Ontario requires publicly funded colleges and universities to implement free speech policies

The government of Canada’s province of Ontario has given every publicly-funded university and college four months to create and put in place free-speech policies modeled on that of the University of Chicago (our policy here). The article below (click on screenshot) officially announces that policy:

Here’s what the schools have to do. Note that student organizations have to comply as well, or lose funding, that discipline must be imposed on students who violate the policy and, as the announcement adds darkly, universities that don’t comply with this order may face “reductions to their operating grant funding.” This is directly from the Ontario government’s announcement.

Free Speech Policy

The policy must apply to faculty, students, staff, management and guests, and it must meet a minimum standard by including the following:

  • A definition of freedom of speech
  • Principles based on the University of Chicago Statement on Principles of Free Expression:
    • Universities and colleges should be places for open discussion and free inquiry.
    • The university/college should not attempt to shield students from ideas or opinions that they disagree with or find offensive.
    • While members of the university/college are free to criticize and contest views expressed on campus, they may not obstruct or interfere with the freedom of others to express their views.
    • Speech that violates the law is not allowed.
  • That existing student discipline measures apply to students whose actions are contrary to the policy (e.g., ongoing disruptive protesting that significantly interferes with the ability of an event to proceed).
  • That institutions consider official student groups’ compliance with the policy as condition for ongoing financial support or recognition, and encourage student unions to adopt policies that align with the free speech policy.
  • That the college/university uses existing mechanisms to handle complaints and ensure compliance. Complaints against an institution that remain unresolved may be referred to the Ontario Ombudsman.

As the Globe and Mail notes in the story below (click on screenshot), “Hate speech that violates Canadian law will not be allowed.” I wasn’t in fact aware that Canada had hate speech laws of this sort, but, sure enough, there’s a Wikipedia article on them. Here’s a summary:

There are two important phrases which are used in the different provisions: “identifiable group” and “hate propaganda”. The terms have the following meanings:

  • “identifiable group”, used in the three offences in s. 318 and s. 319, is defined by s. 318(4) as “any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation, gender identity or expression, or mental or physical disability.” (When originally enacted in 1970, the definition was limited to “colour, race, religion or ethnic origin,” but it has been expanded over the years, most recently in 2017 by the addition of gender identity and expression.)
  • “hate propaganda”, used in s. 320 and s. 320.1, is defined by s. 320(8) to mean “any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319.”

Section 318: Advocating genocide

Section 318 makes it an offence to advocate or promote genocide, which is defined as killing members of an identifiable group, or inflicting conditions of life on a group which are calculated to bring about the physical destruction of the group. The offence is indictable, and carries a maximum penalty of imprisonment not exceeding five years. There is no minimum punishment. The consent of the provincial Attorney General is required for a charge to be laid under this section.

Section 319(1): Publicly inciting hatred

Section 319(1) makes it an offence to communicate statements in a public place which incite hatred against an identifiable group, where it is likely to lead to a breach of the peace. The Crown prosecutor can proceed either by indictment or by summary process. The maximum penalty is imprisonment of not more than two years. There is no minimum punishment.

Section 319(2): Promoting hatred

Section 319(2) makes it an offence to wilfully promote hatred against any identifiable group, by making statements (other than in private conversation). The Crown prosecutor can proceed either by indictment or by summary process. The maximum penalty is imprisonment of not more than two years.

Section 319(3) provides specific defences to the offence of promoting hatred. A person will not be convicted if:

  • the person establishes that the statements communicated were true;
  • in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;
  • the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds the person believed them to be true; or
  • in good faith, the person intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

I have mixed feelings about these laws, which punish speech that would be permitted in the U.S. (For instance, in the U.S. you can advocate genocide or “hate likely to lead to a breach of the peace” so long as that speech doesn’t call for imminent violence. However, they’re sufficiently flexible that you can at least mount a defense for religion, though not “hatred” based on ethnicity or gender and the like.  And if you’re trying to have a discussion “in the public interest”, like about affirmative action, that also might constitute a defense.

Although convictions for violating this law aren’t common, they have occurred with respect to anti-Semitic and anti-black speech.

And they’re a bit ambiguous.

For instance, Milo Yiannopoulos’s appearance at a university is likely to a). lead to him saying things the denigrate people’s sexual orientation or gender, and b). lead to a breach of the peace, but not by his supporters. As we’ve seen in Berkeley, the breach of the peace is often committed by opponents of those uttering hate speech. Does that make Yiannopoulos guilty of “publicly inciting hatred”? I’m not sure, but in my view if he’s invited to speak by students or faculty (that won’t happen any time soon!), he should be allowed to speak. That also goes for Steve Bannon, whose appearance at my University this fall may well lead to a “breach of the peace”. And people could construe Bannon as having spread “hatred.” At Chicago it’s certain that he will be allowed to speak, but what would happen in Canada isn’t clear.

