The Liberals are trying to kill free speech, not chill it

Before getting into today’s column, I have some professional news to share. My second book is finally finished (after a gruelling month of edits and revisions) and is off to the presses. Pierre Poilievre: A Political Life is slated for release on May 28. It’s the first, and so far as I’m aware, only biography of Conservative Leader Pierre Poilievre. It’s the product of dozens of interviews with current and former friends, staff, and colleagues of Poilievre, and offers up what I believe to be the most complete portrait possible of a man who stands a very good shot at becoming Canada’s next prime minister.

I’ll have more information to share about it as the release gets closer, but it is available for pre-order through my publisher, Sutherland House, as well as through Amazon and Indigo.

There is a lot of hyperbole in politics, but it’s no exaggeration to say that the Liberal government’s “online harms bill” is an assault on free speech.

The Online Harms Act, as it’s called, tries to do a lot. It covers areas that few would take issue with, such as child sexual exploitation and inducements to suicide, while also taking a sledgehammer to online discourse by prohibiting online “hate speech.”

This is no doubt deliberate: the Liberals will use the bill’s breadth to accuse anyone who speaks out about the latter parts of wanting to endanger children, when they would have little issue passing the bill swiftly if they separated it out into different pieces of legislation.

Bill C-63 reintroduces section 13 of the Canadian Human Rights Act, a piece of the federal human rights code that was repealed by the former Conservative government after the Canadian Human Rights Commission’s predilection for censorship was exposed by writers Mark Steyn, Ezra Levant, and the late Kathy Shaidle, all of whom had their words subject to inquiry or prosecution by Canada’s human rights tribunals.

Section 13 is coming back with a vengeance now, reintroduced by the Liberals with new powers and a new definition that makes the old section 13 look quaint by comparison.

If passed, it will be illegal to communicate sentiments online that are “likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.”

The small morsel thrown to people concerned about free speech is that the prohibition doesn’t apply if the speech merely “expresses disdain or dislike or it discredits, humiliates, hurts or offends.”

The line between “disdain” and “detestation” will be determined by government-appointed speech czars sitting on the Canadian Human Rights Tribunal, which should provide no assurances that decisions will respect the fundamental right to freedom of expression.

It’s anyone’s guess how this line will be drawn. The Ontario Human Rights Commission, for instance, maintains that “misgendering” someone is a violation of the provincial human rights code, which lists gender identity as a protected ground against discrimination, just as the federal human rights code does as of a few years ago when Bill C-16 passed.

Zionist sentiments have been argued by several supporters of Palestine to be tantamount to calls for “genocide.” Will a human rights tribunal accept these arguments?

These questions will not be decided by judges, but in many cases activists who have skin in the game when it comes to curbing free expression.

As a case in point, one member of the Canadian Human Rights Tribunal, Naseem Mithoowani, before she was appointed, lodged one of the most high-profile human rights complaints in Canada. She was part of the group of Muslim law students who attempted to bring Steyn before the Canadian Human Rights Tribunal over an excerpt of his bestseller America Alone being published in the magazine Maclean’s.

When the Canadian Human Rights Commission wouldn’t take up the case, Mithoowani and her friends shopped it around before ultimately landing it before British Columbia’s human rights tribunal, which tried the case and ultimately found in favour of Steyn and Maclean’s.

I’m not convinced that decision would go the same way today.

Discourse has changed considerably in the decade-and-a-half since the Maclean’s complaint. Publishers are no longer limited to a handful of wealthy media companies, as people regularly share their own content on social media and self-hosted websites. Most of these people, subjected to an overzealous human rights prosecution, lack the means to fight back as Steyn et al did.

Defendants will either fold when the human rights commission comes knocking, or worse, will self-censor to avoid arousing attention in the first place. I’ve long maintained that state censorship is the most evil form of censorship, but self-censorship is the most effective, as it prevents an idea from ever entering the world in the first place.

In legal parlance, this is referred to as a “chill” on free speech, but that doesn’t go far enough. The Liberal government is trying to kill speech, not chill it.

One of the modern updates to section 13 that the Liberals have proposed is the requirement that social media companies nuke offending content.

A major issue with this is that companies may opt to comply by imposing broad restrictions on what you can say to pre-empt human rights complaints. This eliminates your ability to defend the legality of your expression before a tribunal, let alone a real court.

While companies have the right to set their own terms and conditions, there is a difference between doing this because they want to rather than because they’ve been forced into it by legislation.

Despite some objections to the bill by non-conservative voices including Margaret Atwood and Andrew Coyne, the base of support for free expression that existed ten to twenty years ago by the principled left is no longer there. “Free speech” ceases to be the trump card it once was in a culture that increasingly sees it as a tool of oppression rather than a fundamental liberty.

Fighting Bill C-63 will be an uphill battle, but a necessary one. Without free speech, you lose the ability to discuss anything of substance or advocate for anything of meaning.

Justin Trudeau is holding the pen and wants to draw the line between acceptable and unacceptable speech. This must remain the domain of society, not the state.

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