The Whatcott case: Drawing a line between free speech and hate

By Emmett Macfarlane - Wednesday, February 27, 2013 at 1:18 PM - 0 Comments

The Supreme Court has drawn a line between free speech and hate speech, but it did so with a slightly shaky hand.

The length of time it took the Court to provide a constitutionally acceptable approach to identifying hate speech—504 days from the hearing of the case to today’s decision—suggests spotting an “unacceptable” level of hate isn’t as straightforward as the justices seem to think.

At issue in today’s ruling were flyers distributed by William Whatcott containing a vile attack on gays that suggested exposure to homosexuals would “lead to the early death and morbidity of children,” among other odious beliefs. While no thinking person would find such thoughts acceptable on a moral level, whether the expression of such thoughts should be subject to state sanction presents a fundamental constitutional issue relating to freedom of expression under the Charter of Rights. The Court found that two of his four pamphlets fall under the Code.

Today’s decision keeps in place part of the Saskatchewan Human Rights Code that prohibits expression “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.” The decision also largely upholds the most relevant precedent (the 1990 Taylor case), but with a few changes that narrow the definition and application of “hatred.”

First, drawing largely on the Taylor case, the judges confront the obvious problem that emotion is central to a person’s reaction to speech, and that an approach that interprets “hatred” should not be premised simply on eliminating feelings of dislike. The purpose of the legislation is to prevent the risk of harms associated with “extreme” examples of speech, such as discrimination. The Court settles on “detestation” and “vilification” to describe the harmful effects (abandoning a third word from the Taylor case, “calumny,” as unnecessary).

Second, the Court emphasized that the focus should be on the effects of the speech, rather than on the nature of the ideas expressed. “If the repugnancy or offensiveness of an idea does not exclude it from Charter protection under s.2(b), they cannot, in themselves, be sufficient to justify a limit on expression.” Thus a blanket prohibition on hateful ideas would clearly be contrary to the core of freedom of expression. The distinction drawn here is between such expression and expression “which exposes groups to hatred.”

Finally, the judges find that the phrase “ridicule, belittles or otherwise affronts the dignity of” in the Code does not meet the standard of “detestation” or “vilification” and should be severed from the legislation.

This approach faces a number of challenges, which the judges make their best attempt to address. How can this standard of detestation or vilification be identified? Feelings, even the deepest, most extreme feelings that result from hatred, are inherently subjective. We can’t rely on the feelings of a potential victim of hate speech; after all, people react to different ideas in different ways. Instead, the Court lays out what it calls an “objective” approach: would a “reasonable person,” knowing the full context and circumstances of the hateful speech, believe it likely to raise the risk of discrimination or some type of societal harm?

Courts have long relied on this mythical reasonable person to deal with the interpretation and application of inherently subjective concepts. The problem, of course, is that reasonable people might reasonably disagree. To some extent the Court has reinforced the idea that hate speech, like pornography, is something a reasonable person knows when he or she sees it. The Court hasn’t put forward a definition so much as it has attempted to lay down a threshold for acceptable speech. But that line is obfuscated by the very emotions it is purportedly based on.

A more fundamental problem is that the Court’s notion of a risk of “harm” that results from hate speech is ill-defined. Shouldn’t there be evidence that the expression of hatred had actual discriminatory effects? The judges acknowledge that the Taylor case was subjected to criticism along those lines: the Court’s approach does not do enough to ensure limits on free expression were “demonstrably justified.”

Today’s decision responds to these concerns by saying such criticism “ignores the particularly insidious nature of hate speech. The end goal of hate speech is to shift the environment from one where harm against vulnerable groups is not tolerated to one where hate speech has created a place where this is either accepted or a blind eye is turned.” As a result, the best approach to take is one of a “reasonable apprehension of harm.”

While laudable in theory, the scenario where hateful speech produces an actual harmful environment for vulnerable groups seems to imply a lowest common denominator expectation of the reaction broader society will have to the hateful speech. Why expect, however plausible, that a harmful environment will be produced rather than the opposite: where individuals drown out the haters with expression of their own?