 

The Globe and Mail article above recounts some pushback against this new policy:

Jim Turk, the director of Ryerson University’s Centre for Free Expression, called the policy an “unprecedented abuse of university autonomy.”

Universities, along with the media, are the foremost bastions of freedom of expression in the country, he said, adding it was “ironic” a government that set up a sex-ed “snitch line” and promised to prevent rallies critical of Israel would present itself as a protector of free speech.

“There’s an irony of the government trying to give the impression that they’re the ones defending free speech when they’ve been the critics of the exercise of free speech,” he said.

Dr. Turk said it was also troubling that the statement bans universities from recognizing or funding student organizations that refuse to follow the policy.

“That would seem to me to be a direct violation of the notions of free expression,” he said. “What if there’s a student group that was highly critical of the policy? Should they not have the right to exist and voice their criticism of it?”

Now I don’t know anything about the “snitch line” or prevention of rallies critical of Israel (those of course should be permitted), but there is a concern about university autonomy. The government here is not asking Canada to follow a constitutional provision, as it would be doing in the U.S. (public universities are considered arms of the government and should abide by our First Amendment.) Rather, it’s enforcing its own preference (ideology if you will) on universities. Further, the University of Chicago Principles themselves contravene Canada’s own “hate speech” laws. But I do approve of the policy in general and of students being disciplined if they violate it.

The withholding of funds from student groups that don’t follow the policy is fine by me, but banning such groups seems extreme.

Finally, the withholding of funds from universities themselves is a more problematic threat , since it’s the government’s call whether a university has conformed to its policy. In contrast, if the United States government were to require colleges and universities to follow the First Amendment, and to discipline students who violated it (they are, after all, citizens), I wouldn’t have much to beef about.

But this is Canada, not the U.S., and the laws are not the same. So let’s take a vote:

h/t: Diana MacPherson

 

 

53 Comments

  1. Posted September 3, 2018 at 9:42 am | Permalink

    “Milo Yiannopoulos’s appearance at a university is likely to … lead to a breach of the peace, but not by his supporters. … Does that make Yiannopoulos guilty of “publicly inciting hatred”?”

    No, it doesn’t, since to “incite” an outcome you have to want that outcome.

    OED: (1) “encourage or stir up (violent or unlawful behaviour)”; (1.1) “Urge or persuade (someone) to act in a violent or unlawful way.”

    • Diana MacPherson
      Posted September 3, 2018 at 9:56 am | Permalink

      Yes, I think whenever there has been a challenge, the case has rested on did the person intend to do that. It’s one thing to intend to cause violence and another to end up causing violence as a result of whatever you were doing.

    • Ken Kukec
      Posted September 3, 2018 at 10:31 am | Permalink

      I think our host means it in the same sense that so-called “fighting words” (a class of speech that lies outside First Amendment protection) incite violence from those who hear them.

      In any event, as to Milo, I think that’s precisely the response he wishes to bring about. He’s no longer so much a public speaker as he is someone who schedules pretextual events in the hope they’ll be cancelled so he can claim free-speech martyrdom.

  2. Diana MacPherson
    Posted September 3, 2018 at 9:59 am | Permalink

    The sex-ed snitch line is another thing the Ford government has done in Ontario. They clawed back the sex-ed program for elementary and high schools and replaced it with a program from the 90s. Teachers (and others) were concerned that this older program leaves out education about LGBTQ and consent and vowed to teach this stuff anyway. In response, the government set up a snitch line to tell on teachers teaching the curriculum.

    Ford ran on abandoning the newest sex ed curriculum whose content was exaggerated by special interest groups – usually religious.

    • sang1ee
      Posted September 3, 2018 at 10:06 am | Permalink

      Such as the claim that it was developed by a convicted pedophile. Was that even remotely true?

  3. Kelly
    Posted September 3, 2018 at 10:03 am | Permalink

    As long as Canada has hate speech laws, then I think this policy is symbolic only. As long as hate speech is illegal then I would personally be against more government involvement in universities. It opens the door wider for the current government to use this policy to support their own ideology. The irony of the snitch lines is a red flag.

    • Davide Spinello
      Posted September 3, 2018 at 11:52 am | Permalink

      I agree. The intentions are good, and I specifically like the reference to the University of Chicago. But the unfortunate reality is the incompatibility with hate speech laws.

