On Lady Day this year, which fell on the Wednesday before Palm Sunday, Bill C-9 passed its third hearing in the House of Commons. The following day the first reading in the Senate was completed and it is now in its second reading before that august chamber of sober second thought. This bill, entitled the “Combatting Hate Act”, was introduced by the governing Liberals last September. It consists of a series of amendments to the Criminal Code. These would create four new offences. The first two have to do with preventing access to places of worship, cultural centres, educational institutions (including daycare centres), seniors’ residences, and cemeteries, by means of intimidation (the first offence) or obstruction (the second offence). The third new offence is “hate crime” defined to include any existing offence when it is committed with the motivation of hatred. Creating this “hate crime” offence includes increasing the penalties attached to the existing offences when committed for this motivation. The final new offence involves the public display of specified symbols, including ones used by terrorists, Nazi symbols, and “a symbol that so nearly resembles” the aforementioned “that it is likely to be confused with that symbol”. The order in which I have listed the offences here is that of the government’s initial announcement of the legislation, not the order in which they currently stand in the bill (1).
In addition to creating these
new offences the bill adds a definition “hatred” into the Criminal Code. Here is the definition from the text of the
bill: “hatred means an
emotion of an intense and extreme nature that is clearly associated with
vilification and detestation; (haine)”. It also adds this clarifying note “For
greater certainty, the communication of a statement does not incite or promote
hatred, for the purposes of this section, [Section 319 of the Criminal Code
pertaining to “hate propaganda”] solely because it discredits, humiliates,
hurts or offends.”
The bill will also remove something from the Criminal
Code. This is mentioned alongside the
four new offences in the summary at the beginning of the bill, indeed, it is
the second item in the summary: “repeal the defence based on the expression of
opinions on religious subjects or texts in relation to the offences of wilful
promotion of hatred or antisemitism”.
What this will repeal is subsection 3 (b) of Section 319 of the Criminal
Code as it currently stands. This reads
“3 No person shall be convicted of an offence under subsection (2)… (b) if, in good faith, the person
expressed or attempted to establish by an argument an opinion on a religious
subject or an opinion based on a belief in a religious text”. The repeal of this subsection, it was
reported last fall, was added to this bill in order to obtain the support of
the Lower Canadian separatists who made it a condition of their support.
Most of the discussion of this bill – the popular
discussion, I mean, not the official discussion in the House and Senate – has
centred around this last matter, the removal of the good faith religious
defence. The entire bill is rotten to
the core, in my opinion, and so is the entire section of the Criminal Code
(318-319) which it seeks to amend.
Consider the proposal to create a “hate crime” offence
consisting of other offences committed with hatred as their motivation. If somebody shoots you in the head, will you
be deader if he shot you because of the colour of your skin than if he shot you
because you were impeding his attempt to rob your house? Or, if he hits your foot instead of your
head, will it be less likely to turn gangrenous and have to be amputated? Suppose instead of shooting you he punches
you in the nose and kicks you in the groin.
Will this hurt any less if he does so because he is high on meth than if
he does so because he doesn’t like your religion? If these questions are absurd then so is the
idea that a law prescribing higher penalties to the same crime when committed
for reasons having to do with hate could be just.
Someone might counter that the law recognizes different
grades of homicide. For a homicide to be
classified as murder the murderer must have intended either to kill the victim
or to do something criminal that would make the victim’s death a likely
outcome. (2) To be classified as first
degree murder either the murder or some other felony in the context of which
the murder took place has to have been planned in advance in cold blood. (3) A homicide that does not meet the
requirements to be classified as murder but is still culpable under law - if
done out of the necessity of self-defence it is not so culpable, at least by
the letter of the law if not by how morons in His Majesty’s constabulary and on
His Majesty’s benches interpret it (4) - is classified as manslaughter (unless
it falls under the category of infanticide).
