Bill C-9 and the Difference between Good Law and Bad

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.

 

 (1)   In the text of the bill the prohibition of symbols is the first offence, hate crime is the second, intimidation the third, and obstruction the fourth.

(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.