodge a complaint is a very detailed process that can sometimes be best conducted by legal counsel; it can be lengthy; and cost both the complainant and respondent considerable time, money and resources. For people with little financial resources and/or with cognitive challenges, even quasi-judiciary processes can act as a significant hindrance to resolution of issues, at times not different than what might be seen in a regular court scenario (it is an access to justice issue that requires further exploration and is beyond this scope of this position paper).

Supreme Court Clarification of Hate Speech

Understanding what does and what does not constitute hate speech is a complex issue. Courts have tried to clarify the issues surrounding legislation but this has not necessarily made the clarification issue easier.

The most recent decision that is often quoted to support keeping Section 3 is the Supreme Court of Canada’s decision Saskatchewan (Human Rights Commission) v Whatcott. The case struck down part of the Saskatchewan Human Rights Code’s section 14, while upholding other parts of the section that were very similar to those in Alberta’s section 3. The parts of section 14 that were struck down were NOT similar to those in Alberta’s section 3.

The Whatcott decision did clarify that the legal interpretation of human rights legislation related to hate speech and uses a very high test for setting limits on freedom of expression. The decision eliminated the use of words in the Code that were too close to limiting expression that might be deemed as merely offensive by striking down the words, “ridicules, belittles or otherwise affronts the dignity of the person.” It upheld limiting free expression, even if it was of a religiously held belief, if the expression was of the most extreme nature and “exposed” an audience to hatred.

The Whatcott decision noted three elements of hate speech that must be present to be considered hate speech and not simply offensive speech:

  1. Objectively, “a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred.”(2013 SCC 11, [2013] 1 S.C.R. 467, p.5)
  2. The message is that of an extreme manifestation… “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 risk causing discrimination or other harmful effects.”(p.5)
  3. One must consider the effect of the message, not the intent. “Tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others. The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant. The key is to determine the likely effect of the expression on its audience,…” (p.5)

Some have suggested that because the wording of the Saskatchewan Code that is synonymous with the Alberta Act was not struck down that this should be a rationale for keeping Section 3. However, it should be noted that the Supreme Court did not comment on how human right commissions or tribunals should functionally deal with complaints, only that the legal interpretation of terms in relation to hate has a high bar. This high bar goes far beyond what most people might personally define as a hateful statement, which more often refers to offensive, humiliating, disdainful or hurtful speech. The Whatcott decision noted that even statements which are malicious, libellous, and false do not by themselves meet the test for hateful speech. This underlines the importance for legislation to have extremely clear wording, something the Alberta legislation lacks.

Having a Supreme Court decision that seems to support a section of an act may confirm that the legislation is constitutional but does not in itself make good law or public policy. Legislation that falls within the parameters of Supreme Court’s decisions may be a necessary component to law-making, but this in itself is not sufficient. Good laws not only ensure laws are constitutionally valid, but also that it is good public policy, that justice is served and the public follows the rule of the law. It remains to be seen if the Human Rights Commission can handle complaints based on free speech in reasonable amounts of time while allowing those with the least resources to access the complaint process. The Supreme Court decision also does not functionally stop submission of complaints that fall below the high bar for hate speech. For these reasons alone, the risk for suppression or chilling of speech remains high and a  good rationales for repealing the section as written remain.

The Criminal Code and Hate Speech

The Canadian Criminal Code does have a provision for hate speech. Section 319 (2) states:

Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

The same high bar for defining hate speech applies to the Criminal Code as it does for human rights legislation. However, the Criminal Code also provides defences to the charge- among them truth, the good faith expression or attempt to establish by argument an opinion on a religious subject and good faith intent to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada. All of these are absent in our provincial human rights legislation. Given the Whatcott decision and its three criteria for hate, in Alberta and other provinces that have similar hate speech legislation, the Criminal Code is also only used for incidents of an extreme nature. When the two type of legislation are placed side by side and the Supreme Court’s criteria are applied to both, it is clear the legislation overlaps. However, the criminal applications of hate incidents have a far greater penalty.

