The BC Civil Liberties Association is concerned about the situation of Arthur Topham, a BC resident who is being prosecuted under section 319(2) of the Criminal Code, which criminalizes speech that promotes hatred against any identifiable group.
Mr. Topham is being prosecuted for a variety of material that he published on his website, including:
- re-publishing “The Protocols of the Elders of Zion”
- re-publishing “The Biological Jew”
- re-publishing “The Jewish Religion: Its Influence Today”
- publishing a blog post entitled “Karen Selick: Just Another Hate-mongering Germanophobe Jew”
While the BCCLA does not agree with, and repudiates, the content of the views at issue expressed on Mr. Topham’s website, expressing, or re-publishing, these views should not make him a criminal. We have consistently argued that such criminalization offends against the fundamental freedoms of Canadians.
The BCCLA has a long-standing interest in issues of both freedom of expression and anti-discrimination. Long before British Columbia established human rights legislation, the BCCLA was advocating for laws to prohibit discrimination.
While we vigorously support the strengthening of laws prohibiting discriminatory conduct, we believe that laws against discriminatory speech, when the speech does not cause direct and immediate harm to others (for example, speech intended to elicit an immediate and violent reaction, or “fighting words”), impose a troubling limit on free expression rights. We support the creation of a vibrant democratic forum in which we can debate the merits of ideas, even ideas that we ourselves may find deeply offensive. We believe Canadians must decide whether a particular speech act is innocuous or repugnant, meritorious or dangerous. Human rights commissions (where they exist) and governments can and should play a vital role in educating the public about discrimination, promoting non-discrimination and the furthering of human rights; it is not, however, the appropriate role of the state to criminalize or regulate speech. Free speech is, in fact, instrumental to the ability of Canadians to fight for equality and combat discrimination.
Speech acts such as those engaged in by Mr. Topham may be upsetting or even repellant. But our constitutional protections of free expression were not designed for the benefit of safe, inoffensive, socially acceptable speech. These ideas are part of the democratic forum whether we like it or not. Public expression of hate tests our commitment to those values we cherish: equality, tolerance and diversity. Discriminatory and hate speech directly challenge all citizens—not just those who are targets of hateful expression—to reaffirm those values that form the foundation of our society as loudly as we can. The BCCLA opposes discrimination in all its forms, but we do not support the criminalization of discriminatory speech.
A democracy is based on the premise that individual citizens have the capacity to govern themselves, to understand and evaluate different perspectives with which they are confronted, to deliberate about their merits, adopt good ones and discard bad ones. We believe that in the case of speech, the government should leave us to it.