The argument that hate speech is “insidious” doesn’t appear to give sufficient weight to free expression. In fact, the “reasonable apprehension of harm” approach seems to act in direct contradiction to the Court’s stated position that the standard of review should be based on the effects of the speech rather than the ideas contained within.

It is highly likely that the Court took so long to render a decision in this case because the judges had to work hard to come up with unanimous reasons everyone could agree on. (A rare 6-0 judgment, the result of the retirement of Justice Deschamps, who took part in the hearing but retired more than six months before the decision was rendered and so could not sign on). The result is a bit of a messy compromise, where the standard laid out for lower courts to follow ultimately boils down to “some hateful ideas are okay, but not the really hateful ones that a reasonable person thinks might cause discrimination or harm.”

For some people, this will all seem eminently reasonable. For others, it is a line-drawing exercise fraught with difficulty.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo.

Justin Trudeau should be the next leader of the Liberal Party. No, seriously.

By Paul Wells - Friday, May 4, 2012 at 11:08 AM - 0 Comments

Photograph by Blair Gable

The only time Justin Trudeau had for an interview on a recent Thursday was over breakfast at his Ottawa hotel. Under his suit jacket, the sleeve buttons on his dress shirt were undone. His necktie was knotted, but left loose over an open top button. His mane of black hair was tousled. Even in genteel disarray, even dressed more or less like a couple hundred of his parliamentary colleagues, the 40-year-old Liberal MP for the Montreal riding of Papineau looked like a million bucks.

I showed up late, slumped into a seat, ordered an omelette. I’ve known Trudeau for nine years, never well. Trudeau wondered why I’d convened this little meeting. “Your first note to me said you’d need three minutes to chat. Now it’s breakfast and your photo department is calling my office looking to take pictures. What’s up?”

There was no point beating around the bush. It’s not as though he hadn’t heard the question before.

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Harper used to fret about “arbitrary” Charter rulings

By John Geddes - Tuesday, April 17, 2012 at 5:43 PM - 0 Comments

Stephen Harper hasn’t offered up any very detailed comment on his view of the Charter of Rights and Freedoms since he became Prime Minister. But Paul Wells guides us through how we might interpret Harper’s ambivalent remarks on today’s 30^th anniversary of Pierre Trudeau’s landmark contribution to Canada’s constitutional evolution.

For those curious about Harper’s earlier, perhaps less guarded days, and how he might have seen the Charter back then, I can think of two glancing remarks that shed a bit of light on his view of it—neither of them, unfortunately, very definitive. In both cases, he seemed mainly worried about “arbitrary” interpretation of Charter rights by the courts.

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‘That has been the problem since 1982′

By Aaron Wherry - Tuesday, April 17, 2012 at 5:08 PM - 0 Comments

A footnote to Mr. Mulcair’s official statement on the 30th anniversary of the Charter: Paper Dynamite digs up a speech Mr. Mulcair gave two years ago in the House during debate on representation in the House of Commons.

The biggest problem is the attitude the Liberal Party has had for the past 40 years. That has been the main problem with the Canadian federation since the time of Pierre Elliott Trudeau. The Liberals pay lip service to the idea of recognizing Quebec, but when push comes to shove, they always vote against such recognition.

The sad fact is that the Meech Lake and Charlottetown accords, which were negotiated in good faith, were necessary because the Canadian Constitution that Pierre Elliott Trudeau and Jean Chrétien repatriated includes the law passed in English only in England, with a bilingual schedule. The law begins with the words “Whereas Canada has requested”.

It is a bald-faced lie to say that Canada requested this, because Quebec was not included, unless the point was to show that to Pierre Elliott Trudeau and the Liberal Party of Canada, Canada did not include Quebec. That has been the problem since 1982. The Canadian Constitution, which was adopted despite both sovereignist and federalist opposition in Quebec City, still exists. In spite of the Meech Lake and Charlottetown accords, which were negotiated in good faith, the government has never managed to accommodate Quebec to this day.

‘New Democrats will continue to work to ensure that one day it becomes part of a Constitution that includes us all’

By Aaron Wherry - Tuesday, April 17, 2012 at 3:53 PM - 0 Comments

A statement from NDP leader Thomas Mulcair on the anniversary of the Charter.

It has been three decades since Canada chose to codify and protect our fundamental rights as citizens in the Charter of Rights and Freedoms.

