Canadians should be free to speak without fear

Last Wednesday, the Supreme Court of Canada ruled that governments are permitted to violate the right of Canadians to speak freely about issues of public importance in order to stamp out any expression they consider hateful. (SK v. Whatcott)

In 2001 and 2002, William Whatcott, a self-proclaimed anti-gay, anti-muslim, anti-you-fill-in-the-blank activist, distributed offensive flyers in Regina and Saskatoon. The Saskatchewan Human Rights Tribunal ruled that the flyers contravened the province's hate speech prohibition.

On appeal, the Saskatchewan Court of Queen's Bench upheld the tribunal's decision, while the provincial Court of Appeal overturned it. The Supreme Court of Canada heard the appeal in October 2011.

The Supreme Court of Canada's decision is a devastating blow to free speech and the rights of every individual Canadian. In principle, this decision means that the government can silence your speech on issues of public importance if that speech is deemed hateful. It doesn't matter if what you said was true, that it caused no one any harm, or that you never intended to say anything discriminatory - you can still be dragged into court and lose for committing a victimless crime.

In its 1990 Taylor decision, the Supreme Court of Canada reached a similar conclusion - with one salient difference. In Taylor, Justice Beverley McLachlin (as she was then) wrote a strong and clear-headed dissent. She canvassed many of the problems with hate speech prohibitions.

Hatred is an ambiguous and emotionally charged term, capable of a wide range of meanings among different people. Incapable of precise definition, it inevitably functions as a proxy for the personal and political views of the judiciary. Further, a successful hate speech prosecution requires no proof of actual harm or intent to discriminate, and truth is no defence. These are serious, irremediable flaws.

Fast-forward to 2013. Unlike Taylor, the Whatcott decision is unanimous and monolithic - there is no dissent. The Supreme Court of Canada has closed ranks and will no longer broach alternatives. This means that McLachlin's Taylor dissent has effectively been redacted, leaving us with muddled confusion.

The problems canvassed in Taylor are not resolved in Whatcott - all we get is the Supreme Court of Canada's undivided assertion that no problems exist. Does that imply that there never was a problem? What has happened in the intervening 23 years to change McLachlin's mind?

It wasn't always this way. The Supreme Court of Canada once recognized that the freedom to express unpopular and even offensive ideas is of foundational importance to a free and democratic society.

In 1986, Justice William McIntyre said,

[Freedom of expression] is one of the fundamental concepts that have formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

In other words, the continued existence and thriving of our free society is dependent upon the right of each individual to freely express his or her ideas without fear of reprisal.

There's one simple and ironic fact that cannot be overlooked in all of this.

If Whatcott is on a hate campaign, Saskatchewan's hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials. Had no complaint been made about Whatcott's flyers in 2001 and 2002, they would have faded into obscurity and this marginalized, bigoted, fundamentalist would not have received national media coverage.

At this stage, it's entirely likely that Whatcott will be elevated to the status of folk hero by those who share his prejudices. Instead of facing a legal prosecution, lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. It's best not to silence bigots - let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.

The Supreme Court of Canada has shown itself unwilling to uphold the right of Canadians to express their views without worry of a state prosecution. The best answer to this problem has always been legislative. Canada's hate speech laws were enacted by governments and can be repealed at any time by those same governments. It's time to hold our politicians' feet to the proverbial fire for the good of all Canadians.

This piece was originally published in the Calgary Herald on March 4, 2013

Dean Steacy was wrong: Freedom of Speech is a Fundamental Canadian Value

The right to freedom of expression in Canada was not created by the Charter. Canadians enjoyed a right to free speech and freedom of expression prior to 1982.

Before she became Chief Justice, Justice McLachlin said in Keegstra that “freedom of speech is a fundamental Canadian value”, and 

Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the Charter in 1982. 

She further said that, 

The enactment of s.2(b) of the Charter represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society. 

Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?" (1989), 68 Can. Bar Rev. 713, Justice McLachlin went on to affirm that, 

Freedom of expression was not invented by the Charter of Rights and Freedoms... 

Justice McIntyre shared Justice McLachlin’s view. In the Supreme Court of Canada Dolphin Delivery decision of 1986, Justice McIntyre indicated the fundamental importance of freedom of expression for our democratic institutions. 

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

Now that you know all this, doesn't it make you wonder what Dean Steacy (the lead Canadian Human Rights Commission investigator in the Marc Lemire case) meant when he said,

Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept.

Actually, Mr. Steacy, freedom of speech is a fundamental Canadian value that the Supreme Court of the land has ruled responsible for the maintenance and protection of Canadian society.