Last week's Supreme Court ruling in Saskachetwan v. Whatcott shows that the country's top court does not believe in free speech.
The Supreme Court ruling came from a challenge to section 14(1)(b) of the Saskatchewan Human Rights Code, which prohibits material "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."
Bill Whatcott challenged s.14(1)(b) as a violation of his right to freedom of both religion and expression under sections 2(a) and (b) of the Canadian Charter of Rights and Freedoms.
In 2005, Whatcott was dragged in front of a human rights tribunal, investigated by police, and charged $17,500 for inciting hate through anti-gay pamphlets distributed in the Saskatoon area. Only four complaints were made against him, but those very few 'hurt feelings' were enough to censor Whatcott's speech by labelling it as a human rights violation.
On February 27, the Supreme Court upheld Saskatchewan's limitations on hate speech unanimously. While they acknowledged that it was a clear violation of section 2 of the Charter, they found the violations were justified for the greater good of society. The only modification was to remove "ridicules, belittles or otherwise affronts the dignity" from the act, making it slightly less linguistically draconian.
There are similar heavy restraints on hate speech in British Columbia and Alberta, while section 13(1) of the Canadian Human Rights Act prohibits the "communication of hate messages" -- the House of Commons has passed a bill to remove this, yet it has stalled in the Senate. There's also section 319(2) of the Criminal Code which outlaws the willful promotion of hatred "against an identifiable group," and section 319(1) which bans any incitements that "lead to a breach of peace" (restrictions that are actually much stricter than most other provincial human rights legislation.) All this to say that government has erected a tall wall around freedom of expression when related to hate.
The Supreme Court has a long and complicated history with s.2(b) cases. In the Irwin Toy case of 1989, the Supreme Court finally defined freedom of expression as any and all activity that attempts to convey meaning, short of physical violence. To me, this is the proper definition of freedom of expression -- words themselves are not weapons, and it is not up to the speaker to justify the use of his or her words.
In theory, this is now protected under s.2(b) of the Constitution, yet the courts have the power to limit this expression under the "reasonable limits" clause of section 1. If the courts believe there is a justifiable reason to limit your rights, they will allow it under the Oakes Test (a four-part test used to determine whether a rights infringement is allowed under section 1.) The decline of freedom of expression can be seen in other court cases like Canada v. Taylor and R v. Keegstra in 1990, and now especially Whatcott.
In the Taylor case, which also upheld limitations on freedom of expression, the Supreme Court defined hate speech as an "unusually strong and deep-felt emotions of detestation, calumny and vilification." This definition doesn't really clarify much, as one cannot judge emotions objectively.
People's sensitivity also varies, from those who can ignore a hurtful comment to those who can find something offensive in everything. The definition of hate speech in Taylor was mentioned often in Whatcott, which is particularly surprising as it is the first ruling of the internet age. As the medium for expressing one's opinion grows to an unlimited size, the courts still think it is possible to censor anything considered intolerant or not politically correct. One look at an internet chat room will convince you that Whatcott's pamphlets were relatively mild.
The court's assertion that "hate speech can also distort or limit the robust and free exchange of ideas by its tendency to silence the voice of its target group" is also completely false. It assumes that those targeted are defenseless and unable to deal with verbal attacks. No way is a single man bearing pamphlets able to silence the powerful gay-rights associations in Canada and the United States with their thousands of supporters. The courts assume Whatcott's word has too much power. Freedom of speech encourages dialogue, not silence.
Is it also essential to point out that we live in an extremely tolerant society. The Canadian Human Rights Act was introduced in 1977 when this was not always the case. Courts are supposed to be a counter-majoritarian body that protects minority rights from the tyrannical majority. Today, the courts have aided the tyrannical majority in crushing the fading minority.
Whatcott's homophobic and deplorable messages have no audience; they only resonate with the fringes of society who already share his thoughts. Everyone has the right to freedom of expression, but they don't have a right to an audience. Those four complainers would have been more successful in their goals by chucking his propaganda in the trash. By bringing him to court and letting him defend his message in front of the whole country, they gave him more attention than he ever would have received on his own.
Canada has not become a more tolerant country because of laws making sure all speech is politically correct. As a comparison, the American legal system doesn't differentiate as much between hate speech and any other kind of speech, yet they have still survived as a country and made a huge amount of progress since the 1970s.
Any difference in tolerance between Canadians and Americans can be linked better with their cultural traditions, not laws. When a group like the hateful and bigoted Westboro Baptist Church pickets a soldier's funeral and carries homophobic signs -- a right that was directly upheld by the American Supreme Court -- they're not gaining any support, only demonstrating the danger of intolerance.
People understand the difference between right and wrong. The only people who should sensor us is ourselves, and having a blatant display of hatred by groups like Westboro allows us to know where to draw the line in our own speech and practice self-restraint. The American Supreme Court treats citizens as rational adults who can make their own decisions, unlike in Canada where we're regarded as defenseless children.
Like a cast that is used to strengthen and heal a broken arm, hate speech laws were more justifiable decades ago in order to protect victimized minority groups. And it has served its purpose. Yet now we live in a more tolerable country. Cases reaching human rights tribunals no longer have to do with protecting real fundamental rights, but rather to serve the self-righteous serial complainers who can't stand the name of a beer (Albino Rhino is apparently too offensive), hearing O Canada sung a capella, or who find people praying in public so abhorrent that they feel the need to file a complaint about it. It has become a tool to bully anyone with an opposing opinion.
It is understandable when schools implement reasonable anti-bullying and anti-discrimination policies because children need to understand that tolerance is a virtue. They also need to be taught to recognize hate speech and learn to deal with it on an emotional level without letting it hurt them. Yet grownups should not require the same paternal protection from the government to deal with speech. Also, the groups that were once vulnerable to this hate now receive a majority of support. It is those who show distaste towards them that are the fringe minority, their voices easily outnumbered out by their opponents and their supporters.
The utilitarian belief that individual rights to speak freely are somehow less important than the right of others to not be offended is ludicrous in so many ways. For the top court of the country to support it brings many questions of its legitimacy and effectiveness in protecting the fundamental freedoms that we supposedly enjoy. We have developed better ways of dealing with hate than government censorship. We ignore, we protest, and we seek to inform others about what is right. Words themselves cannot hurt, and the best way to deal with hate messages is to just let them go, or drown them out with more speech.
This article was originally published in thePrince Arthur Herald