Freedom of expression in Canada is normally a dry legal concept, sporadically explored by law professors in dense papers, and taken for granted by everyone else. Until now, if freedom of expression got any attention at all, it was fleeting and superficial, like a bumper sticker on a passing car. The terrorist attacks in France and their aftermath changed all that, giving freedom of expression an extended tenure in the limelight and popular consciousness.
But the discussion in Canada so far fails to address the unique Canadian approach to freedom of expression, and thus fails to ask a crucial Canadian question. Does freedom of expression as legally defined in Canada provide the right tools for expression challenges in a fragmented and largely angry 21st century social media world?
Canadian freedom of expression law, like so many things Canadian, embodies compromise. In the United States, even the most hateful, virile and destructive speech is constitutionally protected. In many other countries, expression is suppressed if politically problematic. We walk between those extremes.
Here you can be put in jail for hate speech. But before you condemn the prospect of jail for speaking your mind, consider the built-in limits to the hate speech law. There are seven of them, and together they pour a big pail of cold water on any over-zealous prosecutor intent on duct-taping your mouth. For a prosecution to go ahead, all of these conditions must be met:
1. The hate speech must be the most severe of the genre;
2. The hate speech must be targeted to an identifiable group;
3. It must be public;
4. It must be deliberate, not careless;
5. Excluded from hate speech are good faith interpretations of religious doctrine, discussion of issues of public interest, and literary devices like sarcasm and irony;
6. The statements must be hateful when considered in their social and historical context;
7. No prosecution can proceed without approval of the attorney-general, which introduces political accountability because the attorney-general is a cabinet minister.
Even with these limits, the Canadian hate law still clearly curtails free expression. But the Supreme Court has not struck it down. Why? Four main reasons. First, our constitution protects not only free expression, but multiculturalism and equality as well. So to read the constitution holistically, we cannot permit one protected freedom to undermine other rights and freedoms enjoying equal status.
Second, the Supreme Court recognized the insidious impact of propaganda campaigns that gain social traction and incrementally dull our rational faculties and empathy. Perhaps paternalistic, but the court is saying sometimes we need to be protected from our baser and stupider selves.
Third, the courts have said that even if a hate speech prohibition is never used, it has symbolic value, like that framed mission and values statement on the wall of most businesses, that stares silently down at the workers while they work.
Fourth, hate speech has no redeeming value.
So, given our unique law, how would recent events have played out if they had occurred in Canada? No comics would have been rounded up by police. Prosecutors would have just shrugged their shoulders and ignored the Pope’s argument that insulting religions should have consequences. And protests by religious groups against cartoons satirizing their religion would have had ample breathing space, with police present to prevent violence, but not muzzle the message.
In other words, a crisis of Parisian magnitude, had it occurred here, would be a serious matter for our criminal and anti-terror laws, but not our hate speech law. And the hate speech law itself, on the books for decades, is used only sporadically. So does such a marginal prohibition still serve any useful purpose?
One glimmer of the law’s utility might be seen in the decision by many Canadian media outlets not to re-publish the offending Charlie Hebdo cartoons, despite being sincerely awash in “Je suis Charlie” sentiment. Our Supreme Court suggested the hate speech law has symbolic value such that even without being invoked, it silently validates a national ethic of multicultural accommodation and respect; and in the decision by Canadian media not to re-publish the cartoons, that very ethic can be seen in action. So it may be that our hate speech law was a silent point of resonance with the values, not the legal obligations, that motivated the media outlets who chose not to publish.
Is that sufficient reason for our hate speech law to exist? Sufficient reason for a law that can impose jail for speaking out? If we take these questions back to our social media haunts, our office water-cooler chats, and our classrooms, freedom of expression in Canada will come out a winner regardless of how opinion is, or is not, divided.Report Typo/Error
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