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Josh Dehaas: Human rights codes an unacceptable threat to free speech

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Many Canadians are shocked that the B.C. Human Rights Tribunal has ordered former school trustee Barry Neufeld to pay $750,000 to local teachers who identify as LGBTQ because he published Facebook posts, gave an interview, and made other statements that the tribunal found contained hateful and discriminatory language.

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The posts that may now bankrupt Neufeld included: “The elites will destroy all gay kids. They are culling them from the gene pool. Make no mistake about it. The trans agenda is eugenics. They are not on the side of LGBT+. Don’t ever think they are. Snakes are everywhere. More division and the destruction of humanity.”

Josh Dehaas: Human rights codes an unacceptable threat to free speech Back to video

As an LGBT person, needless to say I find Neufeld’s language distasteful. As a free speech lawyer, I know that fining a person for unpopular views is infinitely more dangerous than letting cranks spout off.

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Neufeld may appeal, but that won’t fix the problem. British Columbia and most other provinces would still have insidious provisions in their human rights codes that allow panels of bureaucrats to fine people for publishing unpopular or distasteful speech. Canadians concerned about this censorship should insist that their provinces amend their human rights codes to remove these provisions. Doing so would not unleash a wave of hate or discrimination. Ontario has no such a provision. The federal government dropped its in 2013, though the Liberals attempted to bring it back under Trudeau.

Neufeld was found to have breached section 7(1)(a) of B.C.’s Human Rights Code, which forbids “publishing” any statement that “indicates discrimination or an intention to discriminate against a person or a group or class of persons,” and 7(1)(b), which prohibits “publishing” anything “likely to expose a person or a group or class of persons to hatred or contempt” because of characteristics like gender identity. These are content-based restrictions. That is, these restrictions target unpopular ideas and messages rather than the form of or the imminent physical consequences of expression, such as calls to violence.

Content-based restrictions undermine the free speech principle. That principle, as the Supreme Court summed up in 1989’s Irwin Toy decision, is that everyone ought to be able to “manifest their thoughts, opinions, beliefs… however unpopular, distasteful or contrary to the mainstream,” because counter-majoritarian speech sometimes turns out to be right, and allowing people to express unpopular views helps us get to the truth and govern ourselves. A great example of the principle in action: same-sex marriage was until recently an unpopular idea, but is is now accepted because we were free to discuss it.

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Unfortunately, the Supreme Court explicitly upheld restrictions like Section 7 in 1990 in a dreadful 4-3 decision called Taylor, and again with some caveats in the 2013 decision Whatcott. That means the only real fix is through legislation. Stephen Harper’s government made these amendments at the federal level in 2013, after the Canadian Islamic Congress tried to bring Maclean’s magazine before the Canadian Human Rights Tribunal for publishing a 2006 cover story by Mark Steyn entitled The Future Belongs to Islam. Steyn theorized that liberal democracies with low birthrates and weak national identities would be overwhelmed by a fast-growing Muslim demographic. Despite many taking offence, a broad cross-section of Canadians recognized the free speech chill created by the possibility the state might censor a mainstream magazine. The Neufeld decision should spark the same revolt now against the provincial publishing provisions.

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Ontario’s Human Rights Code, while not without problems, shows what more speech-protective anti-discrimination provisions can look like. Ontario’s code does not outlaw publication generally. Instead, section 13 bars putting up signs and notices that indicate an intention to discriminate by denying things like services, accommodations or employment. In other words, you can’t put up a sign in an Ontario restaurant saying “no Jews allowed,” but you can still freely express yourself in media and on social media so long as you don’t cross into criminal hate speech. Rather than targeting the content of an idea, Ontario’s code prevents discriminatory actions, so it doesn’t violate free speech.

Some argue that banning publication of discriminatory or hateful speech as B.C. is necessary to prevent harmful words that might eventually translate into actions. That was the argument in Taylor. But that isn’t borne out in reality when it comes to these provincial provisions. If B.C.’s publication ban prevented hateful words from turning into hateful actions, one would expect a lower rate of hate crimes in B.C. than Ontario. Hate crimes in the two provinces are equally rare.

Bottom line, the Neufeld decision is deeply chilling for freedom of speech without discernible benefit. Canadians should insist that this troubling ruling marks the end of these provincial censorship provisions.

Josh Dehaas is Counsel with the Canadian Constitution Foundation, a charity dedicated to defending Canadians’ rights and freedoms, and co-author of the book Free Speech in Canada.

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