Supreme Court reaffirmed Canadian balance on free speech
TheStar.com – opinion/commentary – Ruling ‘balances free speech with the need to limit hate,’ Max Yalden says.
Mar 17 2013. By: Haroon Siddiqui Columnist
He was head of the Canadian Human Rights Commission and also a member of the UN committee monitoring the International Convention of Civil and Political Rights. In retirement, Max Yalden winters in France, where I reached him.
What does he think of the recent Supreme Court ruling that free speech can be, must be, restricted, not overly so but somewhat, in order to curb hate speech?
“It’s a very wise decision. It balances free speech with the need to limit hate. Canada is not the United States, with their absolute emphasis on letting anyone say whatever they want. Nowhere else in the world is that the case. The UN convention on rights upholds free speech but goes on to say that you cannot incite hatred.
“Canadians value free speech but not to the extent that you may bring women, gays, Jews or Muslims or whoever into hatred and contempt.
“The court has reflected the way Canadians see the issue.”
But that’s not the way Stephen Harper sees it.
Bowing to mostly right-wing attacks on the anti-hate provisions of both the federal and provincial human rights codes, the Conservatives have axed section 13 of the federal code. That provision prohibits hate on grounds of race, religion, ethnic origin, etc. The bill is now before the Senate.
The court’s is a legal judgment, Harper’s a political one. Both are acting in their assigned domain. But he is abandoning what the top court is strenuously defending. It has dismissed the arguments that he is pandering to, namely:
Anti-hate laws undermine free speech.
No, said the court, they “appropriately balance . . . freedom of expression with competing Charter rights and other values — a commitment to equality and respect for group identity and the inherent dignity owed to all human beings.”
Anti-hate laws breed political correctness, stifle debate.
No, “hate speech legislation is not aimed at discouraging repugnant or offensive ideas. It does not, for example, prohibit expression which debates the merits of reducing the rights of vulnerable groups. It only restricts the use of expression exposing them to hatred.”
Hate speech is hard to define.
The judges have defined it — as that which “a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.” They also provided “a workable approach” to combating it.
Apply the rules “objectively” (their emphasis).
Interpret “hatred and contempt” “as being restricted to those extreme manifestations of the emotion described by the words ‘detestation’ and ‘vilification.’ This filters out expression which, while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects.”
Look to the effect of hate speech on the target. “Is the expression likely to expose the targeted person or group to hatred by others?”
A no-holds-barred debate may hurt but it does not harm anyone.
“Preventive measures do not require proof of actual harm. The discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians.”
Provocateurs do not mean to malign the group they attack.
Good try, but “allowing the dissemination of hate speech to be excused by a sincerely held belief would, in effect, provide an absolute defence and would gut the prohibition of effectiveness.”
The court could have added that human rights codes are not the only limitation on free speech.
Libel laws don’t allow writers to say whatever they want about, say, Conrad Black. Why is that chill less corrosive of free speech than anti-hate laws? Are minorities less worthy of legal protection?
The Criminal Code, too, limits free speech. I may be marched off to jail for up to two years if convicted of spreading hate. Granted, the bar to prosecute is higher there than under human rights codes. Still, it makes no sense to criminalize speech and jail people for their words, rather than merely imposing a fine on them.
As welcome as the court’s ruling is, its impact would be limited. Only Saskatchewan, Alberta and British Columbia have laws similar to section 13 of the federal code. Ontario looks only at discriminatory “symbols” and “signs”; it does not hear complaints about the media.
The greatest value of the ruling is that the court has levelled the intellectual playing field after years of mostly unopposed rants against a very Canadian approach to balancing the competing rights of free speech and freedom from hate.
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