There has been a flutter of concern recently about a motion introduced in the House of Commons by Liberal MP Iqra Khalid. Among other things, motion M-103 calls on the government to “recognize the need to quell the increasing public climate of hate and fear [and] condemn Islamophobia and all forms of systemic racism and religious discrimination.”
Online critics are treating it as a nod to sharia-law apologists, the first-step on a slippery slope to banning speech critical of Islam. Much of this rhetoric is wildly out of proportion to the actual text of the motion, which doesn’t mention speech, let alone recommend criminalizing it. Further, unlike an act of Parliament, a motion is of no legal force or effect. The House can recognize and condemn Islamophobia in the harshest possible terms and it won’t change Canadian speech laws one bit.
But while they are focused on the symbolism of M-103, defenders of free speech should not lose sight of other threats, including an ominously titled international treaty that, to my personal knowledge, the departments of Justice and Global Affairs Canada have pushed Canadian governments to ratify at least twice in the last four years.
Whatever else may be said about the Council of Europe’s “Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems,” it can’t be accused of false advertising. The name pretty much gives the game away. No doubt with the best intentions (but see: Hell, the road to), the protocol commits ratifying nations to banning the “publication or display of any representation that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.” It further directs that
[e]ach Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct: insulting publicly, through a computer system, (i) persons for the reason that they belong to a group distinguished by race, colour, descent or national or ethnic origin, as well as religion.
Insulting persons based on race or religion? Don Rickles and Russell Peters might as well retire right now. And if you think that is hyperbole, recall that German comic Jan Boehmermann was charged last year with the anachronistic offence of insulting a foreign leader and banned from repeating a satiric poem about Turkish President Recep Erdogan’s comically alleged fondness for young boys.
Canada actually signed the protocol back in 2005, during the last days of the Paul Martin’s Liberal government, but neither that government nor the Conservative governments that followed got around to ratifying it. In 2013, the Supreme Court decided the case of Saskatchewan v. Whatcott, which brought some clarity to the Charter’s guarantee of freedom of expression, distinguishing between speech that may be proscribed as “hateful” because it “expos[es] vulnerable groups to detestation and vilification” and protected speech that merely “discredits”, “humiliates”, or “offends” its victims. After Whatcott, there is no question that ratifying the protocol would commit Canada to violating the Charter.
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This constitutional impediment didn’t deter official Ottawa. After being rebuffed back in 2013, the Department of Foreign Affairs (as it then was called) pushed to ratify the protocol again during the 2015 election, when I was the acting chief of staff in the Prime Minister’s Office. They would have succeeded, if not for an alert political staffer who questioned why officials were rushing to ratifying a treaty 10 years after it had been signed, in the middle of an election.
My direction that the instrument should not only not be signed and delivered to the Council of Europe but should be torn into confetti and never mentioned again apparently sent ripples through the departmental directorate. But Strasbourg had already been alerted, I was told, and was expecting our ratification! Well, Strasbourg could stuff its protocol and its creeping totalitarianism too. After several exchanges, the department relented. Probably, they calculated that there was a good chance that there would be a new government in a few months – one that was more eager to embrace internationalism for the sake of internationalism, even at the expense of imposing alien legal standards on Canadian law.
Since the 2015 election, I have checked the Council of Europe’s web site occasionally to see if Canada has quietly been added to the list of ratifying countries. So far, so good. But after Global Affairs Canada pushed for Canada to become a full party for a decade, I can’t imagine that it has given up, and I fear that Prime Minister Justin Trudeau and Foreign Minister Chrystia Freeland will not be able to resist the protocol’s censoriously progressive appeal. Ratifying an international treaty targeting both “racism” and “xenophobia” would be a painless way to distance themselves from the Trump administration and reinforce Canada’s exceptionalism.
Painless, except of course for the betrayal of freedom of speech, which is our constitutional right and our hard-won patrimony. Commentators concerned about the toothless M-103 should keep at least one eye on the status of the more ominous “Additional Protocol.”
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