Educate yourself about Canada's hate laws, the Provost of the University of Ottawa told conservative pundit Ann Coulter in advance of her visit. Campus authorities apparently fear Coulter's reputation for provocative views. They would remind her that unlike in the United States, hate speech is outlawed here and our defamation laws are strictly enforced.
Well, there's nothing wrong with education, but as long as we're encouraging it for our guests we might also think about educating ourselves.
As all of our university officials know, the willful promotion of hatred against an identifiable group is a crime. The problem is that the offence – or, rather, the specter of the offence – is used more as a threat to silence speakers than as a basis for actual prosecutions. The threat is easy to invoke and is often effective in chilling the very debate that campus life is supposed to foster. Our universities encourage diversity in their student and faculty bodies, but as the Coulter case demonstrates, they often bridle at too much diversity of opinion.
Hate speech prosecutions, on the other hand, are with good reason difficult for the Crown to mount. They have also been remarkably ineffective in their results. Indeed, high profile acquittals such as the recent exoneration of the late David Ahenekew by the Saskatchewan courts have done more to bring vile speech into mainstream discourse than anything the speakers themselves could have managed.
The Supreme Court of Canada set out the requirements for a successful hate prosecution in the 1989 case of Alberta's James Keegstra. Although this is often cited as a prime example of how Canada differs from America where free speech reigns supreme, our own Supreme Court was in fact concerned to put the test for hate speech as high as possible. As the court saw it, it is not lightly that a liberal society – including the slightly less freewheeling Canadian version – seeks to penalize people for what they have said, not what they have done.
To qualify as criminal speech the hatemongering must go beyond political polemics of even the nastiest kind. As the court put it, the Criminal Code is aimed only at prohibiting words that convey "emotions that belie rationality". It is not enough to spread gross misinformation, or to advocate a nation's political disappearance or a religious group's conversion, or to ask rhetorically Did Six Million Really Die?, as Ernst Zundel did in the notorious pamphlet for which he was acquitted.
What the Charter of Rights requires is that for words to be considered criminal, they must be entirely devoid of rational content. The speaker must appeal to the listener's or the reader's passions rather than to his or her (perhaps sinister) mind. It is, to put it mildly, a tough case for prosecutors to make.
Nowhere has the question of hate speech come closer to the surface than in the Middle East debates with which many of our campuses are afflicted, and where the specter of a hate law complaint is often beckoned at an administrator's whim. Daniel Pipes, creator of the Campus Watch website that tracks and 'outs' the writings of pro-Islamicist academics across America, was famously given a Coulter-style warning by York University when he visited several years ago.
By contrast, Aijaz Ahmad, author of The Nazification of Israel, spent several semesters deriding the Jewish state at York's Department of Sociology, without ever being called to task. Although the two are not really comparable – Pipes' website holds itself out as a factual database, not a theory, while Ahmad's tract puts his own radical gloss on the information he presents – each may be distasteful to one side or other of the Middle East divide. None of it, however, is criminal.
When it comes to the law of defamation, it is true that Canada is a jurisdiction of choice for plaintiffs. Unlike in the U.S. and the U.K., public officials at the highest level can sue their critics to protect their reputation if it is unfairly besmirched. We have less tolerance for character assassination in the name of free speech than some of the jurisdictions that we consider comparable to ourselves.
Nevertheless, we have one thing in common with the other English common law countries. There is no such thing as group libel recognized by the law. Canadian war veterans, of all people, learned that lesson the hard way when they went to court a decade ago to stop the CBC from airing a documentary – many might say an extremely unfair documentary – that made them look like a collection of bloodthirsty fiends. Tarnishing the reputation of an individual is actionable in our courts; tarnishing the image of a group is fair game.
It's time our campus administrators learned a few lessons of their own: hate speech laws have been limited to a lunatic fringe that rarely goes to a university, and defamation laws do not protect groups of any kind from insult. We should, and do, have a legally protected free market in ideas, including offensive ones. We're all the better educated for it.
Ed Morgan is a professor of law at the University of Toronto.