Canadian Free Speech – Somewhat different?

The now famous letter from University of Ottawa Provost Francois Houle to conservative pundit Ann Coulter said Canadian law on free speech is “somewhat different” than that of the United States. In the uproar that followed there was very little discussion of just what was the law of free speech in Canada. A closer review of that law suggests that Houle was right, at least presently, to suggest Canada has less space for free speech than the United States.

At the outset it is important to distinguish between the right to free expression, which is guaranteed as a fundamental freedom under the Canadian Constitution, and the right to say anything anywhere which is not so guaranteed. A conservative magazine is perfectly entitled to turn away submissions from liberals. The University of Ottawa is entitled to limit speakers to those it prefers; whether that is consistent with the mission of the university is another matter altogether. In that sense the University of Ottawa was entitled to limit Ms. Coulter’s words; of course, that was not what the Provost suggested, rather, he suggested there were legal restrictions that would apply regardless of where Coulter spoke.

The reasons for allowing free speech are familiar. The history of responsible government tracks the growth of freedom of speech; one of the first steps taken by a dictatorship is to limit the press. Freedom of expression ensures that all voices are heard and promotes democracy; it ensures we have rule of the people and not mere rule of the majority. Free speech allows all arguments to be made and from that contest of ideas truth will emerge. Beyond these political justifications free expression allows for self expression and promotes human dignity.

There is little genuine debate that freedom of expression is appropriate; the legal issue is where does that freedom end? Freedom of speech is never absolute. Even Milton, after arguing that the “liberty … to argue freely” is “above all liberites”, suggested harmful speech must be sanctioned. As the Declaration of the Rights of Man and of the Citizen of revolutionary France held, there is freedom of expression but “every citizen …shall be responsible for such abuses of this freedom as shall be defined by law.”

Broadly speaking in Canada restrictions on freedom of expression are divided into three categories: defamation, protection of vulnerable groups and public order. Defamation law, libel chill concerns aside, is seldom seen as a major bar to free speech. Recently the Supreme Court of Canada has expanded the protections for journalists against defamation claims were journalists took steps to ensure their stories were accurate. Protection of vulnerable groups also seems to raise little major concern. There is little call to abolish the child pornography provisions of the Criminal Code. Public order, though, is where Canada and the United State diverge on free speech.

In the United States, absent a direct incitement to violence, anyone is entitled to hold any group up to ridicule and approbation. The most vile literature is acceptable legally provided only that there is no immediate threat of violence.

The Canadian situation is different. Canadian Human Rights legislation, often limits the rights to express statements that single out identifiable groups for approbation even if there is no direct incitement of violence.

For example, Federal legislation prohibits the use of the internet to send messages “likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination”. Such legislation has been upheld by the Supreme Court of Canada, albeit twenty years ago and by a narrow majority. One of the issues the Court considered was whether there was an overly broad discretion to apply the restriction; the Court found there was not.

Subsequent actions by various commissions are seen by some to call that conclusion into question. Regardless, as a legal matter the issue of whether human right legislation properly restricts freedom of expression seems settled.

Recently Senator Doug Finley led a call to scrap the section of Canada's Human Rights Act upheld by the Supreme Court. Finley suggests the section is being used to stifle free speech; regardless of whether the section should go, that matter is now being considered by the legislature. Ironically, perhaps, there will be a full and vigorous public debate about free speech using the very tool being debated about – free speech.