Dear Supreme Court of Canada,
You have unanimously ruled that the majority of the hate speech provisions of the Saskatchewan Human Rights Code are a constitutionally valid limit on Canadians' freedom of expression and religion. And you have reinstated the Human Rights Tribunal's conviction of William Whatcott for the distribution of two anti-gay flyers, as a result. (You did not reinstate his previously overturned conviction for two other flyers.)
While I personally find Mr. Whatcott's message repugnant, I am nonetheless in favour of his being able to peacefully express his religious and political opinion on teachings about homosexuality in public schools, without being silenced by the government and forced to pay tens of thousands of dollars in damages. (I'm a little like Voltaire that way, though your decision has moved me to blog rather than to put my life on the line.)
Given your decision to uphold the ban on speech "likely to expose" particular groups to "hatred," I have to ask how you can expect even the most well-meaning of judges to make objective classifications about what is, at the core, an emotion that lives in people's hearts? I know, you've tried to get around this troublesome point -- to make us forget that you are ultimately criminalizing a sentiment -- in a number of ways. First, you have explained that hatred "must be interpreted as being restricted to those extreme manifestations of the emotion described by the words 'detestation' and 'vilification.'" Indeed "detestation" and "vilification" are apt enough synonyms for "hatred" and they could, it might be argued (and this seems to be your point), be considered even stronger forms of the word. But changing the terminology does not change the fact that making a determination here still requires the judges to engage in prospectively reading the hearts and minds of the general public. This is an exercise in speculation, and one that I would suggest is far better suited to psychics and pundits than it is to arbiters of justice who have the power to restrict an individual's liberty based on their conclusions.
I know, you're trying to be fair, and to avoid the perception that you're censoring unpopular ideas. "The repugnancy of the ideas being expressed is not sufficient to justify restricting the expression, and whether or not the author of the expression intended to incite hatred or discriminatory treatment is irrelevant," you say.
But that doesn't quite save you, does it? For consider the logical consequences of your decision. Suppose there were an incredibly disturbing but indisputably true fact about a protected group -- a fact that would be likely to make people think ill of that group (to detest it, if you prefer). You have now created a situation where an individual who wrote a newspaper article reporting that truth could logically and legally be convicted of a hate crime.
The biggest loser here is not Mr. Whatcott. It is Canada, which will lose more in the breadth and honesty of public expression and debate as a result of your opinion than you seem to realize.
I'm not disputing that expression can lead to harm. But listen to yourselves for a moment. You say, "The difficulty of establishing causality and the seriousness of the harm to vulnerable groups justifies the imposition of preventive measures that do not require proof of actual harm." Does this not sound like the makings of a Minority Report-like dystopia, in which people who have committed no crimes are thrown in prison to prevent expected future harms?
You can't change your decision now, so please do the next best thing. Interpret your own caveats on the use of these speech limits as strictly as possible. You've robbed us of a significant freedom, but you still have the power to minimize the damage.
Sincerely,
Marni Soupcoff
Formerly a constitutional lawyer, always an advocate of free speech
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#1 - Brazil
There were 128 court-ordered requests for data to be removed. Google complied with 69 percent of these requests. A total of 397 items were requested for takedown via court order.
In addition, 66 executive requests were made for another 157 items to be removed, 26 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#2 - The United States
There were 117 court-ordered requests for a total of 3,851 items to be removed. Google complied with 40 percent of these requests.
In addition, 70 executive requests were made for 2,341 items to be taken down, 44 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#3 - Germany
There were 60 court-ordered requests for data to be removed. Google complied with 80 percent of these requests. A total of 1,304 items were requested for takedown via court order.
In addition, 43 executive requests were made for another 418 items to be removed, 72 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#4 - Argentina
There were 39 court-ordered requests for data to be removed. Google complied with 97 percent of these requests. A total of 247 items were requested for takedown via court order.
In addition, 7 executive requests were made for another 19 items to be removed, 86 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#5 - Turkey
There were 22 court-ordered requests for data to be removed. Google complied with 64 percent of these requests. A total of 104 items were requested for takedown via court order.
In addition, 23 executive requests were made for another 70 items to be removed, 48 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#6 - Italy
There were 20 court-ordered requests for data to be removed. Google complied with 70 percent of these requests. A total of 45 items were requested for takedown via court order.
In addition, 8 executive requests were made for another 51 items to be removed, 50 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#7 - Spain
There were 18 court-ordered requests for data to be removed. Google complied with 78 percent of these requests. A total of 24 items were requested for takedown via court order.
In addition, 25 executive requests were made for another 283 items to be removed, 8 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#8 - France (tied with the United Kingdom)
There were 12 court-ordered requests for data to be removed. Google complied with 67% of these requests. A total of 22 items were requested for takedown via court order.
In addition, 19 executive requests were made for another 39 items to be removed, 47% of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#9 - United Kingdom (tied with France)
There were 12 court-ordered requests for data to be removed. Google complied with 58 percent of these requests. A total of 97 items were requested for takedown via court order.
In addition, 37 executive requests were made for another 750 items to be removed, 54 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#10 - Switzerland
There were 7 court-ordered requests for data to be removed. Google complied with 100 percent of these requests. A total of 65 items were requested for takedown via court order.
In addition, less than 10 executive requests were made for items to be removed, 100 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
#11 - Australia
There were 6 court-ordered requests for data to be removed. Google complied with 17 percent of these requests. A total of 633 items were requested for takedown via court order.
In addition, 11 executive requests were made for another 13 items to be removed, 45 percent of which Google complied with.
