“Censorship is telling a man he can’t have a steak just because a baby can’t chew it.”
~ Mark Twain
One of the ostensibly foundational principles of liberal democracy is the freedom of speech, taking the form not only the ability to speak one’s mind, but to be able to speak one’s mind in nearly any format and through nearly any medium. Both the United States Constitution and the Canadian Charter explicitly guarantee their citizens the right to the freedom of speech as described above. The fact that both countries have this particular freedom as a foundational aspect of their democratic system shows that both countries, in turn, share a certain amount of values related to personal liberties and freedoms. However, recent years have seen a turn in the way that the freedom of speech is treated in Canada when compared to the United States, particularly as it relates to what many call hate speech. Recent cases like Bill Whatcott, who has very publically discriminated against homosexuals, or Ezra Levant, who has been sued for libel twice due to his depictions of Muslims, have raised a very important question in regards to the freedom of speech in Canada: how does hate speech fall into this picture of personal freedom, and when should it be limited?
Clearly, this is a very large question that is difficult to address without a more detailed look into the issues and the relevant literature. This discussion paper examines this overarching question in a more specific way, asking how the cases described above express the conflict of rights between statutory human rights protections and the freedom of expression. In order to address this more specific question, the paper compares both the legislative history and case studies of Canada with the way that the debate between freedom of expression and hate speech is dealt with in the United States. As noted above, the two countries share a great deal when it comes to decisions regarding rights and freedoms, but are apparently beginning to differ on this front. This is the main reason that the two countries make for an excellent comparative study: they share a similar history, but have more recently taken different paths when faced with varying realities of the way speech is expressed.
With this comparison in mind, the discussion paper makes the following argument: the issues of hate speech and limitations of the freedom of speech in Canada largely step from the Supreme Court of Canada’s failure to lay down clear rules for addressing the conflicting rights. This has resulted in legitimate free expression cases being prosecuted as hate speech cases, which has ultimately both devalued the meaning of the freedom of speech in Canada and expanded the meaning of hate speech to the point of conflict. To support this statement, the paper first examines several case studies in free speech in Canada, and then turns to the relevant academic research regarding freedom of speech versus hate speech in both Canada and the United States. While the topic at hand is too expansive for this paper to be an exhaustive view, it is the combination of these two types of sources that forms the backbone of the subsequent discussion.
Relevant Case Studies
The debate regarding the freedom of speech and hate speech in Canada means that here are dozens of relevant case studies that provide insight into the subsequent discussion. However, there are three specific case studies that are particularly insightful for comparing freedom of speech in Canada with freedom of speech in the United States. Two are cases of individuals engaging in what is now known as hate speech in Canada, while the third is a case of legislation reformation in light of the debate over the past couple of decades: Ezra Levant, Bill Whatcott, and the repeal of Section 13 of the Canadian Human Rights Act. Each of these are looked at in turn below.
First and foremost, Ezra Levant provides a valuable case study in the debate between the freedom of speech and what constitutes hate speech in a liberal democracy because his case would likely be treated very differently in the United States than it has in Canada. As the CBC states, Levant is a “self-proclaimed troublemaker”, and is “passionate and empowering in his discussion of freedom of speech in Canada.” The news source goes on to state that the individual came to the national stage because Levant “felt censored by the government…after being prosecuted by the Alberta Human Rights Commission for publishing editorial cartoons depicting the prophet Mohammed in the Western Standard magazine.” Levant’s commitment to the freedom of expression has extended to his Zionism, which many (judges included) see as borderline racist and hateful. Most recently, Levant was ordered to pay $80,000 in personal damages to a Muslim law student that he called an “illiberal Islamic fascist” who was determined to destroy Canada’s freedom of speech. The case was settled in 2014, the year after Section 13 of the Canadian Human Rights Act was repealed, and represents an important development in the broader conflict regarding the freedom of expression versus hate speech in Canada. The judge in the case deemed the words that Levant spoke to be “unfair, false, and extremely serious” which were “motivated by ill will” and “showed a reckless disregard for the truth.” However, to Mr. Levant, the case was not so much about libel or the truthfulness of the statements, and more about the freedom of expression in the country overall. In response to the ruling, Levant stated that “This is a shocking case of libel chill that should concern any Canadian who is worried about radical Islam, and the right to call out anti-Semitism in the public square,” concluding that the ruling amounts to a “national gag order.” Whether one agrees with Levant’s statements or not, it is clear that the court’s actions in siding with the plaintiff in this case represents a radical shift in the way that hate speech is treated in Canada, not to mention the way that freedom of expression is respected. The development is also seen in the related repeal of Section 13 of the Canadian Human Rights act, as discussed below.