Homicide committed in the heat of passion is the primary example of
culpable manslaughter. (5)
These differences, however, are more substantial than mere
differences in motivation, they are differences in the very nature of the
crime. In the case of the proposed “hate
crime” offence, the motivation is only the difference. This is because it is the motivation of
“hate” and not the criminal act per se that the bill seeks to punish. This ought to be obvious from the fact that
every single act that will fall under the classification of “hate crime” if Bill
C-9 passes the Senate and receives royal assent is already against the
law. That this is the case is spelled
out in the very wording of the bill.
Therefore, it can only be the motivation that the bill seeks to
punish.
A far more honest version of Bill C-9 would simply state
that it is creating a new offence, punishable under the Criminal Code, entitled
“hate.” The Liberals would not likely
have drafted a bill worded this way, however, because it would have stood far
less of a chance of passing the House, and little to no chance of surviving a
court challenge if it made it into law.
A bill that proposed directly criminalizing “hate” itself, without
attaching it to some act or another, would be a bill that proposes
criminalizing something people think and feel.
This would be open intrusion into what has long been regarded as beyond
the legitimate sphere of government authority.
By “long”, I do not mean merely going back to 1982 when the
Charter of Rights and Freedoms was passed, or even back to the formulation of
classical liberal theory in the eighteenth century. When Queen Elizabeth I acceded the throne in
1558, the people of her realm were divided in religious opinion. Some were opposed to the reforms introduced
in the brief reign of her brother Edward VI or even those moderate reforms her
father Henry VIII had allowed and favoured the reconciliation with Rome during
the reign of her sister Mary. Others were the exact opposite of this and felt
the Henrician and Edwardian reforms had not gone far enough and that every last
vestige of the pre-Reformation tradition needed to be expunged from the Church.
Most fell somewhere in between.
Elizabeth restored the Henrician and Edwardian reforms, in a few
instances moderating them somewhat, rarely going further, and required of all
her subjects external conformity to the Church of England. While it is unlikely to win her any accolades
as an advocate of freedom of conscience from an age like ours, drunk on
liberalism and its doctrine of separation of church and state, Elizabeth
declared “I have no desire to make windows into men's souls.” With both papists and Puritans threatening
the security of the realm with their plots against her, she defended her
authority to regulate the externals of the Church and require conformity to it,
while denying to Parliament as much as to herself the right to dictate what her
subjects privately believed and how they interpreted the Prayer Book and
Articles.
A bill that proposed criminalizing “hate”, something that
people think and feel, would do the very thing that Elizabeth I said she had no
desire to do, open a window into men’s souls.
While volumes could be written about how Modern democratic liberalism
has made government more intrusive rather than less intrusive than it was in
Christian civilization prior to the onset of the Modern Age, that is something
to be explored at length at another time.
Our point here is different. The
governing Liberals, by not drafting such a bill, and by introducing C-9 in the
way they did with a lot of fluff about how it was carefully worded to avoid
violating the Charter, demonstrated that they recognize that a bill that proposed
to directly criminalize what people think or feel would intrude into an area
beyond where government can legitimately govern. What they either are not aware of or are
pretending not to be aware of – and this lack of awareness predates the
Charter, all the way back to when the Liberals added Sections 318-319 to the
Criminal Code in 1970 – is that indirectly
criminalizing what people think and feel is no better than directly criminalizing it.
All “hate” laws are fundamentally bad laws because they all
try to do indirectly what would be instantly recognizable as a tyrannical or
totalitarian move if it were done directly
Defenders of “hate” laws, particularly those that would
limit what someone can say in public, try to ward off criticism by saying that
all these laws do is prohibit threatening and urging violence against protected
groups. If this were the case, such laws
would still be bad laws because they are not needed due to their redundancy.
Incitement has been a crime for a very long time – it did not begin as a
statutory offence, that is to say one written into law by an act of
legislation, but as a Common Law offence.
Incitement is the act of encouraging others to commit a crime. It is itself a criminal act because it
involves the person who does the incitement in the guilt of the person who
commits the criminal act that has been incited.