All statistics found from <a href="http://www.google.com/transparencyreport/removals/government/countries/" target="_hplink">Google's Transparency Report</a>.
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I have designed and successfully implemented anti-bullying programs.
For over thirty years my job has involved serving various marginalized groups: immigrants working in construction trades; a First Nations community; disabled and unemployed workers; severely disadvantaged youths needing education and job training; clients at three probation/parole offices; a shelter for homeless men and youths; families and single mothers receiving financial assistance from Social Services; and refugees and new Canadians. Over 25 of my work years have been dedicated as a counselor/educator serving youths and adults in Toronto's Jane/Finch Corridor, an exceptionally diverse neighbourhood struggling with issues related to poverty and youth violence. My passion and practice as an educator have been to foster dignity and respect for ALL.
….AND I defend free speech. If I was able to implement programs accordingly, fostering a respectful learning environment that never prompted a SINGLE incident of strife or disrespect, why do such fundamental values make some people's heads implode? And why are we so giddily eager to surrender our rights to self-expression to the State?
Chilling either way.
Thank you for your comment.
May I fan you?
There is nothing to recommend to Mr. Whatcott because he feels it is his responsibility to communicate his fear of minorities (and I believe it is fear rather than hatred) to the public at large. I wonder what true Christians think of this.
The argument here seems to rely entirely on imaginary situations where someone is trying to revel some truth about a particular group, yet muzzled by an overbearing government. Like what, exactly? when has that ever happened and been a positive thing?
Does Marni think there actually IS some Jewish conspiracy just waiting to be unveiled? Or a conspiracy every muslim is in on about working together to overthrow the constitution? She makes a serious error by implying there are ways that you can lump whole ethnicities together at all that are meaningful and worth "exposing".
As someone who watches Americans abuse their free speech all the time on American news (think Westboro Baptist Church protesting at military funerals)... I was pleasantly surprised to see the SCOC come out on this side of the issue.
It's a slippery slope when you enshrine free speech and hate speech on the same level. I assume Marni is a Canadian constitutional lawyer, so I respect her views on this subject.
The way I see it, this ruling hopefully clogged a drain that otherwise would have allowed much more sewage to spill out on society.
Now, if we could only get a couple of people that have a clue on the SCOC..............
http://fullcomment.nationalpost.com/2013/02/27/andrew-coyne-supreme-court-twists-the-charter-of-rights-in-its-haste-to-limit-free-speech/
Mr. Coyne is exactly right.
And let me add that the Trudeaupian Charter is useless, and the justices worthless.
I will not bother debating the issue with anyone, as it is nearly impossible to convince someone to adopt a value (such as free expression) that is fundamentally alien to them. I will only provide a quote which I think expresses my views quite well on this subject:
G.K. Chesterton - Eugenics and Other Evils:
Each man promises to be about a thousand policemen. If you ask them how this or that will work, they will answer, "Oh, I would certainly insist on this"; or "I would never go so far as that"; as if they could return to this earth and do what no ghost has ever done quite successfully --- force men to forsake their sins. Of these it is enough to say that they do not understand the nature of a law any more than the nature of a dog. If you let loose a law, it will do as a dog does. It will obey its own nature, not yours. Such sense as you have put into the law (or the dog) will be fulfilled. But you will not be able to fulfill a fragment of anything you have forgotten to put into
Freedom from persecution trumps freedom to persecute in my books.
That's the essence of free speech, however, and it isn’t up to the individual to prove that they should not be allowed to voice those opinions; it is up to government and the courts to prove that there is justifiable reason to limit them. That is clearly stated in our Charter of Rights and Freedoms and a Human Rights Tribunal shouldn’t have the authority to undermine what is so clearly set out in that document.
The Court ruled that, “It is not necessary, that is, to show the material in question actually exposes anyone to hatred — only that it might.” In other words, the court has moved from actual harm to the possibility that just maybe there might be.
Our system of justice wasn’t established to deal with ‘what ifs’ but rather with ‘what is’.
In other words, the Supreme Court of Canada has drifted into the same attitude of Human Rights Tribunals which seek to ensure the rights of some by restricting the rights of all. This is becoming too common and we're rapidly becoming a society that is less interested in the right to free speech than we are in the right to correct speech as defined by one group or another. We are throwing away our right to free voice our opinions in favour of our desire not to be offended by a few who abuse the right.
There are faith groups which contain certain contingents that ARE considered misogynistic by many Canadians--especially Canadian women. These are groups in which women are expected to wear a specific type of outfit which precludes activities like public swimming or basking in warm weather. Mutilation of female organs is practiced children by some adherents of these groups. And there have been cases of domestic murder against daughters who were considered by their religious families to have stepped out of line. "Under your argument my church should be allowed to flourish." Yet, under Canada's constitution as enforced (or not) by our courts, these faith groups ARE being allowed to flourish! However, a very conservative self-described 'Christian,' who puts out his views on homosexuality in a pamphlet, does not enjoy the same protection as these groups.
Your argument is lofty-sounding but, in failing to expose the hypocrisy in the current Canadian system, it doesn't hold water.
In your scenario, it should read that these " misogynists" should have the right to pass out hate literature to any woman who is not conforming to their misogyny.
This freedom is not about stopping the opinions of this person, it is to stop his public PERSECUTION of a specific group.
The problem is the Supreme Court can not tell the difference between freedom and repression.
The SC can't tell?? are you serious??? umm abortion, gay marriage. it only counts as freedom if it is for your white straight canada.