In France, under the Ancien Régime, lettres de cachet were orders of arbitrary imprisonment signed by the king. Last week, in a few messages on the The one who proposes measures against harmful content online.
This type of comment in the form of slogans to discredit the process of deciding between hateful speech and legitimate speech contributes to perpetuating impunity for those who mobilize the power of the Internet to propagate “real” hatred. And this, in the name of a quasi-religious conception of freedom of expression which prevails in the United States. Where the Ku Klux Klan has the right to spread its hate speech.
To ensure the effective application of laws which have for several decades prohibited harmful speech shouted in the alleys, we must take the means to act when such remarks are made online. If we are not ready for this, for fear that judges will not be able to separate frivolous accusations from those that are well-founded, we must resolve to endure hateful comments and other speeches that disregard human dignity. This resignation prevails in the United States in the name of an absolutist vision of freedom of expression. Why import this vision to Canada?
Of course, Bill C-63 can be improved. For example, former Chief Justice of the Supreme Court Beverley McLachlin expressed doubts about the validity of the provisions contained in this bill which amend the Criminal Code to increase maximum sentences for those who are convicted of fomenting genocide.
But to compare a law on harmful content to the arbitrary nature of letters of cachet is to disregard the care taken in Canada to distinguish truly hateful speech from simply detestable speech. Indeed, before punishing a person for disseminating hate speech, Bill C-63 and the laws it amends require distinguishing prohibited speech from that which is not. To fight against the spread of hatred online or elsewhere, we must strengthen the capacity to detect prohibited speech and, above all, to quickly distinguish it from permitted speech. In this regard, Bill C-63 marks real progress.
In pluralist societies where rights and freedoms benefit from constitutional protection, it is the courts which are responsible for resolving disagreements and determining the obligatory meaning and scope of rights and freedoms. If we want to approach these issues other than through messages about X, we must take the time to seriously look at the principles established by the courts. But as the recent saga over the Supreme Court’s use of the word vagina shows, bothering to read court decisions is not in fashion these days!
It is not because some people find comments deplorable that they are punishable under the laws. In the Whatcott decision, the Supreme Court explains that, to determine whether a statement is hateful within the meaning of the laws, it is necessary to ask whether “a reasonable person informed of the relevant context and circumstances would consider, from a point of view objective, that the remarks expose or are likely to expose members of the targeted group to hatred.” During such an exercise, the judge must “disregard his personal opinions and decide according to what he understands to be the rational opinion of an informed member of society who considers the case in a realistic and practical manner” .
A statement can be considered hateful only in cases where the denigration is extreme and blatant. Careful consideration should be given to the context in which the statement is made and whether it is likely to expose the targeted person or group to hatred by others. The repugnant nature of the ideas expressed is not sufficient, in itself, to justify punishing their expression by law. We are light years away from the arbitrariness of lettres de cachet!
The Court insists on the fact that “remarks which, although repugnant and offensive, do not incite execration, denigration and rejection which risk leading to discrimination and other prejudicial effects do not constitute remarks hateful within the meaning of the law.” The line between simply hateful speech and hateful speech is crossed when the speech is likely to cause a reasonable person “informed of the relevant context and circumstances” to hate members of the targeted group.
Democratic societies face the challenge of deciding between hateful speech and that which must be tolerated in the name of freedom of expression. The war that has been raging for several decades in the Middle East is a regular reminder of the need to distinguish between comments that incite hatred and those that express a critical point of view on the issues at stake in an extremely complex conflict.
Bill C-63 and other Canadian laws can only punish comments that meet the very narrow definitions of hate speech, not just any joke that offends. This “detail” is overlooked by those who choose to ignore the requirements imposed by the courts. Such shortcuts help to justify inaction in the fight against (real) hate speech. Indeed, while we are screaming for censorship, hateful diatribes continue to plague the Internet.