Today the Charter stands as an example the world over. It reminds us that respect for basic human rights is a vital part of every modern society, and that any threat to these rights constitutes a threat to society as a whole.

New Democrats are proud of the role we played in shaping the Charter of Rights and Freedoms—including Tommy Douglas’ passage of Canada’s first Bill of Rights in Saskatchewan and the role Ed Broadbent played in ensuring that women’s rights were enshrined in the Charter itself.

At the same time, the anniversary of the Charter also serves to remind us that, 30 years after the repatriation of the Constitution, Quebec is still not a signatory to the most fundamental compact of our democracy.

As such, New Democrats will continue on the path laid out by Jack Layton, working to create the conditions that will one day allow Quebec to embrace the Canadian constitutional framework. We will work tirelessly to give real meaning to the unanimous recognition that the Québécois form a nation within Canada.

The Charter of Rights and Freedoms is a document that reflects our most fundamental common values. New Democrats will continue to work to ensure that one day it becomes part of a Constitution that includes us all.

‘An important step’

By Aaron Wherry - Tuesday, April 17, 2012 at 11:17 AM - 0 Comments

A statement from Heritage Minister James Moore and Justice Minister Rob Nicholson on the Charter.

Today marks the 30th Anniversary of the Proclamation of the Constitution Act of 1982, which was formally signed by Her Majesty Queen Elizabeth II on April 17, 1982, in the presence of tens of thousands of Canadians on Parliament Hill in Ottawa.

This anniversary marks an important step in the development of Canada’s human rights policy. Building on Diefenbaker’s Canadian Bill of Rights of 1960, the Constitution Act of 1982 enshrined certain rights and freedoms that had historically been at the heart of Canadian society into a constitutional document known as the Charter of Rights and Freedoms.

The Constitution Act of 1982 empowered our government to amend every part of Canada’s constitution, for the very first time.

As we look ahead to Canada’s 150th Anniversary in 2017, we encourage all Canadians to commemorate the milestones that have built our nation and made us the great country we are today.

‘The Charter enshrines our most cherished Canadian values’

By Aaron Wherry - Tuesday, April 17, 2012 at 11:07 AM - 0 Comments

Interim Liberal leader Bob Rae’s statement on the 30th anniversary of the Charter.

“On the steps of Parliament Hill, 30 years ago today, Pierre Elliott Trudeau’s Liberal government signed the historic Canada Act, 1982, patriating our Constitution and making the Charter of Rights and Freedoms the supreme law of the land.

The Charter enshrines our most cherished Canadian values. It reflects our belief that Canadians have a fundamental right to live free from discrimination, to assemble peacefully and express our opinions, to vote in elections unimpeded, to be presumed innocent until proven guilty, and fundamentally, that our individual rights take precedence over the rights of government.

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Happy Charter Day

By Aaron Wherry - Tuesday, April 17, 2012 at 8:01 AM - 0 Comments

The Prime Minister isn’t quite ready to celebrate.

Harper alluded to the fact that Quebec did not sign on to the Constitution Act of 1982, of which the Charter was a part. Two other attempts to bring Quebec into the constitutional fold — the Meech Lake and Charlottetown Accords — failed. “In terms of this as an anniversary, I think it’s an interesting and important step, but I would point out that the Charter remains inextricably linked to the patriation of the Constitution and the divisions around that matter, which as you know are still very real in some parts of the country,” Harper said.

Thomas Mulcair wasn’t too keen on the Charter ten years ago when he was a member of the Quebec assembly. Jean Chretien says the Night of the Long Knives is more myth than reality. And, on the same note, former Newfoundland premier Brian Peckford wants his due.

When you care enough to send the very best

By Aaron Wherry - Friday, April 13, 2012 at 8:30 AM - 0 Comments

The Harper government will mark the 30th anniversary of the Charter of Rights and Freedoms and the repatriation of the Constitution with a news release. Irwin Cotler is unimpressed.

Simply put, the Charter of Rights and Freedoms is promotive and protective of what the pursuit of justice is all about. It is promotive and protective not only of the inherent dignity and worth of every human being, but the equal dignity and worth of all human beings — where one can aspire to a society which celebrates both equality and human dignity — a society which not only speaks to us in terms of who we are — that recognizes the dignity of difference — but also in terms of what we as Canadians, both collectively and individually, can aspire to be.

