Canada is Free and Freedom is Its Nationality

Sir Wilfrid Laurier

Monday, February 21, 2011

Supreme Court Speech Decision

 In one of the more under commented on stories of the week:

The Supreme Court of Canada has come down 6-1 on the side of freedom of speech, and not just freedom in a disputable case, but freedom in quite an extreme case. Andre Arthur, a radio host, delivered a rant about Arab and Haitian cab drivers, saying that,
[translation]  Why is it that there are so many incompetent people and that the language of work is Creole or Arabic in a city that’s French and English?  . . .  I’m not very good at speaking “nigger”. . . .  [T]axis have really become the Third World of public transportation in Montreal. . . .  [M]y suspicion is that the exams, well, they can be bought.  You can’t have such incompetent people driving taxis, people who know so little about the city, and think that they took actual exams. . . .  Taxi drivers in Montreal are really arrogant, especially the Arabs.  They’re often rude, you can’t be sure at all that they’re competent and their cars don’t look well maintained.
The Court ruled that while the speech was racist, it was impossible to prove that it had caused personal harm to all the members of the class action lawsuit.

Apparently one of the things that Courts look for when deciding group defamation suits is the size of the group and how homogenous the group is. The smaller and more homogenous the group, the more likely a group libel action to succeed. For example, remarks about "women" or "lawyers" (or "Muslims" or "homosexuals" presumably) in general cannot constitute defamation, because the group is too large and diverse for the remarks to personally affect every member of the group.

The Court also decided that context was important (HRCs take note) and that Andre Arthur's reputation as an over the top "shock jock" meant that an "ordinary person" would be very unlikely to take the remarks as literal reputable truth (Note to self, cultivating reputation as controversial can help in defamation suits. Interesting.)

In general the Court decided that it was obvious the remarks were over the top, that no "ordinary person" would assume that they applied to each and every Arab and Haitian taxi driver in Montreal, and therefore it could not be said to personally discredit and damage every Arab and Haitian taxi driver in Montreal.

In other words, the Court soundly rejected the idea of any sort of corporate damage or group defamation. Defamation law only protects individuals, not groups.

Since the right to the protection of reputation, which is the basis for an action in defamation, is an individual right that is intrinsically attached to the person, only those who have suffered personal injury become entitled to compensation.  The requirement of proof of a personal injury contributes to maintaining the balance between freedom of expression and the right to the protection of reputation, and also applies where the defamatory comments are made about a group.  However, an individual will not be entitled to compensation solely because he or she is a member of a group about which offensive comments have been made.  The member or members of the group who bring an action must have sustained personal injury.(Bolds mine)
Whether the Supreme Court will extend this idea that rights belong to individuals, not groups, to human rights complaints I do not know. However I think it is clear from this ruling that the Supreme Court is not necessarily an enemy of freedom of speech, even in shocking cases, and thus the cases like Whatcott's that are heading towards the Supreme Court have, in my opinion, considerably better than a 50:50 chance of winning. 

Other interesting comments coming out of the ruling:

Freedom of expression is protected by the Canadian Charter of Rights and Freedoms, s. 2(b), and the Charter of human rights and freedoms, R.S.Q., c. C‑12, s. 3 (“Quebec Charter”).  It is one of the pillars of modern democracy.  It allows individuals to become emancipated, creative and informed, it encourages the circulation of new ideas, it allows for criticism of government action and it favours the emergence of truth... Freedom of expression is essential in ensuring that social, economic and political decisions reflect the aspirations of the members of society.  It is broad in scope and protects well‑prepared speech and wrath‑provoking comments alike...  However, it is not absolute and can be limited by other rights in a democratic society, including the right to protection of reputation.
Rather well put if you ask me. Also, contrary to what might seem to be the case, the Supreme Court appears to view defamation law as evolving, towards a more full protection of freedom of speech.
What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today.  Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest. 

All quotes from CanLII

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