The second case study that bears insight into the debate of freedom of expression within Canada is the case of Bill Whatcott, who has also been the recipient of multiple complaints and lawsuits due to purported hate speech. The case also took place around the time that the debate surrounding the freedom of speech and hate speech was reaching its height in Canada, and was resolved shortly before Section 13 of the Canadian Human Rights Act was repealed. While not directly responsible for this, Whatcott’s case certainly raised the national awareness of the issue and defined the issue in public opinion. However, this case was just in the past few years and is far from the first court case that has dealt with free speech versus hate speech. There are two cases from the previous decade that help to contextualize the court decision in Whatcott’s cases. First, Canada (Human Rights Commission) v. Taylor was decided in 1990, and was decided after the new Charter was in effect. The case dealt with John Ross Taylor, an individual who had propagated telephone messages that denigrated Jews in 1979. The prosecution argued that this form of hate message violated the section of the Charter that explicitly require equality of women and other groups. The court sided with the prosecution and upheld the conviction, essentially ruling that there were limitations to free speech, dependent on the interpretation of other parts of the Charter and the Human Rights Act. This was the first major Canadian Supreme Court decision that limited free speech after the Charter came into effect and defined what should be considered hate speech in a legal context – it is therefore an important predecessor for Whatcott’s case. The second case relevant to contextualizing the more recent Supreme Court decision is R v. James Keegstra, which was decided six years after Taylor’s case. In this case, Keegstra was a public school teacher who had allegedly been teaching anti-Semitism in his lessons for the better part of fourteen years. Keegstra was officially charged in 1984, and the Supreme Court upheld his conviction more than a decade later, reaching a similar conclusion as the case below. Essentially, the court ruled that the criminal code against “public incitement of hatred” infringed on the Charter-given right to free speech, but that that infringement is justified in the case of hate speech. This echoes the more recent court decision, and challenges the repeal of Section 13 of the Human Rights Act, as discussed below.
The facts of Whatcott’s case are as follows: in the early 2000s, Whatcott distributed flyers in two Canadian school districts calling to “Keep Homosexuality out of Saskatoon’s Public Schools” and stating that there are “Sodomites in our Public Schools.” The flyers contained detailed descriptions of homosexual acts and said that there was a danger of men seeking boys. The flyers received the negative attention of many in the school district, and four individuals lodged official complains with the Human Rights Commission, which in turn appointed an official tribunal to determine the constitutionality of the flyers and their distribution.
The case bounced around for over a decade, with different courts deciding differently in regards to the constitutionality of Whatcott’s actions. Finally, the Supreme Court passed down its decision on the case in 2013. To many, this decision provided little clarity on the issue of freedom of speech versus hate speech, since the court found that two of the flyers distributed by Whatcott constituted hate speech, while the other two did not. Furthermore, the court made two crucial rulings: first, that “hatred in hate speech prohibitions must be objectively interpreted to determine whether a reasonable person would view the expression as exposing a vulnerable group to discrimination,” and second, that the Human Rights Code “violates both freedom of expression and religion, but that both limitations were justified under” the Canadian Charter. This is the ‘conflict of rights’ mentioned above, and this case is supposed to have been a clarifying point on that debate.
As mentioned above, this decision was viewed as shaky at best by many commentators: “The Supreme Court has drawn a line between free speech and hate speech, but it did so with a slightly shaky hand.” This shakiness is seen in the fact that the court decision simultaneously maintains the part of the Human Rights Code that “prohibits expression that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground,” while also narrowing both the definition and application of what “hatred” means in relation to expression and speech. In other words, the court decision seems to take the side of those subject to hate speech, but also lukewarmly defends the right to free expression. This is clarified by one of their concluding remarks that “The protection of vulnerable groups from the harmful effect emanating from the speech is of such importance as to justify the minimal infringement of expression.” In this way, instead of removing legal bodies from censoring free speech altogether, the court upheld the government’s duty to protect individuals and groups from potentially hateful speech. This was not necessarily a popular decision: “Their decision to stand-pat represents a missed opportunity to erect robust legal protections around a bedrock Canadian value.” The implications of the case will be further discussed below.
The third case relevant to this discussion paper is not a court case at all, but a legislative decision. Not directly a result of the court cases described above, the repeal of Section 13 of Canada’s Human Rights Act nevertheless represents a crucial turning point the debate between what should be valued more in a liberal democracy: the protection of the freedom of speech, or the protection of individuals and groups from hateful speech? The “hate speech section” prohibited any type of speech that incited “hatred of people based on race, religion, sexual orientation and other protected characteristics” in the form of written and electronic communications. One legislator who helped to repeal Section 13 called the section a “flawed piece of legislation” and called Canada’s Human Rights Commission “a quasi-judicial, secretive body that takes away your natural rights as a Canadian.” The legislation clearly draws a line in the sand, a fact that is made even more apparent by the fact that Canadian courts have found Section 13 of the law to be constitutionally valid. In fact, the court ruled that the law was constitutional even after the section was already slated for repeal several months later. In this way, the three cases discussed above make it clear that the law and legal consensus regarding the freedom of expression in Canada – or, put another way, the protection against hate speech – is murky at best.
