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Canada’s Hate Speech Laws: Model of Tolerance?
Or Hotbed of Incivility and Ice-berg of Self-Censorship?

By Stefan Braun*

Canada’s hate censorship regime is admired world-wide as a model of public tolerance, and civility. For many, it is a case study of enlightened democracy, judiciously balancing and expertly blending rights of free speech with respect for civility, and reasoned debate. This is a view shared by ordinary people, lawyers, judges, and social activists, alike. It is the mantra among progressive academics, social activists, and the multi-culture circles. While it has its detractors, particularly in the U.S., ensuring public tolerance by legally silencing hate is an idea of democracy that has, it seems, captured the imagination of most of the free world.

In Canada, the right of minorities to be free of hate, by force of censorship, is a constitutionally protected human right, enforced by assorted human rights commissions, tribunals, and courts. Offenders have had homes searched, computers confiscated, correspondence seized, been fined, made to attend sensitivity or tolerance re-education classes, ordered to make scripted apologies to the offended, been fired from their jobs, banned from the internet, and barred from speaking on subjects declared off limits, often for life. Offenders violating Canadian Criminal Code provisions against hate propaganda have faced arrest, prosecution, and jail.

For most Canadians, this is as it should be. And so it is for Jews. Hate speech law has been the pride and joy of Canadian Jewry – its vaunted sanctuary from hate. Back in the 1980’s, it was what silenced neo-Nazis like James Keegstra, and forced Holocaust deniers like Ernst Zundel to flee our shores to the more speech hospitable climate of our neighbour to the south. Those were the golden days of Jewish hate censorship.

So, is there anything wrong with this picture? Actually, yes. Hate speech law hasn’t changed. But times have. That was then. This is now. Victims and victimizers have become far more ambiguous. Hushing hate is now competitive. Take the recent cases of Ezra Levant and Mark Steyn. Levant was the Canadian Jewish publisher of the now defunct Western Standard. Mark Steyn is a New York Times best-selling author. Levant’s speech transgression was to republish the Mohammad cartoons, which had sparked world-wide violence by offended Muslims. Steyn’s faux pas was to have Maclean’s magazine, Canada’s flagship weekly, publish excerpts of his excoriating thoughts on the dangers of radical Islam. Both were hauled before human rights commissions by offended Muslim complainants.

During the course of these hearings, some shocking revelations emerged of abuse, even misconduct, by over-zealous officials sitting on the very human rights bodies before whom Levant and Steyn were hauled. Both cases were finally tossed out. As defenders of hate censorship in Canada proudly point out, “in the end, the system worked.”

Or did it? Should we rejoice that two great wrongs were finally righted? Or bemoan that they were pursued, in the first place? That depends on how you measure success, or failure. Long ago, in Dombrowski vs. Pfister, U.S. Supreme Court justice William Brennan popularized the phrase “chilling effects.” He was describing the situation where people with controversial but legitimate things to say, self-censor themselves rather than risk running afoul of laws prohibiting certain speech. Brennan, it turns out, was on to something.

Levant’s and Steyn’s ordeals may, for now at least, have ended. But Canadian democracy’s, and Canadian Jewry’s, troubles are only brewing. Levant’s legal vindication found him having to officially account to assorted human rights bodies for his alleged transgression, his name publicly sullied as a purveyor of hate, his thoughts legally threatened with the prospect of official re-education for insensitivity, and his publication finally bankrupted for crushing defence costs. The battle lasted 900 days. As Justice Brennan would say, the club of silencing had done its speech “chilling” job, without the need for a finding of guilt.

Maclean’s, more mainstream and far better resourced than the niche Western Standard, survived its accusers. But to take comfort in any of this misses the point.　 Jewish sanctuaries from hate are not supposed to be official hotbeds of Muslim intolerance. Pro-Zionist voices are not supposed to be skewered on Jewry’s own hate silencing petard. Confusing a Levant or a Steyn with the likes of Keegstra or Zundel is hardly what Jewish proponents of Canada’s hate speech regime had in mind, when they advocated for its adoption. Beware of ‘in the end, the system worked’ test. Legal vindication is evidence not of the absence of harm from wrongful hate speech complaints, but proof of its existence. As Steyn put it after his ordeal ended, “the process is the punishment.”