It would be only appropriate for the government to recognize the singular significance of the Charter by celebrating and commemorating its 30th anniversary, and recognize its place and importance in both the juridical and political history of Canada, and beyond.

Canada’s Commonwealth edge

By John Geddes - Tuesday, February 7, 2012 at 10:28 AM - 0 Comments

I’m not much of a monarchist, so I’m afraid you’ll have to look elsewhere for coverage of Queen Elizabeth’s Diamond Jubilee. On the other hand, I am struck lately by new legal and economic research that strongly suggests paying close heed to old Commonwealth ties would be a shrewd foreign-affairs strategy, not a nostalgic distraction, for Canada.

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‘Making Canada a meaningful contributor in the world’

By Aaron Wherry - Monday, February 6, 2012 at 1:41 PM - 0 Comments

Given the Harper government’s eagerness to celebrate international recognition, there will no doubt be congratulations offered in the House this week for Pierre Trudeau on the occasion of a new study heralding the global influence of the Charter.

Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”

(Headline taken from the Prime Minister’s speech to last year’s Conservative convention.)

‘The law recognizes same-sex marriage in Canada’

By Aaron Wherry - Thursday, January 12, 2012 at 7:29 PM - 0 Comments

Brian Topp and Paul Dewar respond to today’s news. Emmett Macfarlane considers the case and defers to the Charter.

The Prime Minister was in British Columbia just now for a shipbulding announcement and was asked again about the case.

We’re not going to reopen that particular issue. This is a complicated case and the Minister of Justice, I think, has put out a statement clarifying the government’s position on that.

Mr. Harper was then asked specifically whether the government considered the same-sex marriages of non-citizens to be legal or not.

The law recognizes same-sex marriage in Canada and the government is not going to reopen that issue.

The reporter who asked the second question was heckled when he did so.

Occupy protests & the Falun Gong precedent

By Colby Cosh - Saturday, November 19, 2011 at 6:14 AM - 35 Comments

As Occupy Toronto gets a slightly bumpy ride in court from Superior Court Justice David Brown, I’ve been waiting for just one legal analyst, amateur or professional, to stumble across what appears to me to be the best, highest-level judicial treatment of the Charter issues that the Occupy movements raise. The case, Vancouver v. Zhang, is all of a year old, and involved a unanimous decision of the B.C. Court of Appeal.

I’m no lawyer, but Zhang seems awfully instructive. The BCCA was presented with a question of crucial importance to the Occupy situations: can a non-artistic structure, in itself, have protected expressive content? Falun Gong protesters had erected a “meditation hut” and a billboard in front of the Chinese consulate on Granville Street. The City Engineer ordered it torn down as an admittedly minor, hypothetical sort of traffic “obstruction”, and the city argued that removing a structure didn’t unduly restrict the protesters’ free-expression rights. City officials weren’t making a political distinction between types of speech, the lawyers contended; they simply had an inflexible mandate to smash any structure that was on city property without a permit. Continue…

Stephen Harper and Canada, a love story (III)

By Aaron Wherry - Tuesday, February 8, 2011 at 10:13 AM - 46 Comments

From Paul and John’s consideration of the Harper Era, insight into the place of patriotism in the new Conservative party.

“We didn’t have a competing narrative,” one of them says now. “What are the symbols people talk about when they talk about Canada? Health care. The Charter. Peacekeeping. The United Nations. The CBC. Almost every single example was a Liberal achievement or a Liberal policy. We had gotten to a point in Canada where the conservative side of politics had been marginalized—where we weren’t even recognized as legitimately Canadian.”

… Harper had to carve out a patriotic vocabulary that was different from the Liberals’. “We didn’t have any illusions about displacing the Liberal vision and the Liberal narrative of Canada,” the strategist says. “But we needed to give the conservative side something to rally around.” So almost from the beginning, Harper started building a distinct right-of-centre, patriotic new vocabulary. “It’s the Arctic,” this strategist said. “It’s the military. It’s the RCMP. It’s the embrace of hockey and lacrosse and curling.” In policy terms, it included the child care cheques and the accompanying rhetoric of families able to make their own choices.