Now that the discussion paper has examined the three most relevant case studies to the discussion question, the paper can now turn to the academic and professional literature on the same subject. If the case studies described above provide real world examples of how the discussion of free speech versus hate speech takes place in Canada, this literature examines how the two ideas are treated in both Canada and the United States. It is this comparison that perhaps gives the most insight into the major specific question of this discussion paper: how governments can deal with the ‘conflict of rights’ between statutory human rights protections and the freedom of expression that is ostensibly inherent in any liberal democracy. As the literature outlined below shows, the difference may trace not only to fundamental differences in a hierarchy of values, but also in the court’s relative ability or inability to provide a specific constitutional framework for the question.
In a debate regarding the necessity of hate speech laws in Canada, a former member of the Canadian Jewish Congress made a profound point regarding the interaction between government and free speech: “In a mature democracy, a carefully tailored and very limited hate speech law has some limited utility to address ‘market failure’ in the marketplace of ideas.” This quote is just the tip of the iceberg when it comes to the academic literature on the subject, as scholars are just as divided as politicians when it comes to protecting free speech versus preventing hate speech. However, the most clear comparison of the issue comes from Kent Greenawalt, who specifically compares various Supreme Court decisions in Canada and the United States to forward his academic discussion of the topic. The article may have been written nearly 25 years ago, well before this issue came to the national stage in Canada, but it nevertheless remains relevant. The scholar’s most interesting comment is in regards to comparing how the freedom of speech was founded in each country. For the United States, he says that American principles, which are based on the two-century old Bill of Rights, “have grown over the last seventy years with very limited attention to documents and judicial rulings of other countries.” In contrast, the scholar has this to say about the same development in Canada: “Although preceded by some judicial elaboration of ideals of free expression, the Canadian Charter of Rights and Freedoms drastically altered Canada’s constitutional landscape in 1982…[and] drawn extensively from the legal materials of other countries…[They] have regarded themselves, to a degree so far uncharacteristic in the United States, as giving meaning to liberties that transcend national boundaries.” In other words, at least one explanation for the difference between the way free expression is treated in the two countries is the fact that Canada concerns itself with international human rights, while the United States primarily concerns itself with the rights of its citizens.
As a result of this fundamental constitutional and conceptual difference, Canadian and American courts come to drastically different decisions when it comes to the protection of free speech in the face of hate speech. As Greenawalt goes on to state, the Canadian justification for regulation of free speech in the Charter “appears by its terms to grant more latitude to the political branches of government than does the language of the first amendment.” In other words, Canadian courts are more likely to limit free speech in favor of protecting individuals and groups against hate speech because it is automatically granted more power to do so by the Charter, the Canadian equivalent of the Constitution. This is not, of course, the only explanation of the difference. However, it is further substantiated by another scholar on the subject, who states that, “Even beyond hate speech, freedom of speech is a much more pervasive constitutional right in the United States than in most other constitutional democracies.” In this way, both academic articles have made it clear that the United States automatically has a clearer path than Canada when it comes to protecting free speech, since Canadian courts and legislatures are both given more power to limit free speech in light of speech and given more responsibility to enact internationally recognized human rights.
This conception of the difference is further substantiated by the Canadian Parliament’s own account of free speech in its country. Quoting one Chief Justice of the Supreme Court of Canada, the Background Paper from the legislature states that offenses falling under the following categories are not protected as free speech under the Charter: “offenses against the public order, offenses related to falsehood, offenses against the person and reputation, offenses against the administration of law and justice, and offenses related to public morals and disorderly conduct.” While the United States has limited some types of free speech under these conceptions (such as perjury or shouting “fire” in a crowded movie theater, goes the popular comparison), it is the last item in particular that would be troublesome for American courts. Many Americans (and Canadians, for that matter) would say that protecting speech when it violates public morals is the very purpose of protecting free speech in the first place. However, as with the cases above, the Canadian courts would largely disagree because of the duty to protect human rights.
While far from exhaustive, this discussion paper has examined the way in which the ‘conflicting rights’ of the freedom of speech and the freedom from oppression in the form of hate speech are dealt with, primarily in Canada and, by way of comparison, in the United States. Overall, this paper has shown that the main reason free speech cases are dealt with differently in Canada is because of a difference in their fundamental framework of rights, despite both countries guaranteeing free expression. This, in turn, has translated into the Supreme Court of Canada’s failure to lay down clear rules for addressing the conflicting rights, since in some cases they are bound to protect human rights, and in other cases bound to protect free speech. Overall, Canada has begun to side primarily with protecting against hate speech at the cost of free expression, which has resulted in the public debate described above.