The Supreme Court Protects the Hateful “Hate Speech” Law

A rump of the Supreme Court of Canada (several justices did not participate in the ruling) voted unanimously to uphold parts of Saskatchewan’s hate speech law, parts that square with similar legislation in other provinces and at the federal level. I will look forward to legal experts’ opinions about the ruling, but here’s my initial reaction:

I wish this country’s leaders would act like adults, rather than adolescents.

Slander is a bad thing: it’s illegal. So is libel, and it’s illegal. So are other varieties of dangerous speech, such as inciting to riot, treason, and other manifestly intolerable speech-acts.

“Hate speech,” however, is something else. Here’s the key paragraph in the Supreme Court decision:

The definition of “hatred” set out in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in legislative provisions prohibiting hate speech.  Three main prescriptions must be followed.  First, courts must apply the hate speech prohibitions objectively.  The question courts must ask is whether a reasonable person, aware of the context and circumstances, would view the expression as exposing the protected group to hatred.  Second, the legislative term “hatred” or “hatred and contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”.  This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.  Third, tribunals must focus their analysis on the effect of the expression at issue, namely whether it is likely to expose the targeted person or group to hatred by others.  The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant.  The key is to determine the likely effect of the expression on its audience, keeping in mind the legislative objectives to reduce or eliminate discrimination.  In light of these three directives, the term “hatred” contained in a legislative hate speech prohibition should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.

Christians, of all people, should be against speech that promotes hatred. Our Lord tells us to love our neighbours as we love ourselves. Our Bible tells us that every word we utter should be wholesome and helpful (Ephesians 4:29). We’re officially (if not always consistently) in favour of speech that promotes love, not hate.

Among the speech that Christians count as loving, however, is speech that describes evil as such. Loving speech includes accurate names for things, includes denouncing what is wrong, and includes exhorting people to be and do what is right. Such loving speech might come from an addictions counselor, a physician, a psychologist, a psychiatrist, a pastor, or a parent.

Such speech is not always welcomed by its recipients. Sometimes it is, instead, resented. But sometimes it is still the right speech for the occasion. Telling the truth in love is sometimes exactly what is needed, and to withhold it would be wrong.

The Supreme Court’s ruling, it seems to me, leaves dangerously wide open the prospects of free and even helpful speech being curtailed and, indeed, punished.

The issue at hand, of course, was a Christian preacher publicly naming homosexuality as evil and condemning certain behaviours by some kinds of homosexuals.

Well, then, to put the shoe on the other foot, Thomas Mulcair says that evangelicals, because most of us believe that homosexuality is not within the range of acceptable sexual outlooks and behaviours, are positively “un-Canadian.” I look forward to a successful prosecution of him before the provincial Human Rights Commission of his choosing.

More broadly, Richard Dawkins says that Christian belief is a cultural virus, horribly deforming and ultimately destroying everything it can. I look forward to Dawkins’s books being banned in Canada and to him being arrested the next time he sets foot in this country.

But let’s forget, for the moment, the categories most prominent in the actual case before the Court, namely, “Christians,” “homosexuals,” and so on. I think pimps are loathsome. So are child-molesting clergy. So are torturers of pets. Am I to be liable to hate-speech prosecution because I think and say that such people are terribly, terribly wicked? It would seem so. And that seems just ridiculous. And obviously dangerous.

What’s most troubling about this judgment is its implications for everybody. The law prohibits any speech that manifests “abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.” Note that no one has to demonstrate that the speech produces any “discrimination.” It just has to “risk causing discrimination” OR “other harmful effects.” Such as what effects? A surge of anger at being labelled something bad? A moment’s discomfort? A twinge of sadness?

I think this decision was foolish. Therefore, I think that the members of the Supreme Court of Canada who rendered this judgment were, at least in this instance, foolish. I submit that you should think so too. And now, off I go to defend myself in court because I have challenged their competency, which surely has to wound their feelings at least somewhat—and, worse, I have encouraged you to doubt their wisdom also. To cause my fellow Canadian citizens to question the intelligence and prudence of the highest court in the land surely must count as a “harmful effect,” however slight.

And that’s the point: “however slight.”

Inciting to riot is a big deal. Ruining someone’s reputation is to cause obvious and significant damage. Treason really matters. We have laws against these and other forms of demonstrably intolerably harmful speech, speech that produces effects that render the normal functioning of our society impossible.

But so-called hate speech does not make the normal functioning of our society impossible. I don’t like it, sure, when a prominent author says that people like me (Christians) are manifestly more stupid and wicked than people like him. I don’t like it, of course, when the leader of a national political party asserts that I am not fit to hold the passport I do. So when these things happen, I have a good cry, and then I pull myself together and get back to work. That’s what adults do.

If, to be sure, someone tries to sabotage my livelihood on ideological grounds, as has happened to me once, at least, then I’ll jolly well hold them accountable. And I’m glad that, in my case, the system worked to prevent that person’s damaging speech doing me lasting harm. But a democratic society requires the maximum latitude for people to speak freely: to disagree with their politicians and their bosses, to render negative judgments on their students or employees, to criticize plays and books and movies, and to denounce evils, as they see them—and those that do them.

I think Islamists are not just “different” or “less good”: I think that they and their ideology are simply inimical in Canada. I think the same about their Christian counterparts, and about anyone else who wants to replace our pluralistic democracy with a totalitarian regime. I think you should think so, too. So what? If they happened across this weblog post, they might feel a bit badly about my not immediately affirming them. But for them to have any greater reaction than that, let alone to demand that the law of the land require that I not say such things, is to act like a petulant teenager, not like a responsible adult.