See previously here and here.

Not so much a whodunit as a WTF

By Colby Cosh - Wednesday, March 10, 2010 at 12:29 PM - 105 Comments

Anyone else think the Star‘s buried revelation about Rahim Jaffer’s criminal case only makes things more confusing?

A rookie Ontario Provincial Police officer failed to follow proper procedures during a strip search of Jaffer, 38, causing the Crown to conclude the case would be open to a Charter challenge, the Star has learned. While the OPP opposed Jaffer only being charged with careless driving, the Crown took a steadfast position, sources say.

If they found cocaine in Jaffer’s possession before conducting the strip search, failing to follow proper procedure wouldn’t impeach that evidence (and it is hard to see how it could impinge upon the impaired-driving charge at all). Under Charter guarantees, the lawyers tell me, you can use fruit gathered from the “evidentiary tree” up until the point at which it becomes “poisoned”. But if the cops strip-searched him before they knew he might be carrying cocaine, why the hell did they do it (and do it carelessly)? Cops are only supposed to conduct strip-searches to protect their own safety or to prevent the destruction of evidence related to the reason for the original arrest.

I’m struggling to arrive at an alternative explanation other than “Some ‘rookie’ cop overstepped his authority and used a strip-search as an instrument of intimidation”, but I’m open to suggestions.

The Tewksbury clause

By Aaron Wherry - Wednesday, March 3, 2010 at 10:31 AM - 37 Comments

Dale Smith, who noted the lack of reference to gay rights in the citizenship guide when the guide was released, rounds up reaction to yesterday’s revelation.

“It’s becoming more and more clear that the Conservatives did not intend this to be a Canadian citizenship guide, but instead a Conservative citizenship guide,” says gay Liberal MP Scott Brison. ”Canada’s Charter of Rights has helped make Canada one of the most progressive societies in the world and a magnet for those seeking equality. The Charter is not a buffet. You can’t take from it the rights you like and ignore the rest.”

For the record, the portion of the citizenship guide that covers the Charter reads as follows. Continue…

A missed opportunity for diversity

By Mark Steyn - Thursday, February 25, 2010 at 7:00 AM - 228 Comments

Left and middle: Photographs by Brian Howell

Judging by emails from readers in America, Britain, India, Australia, Europe, Africa and beyond, Vancouver’s Olympic ceremony was a gold medal snoozeroo of politically correct braggadocio impressive even by Canadian standards. A Florida correspondent suggested that Beijing’s decision in 2008 to downplay discreetly its official state ideology might have been usefully emulated by Canadian organizers unable to go a minute and a half without reflexive invocations of their own state ideology of “diversity.” A reader in Sydney said he had no idea until the ceremony that the majority of Canada’s population were Aboriginal. Actually, if they were, you’d be hearing a lot less talk about “diversity,” for reasons we’ll come to later.

But don’t take the word of doubtless untypical Steyn readers. Out on the Internet, the Tweeting Twitterers pronounced it a bust, and even in the Toronto Star Richard Ouzounian declared that “the eyes of the world were upon us and we put them to sleep.” On the other hand, the Vancouver Sun’s reporter cooed that this was “the Canada we want the world to see, magical and beautiful, and talented.” This just after she’d written: “Maple leaves fell from the sky. And then, the divine poetess Joni Mitchell and her haunting Clouds fills the air while a young boy floats and soars above the audience, undulating fields of wheat below.” I was pleasantly relieved to discover that a story about “the world’s most lethal cocktail” concerned some enterprising dealers who’ve been lacing heroin with anthrax, and not whichever malevolent genius came up with the idea of having airborne ballet dancers doing interpretative choreography over the Prairies to a mélange of Both Sides Now and W. O. Mitchell’s Who Has Seen The Wind. As is traditional, most of the creativity went into the audience estimates: apparently, this tribute to the only G7 nation comprised solely of high priests of the Great Tree Spirit, armies of Inuit sculptors, and Cape Breton chorus lines of federal grant worshippers was watched by three billion people “worldwide.” As if the Royal Canadian Mint could afford to commission that many commemorative authentic pewter maple-encrusted manacles.

