Friday, May 10, 2019

Canadian Secular Alliance Presentation to the House of Commons Standing Committee on Justice and Human Rights

Yesterday morning I testified before the House of Commons Standing Committee on Justice and Human Rights. In April, the Committee invited Canadians to participate in its study of online hate, and asked the Canadian Secular Alliance to provide its perspective. Below is the statement I made to the Committee.

Good morning. My name is Leslie Rosenblood and my colleague is Greg Oliver. We are here on behalf of the Canadian Secular Alliance. We greatly appreciate the opportunity to speak before you today.

The Canadian Secular Alliance is a non-partisan and registered not-for-profit organization whose mandate is to promote the separation of religion and state in Canada.

Our goal today is to provide a robust defense of three core principles that a central to all liberal democracies: government neutrality in matters of religion; equality for all under the law, and free expression.

Government Neutrality

People deserve protection from harm; ideas do not warrant protection from criticism. This distinction is crucial to today's discussion and it is imperative that these are not conflated. Assaults on religious people must be deterred, prevented, and prosecuted. But just as Canada’s political parties can (and do!) vigorously attack each other’s platforms and proposals, criticism of religious tenets, no matter how vitriolic, must be fully permissible.

Religious beliefs are ideas, and should not be treated any differently than other philosophical doctrine – political, economic, philosophical, or otherwise. Attacking the ideas in a book should never be considered equivalent to an attack on the people who revere those words.

Equal Protection under the Law

It would be ludicrous to for the law to treat two, say, burglars differently based on which party they voted for in the previous election. Yet our Criminal Code today does something analogous where the willful promotion of hatred is concerned. Religious individuals are given preferential treatment under the law. Section 319(3)(b) of the Criminal Code exempts a person, who would otherwise be subject to an indictable offense, if their hate speech is "based on a belief in a religious text". This is a clear violation of the principle of state neutrality in matters of religion. The harm suffered by vulnerable persons and groups is identical whatever inspired the hate monger. The Canadian Secular Alliance recommends that Canada repeal Section 319, subsection 3(b) of the Criminal Code.

The majority opinion of the Supreme Court of Canada wrote last year that “Accommodating diverse beliefs and values is a precondition to the secularism and the pluralism that are needed to protect and promote the Charter rights of all Canadians. State neutrality requires that the state neither favour nor hinder any particular belief, and the same holds true for non‑belief. Either way, state neutrality must prevail.” Our legislature also recognizes that treating religious ideas as a form of thought warranting special treatment is detrimental to society and obsolete, as demonstrated by the repeal of Canada’s blasphemous libel law last year. This action was a significant step forward. Our country should not retreat from its commitment to humanitarian values that apply equally to all Canadians.

Free Speech

While legitimate constraints to unfettered speech exist - including libel, impersonation, threats and incitement to violence - any exceptions must be limited, well-defined, and serve the public interest. Any proposal that seeks to further limit free expression must pass a high burden of proof in order to counter legitimate concerns about overreach, ambiguity, and selective enforcement.

Therefore the goal of hate speech laws must be to protect individuals from physical harm. However, they rarely achieve this aim. After studying the issue in many countries, Human Rights Watch stated "there is little connection in practice between draconian hate speech laws and the lessening of ethnic and racial violence or tension." The same conclusion was reached by the European Parliament and the UN High Commissioner for Human Rights.

The key problem with hate speech laws is that hate speech is impossible to define in such a way as to meet the twin goals of targeting a significant portion of unacceptable expression while respecting the principle of free speech. If its scope is very narrow and specific, any new law will have minimal impact on Canadian public discourse. But a broadly worded Act would necessarily encompass much speech protected by section 2(b) of the Canadian Charter of Rights and Freedoms. Additionally, in many countries (including established democracies) hate speech laws have often been disproportionately enforced against members of the very minority groups they were designed to protect.

Overly broad hate speech laws also have a non-trivial chilling effect on all public criticism. The Supreme Court has described "hatred" as speech "that is likely to expose" people to "hatred or contempt": "unusually strong and deep-felt emotions of detestation, calumny and vilification"; and "enmity and extreme ill-will [...] which goes beyond mere disdain or dislike." How can a person know whether their strong negative opinion of a person or group will be considered "disdain" - permissible - or "detestation" - punishable? In a dissenting opinion on the Keegstra case, Supreme Court Justice McLachlin wrote, the "sanction of the criminal law may pose little deterrent to a convinced hate-monger who may welcome the publicity it brings; it may, however, deter the ordinary individual."

Hate speech laws leave three options for those inclined to engage in hateful, discriminatory speech: taking the forbidden expression underground; couching their ideas in more subtle rhetoric to evade punishment; or leaving the message unchanged (or perhaps make it even more provocative) as the speakers seek the publicity that results from prosecution. Perhaps that is why Canada has so rarely invoked its existing hate speech law.

With the increasing prevalence of social media in the lives of Canadians, the CSA recognizes that the way we communicate and connect with each other has changed and new challenges have emerged. The CSA recognizes that these are serious issues that require attention, but they fall outside of our mandate so we will defer to other experts for appropriate remedies. We urge the Government to avoid the fallacious reasoning of, "We must do something. This is something - therefore we must do it."

We urge this committee to maintain its commitment to crucial Charter values of free speech and equality for all under the law. This can only be realized when government neither supports nor suppresses religious expression, but remains neutral. Thank you.