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The Limits of Free Speech

The Ottawa Citizen by Judy Hunter 6 March 2013

On Feb. 27, 2013, the Supreme Court of Canada released its unanimous decision in the Whatcott case. It was a thoughtful decision that carefully balanced the right to freedom of expression in the Canadian Charter of Rights and Freedoms with the right to equality and freedom from discrimination. The decision has drawn a legal line in the sand regarding hate speech.

Two of William Whatcott’s four flyers were found to constitute hate speech because they contained words that exposed gays and lesbians to hatred and called for homosexuals to be discriminated against under the law. The Court described the two flyers as delegitimizing “homosexuals by referring to them as filthy or dirty sex addicts and by comparing them to pedophiles, a traditionally reviled group in society.”
Whatcott’s other two flyers, while offensive, were found not to constitute hate speech. In so finding, the Court narrowed the definition of hate speech in the Saskatchewan Human Rights Code and thus affirmed that Canadians have a broad right to freedom of expression, including the right to publish and disseminate beliefs and opinions that ridicule, belittle or affront the dignity of any person or persons.
Whatcott had published and distributed his flyers to households in response to a Saskatoon school board committee’s recommendation to include information about homosexuality in the elementary school curriculum. It is clear, however, that he could have expressed his concerns without using extreme language that vilified all homosexuals. For example, two passages from one of his flyers state: “the homosexuals want to share their filth and propaganda with Saskatchewan’s children … [o]ur children will pay the price in disease, death, abuse and ultimately eternal judgment.”
For those Canadians who believe that free speech is sacrosanct and should not be limited by provincial law, the decision in Whatcott was a disappointment. Many in this camp believe that even publications that expose a minority group to hatred because of an immutable characteristic, such as sexual orientation, should not be prohibited by such laws. In fact, this was the position Whatcott and his supporters urged the Court to adopt. Remove the hate speech prohibition from the Code and it will be dealt with by the “marketplace of ideas” and the federal criminal law.
The marketplace of ideas is a concept that has been discussed by the Court in cases dealing with hate speech and freedom of expression. It originated with the British political writer John Stuart Mill in his writings on liberty in the mid-1800s. In his view, society should not censure ideas, beliefs or opinions, but rather they should all be discussed and debated freely and openly. Truth will emerge from the marketplace of ideas only when all views and opinions enter it uncensored for purposes of debate and discussion.
As far back as 1990, some members of the Court expressed concerns about relying on the marketplace of ideas to adequately deal with hatred and hate speech in society. Justices Cory and Iacobucci, writing the dissent in the 1992 Zundel decision, noted “we are warned quite properly that history has many lessons to teach. One is that the marketplace of ideas is an inadequate model; another is that minorities are vulnerable to censure as speakers.” Chief Justice Dickson cautioned in the 1990 Keegstra decision that courts should not overly rely on the “view that rationality will overcome all falsehoods in the unregulated marketplace of ideas.”
As the Court in Whatcott noted, hate speech tends to create a place where harm against vulnerable target groups “is either accepted or a blind eye is turned.” When members of society’s majority broadcast, publish and disseminate hatred against a vulnerable minority, it is highly unlikely that truth will emerge from the marketplace of ideas. The Court cites the former Yugoslavia, Cambodia, Rwanda, Darfur and Uganda as recent examples where the majority attempts at cleansing or genocide of a minority, on the basis of religion, ethnicity or sexual orientation, occurred unchecked.
Hate speech also impairs the targeted group’s freedom of expression. It is very difficult if not impossible for members of the target minority group to participate on an equal footing in the marketplace of ideas to defend themselves. Hate speech undermines the view that members of a targeted minority are legitimate and truthful social commentators. It is unlikely that opinions or ideas from a vilified and denigrated minority would be given credence as truth by the majority.
There are also many reasons why dealing with hate speech under provincial codes is preferable to relying on the criminal law. Human rights commissions and tribunals play a significant educational role for both society and the author. Provincial codes are able to deal with the publication of hate before it rises to the higher threshold required of a Criminal Code offence. It is more difficult and costly for the state to prosecute hate speech as a crime than to have it dealt with as a civil matter under provincial codes. By the time hate speech is prosecuted as a criminal offence, the hateful publications will have caused a lot of harm to the targeted group and to society.
Freedom of expression, like all Charter rights and freedoms, is not unlimited. In a democracy, rights are always balanced against countervailing rights and freedoms. Furthermore, rights and freedoms come with responsibilities. We are all responsible to ensure that our published ideas or opinions are conveyed in a manner that is respectful. It does not mean that we cannot have healthy and vigorous debates on a myriad of topics. It does mean that we must do so without subjecting our neighbours, especially those who are members of a vulnerable minority group, to vilification, denigration, harm and hatred.
Judy Hunter is a recently retired lawyer who worked in the federal justice department in the human rights law section.