Canada’s message to the world: every cliché you’ve heard about our plonkingly insecure self-flattering PC earnestness has been triumphantly confirmed. You need pay us no further heed until the 2068 Commonwealth Games opening ceremony. Half the countries, twice as long!

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A trial in error?

By Philip Slayton - Thursday, December 24, 2009 at 9:00 AM - 26 Comments

Terri-Jean Bedford is a professional dominatrix. According to a newspaper report, her happiest hours have been spent tying up male clients and spanking them at her north Toronto “bondage bungalow.” Now, Bedford is playing in a different, and more serious, arena. She’s in court with two other sex workers, trying to change Canadian laws governing prostitution. Prostitution itself is legal in Canada, but Bedford and her colleagues are challenging provisions of the Criminal Code that make it illegal to operate a bawdy house or live off the avails of prostitution.

These laws, they say, drive prostitutes onto the streets and deny them the protection that could be given by a manager, bodyguard or chauffeur. The result, they argue, is to make their trade much more dangerous, exposing them to people like Robert Pickton, the convicted serial killer of Vancouver streetwalkers. They claim that the laws infringe their constitutional right to security, found in Section 7 of the Charter of Rights and Freedoms, and should therefore be struck down.

The Bedford hearing took place in October, in Toronto, over seven days. A verdict is expected in a few months. The judge, Susan Himel, spent much of her time listening to a debate about the relationship between law and morality, and hearing about social policy that might be considered desirable.

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Closed for debate

By Erin Millar - Thursday, December 17, 2009 at 12:10 PM - 80 Comments

It was standing room only at the University of Victoria on Oct. 21, when anti-abortion activist Stephanie Gray visited from Calgary to debate distinguished medical ethicist Eike-Henner Kluge. Gray and Kluge duked it out twice that day, to accommodate those who couldn’t fit into the 200-seat room for round one. Not one to disappoint, Gray, who is executive director of the Canadian Centre for Bioethical Reform, employed the tactics that make her so controversial: she compared abortion to the Holocaust, showed a video of an abortion, and juxtaposed images of bloodied fetuses with photos of corpses from atrocities such as the Rwanda genocide.

Yet compared to some of the activism on Canadian campuses, the debate was mild, the audience civil, even polite. Periodically, when Gray began speaking, a group of students would hold up signs sporting slogans like “My body is not up for debate.” And there were scattered heckles when she accused pro-choicers of believing that “a woman has the right to directly and intentionally dismember and decapitate and disembowel her child.” But she wasn’t accosted, yelled at, or in any way prevented from speaking her mind. Nevertheless, the debate and other events organized by UVic’s pro-life club, called Youth Protecting Youth (YPY), are shaping up to be the basis of a legal battle over free speech that could change the way student unions and even universities operate.

The spat began in October 2008 when the university’s students’ society refused to give YPY the same meagre funding all UVic student clubs receive. Clubs approved by a committee are entitled to $232 each year and such perks as banner supplies and free room bookings. Upon review in 2009, the committee approved YPY. But the students’ society board stepped in and once again revoked the funding. In an Oct. 5 meeting, the society’s directors accused YPY of “harassing” female students (although they mentioned no specifics). Director Tracey Ho summed up the society’s position by saying, “No one should debate my rights over my own body.”

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Manitoba town to ban kids at night

By Tom Henheffer - Thursday, September 10, 2009 at 1:20 PM - 15 Comments

Rick Pauls wants the kids off his streets. As the mayor of Killarney, Man., he’s trying to pass a bylaw that would fine parents $250 when children ages 17 and under are caught outside after 1 a.m. “It’s not that we have a big crime problem,” he says. “We just have some youngsters out to all hours of the night disturbing the peace.”

Pauls says youths are climbing on cars, damaging rooftops, and throwing park benches into lakes, and that they escape too quickly for police. He blames the situation on a society that has gotten too soft. “Today in school you can’t fail a kid because you might hurt their feelings. You don’t try out for little league anymore, everybody gets on the team,” he says. “In life there’s winners, there’s losers and there’s consequences for your actions. It’s time that as a society we start instilling those values again.” Continue…