The debate over the Danish cartoon depictions of Mohommed has been fuelled in the last weeks by their re-publication in a number of cities across Canada. Now we face the threat of at least one of our fellow citizens to set in motion a criminal hate crime prosecution.

We’ve been down this road before, but have we ever gone so quietly? Democratic citizens must support, if not the publication of the material per se, a clear right to publish it, free of both threats of violent retaliation and of government prosecution. The demonstrators and objectors – whose voices worldwide have been at any rate deafeningly louder than that of the diminutive Danish paper that originally issued the cartoons over four months ago – must be told firmly and unequivocally that they have their forum to be heard as well. You need not tolerate
what you experience as intolerance, you certainly need not embrace it, but your opposition to it must never extend to attempts to block its simple expression – in Canada at least.

It is tempting for those of liberal temperament to simply look over the cartoons in question, declare them relatively innocuous, and think little more about the whole affair. We might, like the American President and the new government in Ottawa, issue some mealy-mouthed meaningless stuff about the right to free speech coming with responsibility not to exercise it insensitively.

“Stand up, Canada”, indeed. As if our constitutional protections of expression were designed for the benefit of safe, inoffensive speech.

This episode, like virtually every other where the spectre of hate-crimes prosecution has been invoked in an attempt to quell or punish offensive speech (recall the incident where UBC professor Sunera Thobani was the subject of an RCMP investigation for suggesting US foreign policy was ‘soaked in blood’), is a reminder to us of just how bad our speech crime laws really are.

Perhaps instead of the ‘hate speech’ provisions of section 319 of the Criminal Code, we should turn to section 296, which, believe it or not, says: “Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.” My copy of the Code features an annotation saying only that “this rather archaic section, if used, would, in all likelihood, be challenged under the Charter.” No kidding.

We don’t prosecute people for “blasphemous libel” anymore. That would be too unpalatable, too unCanadian. We are a diverse people, with many competing world views that must be accommodated. The central tenets of almost every religion are at some level blasphemous to almost every other.

We can argue over whether a particular publication is innocuous, deeply offensive, or somewhere in between. We can discuss whether its publisher is motivated by hatred, or instead by a desire to foster more and more informed discussion in the polity. These will inform our judgement as to whether someone ‘should’ publish something; whether it is true, helpful, and a positive contribution to the democratic conversation. Whether we should agree with, or criticize, the message, the messenger, or both.

But the answers we come up with will be inherently subjective; they will be informed by our politics, our religion, our personal worldview. And this is why the law – the heavy apparatus of the state – should not weigh in the balance. Prosecutions for ‘hate speech’, whether under the Criminal Code or under provincial Human Rights legislation are clumsy cudgels. Though designed to be wielded in defence by victims of hate and persecution, they are just as likely to be picked up by haters and persecutors, and used to beat the rest of us speechless.

In Canada today, it would appear that the best-intentioned of the re-publishers of the Danish cartoons are motivated, not by a desire to stir up trouble (though they must appreciate that this is possible), but rather to place themselves in the line of fire, associating themselves with speech with which they might not ordinarily agree in order to spread the risk of violent censorship more widely and, in so doing, perhaps dilute it. If this is indeed the motivation, it is understandable and courageous. It may or may not be wise, but wisdom too cannot become the litmus test of which expression will be permitted by the state.

Any law that depends for its efficacy on the arbitrariness of its enforcement is an unjust law, and Canada’s hate speech provisions are such laws. Their use, in the present case as usually, would be to replace the censorship of the chanting, torch-lit mob with the veneer of considered thought and reflective justice.

The effect – cowed silence – is the same.

Craig Jones and John Dixon are Past Presidents of the B.C. Civil Liberties Association