Friday, July 26, 2019

Once again - restrictions on religious discrimination is not religious persecution

The essay below first appeared in the August edition of the Centre for Inquiry Canada's newsletter, Critical Links.

Secularism can be defined in several ways. The definition that I subscribe to (along with the Canadian Secular Alliance and the Centre for Inquiry Canada) is government neutrality in matters of religion, whereby the government neither supports nor suppresses religious expression for its citizens.

Quebec's functional definition of secularism seems to be removing all religious symbolism from the public square. It recently passed Bill 21, which forbids new government employees (including civil servants and teachers) from displaying any religious paraphernalia on the job, including crucifixes, turbans, yarmulkes, and hijabs.

The Quebec government was clearly concerned this almost certainly violated section 2 a) of the Canadian Charter of Rights and Freedoms (guaranteeing religious freedom), because it preemptively invoked the Charter's section 33 (commonly referred to as the "notwithstanding clause"), shielding the legislation from most legal challenges.

Therefore I was interested to read an op-ed piece in the Globe and Mail on July 11 entitled, "Religious expression is under attack in Canada – and not just in Quebec". I was unaware of other attacks on religious expression, and wanted to see how Canada was violating secular principles elsewhere in the country.

It turns out the piece is half precisely right, and half entirely wrong.

I agree entirely with the sentiment in the first part of the essay: It is worrying that Quebec behaves as though "Even the most benign expressions of religious conviction must be kept out of the public service, and accommodation will only be afforded to employees who are non-religious or who agree to give that appearance. This should alarm believers and non-believers alike, regardless of whether they are directly affected by this law."

But from this solid foundation, the article quickly loses its way. It makes sweeping claims, such as Canadians increasingly believe "religion should not be accommodated if it makes others feel uncomfortable" and "decision-makers are increasingly upholding religious-rights violations with little, if any, discussion of the important interests protected by religious freedom", that are wholly unsupported by the remainder of the piece.

The article cites only two examples of how religious expression in Canada is under attack beyond Bill 21. Both cases are presented in misleading manner. They involve not a suppression of religious expression, but the protection of rights from religious discrimination. The difference is crucial.

The authors decry the Supreme Court's decision on Trinity Western University's(TWU) proposed law school, describing it as having "denied graduates of Trinity Western University’s proposed law school equal admission to the practice of law based on the university’s faith-based code of conduct". I have written extensively on the TWU decision; in essence, the Supreme Court ruled that freedom of religion does not grant to right to discriminate against others. TWU demanded from all students that sexual intimacy be restricted to between a married man and woman; homosexuals (married or not) are welcome, but must commit to celibacy while a student at TWU. Violators are subject to academic discipline up to and including expulsion. Blatant discrimination against the LGBT community is not moral or acceptable solely because some interpretations of scripture attempt to justify it.

The other case is that Ontario physicians "can be forced to help facilitate procedures that violate their ethical judgment" and "religious convictions". The College of Physicians and Surgeons of Ontario created a policy whereby a medical practitioner cannot prevent a patient from seeking an assisted death, in accordance with Canadian law. Individual physicians may recuse themselves, but "must not impede access to medical assistance in dying, even if it conflicts with their conscience or religious beliefs." They must provide an "effective referral". Again, this is not an attack on the faithful; it is protecting the rights of Canadians from those who seek to deprive patients of medical procedures to which they are entitled.

Religious freedom allows for the maximum autonomy for individual religious expression, subject to reasonable limits in a free and democratic society; it does not include a protected right to coerce others to behave according to the tenets of a particular faith. Quebec's Bill 21 is a travesty that is justifiably opposed by almost all religious and civil rights organizations, including the Centre for Inquiry Canada and the Canadian Secular Alliance; if religious expression is under attack elsewhere in Canada, Mr. Ross and Mr. Kinsinger have failed to provide a single legitimate example.

Tuesday, July 16, 2019

The Justice Committee publishes its report on online hate

A couple months ago I participated as a witness before the House of Commons Standing Committee on Justice and Human Rights, testifying on behalf of the Canadian Secular Alliance. The Committee has now published its report, "Taking Action to End Online Hate". (You may read or listen to my testimony. A Q&A session is transcribed at the latter link.)

This is the first such government report I have read, so I do not know how it compares with others. I found it dry, equivocating, lacking insight, and rather unhelpful into developing any understanding into the issues surrounding the intersection of hate speech, free speech, and online interactions.

Report Recommendations


The first five formal recommendations of the report are about information collection and dissemination. These are reasonable, if somewhat obvious, steps to take. One cannot address online hate unless one has good data about its prevalence, where and how it takes place, and effective means of countering it.

Though the report is about online hatred, hate speech is never defined in the report. The sixth recommendation is for the Government of Canada to "formulate a definition of what constitutes ‘hate’ or ‘hatred’ that is consistent with Supreme Court of Canada jurisprudence" without any guidance or insight into what this definition should be (except by noting that it must acknowledge at least seven types of groups are "disproportionately targeted"). This makes it impossible to understand whether the many witnesses, who are quoted and referenced extensively throughout the document, are using the term in the same (or even a similar) way.

