The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A very troubling story from CBC News (Neil Macdonald):
The Harper government is signalling its intention to use hate crime laws against Canadian advocacy groups that encourage boycotts of Israel.
Such a move could target a range of civil society organizations, from the United Church of Canada and the Canadian Quakers to campus protest groups and labour unions….
The government's intention was made clear in a response to inquiries from CBC News about statements by federal ministers of a "zero tolerance" approach to groups participating in a loose coalition called Boycott, Divest and Sanction (BDS), which was begun in 2006 at the request of Palestinian non-governmental organizations.
Asked to explain what zero tolerance means, and what is being done to enforce it, a spokesperson for Public Safety Minister Steven Blaney replied, four days later, with a detailed list of Canada's updated hate laws, noting that Canada has one of the most comprehensive sets of such laws "anywhere in the world."
The earlier "zero tolerance" statement seems to be this one:
Canada has taken a zero-tolerance approach to anti-Semitism and all forms of discrimination including rhetoric towards Israel, and attempts to delegitimize Israel such as the Boycott, Divestment and Sanctions movement.
Back to the CBC story:
[I]n response to specific questions about what "zero tolerance" of BDS means, and how it will be enforced, Blaney aide Josee Sirois gave CBC News a much clearer picture of the government's intent.
"I can tell you that Canada has one of the most comprehensive sets of laws against hate crime anywhere in the world," wrote Sirois.
She highlighted what she termed "hate propaganda" provisions in the Criminal Code criminalizing the promotion of hatred against an identifiable group, and further noted that "identifiable group" now includes any section of the public distinguished by "among other characteristics, religion or national or ethnic origin."
I think a good deal of the Boycott/Divest/Sanction movement, which attempts to hold Israel to standards that are not applied to pretty much any other country, is indeed driven by anti-Semitism. But so what? In a free country, people should be free to (at least) criticize foreign countries, and call for an end to relations (political and economic) with those countries, without being second-guessed about their motives, and without risking punishment because the government concludes that their motives are bad. Indeed, people should be free to spread "hate" towards that country, if they think the country merits hatred.
I think this is so even as to speech that is outright racist, anti-Semitic, and so on. But it is even more clearly true as to speech that, on its face, harshly criticizes a foreign government and the country that it governs. How can public debate about the policies of one's own country, and of powerful institutions within one's own country—a debate that is the essence of democratic self-government—effectively continue if one side is threatened with punishment for expressing its positions?
I have to admit that there are sometimes complicated questions about when advocacy of an action that is itself criminal becomes specific enough to be punishable "solicitation." (For an American example of that, see United States v. Williams (2008).) For instance, if it is a crime for a company to discriminate against non-union employees or contractors, then picketing the company to demand that it commit this crime may itself be punishable. Likewise, if Canada has (for instance) laws banning companies from discriminating against foreign businesses based on the business's place of citizenship—I don't know whether Canada indeed has such laws—then restrictions on demands that a specific company violate that law might be closer calls.
But from the accounts that I have read, the Canadian government isn't focusing on restricting such specific calls, on the grounds that they solicit illegal conduct. Instead, it's trying to suppress the speech because it constitutes "rhetoric towards Israel," "attempts to delegitimize Israel," and "hate propaganda" towards Israel. And such rhetoric harshly critical of foreign countries—whether or not maligned as "propaganda"—and attempts to delegitimize those countries is something that every Canadian, indeed every citizen of a free country, should be free to engage in.
UPDATE: Here is a response from a spokesman for the Minister of Public Safety and Emergency Preparedness:
This has been a ridiculous and inaccurate story from the beginning.
As everyone knows, politicians cannot lay charges—the independent police and Public Prosecution Service do.
The law in question has been on the books for years and its substance has not changed in any relevant way.
We won't dignify this bizarre conspiracy theory with further comment.
I had e-mailed the spokesman to ask how this fits with the quotes from Steven Blaney and Josee Sirois, but haven't heard back yet; when I do hear, I'll post the response.
FURTHER UPDATE: I still haven't heard back from the Minister's spokesman, and my question still remains—how is the claim that this is a "bizarre conspiracy theory" consistent with the quotes from Blaney and Sirois? I asked the spokesman whether the quotes were misreported, or whether there are important details that shed light on them, but I guess they are not "dignify[ing]" this "with further comment." (The argument that charges will only be brought by the Public Prosecution Service, which "report[s] to Parliament through the Attorney General," strikes me as not very helpful; I would suspect that the Parliament, the Public Prosecution Service, the Attorney General, and the Minister of Public Safety are not hermetically sealed away from each other, especially in a parliamentary system such as Canada's. The Minister of Public Safety, I would think, is rightly not without influence, direct or indirect, over prosecutorial priorities and decisions.)
The federal Conservatives are denying there's any basis to a CBC News story saying the government is signalling its intention to use hate crime laws against Canadian advocacy groups that encourage boycotts of Israel.
But the response from the Tories appears to contradict the email comments by a public safety ministry spokeswoman, who cited Canada's hate crime laws when asked specifically by CBC News about the government's "zero tolerance" for Israel boycotters.