Supreme Court twists the Charter of Rights in its haste to limit free speech
Canada Supreme Court Chief Justice Beverly McClaughlin
This is a legal truism, but as always it is as important what the Court did not say. It did not choose to begin a ruling on an important freedom of speech case with a ringing affirmation of the importance of free speech, or what an extraordinary thing it is to place restrictions upon it.
Indeed, in its haste to get on with the limiting, it did not even pause to properly quote the section of the Charter that grants the state such authority. The Charter “guarantees” the rights set out in it, Section 1 declares, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The limits don’t just have to be reasonable. They have to be “demonstrably justified.”
Where the Court’s view of such limits is expansive and approving, the Charter is grudging (“only”) and cautious (“demonstrably”). That’s as it should be. If we accept the bedrock premise of a free society, that government is its servant and not its master, then it is up to the state, always, to ask the citizens’ permission before it intrudes on their liberty, and to prove its necessity: it is never the citizen’s obligation to show why he may remain unmolested. That spirit is lamentably absent from the Court’s reasoning.
Well, it gets one thing right. It is not enough, the Court writes, that material such as the flyers distributed by William Whatcott, a Saskatoon Christian activist, in contravention of the Saskatchewan Human Rights Code, is offensive or repugnant. Rather, it must involve some harm to others. But look at how loosely the Court defines “harm.”
The code itself outlaws material that “exposes or tends to expose to hatred” any person or group, on the usual list of prohibited grounds. It is not necessary, that is, to show the material in question actually exposes anyone to hatred — only that it might. The Court then upholds the ban on the grounds that the hatred to which individuals might or might not be exposed might in turn lead others to believe things that might cause them to act in certain unspecified but clearly prejudicial ways: it “has the potential to incite or inspire discriminatory treatment,” or “risks” doing so, or is “likely” to, or at any rate “can.”
After all, the Court reasons, “when people are vilified as blameworthy or undeserving, it is easier to justify discriminatory treatment.” Perhaps it is: but does such discriminatory treatment in fact result? Can the Court draw any causal link between speech that “tends to” expose to hatred, for example among the dozens of people who may have received Whatcott’s fevered tracts, and any actual increase in prejudice, let alone acts of discrimination? No it cannot, and what is more it does not care to.
As it has in the past, the Court argues that the state’s inability to demonstrate the harmful effects of hate speech, far from weakening its case, only confirms it: it is a sign of the “particularly insidious” nature of hate speech that it works its harm in ways not visible to hundreds of human rights investigators. Rather, it is sufficient that “Canadians presume” such hateful expression “may lead to harm.” So: from demonstrably justified to presumably justified.
If the Court is inclined to wink at the state’s traditional need to prove its case, it is not so indulgent of the defendant. As anyone who follows the workings of human rights tribunals can attest, they are a strange parody of ordinary criminal courts. Not only is it no defence that the accused had an honest belief in what he said: it is not even a defence that it is factually true. Here, too, the Court is at peace. As the decision primly advises, “truth may be used for widely disparate ends.” I cannot quite believe I am reading these words, even now.
There are long passages like this in the ruling, wherein the Court reels off, without supporting evidence, the many harmful effects it supposes hate speech is likely to cause. It “opposes the targeted group’s ability to find self-fulfillment.” It “impacts on that group’s ability to respond to the substantive ideas under debate.” It “acts to cut off any path of reply by the group under attack.” It is “an effort to marginalize individuals” based on their membership in a group, to “silence” their “voice,” and so on.
It might be interesting to know whether any of this is true — have Jews, for example, the most persistent target of hate speech through the ages, been “silenced”? — but apparently it does not matter: the government is not required to prove its case is true, and the defendant is not saved if his case is. At one point the Court muses that a failure to ban hate speech, in so far as it “silences” the targeted groups, may be “more rather than less damaging to freedom of expression.”
From which we may conclude that any government that relaxed such restrictions would soon find itself condemned by the Court — as a threat to free speech.