02/24/2017 01:10 EST | Updated 02/24/2017 01:10 EST

Did The CBC Just Commit An Act Of Hate Speech?

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Side profile portrait of young angry man screaming with alphabet letters flying out of wide open mouth isolated on gray wall background

What would happen if the CBC--Canada's public broadcaster, the purported bastion of tolerance--violated Alberta's Human Rights Act ("AHRA")? We may soon find out.

On January 20, 2017, producers for the CBC program Marketplace printed t-shirts containing racist logos and mottos, including "white power" and "white pride world wide [sic]," and hired a middle-aged white man to stand on a Toronto street to peddle the t-shirts and yell racist slogans.

The episode is titled "The Trump Effect" and was broadcast throughout Canada, including Alberta. It remains as a monument to our public broadcaster's colossal ignorance on the CBC YouTube channel.

Shortly after the episode aired, an American journalist inquired in a tweet if this is what passes for journalism in Canada. The tweet piqued my interest, so I tried to watch the show.

I couldn't finish it. It was chockful of frustrating errors, including one near the beginning of the show where onscreen graphics and dialogue equate "intolerant speech" and "hate speech". The Supreme Court of Canada ("SCC") has already ruled that these are not the same thing.

But not only is this episode the epitome of so-called "fake news" -- fabricating a story in order to report it -- it's also deeply ironic. By broadcasting this content in Alberta, the CBC likely violated Alberta's hate speech law.

Section 3(1) of the AHRA makes it illegal to publish, issue, or display before the public any symbol, emblem, or other representation that indicates discrimination or is likely to expose a person or class of persons to hatred or contempt.

Quite deliberately, the AHRA lacks any intent or harm requirement because the act is supposed to compensate victims of discrimination, not punish anyone. This means that it is entirely possible to violate this law when doing things that were never intended to be discriminatory and that caused no one any harm or even resulted in any actual discrimination.

It's a very powerful piece of legislation, to say the least. Yet the SCC has upheld the constitutionality of similar hate speech laws on several occasions. The seminal 1990 Taylor decision still stands as the high-water mark in Canadian hate speech jurisprudence.

And recently, in 2013, the SCC upheld Saskatchewan's hate speech law in its Whatcott decision.

The law is clear in Canada. Any expression evoking feelings of an "ardent and extreme nature" and "unusually strong and deep-felt emotions of detestation, calumny and vilification," directed at a person or group of people because of characteristics like race or religious belief can rise to the level of hate speech.

And there are no exceptions in the AHRA for journalists. None for humour, irony, or even research. No exceptions. So even if you are merely making a snide ironic comment, if you publicly expose a person or class of persons to hatred or contempt on account of their race or religion, you risk being accused of uttering hate speech.

Further, there are no defences like truth, honest belief, or that the-public-needs-to-know. All Albertans are held to the same standard regardless of their motivation.

There are two things that even the more ardent defenders of human rights legislation cannot overlook.

First, according to the twisted logic of hate speech laws, the CBC's reckless stunt on the streets of Toronto likely did expose racial and religious minorities to hatred and contempt. Marketplace's producers -- fuelled by their righteous indignation against their perceived enemies -- are responsible.

Second, the CBC is publicly-owned by Canadians. As an organization, it has a duty to know the laws of our nation and live up to them. Ignorance is not a defence. And don't imagine even for a second that if another news outlet -- one online and overtly right-wing -- were to pull this same stunt for precisely the same reasons, accusations would fly, lawyers would write letters, complaints would be brought under the provincial human rights acts, and activists (probably including the CBC) would express faux outrage.

Look, Alberta's hate speech law is absurd. It's a bad law that has a chilling effect on freedom of expression. That aside, what's important here is whether the CBC violated it. It's very likely that it did.

This alone should clearly demonstrate that Alberta's hate speech law -- and all others like it in Canada -- is overreaching and too broad. At any rate you don't have to take my word for it, any offended individual can find out at no cost to themselves whether the CBC violated hate speech laws by simply lodging a complaint with the Human Rights Commission (HRC) and forcing the CBC to defend itself.

A complaint to the HRC would ruin most individuals who would be forced to mount a costly defence, luckily the CBC has deep taxpayer funded pockets. Hmm, I wonder if the HRC could change that?

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