The seventh recommendation is for a "a civil remedy for those who assert that their human rights have been violated under the Canadian Human Rights Act", suggesting a reinstatement of the former section 13 of the Canadian Human Rights Act (conveniently reproduced in an Appendix), updated to account for social media. Why the Committee saw fit to make this recommendation is unclear, as there was no consensus among the witnesses on this issue. As page 32 states, "On the one hand, some witnesses [...] argued that former section 13 of the CHRA [Canadian Human Rights Act] or any similar provision should not be re-instated." This section consisted of quotations from three organizations, including the Canadian Secular Alliance and the Canadian Civil Liberties Association. On page 33, the report continues, "On the other hand, some witnesses expressed that the repeal of section 13 of the CHRA left a gap in the legal tool box to counter online hate." After quoting from testimony arguing for section 13 restoration, the report moves onto an entirely other topic without addressing or resolving the contradictory opinions from different witnesses.

Why and how the Committee recommends reinstating the former section 13 of the CHRA is left to the imagination of the reader. This is not the only case where the document describes the different (and at times incompatible) recommendations of various witnesses, but undertakes no analysis to determine which of various possible policy options would be effective.

The one point of consensus among witnesses is that the problem of online hate speech requires government leadership and regulation. No one was content to leave policing content to the social media corporations, which makes the report's eighth recommendation all the more baffling. The report suggests "online platforms and Internet service providers [...] monitor and address incidents of hate speech, and [...] remove all posts that would constitute online hatred in a timely manner". This recommendation, if implemented into law, would be problematic on several levels:

  • Internet Service Providers would be required to spy on their customers. I don't want my ISP keeping logs of all of my online activity. Anyone with the slightest concern for privacy should be concerned about this provision.
  • Censorship would become a competitive advantage for big online corporate entities. It is very expensive to monitor every online interaction; only the largest companies can afford to create (inaccurate) algorithms to determine what constitutes hate speech or pay for (tens of) thousands of people to manually read all flagged content to see if it runs afoul of Canada's (as yet undefined) hate speech provisions. 
  • There are no provisions to restore content erroneously removed. Companies will default to a position that exposes them to the least liability. If they are given an obligation to remove all "hate speech", online platforms will likely take the simplest approach, as they have in the past: in addition to removing hate speech, they will also delete reports describing how individuals have suffered from hate speech, posts decrying the hate speech of others, articles about how to effectively combat hate speech, and more. Innocent bystanders, mostly likely disproportionately those groups that hate speech laws are intended to protect, will be caught in the hate speech dragnet and will have no recourse. 
The final recommendation is worth quoting in full: "That online platforms be encouraged to provide optional mechanisms to authenticate contributors and digitally sign content, and couple this with visual indicators signifying that given user or content is authenticated, and provide users options for filtering non-signed or non-authenticated content." This is an intriguing idea, worthy of exploration to determine if its implications would achieve its aims. Where it comes from, I do not know - it is not referenced anywhere else in the report.

Appendices


The Conservative and NDP members of the Committee each wrote their own response in an appendix.

The 1.5 page Conservative "Dissenting Report" was disappointing. Over half of it was partisan bickering (attacking the Liberals and Prime Minister Trudeau while bolstering the Conservatives and its leader Scheer). The content of its report relevant to hate speech was slight, but what little was there was reasonable.

The NDP's 5 page "Supplementary Report" highlighted a key weakness of the Committee's report, stating "it is essential that the government standardize the definition of hate speech and its interpretation by law enforcement". The NDP's five recommendations track closely to the first seven recommendations of the overall report. The NDP suggests increased funding for media literacy and several community groups, ensuring "that law enforcement at every level [...] reflect Canada's diversity", and reinstating "an updated version of section 13". The NDP supplementary report makes no mention of striking a balance between curbing hate speech and protecting freedom of expression.

Observations


Police reported 2,073 hate crimes in 2017 (many witnesses expressed dissatisfaction that our best information comes from police reports, and recommended a more rigourous and systematic way of tracking such statistics). There were 349 hate crimes against Muslims in 2017, or 16.8% of the total. There is clearly strong anti-Muslim bigotry in Canada, as Muslims represent 3.2% of the Canadian population according to Statistics Canada. What I found surprising, however, is that Antisemitism is an even larger problem in this nation. The are less than one third the number of Jews in Canada as Muslims, but were the target of more than 2.5 times the number of hate crimes.

I was pleased to see that the Canadian Secular Alliance's recommendation to repeal section 319(3)(b) of the Criminal Code (which exempts “a person who would otherwise be subject to an indictable offence, if their hate speech is ʽbased on a belief in a religious textʼ”) made it into the report, quoting its position that this section “is a clear violation of the principle of state neutrality in matters of religion.” This suggestion, however, was not among the nine recommendations made by the Committee.

My largest disappointment is that the central issue - how "to protect freedom of expression and to avoid censorship" - is stated as a priority, but left completely unresolved. Near the end of the first chapter, the report clearly states that, "None of the recommendations presented in this report derogates from an individual’s constitutional right to freedom of expression protected under section 2b) of the Canadian Charter of Rights and Freedoms." But there is no way around the fact that regulating, deterring, restricting and/or deleting hate speech is an encroachment on free expression. Are such curbs justifiable in Canada, which purports to be a free and democratic country? How can the government curb hate speech while not also banning merely unpopular opinions? The report is utterly silent on these matters, which makes its ultimate utility on this important topic marginal.