Canadian Supreme Court Kills Last Hope for Free Speech

By Bruce Bawer, FPM

That sound you hear is Voltaire rolling over in his grave.

“I disapprove of what you say, but I will defend to the death your right to say it.” Once upon a time, it was commonly understood that this sentiment is the very foundation of a free society. Compromise free speech, water it down, and you destroy freedom itself.

In Toronto there lives a man named Bill Whatcott. During the last two decades or so, he has spent much of his time traveling around Canada, waving protest signs at gay-pride parades and Planned Parenthood clinics, agitating for the criminalization of homosexual acts and abortion, and distributing fliers packed with incendiary language about gays and graphic images of aborted fetuses. In 2010 the Saskatchewan Human Rights Tribunal fined him $17,500 for distributing “hateful” materials; an appeals court overturned the ruling, whereupon the province’s Human Rights Commission appealed the case to the Canadian Supreme Court. Now the Court has ruled, and it’s an icy day for freedom in the Great White North.

To be sure, the Court’s unanimous ruling on the Whatcott case pretends to be nuanced, measured, carefully thought-out – a product of the most sophisticated kind of legal deliberation. In evaluating the hate-speech section of Saskatchewan’s Human Rights Code, for instance, the Court struck down a passage forbidding speech that “ridicules, belittles or otherwise affronts the dignity” of certain groups, while upholding a prohibition on language that is “likely to expose” those groups to hatred. For the most part, the Court upheld the province’s hate-speech legislation, maintaining that it “appropriately balances the fundamental values underlying freedom of expression with competing Charter rights and other values essential to a free and democratic society, in this case a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.”

One of the many striking aspects of the Court’s decision is the insistence that any judge, jury, or commission seeking to determine whether a speech act crosses the threshold of being punishable by law must not look to the speaker’s intent but must, rather, make an assessment of the potential of that speech act for causing hate. Speech capable of causing emotions that are negative but that fall short of full-fledged “abhorrence,” the Court dictated, cannot be banned. Another key detail is that truth is no defense: it is impermissible even to state demonstrable facts if, in the authorities’ estimation, those facts might spark enmity toward a group. Yet another point worth mentioning is that any judgment rendered in such matters must, the Court posited, be arrived at in an “objective” manner.

Many commentators in the major Canadian media gave the Court’s decision at least a partial thumbs-up, agreeing that it struck an admirable balance between free speech and censorship. National Post columnist Jonathan Kay, for example, while regretting that the Court’s ruling will effectively stifle “strict religious conservatives” and deny them “the same free-speech rights enjoyed by secular Canadians,” claimed that it “can’t be considered a win” either “for free-speech champions” or “for human-rights censors,” and even characterized it as “a measured blow against political correctness” that puts Canadian human-rights commissions on notice “that they may target only public expressions of true hatred that create a genuine climate of menace for a targeted group.”

Meanwhile, over at the Globe and Mail, Michael Plaxton, a law professor at the University of Saskatchewan, served up a wishy-washy analysis in which he praised the Court’s “nuanced and well-crafted decision” while admitting that it “all but strangle[s] certain kinds of argument – particularly those made from a religious point of view.” While accepting that “a commitment to equality” may indeed require that some faith-based views “be muffled somewhat,” Plaxton suggested that if we do choose to tone down certain people’s opinions, “we should be honest about what we are doing.” And in the Montreal Gazette, human-rights lawyer Pearl Eliadis called the Court’s ruling “reasonable and balanced” and said that it “should provide comfort to those concerned about being found liable for ‘offending’ others,” given that judges will now be required to “look at the objectively verifiable effects of the speech, and not whether a person is merely affronted or offended.”

Terrifying, isn’t it? As the major Enlightenment thinkers and America’s Founding Fathers understood, free speech is really quite a simple matter. Yes, out-and-out libel is something else, as is shouting fire in a crowded theater. But beyond that, either speech is free or it isn’t. The Canadian Supreme Court’s decision – with its tangled, tortuous logic, its quaint, absurd confidence in the possibility of “objectively” ascertaining whether this or that statement is capable of engendering hate, and its prioritizing of group sensitivities over truth itself – has now verified that north of the border, speech is decidedly unfree. And they’ve done this, supposedly, for the benefit of the kinds of groups targeted by Bill Whatcott’s rhetoric.

Now, I’m not Canadian. But as a member of one of the groups the Court professes to be protecting, I feel obliged to say the following to the Court: Don’t do me any favors. I feel far less threatened by the likes of Whatcott than I do by courts that consider it their prerogative to limit the liberties of a free people in such an arrogant fashion. The justices seem not to recognize – or to care – that if you want to live in a truly free society, you’ve got to be willing to share that society with people who consider you an abomination and who feel compelled to shout their views from the rooftops. Curb their right to have their say, and you put your own rights on exceedingly shaky ground.

A further point. As we’ve seen, Jonathan Kay and Michael Plaxton, while generally approving of the Court’s decision, express concern that it will inhibit the articulation of religious convictions. But what they don’t note is that the Court’s decision is also a shot across the bow at those who might be inclined to criticize religion itself – notably Islam. Indeed, as law professor Alan Shanoff pointed out in the Toronto Sun, Canadians have effectively been enjoined by their Supreme Court to “tiptoe around criticism of any religion no matter how odious we may find some of its practices.” This isn’t fundamentally about Whatcott and other Christians of his stripe – their numbers up north are minimal and they pose no real threat to anything or anybody. No, one strongly suspects that for the Supreme Court, the Whatcott case represented, above all, a golden opportunity to set down guidelines for those individuals whose opinions have been perceived by Canadian authorities, in recent years, as the real menace to Canadian social order and harmony – namely, Islam critics like Mark Steyn and Ezra Levant.

A welcome dissent from the Court’s ruling came from National Post political columnist Andrew Coyne, who focused on a truly staggering sentence in the ruling, the intent of which was to justify the prosecution of even thoroughly veracious statements: “truth,” wrote the justices, “may be used for widely disparate ends.” Coyne’s thoroughly legitimate reaction: “I cannot quite believe I am reading these words, even now.” Coyne rightly questions the very premise of the Court’s ruling – namely, that people like Whatcott actually do succeed in convincing others to hate while “cut[ting] off any path of reply by the group under attack.” Take a gander at the National Post‘s photo of Whatcott with some of his posters, and ask yourself: has this guy caused hatred to spring up in formerly hate-free hearts – or is it more likely, on the contrary, that he’s intensified a lot of people’s contempt for the very views he seeks to spread?

The bottom line here is that the Canadian Supreme Court, in the name of justice, has struck a blow against freedom and promulgated a pack of lies – among them, first, the lie that free speech can and should be “balanced” against other worthy social objectives; second, the lie that it is possible for government officials to make “objective” determinations as to the possible consequences of a given speech act and as to the exact location of the boundary between hate and lesser emotions; and, third, the lie that “hate speech,” in some way, silences its targets. No, “hate speech” doesn’t silence – the prosecution of “hate speech” does. Yes, the Court’s decision may well be used to suppress the vigorous expression of religious people’s opinions – or, more specifically, the opinions of people who agree with Bill Whatcott.

But does anyone honestly think that, say, Canadian imams who preach core Islamic tenets – such as the obligation to punish gays, apostates, and adulteresses with death – are henceforth in serious peril of prosecution? Or has the Court, instead, handed the “objective” instruments of Canadian justice a fresh new club with which to bludgeon the few brave souls in that nation who dare to tell the truth about the Religion of Peace?