    • Posted October 14, 2018 at 5:50 pm | Permalink

      + 1

  4. Mark Reaume
    Posted September 3, 2018 at 10:05 am | Permalink

    sub

  5. Diana MacPherson
    Posted September 3, 2018 at 10:05 am | Permalink

    I don’t like the idea of Ontario telling Ontario universities what to do. Yes, they receive funding but it was never to be on the condition of following a state ideology and I think that’s dangerous.

    Keep in mind though, that this isn’t a Canadian mandate but a provincial one since, thank goodness, Ford isn’t Prime Minister (yet!) but a Premier of Ontario.

    • Posted September 3, 2018 at 11:25 am | Permalink

      I agree. Governments should not be telling universities what kind of ideology they need to follow/endorse.

    • Davide Spinello
      Posted September 3, 2018 at 11:54 am | Permalink

      The federal government has threatened to cut federal funds to universities that do not comply with prescribed quotas on Canada Research Chairs. I see it as a much worse intrusion.

      Also, to which ideology does a free speech provision refer too?

    • James Walker
      Posted September 3, 2018 at 10:12 pm | Permalink

      But universities are governed and funded by the provincial government.

      • Diana MacPherson
        Posted September 3, 2018 at 10:42 pm | Permalink

        Funded yes. Governed no. Universities have an autonomous governance.

        • James Walker
          Posted September 4, 2018 at 5:26 am | Permalink

          Well each university has a Board of Governors but they also have to abide by the policies of the Ministry of Training, Colleges and Universities.

          • Diana MacPherson
            Posted September 4, 2018 at 6:40 am | Permalink

            It’s more of a negotiation than that between the university senate. I see it like how allied countries cooperate. The constitution requires provinces to find universities not rule them. The funding has a very specific formula based on all kinds of things mostly around student population.

            • James Walker
              Posted September 4, 2018 at 7:17 pm | Permalink

              In theory yes, although lately Boards of Governors (many (most?) of whose members have connections with provincial parties) have been taking over decisions from the university senate – see the recent shenanigans at York University.

              But my original point was that universities are a provincial jurisdiction, not a federal one.

      • rickflick
        Posted September 3, 2018 at 11:39 pm | Permalink

        On the other hand, the province’e mandate to universities has to be very limited because the job of the universities is to impart knowledge and perhaps wisdom on the youth of the nation. Whenever they try to get more specific in their control they begin to warp the prime directive.

  6. Ken Kukec
    Posted September 3, 2018 at 10:19 am | Permalink

    … if the United States government were to require colleges and universities to follow the First Amendment, and to discipline students who violated it (they are, after all, citizens), I wouldn’t have much to beef about.

    Are you referring here to private universities and colleges? The Free Speech Clause, of course, prohibits only governmental restrictions on speech. I think it would set a dangerous precedent for the government to impose First Amendment standards on private organizations and non-state actors. Where might you draw that line?

    • Diana MacPherson
      Posted September 3, 2018 at 10:24 am | Permalink

      No public. Most of Canada’s universities are public and the provinces are responsible for it. https://en.wikipedia.org/wiki/Higher_education_in_Canada

      • Ken Kukec
        Posted September 3, 2018 at 10:36 am | Permalink

        Oh, I understand that. Jerry seemed to be proposing a different scenario for the US in his penultimate paragraph.

      • Ken Kukec
        Posted September 3, 2018 at 10:38 am | Permalink

        Oh, I understand that. Jerry seemed to be proposing a different scenario for US colleges in his penultimate paragraph. That’s what I was inquiring about.

  7. Posted September 3, 2018 at 10:33 am | Permalink

    Re “Jim Turk, the director of Ryerson University’s Centre for Free Expression, called the policy an “unprecedented abuse of university autonomy.””

    Does this mean he is willing to forgo state funding? Autonomy on somebody else’s dimes is autonomy in name only.

  8. organism
    Posted September 3, 2018 at 11:10 am | Permalink

    The “snitch line“ is so that parents can snatch on teachers who teach children about homosexuality, homosexual sex, and other things that are now contrary to the government’s position on sex education.

    This government repealed a law updating Ontario sex and curriculum. And they want to punish teachers who don’t abide.

    • Davide Spinello
      Posted September 3, 2018 at 11:58 am | Permalink

      Although the Ontario sex curriculum desperately need an update, the one introduced in 2015 by Wynne government was full of well known unscientific claims about gender.

