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Reconsidering Limitations on Free Speech in CanadaReconsidering Limitations on Free Speech in Canada

Reconsidering Limitations on Free Speech in Canada

Most of us would also intuitively limit the expression of belief that is clearly deeply racist or hateful.

Ray Sawatsky
3 minute read

If we asked any high school social studies or civics class to identify the most important rights in a democratic society, it's a fair bet freedom of speech and freedom of belief would top the list. In Canada, the architects of our Charter of Rights and Freedoms agreed, classifying both as "fundamental freedoms" cherished by Canadians.

Most of us would also intuitively limit the expression of belief that is clearly deeply racist or hateful.

But would we also limit speech and belief that, while hurtful, also happens to be true?

Perhaps the Supreme Court of Canada has drawn a line in the wrong place. In February's Whatcott decision, Canada's highest court found that even speaking the truth in a manner that is ultimately judged to be hateful can run Canadians afoul of provincial human rights codes. More important, it is not even necessary for it to be shown that such "true but hateful" speech caused any demonstrable harm.

Using the Court's reasoning, to succeed in a human rights complaint for hateful expression, a complainant need not show that that the statement or writing actually exposed a vulnerable group to hatred. He or she need only convince a judge that the expression may "tend to expose" a group to hatred.

What follows is in no way a defense of what William Whatcott did to land himself before the courts. For those interested, the details of the decision can be found at Lexum.

The Courts' decision itself is as convoluted as the history of the case, and rings alarm bells for those concerned with protecting freedom of speech and belief. It is of concrete concern to people of religious faith, especially, who might try to discern whether (for example) Scriptural proscriptions of particular behaviours might be judged "hate speech" when they are restated in a vernacular or conversational way.

An ordinary pastor, minister, priest, rabbi, or cleric should be able to look at the legislation and determine what constitutes hate speech without the need to become a Supreme Court jurist. This decision falls short of creating a bright-line rule that is readily applied, even by those with legal training.

The Whatcott decision raises three essential questions that must become part of the debate on free speech and freedom of belief limitations.

1) What is the threshold to establish that a publication or speech has caused a harm that necessitates a legal remedy?

Previously a complainant had to demonstrate that the "hate" speech or writing actually exposed the vulnerable group to hatred. However, the courts now have reset the bar to permit censoring of expression that was merely hurtful or offensive.

The court has moved the legal test away from reasonable standards of justice focusing exclusively on the effects of that speech and toward assessing the motive of the speaker in determining culpability. This violates long-held principles of justice that require the state to establish motive as a precondition of a guilty verdict. The connection between intention and liability is conspicuously absent from an approach that justifies censuring expression regardless of the intention of the writer-speaker.

As Kevin Boonstra, a constitutional lawyer, points out: "If there is to be a non-criminal prohibition on hate speech, it should be of such a nature that the targeted group is actually impacted, not just that a statement may 'tend to expose' a group to hatred."

2) Can free speech that may or may not promote hatred be protected by the right to freedom of religious belief?

For religious groups the difference between permissible and impermissible communication of beliefs that "tend to expose a group to hatred" is dangerously ill-defined. Without such clarity, how can people of religious faith know when they must hold their tongues and when they are permitted to follow the principle of speaking the truth in love to communicate the tenets of faith?

And isn't such confusion and uncertainty precisely what the Charter was intended to avoid?

3) Can verifiably true statements be considered as "hate" speech?

The Court has clearly muddied the waters with its rejection of the defense of truth to a charge of hate speech. It says explicitly that "truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction." The Court has determined it may be necessary to restrict the articulation of truth to ensure that hate is not permitted to permeate social dialogue.

How can that be the limit of speech in a society that still believes itself to be free?

When it comes to any fundamental right, the ideal that we teach is that for me to possess a right I must also give that right away to others, even if I passionately disagree with them. In this sense, a society is only strengthened when we don't lose sight of the fact that we must tolerate expression that we despise in order to preserve our own right to vehemently disagree with others.

Even in a time as distracted as ours, a clear and present threat to such an age-old principle of democratic freedom must receive more attention—before it's too late.

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