The fact that it is a crime is a limit on speech, but not a limit due to
the thought or feeling expressed in the speech, but rather due to its nature as
an act, as explained in the previous sentence.
For speech to be incitement it must take the form “Do X to Y”.
Either “hate speech” legislation prohibits only speech that
takes the form “Do X to Y” or it prohibits speech that does not take this
form. If it only prohibits speech that
takes the form “Do X to Y”, it is redundant because that was already covered by
the law against incitement. On top of
its redundancy, it adds to the law against criminal incitement by saying that
such and such groups deserve more protection against criminal incitement than
others, in order to make it easier for law enforcement to “get” such and such
offenders. Neither of these things,
providing special protection for certain groups nor trying to “get” someone, is
characteristic of good law, it is rather a red flag that the law in question is
bad.
If, on the other hand, the “hate speech” legislation goes
beyond “Do X to Y” then it is limiting speech due to something other than it
being an act of incitement. It is
limiting speech due to its content, due to its expression of what the speaker
thinks or feels. It is the government
intruding where it has no business to intrude, trying to open up “windows into
the souls of men.”
The history of “hate” legislation in Canada shows that it
has been bad in both of these ways at the same time.
That the original “hate propaganda” act that put Sections 318-319 into the
Criminal Code in 1970 was intended to “get” certain people is evident from the
fact that when, due to defendants under these sections being entitled to the
protections all defendants are entitled to under criminal law (right to a
trial, right to a defense, right to the presumption of innocence until guilt is
established beyond a reasonable doubt), it turned out that it was not so easy
to “get” those people after all, the government was immediately lobbied to find
a way around this, which it did by including Section 13 in the Canadian Human
Rights Act of 1977. The Canadian Human
Rights Act is civil, not criminal, legislation and so those accused under it do
not have the rights to which criminal defendants are entitled. Section 13 was hardly limited to speech that
takes the form “Do X to Y”, it was so broadly worded – speech that is “likely
to” expose someone to “hatred or contempt” - that you could drive a convoy of
trucks driving side by each through it.
The entire Canadian Human Rights Act, obiter dictum, is bad law, passed like its UK equivalent the Race
Relations Act, in imitation of a bad Act in the United States. For decades complaints made under Section 13
had a 100% conviction rate, which is a huge indication that the law is not just
bad but horridly so. Eventually, when
the spotlight was turned on Section 13 in the first decade of this millennium,
public opinion turned against it in Canada and in 2012, a private members bill
to repeal Section 13 which had been introduced by Brian Storseth, then MP for
Westlock-St. Paul, passed third reading in the House, receiving royal assent in
2013, and coming into effect in 2014.
That the people that both
Sections 318-319 and Section 13 were originally intended to “get” were people
generally reviled in Canadian society does not make these laws any better. Indeed, this is the way bad laws of this sort
work. They start by going after people
who, because of the general revulsion against them, have few defenders, and
then, when these have all been “gotten” move on to others. Although the Rev. Martin Niemöller’s famous
poem starting with “First they came for the Communists” was talking about the
actions of a regime rather than the cumulative mission creep of a piece of
legislation, it illustrates the process quite well. That those the Canadian “hate” laws were
initially intended to “get” were those who continue to identify with the ideology
of the regime that did the “coming for” in Niemöller’s poem does not alter the
point. This ideology was one of two
ideologies held by parties that established remarkably similar totalitarian
terror-states that murdered a lot of people in the twentieth century. This ideology was short-lived, it basically
died with its regime in 1945, whereas the other ideology seized power earlier
(Russia, 1917), in more countries (at its peak it controlled roughly a third of
the world), lasted longer (some countries still officially claim the ideology
today), and killed more people (over 100 million). Yet the second category of “hate” symbols to
be banned under C-9 consists entirely of symbols of this dead ideology, which
very few people would display in public in Canada at this point in time, but
not the symbols of the other ideology which plenty of people, especially idiots
in academia (faculty and students alike) are fond of displaying. No, my point is not that Bill C-9 would be
improved if the hammer and sickle were banned alongside the swastika.