  9. rickflick
    Posted September 3, 2018 at 11:39 am | Permalink

    I voted YES thinking, as long as it uses the University of Chicago’s policy as a model…
    But, now I’m having second thoughts based on comments above. It seems, as well intended as the policy, no doubt, is, Ontario probably should not be dictating these matters.

    • Diana MacPherson
      Posted September 3, 2018 at 12:43 pm | Permalink

      Yes my thoughts as well. I voted no because, though I like the idea of free speech policies and I like the University of chicago’s, the mandating of such by the government makes me uneasy. Moreover, who’s to say that universities don’t already have such things, which I know is beside the point. For me, the no vote was a no to a principle I can’t get behind.

  10. JB
    Posted September 3, 2018 at 11:43 am | Permalink

    I applaud this move, generally, as it clearly aims to increase freedom of speech protections in Canada.

    Those hate-speech laws are chilling, however. They are so ambiguous as to admit easy abuse to quash speech the ruling party doesn’t like (and that changes with the waves of politics).

    For example, if I say something that’s pro-Israel, am I “promoting genocide?” I think that would be a huge reach, but BDS would say yes, I am.

    • Diana MacPherson
      Posted September 3, 2018 at 12:52 pm | Permalink

      No you wouldn’t be considered promoting genocide under those laws because you have to have the intent of promoting genocide. It’s hard to charge people with hate speech. Rarely do people get convicted or cases go to trial for such things. For example, in Toronto there was a protest at a mosque that was fairly ugly. No one was charged with hate speech or a hate crime. Here is the protest story and the things said on signs and shouted are hateful: https://www.cbc.ca/news/canada/toronto/anti-muslim-protest-masjid-toronto-1.3988906

  11. Patrick
    Posted September 3, 2018 at 11:46 am | Permalink

    I’m an Ontarian and I am in favour of the policy and the principles it represents.

    That said, I’m wary of the Ford government’s underlying motives. So far, the Ford government has been an unmitigated disaster. He’s been in office for only two months and already:

    1) Repealed a modern sex-ed curriculum that taught children how to navigate issues such as consent, homosexuality, social media, sexting, pornography, etc. This was at the urging of, and for the support of, his evangelical friend Charles McVety. “The fruit of the poisonous tree has been cut down”, McVety has since said.

    2) Established a snitch line to allow concerned, pearl-clutching parents to anonymously request disciplinary action against teachers who do try to teach their students about these important issues.

    3) Cancelled all upcoming renewable energy contracts the provincial government had made

    4) Cancelled the green vehicle rebate program that encouraged people to buy electric or hybrid vehicles. (Ontario has been successfully sued by Tesla over their handling of this).

    5) Ended Ontario’s carbon cap-and-trade plan

    5) Slashed Toronto city council almost in half mere days before council elections began.

    He’s a “Trump-lite” figure, listening to the evangelicals whispering in his one ear and the populists whispering in his other. This free-speech policy may be the only good thing he’s done yet. We’ll see how principled the government’s implementation of the policy is in reality.

    • Posted September 4, 2018 at 12:36 pm | Permalink

      7) Refused to release the mandate letters sent to departments.

  12. Posted September 3, 2018 at 11:47 am | Permalink

    Seems like students and faculty have to follow Canada’s hate speech laws by virtue of the schools being located in Canada. If so, then it’s a good idea to refer to them in the new free speech policy to remind that Canadian law must be followed. This works as part of the policy even if Canada were to change or eliminate those laws. It may be that the authors of this new policy are not indicating their agreement with Canada’s hate speech laws but simply acknowledging their relevance to free speech on campus.

  13. Jon Gallant
    Posted September 3, 2018 at 12:27 pm | Permalink

    I too voted YES, and am now having second thoughts on the basis, particularly, of the post above by Patrick in Ontario. When generally reprehensible governments take a generally acceptable action–as sometimes happens in the real world–we have a puzzle.

    • Patrick
      Posted September 3, 2018 at 12:41 pm | Permalink

      FYI, I voted YES as well. I have to give credit where credit is due – the policy as written is admirable, even if there are some wrinkles to work out. Unfortunately the last two months have left me intensely skeptical about the Ford government’s implementation of this, or any, policy.

  14. CAS
    Posted September 3, 2018 at 1:47 pm | Permalink

    I voted yes, but the devil is in how it is actually implemented. It sounds good, since discussing things that can shown to be true seems to be protected. Lots of possibilities do exist for violations of free speech may result depending upon interpretation.

  15. Posted September 3, 2018 at 2:11 pm | Permalink

    Reblogged this on The Logical Place.

