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Sunday, July 06, 2008

More on Hate Speech from Canada

To no one's surprise, the Canadian Human Rights Commission has dropped its bizarre investigation of MacLean's magazine for printing a chapter of Mark Steyn's book, America Alone. The Commission had brought the case before the Human Rights Tribunal, charging that Steyn's chapter constituted "hate speech" under section 13 of the Canadian Human Rights Act, S.C. 1976-1977, c. 33, because it might tend to "expose a person or persons to hatred or contempt" because they were Muslims. Steyn's book did not remotely resemble "hate speech," if that term means "speech intended to incite hatred or contempt." Steyn had merely argued -- accurately -- that many Fundamentalist Muslims did not share, and therefore might threaten, the liberal and secular values of many Europeans, if the numbers of the former increased more rapidly than the numbers of the latter. The notion that such speech could be suppressed because it hurt someone's feelings had inspired widespread outrage from Canadians and Americans.

I had noted in an earlier post that, despite its goofy and oppressive investigations, the Human Rights Commission might not be a serious threat to freedom of speech in Canada. Canada's political and journalistic elites, I predicted, would bring the bureaucratic censors at the Commission to heel, because those elites would not tolerate violations of Canada's culture of a free press. The Canadian Supreme Court has done little to restrain the Commission, but the Conservative Government of Canada has moved for an investigation by Parliament's Justice committee of the Commission's enforcement of section 13. My prediction: The Commission's powers will be severely trimmed following such an investigation. (Merely giving successful respondents their reasonable attorneys' fees would go far to eliminate the threat posed by run-amok investigations).

The dismissal of the Steyn case is a small data point tending to bear out my prediction. The continued attacks on the Commission suggest that more data will be available soon. Some will say that, in the mean time, the Commission will "chill" speech in Canada. I have yet to see the slightest indication of such chilling: To the contrary, the provincial and federal commissions' ham-handed investigations seem to have provoked an extraordinary degree of very vocal ridicule and contempt from Canadians, including at least one columnist's begging the commission to investigate the author. (As one envious writer noted, the commission's investigation of Steyn has been pure gold for his book sales).

In short, I continue to think that free speech is alive and well in Canada -- sustained not by courts or constitutional doctrine but by a political culture that values a free press and a press that loves a donnybrook.

Posted by Rick Hills on July 6, 2008 at 10:22 PM in Constitutional thoughts | Permalink


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I understand that this and the previous post are focussed on HRCs and the regulation of hate speech. However, each contains broader propositions about Canadian courts and Canadian political culture. For example, in the July 7 post you say:

"In short, I continue to think that free speech is alive and well in Canada -- sustained not by courts or constitutional doctrine but by a political culture that values a free press.."

In the June 12 post you say:

"...Canadians are famously more tolerant of restrictions on speech..."

There, you also suggest that Taylor reflects more broadly on freedom of expression jurisprudence:

"...Taylor shows an extraordinarily casual attitude towards freedom of expression..."

As noted previously, this broad statement is unsustainable.

And I would not understate the importance of the reforms to libel law undertaken in Cusson or WIC Radio - the chilling effect generated by private litigation is arguably a greater threat to freedom of the press than that posed by HRCs run amok. Decisions made by HRCs attract greater public scrutiny than do decisions of courts in private law cases.

Cusson and WIC are as important to the "proverbial street corner ranter; the pamphleteer with cranky, angry screeds about immigrants, the radio shock jock" as the highly publicized developments in the HRC cases.

Posted by: anon | Jul 7, 2008 9:49:35 AM

I did not suggest that the Canadian Supreme Court never protected speech: I wrote that the Canadian Supreme Court has not "has done little to restrain the [Human Rights] Commission." In the specific area of "hate speech" regulation, the Court continues to adhere to the doctrine of Canada v. Taylor,[1990] 3 S.C.R. 892 (available at )">http://scc.lexum.umontreal.ca/en/1990/1990rcs3-892/1990rcs3-892.html">) -- a doctrine that is (by American standards) extraordinarily lenient in its review of the Commission's penalizing of truthful speech.

Cusson v Quan (available at http://www.canada.com/ottawacitizen/pdf/cusson.pdf) deals with libel, not governmental regulation. Judicial willingness to place constitutional limits on such private claims does not necessarily indicate any willingness to restrain regulation by governmental officials. If Canadian courts (as I suspect) tend to defer to governmental decision-makers, then those courts might well give the Commission a blank check while simultaneously restricting the tort claims of private litigants.

Fortunately, freedom of speech in Canada -- as elsewhere -- does not depend on vigorous judicial review. It depends on a vigorous, speech-protective political culture. Like the British experience, the Canadian experience suggests that Bills of Rights, judicial review, and constitutional doctrine are neither necessary nor sufficient for protecting a untrammeled. contentious, noisy, indeed ribald press.

Posted by: Rick Hills | Jul 7, 2008 8:46:45 AM

Interesting post. But your comments on Canadian courts are unfounded. See recent decisions of the Supreme Court of Canada in WIC Radio and the Ontario Court of Appeal in Cusson (leave in the latter has been granted by the SCC). These decisions have been rightly celebrated in and by media as broadening the scope of protection afforded to freedom of expression in Canada.

Posted by: anon | Jul 7, 2008 8:05:52 AM

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