So it is. But, ironically, the really big speech casualties in this “big chill” were not Levant, or Steyn. The big and powerful can defend themselves. “In the end,” the famous get their message across. But ordinary folks – well, that’s another matter. If such wrongful accusations can be legally levelled and self-servingly exploited to officially harass, hound, and humiliate even established media and renowned authors, who amongst us mere mortals, but the fearless, or foolish, would dare offend powerful anti-Zionist censorship interests or the ‘progressive’ sensitivity vigilantes defending them? Steyn, and Levant, are only the visible tip of a much larger chilling ice-berg of public self-censorship in Canada lurking unspoken and unheard beneath, for ordinary Canadian’s fear of reliving the un-pleasantries, or worse, visited on them. In the end, their vindications were Pyrrhic victories for public discourse. And what injures freedom of public discourse ultimately injures Jewish freedom from hate.

Self-serving abuse of process, defenders of hate censorship counter, is not the law of hate speech. True. But it is its speech-chilling, politically correct, reality, nonetheless. Nowhere is this point brought home harder than on Canada’s “progressive” campuses of higher learning.

Most everyone has now heard of the “anti-hate” riot in 2002 that welcomed former Israeli Prime Minister Benjamin Netanyahu when he attempted to speak at Concordia University in Montreal. But how many know of the warm “official” reception that greeted Daniel Pipes, former Harvard professor and pro-Zionist advocate, when he came to give a lecture in 2003 at York University? A very civil Toronto police officer, alerted to Pipe’s scheduled appearance by Canada’s anti-hate brigades, took him aside and politely warned him to be careful in what he says, lest he find himself on the wrong side of our criminal law prohibiting hate propaganda. The message to less notables thinking to offend is clear: “if we can legally threaten even your big and powerful with relative impunity like this, just think of what we can do to you!” How’s that for the chilling politically correct tail wagging the dog of legal hate censorship!

Should anyone still feel warmed up to misspeak; well, there’s the recent Anne Coulter incident to cool them down. America’s premier right-wing, and pro-Israel, provocateur, found her voice snuffed out at the University of Ottawa in Canada even before she could set foot on stage. A pro-Palestinian “anti-hate” mob threatened to enlighten her to our ways of civility and tolerance with their bodes, fists, and other assorted sharp objects. Just in case she didn’t get the message, François Houle, University of Ottawa’s “progressive” vice-president of academic affairs, was gracious enough to remind her “to educate yourself, if need be, as to what is acceptable in Canada. For example,” he continued, “promoting hatred against any identifiable group would not only be considered inappropriate, but could in fact lead to criminal charges.” Translation: Lest you don’t fear the mob, you better fear our human rights commissions and criminal courts. Controversy, peaceably expressed, is not officially acceptable, but mob rule is. How’s that for judicious balancing of rights of free speech with respect for tolerance, civil discourse and reasoned debate!

Mob rule, and their violence veto of speech, defenders of hate censorship counter, are not the Canadian law of hate. But high campus administrators, like Houle, wrapping themselves threateningly in our vaunted hate speech laws to officially delegitimize the disfavoured voice, and so embolden hate-filled mob rule, is its speech chilling politically correct reality. Legal hate censorship is officially legitimating scaffolding for the violence veto on which Jewish free speech perilously hangs. It is the mother’s milk of the anti-Zionist crowd, richly suckled by supportive progressive faculty and high officialdom alike to singularly hush the Jewish voice. It is not that the letter of hate laws in Canada count for naught. It is that the legitimating chill such laws seed, and the self-righteous official intolerance for disagreement they feed, counts for more.

That’s the oft-misunderstood difference between Canada and the U.S. Americans have their “progressive” silencing mobs, too. But, unlike good Canadians, no responsible American official would ever think to wrap their intolerance, much less himself, in the authority of the Constitution to justify their, or his, intimidation. And if any did, no one but the committed or the confused would give them, and their twisted tryst with censorship, any credibility. For good reason. The American Supreme Court has rejected hate speech laws. Canada’s has proudly upheld them. And that changes the whole social dynamic, the very political culture, of how deep-seated disagreement is ordinarily settled. Americans like to officially wrap their disagreements, and themselves, in the first Amendment. Canadians prefer the legitimating garb of hate censorship. Here we are moralistically taught – from grade school to high school and beyond – to censor not answer hate is a human right, and one of our highest civic duties. There, everyone is taught the opposite. For an American, to answer hate is most fine. But in Canada, to censor it is downright divine.

