Hate laws put reasonable limits on freedom of speech

Toronto Star | August 8, 2017

“It is time for us to take our masculinity back and beat the living hell out of these [Muslims]. Pin them down on the ground, and beat them until they pass out. And when they’re passed out, you beat them further; and when they’re on the ground passed out, kick them, break a kneecap, break an elbow, press their hands backwards turn their wrists sideways, start breaking these guys down.”

This is a particularly egregious excerpt from one of Kevin J. Johnston’s Freedom Report videos, in which he angrily encourages Canadians to attack and injure Muslims. Johnston was recently charged under Section 319(2) of the Criminal Code because he is promoting hatred and advocating violence, not because he is criticizing Islam.

Inciting violence is where Canadian law draws the line on free expression. As Kevin Metcalf of Canadian Journalists for Free Expression points out, absolute free speech is an American concept. Metcalf’s suggestion is not merely his private opinion: it is a legal fact. According to Section 1 of the Canadian Charter of Rights and Freedoms, free expression in Canada, like all other Charter rights, is limited by “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The question we should be asking is where those reasonable limits lie.

In the 1990 case known as R v. Keegstra, the accused was a teacher who used his position to promote hatred of Jews. In that landmark hate-speech case, the Supreme Court of Canada noted that Section 319 of the Criminal Code, which prohibits willful promotion of hatred except in private conversation, does indeed violate freedom of expression rights. However, the Supreme Court also noted that this violation is justified because it is a reasonable limitation of that right. In Keegstra, the court ruled that on balance, the limitation was less harmful than the harm of the speech itself.

These types of cases are very rare: Section 319 specifically requires the consent of the Attorney General in order to lay charges – a high bar and something that very few other sections require. This is precisely because free speech is an integral and critical part of any free and democratic society. Every time a law infringes on a Charter right, the courts conduct this exact inquiry: does it do more to help or harm Canadian values?

To be clear, Johnston did not commit a violent act. He is charged under Section 319(2) for willfully promoting hatred. He incited others to hate, to fear, and to fight against Muslims.

Johnston falsely states that he has been “arrested under M-103.” For those unfamiliar with M-103, it is a Parliamentary motion that condemns Islamophobia and systemic racism and calls for Parliament to recommend a plan to act against all forms of hate. The term Islamophobia, as it is popularly used, describes the irrational fear or hatred of Muslims that leads to discrimination or acts of harassment or violence.

M-103 does not condemn all criticisms of Islam; it condemns irrational hate and fear of the type that Johnston is allegedly promoting. That hatred has the potential to result in real and even deadly consequences. We saw it in its most extreme form last January, when Alexandre Bissonnette entered a Quebec mosque and murdered six people.

Of course, not all Islamophobia is violent, but it does foment an atmosphere in which violence is an acceptable argument. That is what Section 319 prohibits: while the perpetrators of such crimes may be convicted and punished, the damage they can do is sometimes irreparable.

Much as Keegstra was charged for vilifying Jews, Johnston has been charged for vilifying Muslims. In the same way Parliament condemned anti-Semitism, Parliament has condemned Islamophobia. Both Canada’s hate speech laws and Parliament’s condemnation of systemic discrimination are a legitimate response to an identifiable problem. The damage that hatred can cause is a real and substantial danger to all of our shared Canadian values.

Essa Abdool-Karim and Darko Prodanovic are human rights interns with the National Council of Canadian Muslims (NCCM).