It should be noted that for many of the reasons cited above, the Federal Government has repealed similar hate legislation (section 13) in its Canadian Human Rights Act, preferring to leave these cases to the jurisdiction of the criminal courts.

Some people argue that because they do not see large volumes of charges being laid under the Criminal Code, that human right legislation is needed. These arguments negate a myriad of issues with the application of hate speech legislation, and instead make an immediate leap (not logically) that the Criminal Code must be a failure. Such simplistic interpretations of legal applications of hate speech are not convincing and negate the successful applications of hate speech criminal law. Given the hate speech laws are designed and upheld to be reserved for the most extreme in nature, and the relatively liberal nature of Canada, one would expect very few cases to go forward in law.

Another point referring to the provincial legislation versus federal legislation is that given there is Criminal Code referring to hate speech, there is no need for similar provincial legislation. In fact, criminal matters are federal legislative jurisdiction, not provincial. Provincial legislation may actually be legislation in areas reserved for federal jurisdiction.

Purpose of Human Rights Acts

It should be noted that human rights acts were not intended to address criminal matters. These acts were intended to address discrimination in the application of services, employment and housing. They were never intended to address or suppress free expression. RMCLA believes the Human Rights Act needs to return to its base:  to protect people from acts of discrimination, rather than policing people’s expressions and feelings.

Not all jurisdictions include the words “expose a person or a class of persons to hatred or contempt” or even reference hate. For example both Ontario’s and Manitoba’s Human Rights Codes do not have references to hate, but do retain references to statements regarding discriminatory acts or incitement of discriminatory acts. It is doubtful that inclusion of Alberta’s Section 3(1)(b) has led to fewer acts of hate, hateful statements, or acts of discrimination on a per capita basis than other provinces. Each province has its successes and failures regarding respecting human dignity, but the human rights successes need considerable attention in jurisdictions that do not have legislation limiting free expression; why is it human dignity is similarly respected (in some cases more so) in other provinces that do not have synonymous legislative statements to Alberta’s Section 3(1)(b)?

Conclusion & Discussion

For the reasons stated in the above position paper, RMCLA suggests that Section 3 of the Alberta Human Rights Act is far too broad and infringes on citizen’s free expression. Section 3 of the Alberta Human Rights Act should be repealed. Failing its full repeal, the minimal repeal of Section 3 (1) (b) should occur.

RMCLA would suggest to the public that there are far better means to address disdainful/hateful speech than through the use of human rights commissions and tribunals. If the goal of human rights acts are to promote a society where we all live well together, then there are more effective responses to hateful expressions that enhance free expression.

  • Critiquing the message and messenger. Exposing the person who disseminates hateful and disdainful messages to the public as a person with inaccurate messages and/or undignified messaging, plus replacing the message with ones that uphold respect and dignity for all is the most effective way to ensure dignity for all remains a fundamental principle of our communities.
  • Proactive messaging. Ensuring ongoing messages and education of the public occurs to uphold dignity for all, tolerance, understanding of differences, and so on is a far better way to create community values, rather than waiting for hateful messages to occur. It also gives those in positions of low status/power and opportunity to become involved in building a better community and a voice for encouraging dignity for all.
  • Debate. When offensive beliefs seem to take hold, then debate the message in medias, news, forums, and other types of debate. Messages that uphold respect and dignity for all tend to win over other types of negative messaging.
  • Advocacy. Sometime people with in positions of low status/power and opportunity don’t feel empowered to speak out. This underlines the great need to those who are more able to advocate for the rights and dignity of others.
  • Anti-bullying responses. Bullying in the current era of social media is noted as a problem. Assisting others to counter bullying, encourage respectfulness and so on builds an environment of respect.
  • Public condemnation. When hate does occur, then publicly condemn acts and statements of hate with your own condemnation.
  • Protest. Sometimes when hate and discrimination occurs in institutions or by groups of people, then larger statements are required. Protests that attract the media can be an effect means to counter statements of hate and encourage a dignified society.
  • Community rallying. Don’t wait for hate. Rally people together from time to time to give expressions of dignity. A community that sees dignified actions often becomes a society based on dignified values.
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