Canada is Free and Freedom is Its Nationality

Sir Wilfrid Laurier

Monday, December 7, 2009

Event Blogging the Free Speech and Liberty Symposium: Surveying the Litigation Landscape

Please Note: This is a summary of the events and speeches in my own words for educational, information, and entertainment purposes only. It is not the speakers' exact words and should not be taken as such. It also may contain errors due to the nature of the medium. I am not responsible for any of them, use at your own risk and consult the official audio record if you want to verify or quote anything.

Karen Selick is Litigation Director for the Canadian Constitution Foundation. She was called to the bar in Ontario in 1978 and spent 7 years as a corporate lawyer, then 24 years in private practice before moving to the non-profit sector in 2009.

Has the job of bringing constructive ideas about what to do, a nuts and bolts talk, not philosophical. We will look at history.

Her talk has five sections.

What do the statutes say?

What did the courts say? Particularly about twenty years ago.

What has changed?

What are the possibilities?

What are other things we can do?

(asks everyone to get out statute excerpts handout)

Canadian Charter Sec. 2

This guarantees freedom of speech etc. but must be read in light of section 1. It gives freedom in section 2, but potentially takes them away in section 1.

Then there is the Canadian Human Rights Act Section 13.

In the Criminal Code there is the anti-genocide promotion section.

Section 319 prohibits incitement likely to cause breach of peace and promoting hatred.

In the Criminal Code there is a defence of truth, public benefit, religion. Important defences.

Provincial legislation. There is a dividing line between the three western provinces and the other provinces. In Ontario for example you can't have No Jews or Don't Serve Jews signs, this is similar to other Eastern provinces.

In the West it is much wider. Saskatchewan is the broadest. Sect 14 prohibits any thing that exposes to hatred, ridicules, belittles, or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

ln BC and Alberta it is more limited but similar.

What have courts said? Most of these go back about 20 years.

The Keegstra case was about the constitutionality of Sect 319. The Supreme Court of Canada in a 4-3 decision upheld the law. Agreed that it violates freedom of speech but argues that it is justifiable. The person who wrote the dissent, McLachlin, is now Chief Justice. She quoted Borovay who said that Weimar Germany had anti-hate speech laws, but that did not stop Hitler. In fact the trials of Nazis accused of hate were used by Nazis to propagate their views. Anti- hate laws don't stop but may help hateful people.

The Taylor decision about the constitutionality of Section 13 agreed with Keegstra and Justice McLachlin again wrote the dissent.

Then there was the Zundel case which was prosecuted under the spreading false news legislation which was a 4-3 decision in favour of free speech and that statute was struck down.

Ross, a teacher, had a HRT case brought by parents who opposed him teaching their children in a poisoned environment. This was actually an unanimous case.

Justice McLachlin was also on the dissent side when they upheld election gag laws.

These are negative censorship cases, where you can't say something.

There are also positive cases, where people have rights to state resources by pamphleting in airports and advertising on buses. These are red herrings.

The Supreme Court has shown willingness to change it's stance on constitutional things. There is reason for optimism in this and because there are new people on court.

In 1990 the court was very specific that only the most heinous speech should be prosecuted. They might not be happy with the way that this was watered down by other people.

Justices are not impervious to public opinion and what is going on in Canada. I can't help but wonder if McLachlin would go against Taylor today if a case got to her.

The CHRT has found Section 13 not valid because of the penalties attached. This has been appealed by the Commission because they want clarification.

Boissoin case was a really strange decision. It found that he did not violate the law but declined to rule the hate speech law unconstitutional. There are also 7 places in that decision where he said that if they tried to enact a freestanding decision against speech that would be beyond their powers but since he interpreted this law as being only incitement to discrimination it is allowable. Free speech is not a provincial power, housing, and so discrimination in housing, is. The court didn't really seem to get all the NCC's arguments.

Other case is Saskatchewan over anti-gay pamphlets. This is also being argued on the basis of freedom of religion.

Alternatives to legal answers:

People who are members of minorities that are supposed to be beneficiaries of these laws, Jews, visible minorities, gays, etc should say they don't want hate speech laws.

Swamp the HRC with things. Like Ezra reprinting Boissoin letter.

Q1 Agree with point about vulnerable groups, protecting them like this is two sides of a coin of pity and condescension. As we would expect in a state governed by the religion of equality some people are more equal than others. Some rules are: No person of European decent may say anything that offends a visible minority. Heterosexuals cannot insult homosexuals. Christians cannot insult non-Christians. It is, however, permissible to say anything about Europeans, heterosexuals, Christians, etc.

A1 You know they say anti-semitism is about self esteem. When I hear someone making an anti-semitic remark I don't go oh what is wrong with me, I go what is wrong with him?

Q1 The Neo-Nazis are not rational. Some deny the holocaust, some see it as their greatest moment.

A1 About self-esteem, we are not made of brown sugar.

Q2 I agree we are not dealing with a rational movement in white supremacists. If we are portraying ourselves as free speech we are selling ourselves short. We are fighting higher powers, devils, some of these things that help HRC. We think McLachlin can help but she has bent rules before. The point should be that we need to self censor so there is no need for Big Brother to censor.

A2 Well I believe in being polite but I'm not going to self censor if what I say is true.

Q2 Like the cartoons incite violence

A2 But they are the news, shouldn't that be published?

Q2 Pictures of aborted fetuses shouldn't be shown because the wrong people get mad.

Q3 The cartoons didn't incite violence until the Imams whipped it up

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