There are two reasons the
swastika and the SS symbol are specified to be banned by C-9 and the hammer and
sickle, red star, and raised fist are not.
The first is that the ban is designed to “get” an extremely small number
of people. The second is that it is
designed to provide special protection to the adherents of one particular
religion in Canada, Judaism. There is
already a subsection of Section 319 of the Criminal Code that explicitly
provides special protection to the adherents of Judaism. (6) This subsection, which was smuggled in by the
Liberals under their previous leader in a budget bill four years ago, deserves
examination here because it demonstrates that speech of the “Do X to Y” form is
hardly what “hate” legislation is intended to combat.
The special protection that
subsection 2.1 provides to adherents of Judaism is protection of their
feelings. This is because hurt feelings is the only way the speech prohibited
by subsection 2.1 could possibly hurt them.
The speech prohibited does not take the form “Do X to Y”. It takes the forms “I approve of Event A”, “Event
A happened differently than what we have been told” and “Event A wasn’t as
important as it is made out to be.” Only
the first of these could be reasonably considered to be an expression of
hatred. Speech of the second and third
forms ought never to be banned, it is a crime against conscience, reason, and
common sense to ban it and a violation of the fundamental freedoms of His
Majesty’s subjects, even in the watered down wording of section 2 of the
Charter, to so ban it. (7)
Organizations purporting to
speak for Judaism – generally self-appointed activists rather than the religion’s
spiritual teachers and leaders - had been lobbying for “hate” legislation since
long before the first “hate” bill was passed in 1970. This is not a criticism of such
organizations, per se. Any group of His
Majesty’s subjects has the right to petition His Majesty’s government for what
they feel is in their own best interest.
They do not, however, have the right to have their petition granted at
the expense of the general good of the realm.
It is the duty of His Majesty’s government to see to it that the general
good is protected, even if it means denying the petition of the lobbying
group. This duty that has been sorely
neglected, when it comes to “hate” laws, when the Liberals have formed His
Majesty’s government in Ottawa, at least since the first Trudeau premiership. Yes, it is a duty of His Majesty’s
government, because the general good that is compromised by “hate” legislation
is the good of freedom of conscience, of freedom from having the government try
to open “windows into men’s souls” a good that protects us all.
Now, someone might object
that the religious defence that Bill C-9 will remove from Section 319, also
provides special protection to specific groups.
Unlike the case of the second class of symbols to be banned under C-9,
however, the defence to be removed is written in general terms. See the text of the defence quoted in the
third paragraph of this essay. Subsection
3 (b) was included in Section 319 to prevent a section intended to prevent
people from being made the targets of propaganda because of their religion from
itself becoming a weapon with which to target religion. The assurances of government ministers, such
as Marc Miller, that the removal of this defence will not mean that religions will
be so targeted ring very false and are not to be trusted. In the context of advocating this bill, he
declared three Biblical passages, two from the Old Testament and one from the
New to contain “clear hatred”. That anyone quoting these passages in public
might find himself to be charged is hardly an unlikely outcome of this bill. (8)
To put the matter in more
general terms, the proposed removal of a legal defence should sound warning
alarms. A fundamental principle of our
justice system – not merely that of Canada, not merely that of the
Commonwealth, but of the civilization formerly known as Christendom, with roots
in ancient Roman Law and in the Scriptures common to Christianity and Judaism (9)
– is that it is better to leave the guilty unpunished than to unjustly punish
the innocent. Good laws, rarely if ever,
make it easier to prosecute. This is the
reverse side of the coin to the bad laws are written to “get” people principle
that we have already discussed.
Defenders of the removal of
the defence argue that nobody should be allowed to use religion as a defence
for urging violence. As we have seen,
those who drafted this defence, did so with regards to speech that was not
limited to the “Do X to Y” form. There
is, however, a simple solution to this which would give the advocates of C-9
what they claim they want without creating a cudgel against religion. That is to eliminate Sections 318-319
entirely.
