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Supreme Court of Canada in Ottawa (Dave Chan For The Globe and Mail)
Supreme Court of Canada in Ottawa (Dave Chan For The Globe and Mail)

Emmett Macfarlane

Canada’s equality was built on free ideas, not the Supreme Court’s censorship Add to ...

Freedom of expression is the most fundamental right. This is not something the Supreme Court of Canada would say, as it tends to eschew a “hierarchy of rights” under the Charter of Rights and Freedoms, but that does not make it any less true.

All other rights flow naturally from free expression. It is the only thing that makes voting rights meaningful. It is the linchpin in past and present battles for equality rights. Even among the other freedoms listed as “fundamental” in section 2 of the Charter, expression is properly regarded as the alpha right. For what would association, peaceful assembly or religious freedom be without free expression?

This is not to say that free speech ought to trump everything else. It too is subject to the Charter’s reasonable-limits clause so long as those limits can be “demonstrably justified in a free and democratic society.” And surely there are not many more laudable goals than defending Canadian values such as diversity and equality and trying to prevent discrimination.

The Supreme Court sought to balance these values in last Wednesday’s decision, when it largely upheld human-rights legislation prohibiting hate speech. The act of balancing competing values is something the justices often strive for in their Charter jurisprudence, but in the free-speech context this essentially boils down to a line-drawing exercise about what speech is permissible.

The court’s decision draws these lines in two steps. First, we must assess whether the expression of hatred is extreme enough that it is likely to cause the type of harm (such as discrimination) that the legislation aims to prevent. Garden-variety hate speech that may arouse feelings of disgust and even be regarded as derogatory does not meet this standard, the court explains. The hatred expressed must rise to the level of “detestation” and “vilification,” such that it tends “to inspire enmity and extreme ill-will against” the targeted group.

Second, we must focus on the effects of the hate speech. Would a reasonable person consider content that vilifies a protected group as having the potential to lead to discrimination and other harmful effects? In assessing the reasonableness of the law, the court states that “the expression captured under legislation restricting hate speech must rise to a level beyond merely impugning individuals: it must seek to marginalize the group by affecting its social status and acceptance in the eyes of the majority.”

Unfortunately, the court dispenses with the notion that there should be any evidence that the speech actually does affect the social status and acceptance of a group in the eyes of the majority. One would think this would be necessary to “demonstrably justify” imposing limits on expression in a free and democratic society. In response to this criticism, the court points to a “reasonable apprehension of harm” approach that “recognizes that a precise causal link for certain societal harms ought not to be required. A court is entitled to use common sense and experience in recognizing that certain activities, hate speech among them, inflict societal harms.”

This is where the court’s reasoning falls apart, as I cannot think of anything more subjective than an approach predicated on “common sense.” The judges adopt a standard built on drawing lines around forms of speech they find exceptionally distasteful in a manner that – despite their purported emphasis on the “effects” of the speech – is completely divorced from behaviour.

It amounts to an endorsement of a content-based approach to state censorship. An approach more appropriately tailored to the legislation’s objectives would have a much more guided focus on the forms of behaviour we do not want in society. It is reasonable to prohibit speech that incites violence because the purpose of the speech is aimed at producing criminal behaviour. It is reasonable to prohibit protest on the steps of an abortion clinic because we do not want acts of expression that will prevent women who may be intimidated from having lawful access to a health-care service.

By adopting the standard it does, the court endorses the legislature’s lowest-common-denominator expectations of societal reactions to offensive speech. It is ridiculous to presumpte that the views expressed by William Whatcott, whose anti-gay flyers were the subject of this case, would affect societal views on gays rather than discredit and lead to public vilification of Mr. Whatcott himself.

Moreover, the social benefits derived from having haters exposed likely far outweighs any harm imposed by the disgusting ramblings of a religious extremist. That Mr. Whatcott’s views are rightfully regarded in today’s society as fringe idiocy is testament to that fact. Indeed, that the court limits the definition of hatred to only extreme cases – types of speech which the vast majority of members of society would agree are repugnant – poses a problem for the notion that these ideas hold any sway in society.

It is interesting to note that the court doesn’t exactly repudiate the notion that the “marketplace of ideas” is a better way to confront the expression of hateful ideas. In fact, the judges suggest that this free-speech approach may be a reasonable alternative, if only the legislature had chosen it. It is difficult to reconcile this admission with the court’s “common sense” view that society is woefully, even inevitably, vulnerable to the expression of odious, vilifying ideas.

While it is true that ideas are powerful, in a free society the good ones tend to be more powerful than the bad. Canada has not come as far as it has in the fight for equality because it placed restrictions on ideas or their expression. In a democracy, the law does not shape society so much as it serves as a reflection of its values. Laws that serve their purpose, such as those that restrict discriminatory practices, were put in place because Canadians came to value diversity rather than fear it. But laws that do not serve their purpose, particularly those that quash the ideals that ought to be valued most in a free society, serve only to reflect poorly on society itself.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo.

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