  16. Torbjörn Larsson
    Posted September 3, 2018 at 2:27 pm | Permalink

    I am not surprised that Canada’s universities model themselves on UN Human Rights as implemented in Europe.

    But again, there is nothing ambiguous in a juridical process as such, even if the outcome is. I read yesterday that Swedish police put in a plaint while monitoring a racist meeting. I see that Neo-Nazi Yiannopoulos – despite being homosexual – describes that as “aberrant” among other issues, and would easily be involved with justice here too.

    • Davide Spinello
      Posted September 4, 2018 at 10:35 am | Permalink

      I would fear you as the next Ministry of Truth.

  17. Posted September 3, 2018 at 2:40 pm | Permalink

    I voted No because I strongly suspect Ford (who is only a watered down version of Drumpf) wants to create an environment in Ontario academia where discussion of the most obsolete and repressive “traditions” of social conservatism will earn legitimacy.

    If Universities were to come up with guidelines or best practices – especially around processes for deciding boundary cases – then I’d be fine with it.

    But since I’m one of those people who believes nothing good will ever come from Ford or his cronies, I am compelled to be against this too.

    • Lars
      Posted September 3, 2018 at 5:04 pm | Permalink

      Unfortunate but true – there is probably something wrong with anything that the Ford government is for.

      • Claudia Baker
        Posted September 4, 2018 at 12:02 pm | Permalink

        Yup. I voted No for this very reason. Ford and his cronies are slippery and Trump-like. They pander to the religions right. Something stinks in this whole thing.

        • Diana MacPherson
          Posted September 4, 2018 at 12:52 pm | Permalink

          It’s a dog whistle to the Right and was part of his campaign as the Right feel Left-leaning universities infringe on the free speech of the Right and university students made this so easy for them for behaving as they have.

          • Davide Spinello
            Posted September 4, 2018 at 1:56 pm | Permalink

            In terms of University policies and practices, the status of free speech in Canadian Universities is not encouraging:

            http://campusfreedomindex.ca/summary/

            Especially this issue should not be partisan, and policies cannot be wrong because Ford did it.

            • Diana MacPherson
              Posted September 4, 2018 at 1:57 pm | Permalink

              It doesn’t mean it isn’t a dog whistle.

              • Davide Spinello
                Posted September 5, 2018 at 8:37 am | Permalink

                Well then any political action can be classified as a dog whistle, because obviously you can always find a group to which the action is a dog whistle.

                Also, “free speech of the Right” sounds a lot like “free speech.”

              • Diana MacPherson
                Posted September 5, 2018 at 8:53 am | Permalink

                No, dog whistles are not everything that appeals to a certain group. And let me rephrase, the Right feels they are being denied free speech. I agree to a certain extent but the Right also feels they are purposely and systemically denied which is usually they are simply disagreed with. I agree with the policy in principle but not in execution because just as I believe that the answer to free speech you do not agree with is more free speech against it, I also agree that the answer to actions against free speech is more free speech (when laws are already in place) not authoritarianism.

                I also think there is an unjustified moral panic with the perception of universities and free speech. There have been isolated incidents that warrant concern but the impression people who do not attend campuses get is that you are attacked immediately and often by special interest groups at a university. I’ve worked at a university for 3.5 years now and that is not the case at all.

  18. MP
    Posted September 4, 2018 at 9:14 am | Permalink

    I voted strategically in Conservative leadership race to avoid having Doug Ford as leader, and yet thanks to Liberal incompetence and corruption, Doug Ford ended up getting elected, not only as Conservative leader, but as the Premier of Ontario. I don’t know what my fellow Ontarians had in mind that they wanted a person with a shady past (look up the infamous article about his family on Globe and Mail) to lead the most populous province in Ontario.

    Remember, this is a party that wants to pull back the advanced sex-ed and bring in some regressive policies. Their caucus includes a home-schooled 20 something member.

    So free speech policies also have a conservative bent and might not be all glossy as it would look like on paper.

    • Davide Spinello
      Posted September 4, 2018 at 10:33 am | Permalink

      Remember, this is a party that wants to pull back the advanced sex-ed and bring in some regressive policies. Their caucus includes a home-schooled 20 something member.

      True, but it would help not writing the new sex education curriculum with sections directly from gender studies 101.

  19. Posted September 4, 2018 at 12:38 pm | Permalink

    I hesitantly voted “no”, because I don’t think the legislature should have the power to do this in either direction. The universities should themselves (through their association) develop such policies.

    Also, because Ford is basically Trump-lite, I do not trust them to enforce the policies in any way close to even-handedly.


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