This should have been done
long ago. There is nothing in Sections
318-319 worth preserving. There is only
one thing under the absurd category of “hate speech” or “hate propaganda” that
ought to be against the law. That is
criminal incitement, the urging of violence or other criminal activity in the “Do
X to Y” form. This was against the law
before Sections 318-319 were entered into the Criminal Code. It will still be against the law if those
Sections are removed. Moreover, it will
only be against the law in a way that protects everyone, without trying to “get”
anyone and without pandering to those who think they deserve special
protection. There will be no religious exception,
both because this will die with Sections 318-319 and because it won’t be
needed. The basic law against criminal
incitement cannot be weaponized against religion because unlike “hate” laws
which are designed to be weaponized against certain people on behalf of other
people, it is there to keep the king’s peace.
There is little, if anything, that could be regarded as good law, which
does not exist mainly if not solely for this purpose.
(2) Criminal Code of Canada, Section 229.
(3) Criminal Code of Canada, Section 231.
(4) Criminal Code of Canada, Section 34.
(5) Criminal Code of Canada, Section 232.
(6) Criminal Code of Canada, Section 319, (2.1).
(7) The two most notorious “hate” trials in Canadian history, both of which took place in my youth during the Mulroney premiership, were primarily about speech of this “Event A happened differently than we have been told” form. One individual, the one charged under section 319 of the Criminal Codes, was also charged with speech in the form “Y is guilty of Z”. None of the speech was in the form “Do X to Y”, and in the course of the trials, the other individual, who was charged under a different law that the Supreme Court of Canada threw out on appeal, himself became the target of criminal violence. I thought at the time, and I think so still, that these trials were an utter disgrace and the type of thing better suited to the sort of regime that these men were accused, with varying degrees of accuracy, of supporting, than to a Realm of His (Her at the time) Majesty’s Commonwealth. In February 2001, Esquire published an article by Jewish, liberal, literary journalist, war correspondent, and author John Sack in which he discussed a meeting he had attended of those who hold the “Event A happened differently than we have been told” perspective where he had met the second mentioned of these defendants. To this day it is my go to reference whenever some jackass takes exception to my obviously correct position that if the spirit of the Third Reich lives on today it is more in the “liberals” (would J. S. Mill recognize them as such?) who pass laws against “Holocaust Denial” than in those they persecute.
(8) Charges of this sort were made against Hugh Owens in 1997. During the week which has subsequently dropped the lesser of the two sins in its title and retained the worse (and expanded to a month, then a season), he took out an advertisement with the Saskatoon StarPhoenix with two male stick figures holding hands inside the red circle with a slash symbol. It also contained references to a number of Bible verses on the subject. The complaint, which was made under the provincial human rights code, was initially upheld, but in 2006 overturned by the Saskatchewan Court of Appeal. More recently (2013) the Supreme Court of Canada overturned Bill Whatcott’s successful appeal to the Saskatchewan Court of Appeal against his conviction by the Saskatchewan Human Rights Tribunal in a somewhat similar case. In the unanimous ruling, the Court utilized the earlier court definition of hatred from R v Taylor. Although the Supreme Court said that “hatred” needs to be understood as "extreme manifestations of the emotion described by the words 'detestation' and 'vilification'" the fact that they ruled that Whatcott’s flyer distribution constituted such shows how empty this description really is. That this is the basis of the definition of “hatred” to be added to the Criminal Code by C-9 is not a good sign. An “extreme manifestation” of “detestation”, to any sane person, would consist of violent actions rather than words. “Vilification” is an act not an emotion and it is already covered by defamation law, there is no need to include it under “hate.” The use of the word “emotion” is revealing (among other things it reveals how much a better sort of justice is needed for the highest bench of His Majesty’s court). It is not the place of government to tell people what to think or feel.
(9) Gen. 18:16-33.