Speech that demonstrably results in important damage is one thing. Speech that might result in anything that “a reasonable person” might find “harmful” in some unspecified way and degree does not warrant outlawing.

I fully recognize that the rejoinder will come, “Oh, stop being so alarmist. You’re worrying about nothing. Only really, really bad speech will be prosecuted in this way.”

Well, I warn you now that I will find any such a response to my argument to be harmful and may well have to report it to the Human Rights Commission. Make your comments, then, with great care.






14 Responses to “The Supreme Court Protects the Hateful “Hate Speech” Law”

  1. Joyce

    I am not suggesting the the ruling is good or bad, since I haven’t had enough time to study it.

    Not sure if I heard correctly on the news this morning or not, but one reporter pointed out that the preacher in question was saying that homosexuality leads to pedophilia. This seemed to be the part, according to the news, that was hateful. And if this is the case, I agree. The thing is that heterosexuals too can be pedophiles. Seth MacFarlane made light of it at the recent Academy Awards by suggesting a date between George Clooney and a 9 year old girl.

  2. Andre Schutten

    I thoroughly enjoyed this piece Dr. Stackhouse. A good analysis of what’s at stake for Christians and all citizens in Canada. When speaking on this subject to Christian audiences, I have hammered home the point that Christians should be at the fore-front of “censorship” – that being Godly censorship of their own lips! (Psalm 141, 3rd commandment, 9th commandment, etc.) But Christians should also be at the forefront of defending freedom of expression for the reasons you articulate. And thanks for explaining the difference between truly harmful and measurable types of expression (treason, slander, etc.) and hate speech. An important distinction that is often missed.

    • RC

      Yes, thank you Professor Stackhouse and thank you Andre. You added exactly what I was thinking so this is just an affirmation 🙂

  3. Tony Plomp

    I could not agree more with Dr. Stackhouse. It is long overdue for Christians to respond to what is happening to them within the culture. Of course, it was to be expected since our culture is a “cut flower” one – cut off from the nourishment of its roots.

  4. Paul Donison

    Thanks for this, John. Foolish is a perfect word for this ruling. The SCC is five blocks from my church. I’ve got to wonder whether our proximity to this bastion of truly Cdn values (and their interpretation) will one day be regarded as “harmful.” And I’m preaching on divorce next Sunday…clearly I’m in trouble.

  5. Ward

    I live in Manitoba, but hate winter and am not afraid to say it. A truly conflicted un-Canadian.

  6. Paul Westerholm

    Now, would a public reading of Leviticus 18 or Romans 1 not fall under these parameters?

  7. Andre Schutten

    The SCC said that bible texts aren’t hate but then added a caveat: “The biblical passage, in and of itself, cannot be taken as inspiring detestation and vilification of homosexuals. While use of the Bible as a credible authority for a hateful proposition has been considered a hallmark of hatred, it would only be unusual circumstances and context that could transform a simple reading or publication of a religion’s holy text into what could objectively be viewed as hate speech.” Para. 199
    All of that to say, it’s anyone’s guess.

    • Roger

      Help me see how that quote supports your contention that the use of a bblical text as a basis for prosecution as hate literature is “anyones guess”
      It seems to me that the quote is an explanation and not a caveat at all and that the explanation calls for “unusual circumstances and context” to make it so.
      What did I miss?

      • Andre Schutten

        Hi Roger, that’s a fair question. Elsewhere in the judgment the Court outlined that the context is a big factor in determining whether speech is hateful and part of that determination requires an examination of the vulnerable group’s historic disadvantage, among other things. So, depending on who dominates our cultural understanding of who is the vulnerable group and who is the group that has suffered historic disadvantage, this could be interpreted in different ways (again, a subjective, and not objective starting point!). And because the Bible is recognized as an authoritative text, if it’s used to promote a certain view, it might be considered hate speech. But what exactly would be “unusual circumstances and context”? For example (and this is hypothetical), if I published a rant, quoting scripture, that stated that all abortionists were cold-blooded murderers and that we should bring back the death penalty to punish them and used scripture to back up my argument, could I be found guilty of hate, of manifesting the emotions of detestation and vilification against a group of vulnerable people, even if I put in a full explanation of the saving grace of the gospel for those abortionists who do repent? I don’t know anymore.
        Does that help, or did I muddle my position even more? 🙂

        • Roger

          That is a thoughtful and helpful response. I have tried to follow the debate on this ruling as best as I can but have not yet read the ruling itself. Your response was a good prompt to do so.

  8. Michael Horner

    Well written John! Thanks for having the courage to write and post it.

  9. eirene wee

    Dear John
    There are more times than one wishes when discernment and courageous action appears nothing more than futile. The wind of popular opinion in this case certainly qualifies as one of these. Thank you for responding with the kind of gracious yet unswayed clarity of mind befitting of the God who is engaged so fully with us and holy all the same.

  10. rob haskell

    I’m American and our issues are slightly different, but I’ve changed strategy of late. Rather than fighting this battle, I approach these issues from the perspective of religious freedom: The right to follow and voice one’s religious convictions in the matter of sexual ethics is a protected religious freedom. Some recent legislation is acknowledging such rights, such as a law passed in WA state allowing for gay marriage, but also allowing clergy the right to refuse conducting the ceremony on the basis of their personal convictions.


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