And that is a chilling distinction with a world of difference. For if even a flagship magazine or New York Times best-selling author can be legally threatened with silence, a controversial scholar police warned, a Prime Minister of a democracy mob locked out, or a famed political pundit officially sent packing, there are countless less daring, celebrated, or resourced voices for whom the right to freely, fully, and fearlessly speak up to vilification and stand down intimidation is, effectively, declared illegitimate. The silence of their disenfranchisement cannot win over indifferent or sceptical public minds to their cause. Nor, can it deter bullies from publicly imposing theirs. Self-censorship like this is bad for tolerance and democracy. But legally sanctioned self-censorship is far worse. The injuries to truth a self-governing people know, for freedom of speech, it can rally to correct. The injuries it knows not, for legally sanctioned self-censorship, it cannot even begin to prepare for. And Canada is not prepared.

Far from promoting a truer civility, much less a more self-critical, tolerant, and enlightened citizenry, Canada’s vaunted hate speech regime of official quiet has nurtured an illusion. We have mistaken politically correct tolerance grandstanding for public enlightenment, enforced quiet for true harmony, compliance for comprehension, and fear for civility. We are no better dealing with ignorance, intolerance, and bigotry, for hate censorship – only better at masking, morphing, and secretly growing them. We have driven some of our worst hate mongers deeper under-ground to better do their dirty deeds. We have refined others into more sophisticated, and insidious, chameleons of hate, better able to escape the censor’s knife. We have armed the next generation of anti-Zionist bullies with the legal sword of official quiet to better proclaim their exclusive victimhood and intimidate the Jewish voice. And we have banished unpopular truth behind a bamboo curtain of self-silencing fear, self-serving force, and official disfavour.

Public “calm” like that may be soothing to some. But it is nothing more than self, and public, deception. The famed Canadian tolerance it has bred is contrived, not genuine. It endures, as we are painfully witnessing, only until the next deep-seated disagreement, rips it apart. Its synthetic community, and facade of civility, lasts only as long as the chilling glue of fear, force, or official favour holding its petrified parts together, begins to come apart. “In the end,” Canada’s crusade to drive hate out of public sight has not turned out to be anti-Semitism out of receptive minds or Canadian Jewry out of danger, but in greater danger, still.

Truth be told, there is no sanctuary from hate, only freedom to answer it. Sunlight, not darkness, is the better disinfectant of demonization; free-thinking, not fear-thinking, the more potent response to demagoguery; voice, not sanctuaries, the better refuge from hypocrisy.

It is said that all great historical tragedies began with words. So too, did great historical progress – none greater than the idea of freedom to speak itself. It is said that words can wound, visibly. So too can self-censorship, invisibly. It is said that the Holocaust started with words. It also began with book burning. Words can be answered with more words. Book burning can only be answered with more books burning. Infernos are not a good place for Jews to be. Where the idea of democracy is of force, there is no place for the force of democratic ideas. Despots and demagogues need burn disagreement to make their point. The “people of the book” need words to make theirs. It is not the bullies, the belligerent, and the uncivil, who depend on free, full, and fearless, speech to answer vilification. It is Jews that do. Cutting off one’s nose to spite one’s face is not a smart way to do it.

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*Dr. Braun LLM, PH.D is a Canadian lawyer. He is the author, among other acclaimed works, of “Second Class Citizens: Jews, Freedom of Speech, and Intolerance on Canadian University Campuses" (2006) 12(2) Washington & Lee Journal of Civil Rights and Social Justice, 1. He is also a Harold Adams Innis Prize Finalist (2006), awarded to the best　peer-reviewed English language book in the Social Sciences in　Canada, for: Democracy off Balance: Freedom of Expression and 　Hate 　Propaganda Law in Canada, Toronto, (University of Toronto Press) 2004.

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