Tuesday, March 12, 2013

Supreme Court of Canada, in Saskatchewan (Human Rights Commission) v. Whatcott, moves to limit freedom of speech

The first two sections of the Canadian Charter of Rights and Freedoms state:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of
the press and other media of communication;
(c) freedom of assembly; and
(d) freedom of association.


In the early 1980s, when Canadian Prime Minister Pierre Trudeau was trying to force a charter of rights on the Canadian people, there were a few voices in the wilderness, including this blogger, who predicted that our freedoms would be diminished instead of enhanced, and that the only people who would end up with any rights would be criminals, perverts, deadbeats, and malcontents.

Former Prime Minister John Diefenbaker, whose government enacted the Canadian Bill of Rights in 1960, opposed the charter, and said that he didn't think that Canadians could be fooled into thinking they would be getting rights under the charter that they didn't already have. Unfortunately, Mr. Diefenbaker, who died in 1979, overestimated the intelligence of the Canadian people. It should be noted that Mr. Diefenbaker created a Bill of Rights rather than a Charter of Rights because he believed in Canada's legal system based on British common law, and believed in the supremacy of Parliament in deciding such issues, instead of putting rights into the Constitution, which would result in the courts being the arbiters of these issues. The Diefenbaker Canada Centre at the University of Saskatchewan has a virtual exhibit on the Canadian Bill of Rights, which the reader may want to explore. I particularly recommend the column by Guy Kroft from about 1960 arguing against the necessity for a bill of rights using reasoning similar to that used 20 years later in arguing against the necessity for a charter of rights. To read the documents from this virtual gallery, no one at the time (1958-1960) seemed to anticipate the creation of human rights commissions or activist courts that would distort the law in order to impose their own agenda for society.

The prevailing view among the "experts" in the early 1980s was that judges would never abuse their powers and use the charter to impose their own views. However, since the Charter became part of the Constitution Act on April 17, 1982, I've seen my fundamental freedoms mentioned in section 2 of the charter eroded, especially "conscience and religion"--the first two mentioned--while human rights commissions and some courts have invented non-existent rights out of whole cloth, and used "hate crimes" laws to prosecute those whose opinions are currenlty unfashionable. In recent years, the fundamental freedoms of conscience and religion, which are written in the charter, have tended to be trumped by non-existent freedoms such as "freedom to practice and promote a homosexual lifestyle" and "freedom not to be offended or to have one's feelings hurt." My friend Ezra Levant, who has experienced firsthand the human rights Gestapo in Alberta, has written an excellent book about this, titled Shakedown (2009).

On February 27, 2013, the Supreme Court of Canada issued its decision in the case of Saskatchewan (Human Rights Commission) v. Whatcott (go here to see the full text of the Court's ruling), a case involving leaflets criticizing homosexual practices that were prepared and distributed by a Christian activist in Saskatoon named Bill Whatcott, who claims to have been involved in homosexual activity before coming to Christ.

I've seen some of the printed matter that Mr. Whatcott distributes, and, although I agree with his opposition to abortion and homosexuality, I don't like his approach, and I find his leaflets offensive. I'm skeptical of the ability of Mr. Whatcott's leaflets to win anyone to the Lord Jesus Christ, but they've been effective in attracting attention to Bill Whatcott. I believe, however, that Mr. Whatcott has a right to be offensive. When he ran for mayor of Edmonton in 2007, he had no chance of winning, but I voted for him, just to thumb my nose at the forces of political correctness. He placed 6th of 9 candidates, receiving 1,665 votes (1.11%), so he "missed it by that much" (and the fact that I voted for him makes me a "one-percenter").

The usually politically-correct Toronto newspaper The Globe and Mail offered an editorial on February 28, 2013 that was critical of the Supreme Court decision for setting a "dangerously vague standard on which to be limiting free speech," while columnist John Ibbitson, on February 28, 2013, pointed out how the ruling highlights a difference between Canada and the United States:

Many journalists – including the editorial board of this newspaper – and free-speech advocates were disappointed by the decision, arguing (among other things) that the definition of hate is vague, subjective, and free-speech chilling.

Most provinces have no statutes banning hate speech in their human rights codes. A federal law is about to be repealed, thanks to a private member’s bill supported by the Harper government.

Still, the fact that such laws can exist, if legislatures choose to pass them, marks Canada as a very different place than the nation next door, where First Amendment rights are sacrosanct.

The ruling affirms that Canadians “are more concerned with equality and social harmony than our neighbours to the south,” said Prof. Ryder. “A broad, libertarian interpretation of our Charter rights doesn’t have as much purchase here.”
The National Post, a newspaper based in Toronto, has provided excellent analyses of the Supreme Court's ruling. As reported by Joseph Brean, February 27, 2013:

Canada’s human rights hate speech laws are a constitutionally valid limit on freedom of expression, the Supreme Court has unanimously ruled in a landmark judgment.

The judgment in the case of William Whatcott of Saskatchewan reaffirms the Canadian approach to hate speech, that it can be limited by law to address the problem of hate speech, unlike the American approach, in which speech cannot be limited except in the most extreme circumstances.

In upholding a definition of hatred first crafted by the Supreme Court in 1991, the current justices ruled that the hate speech section of Saskatchewan’s Human Rights Code addresses a pressing and substantial issue, and is proportional to its objective of “tackling causes of discriminatory activity to reduce the harmful effects and social costs of discrimination.”

The court struck out some strange language in the law, which bans speech that “ridicules, belittles or otherwise affronts the dignity of” identifiable groups — language that the Saskatchewan Human Rights Commission said was already ignored in practice.

But it upheld the controversial legal concept of speech that is “likely to expose” certain groups to hatred...

...The judges reinstated Mr. Whatcott’s conviction by a hate speech tribunal in the case of two anti-gay fliers he distributed, but overturned it in the case of two others.
National Post columnist Andrew Coyne provided his analysis of the Whatcott ruling on February 27, 2013:

The very first line in the Supreme Court’s calamitous decision in the case of Saskatchewan (Human Rights Commission) v. Whatcott gives a clue to where it is going. “All rights guaranteed under the Canadian Charter of Rights and Freedoms,” it declares, “are subject to reasonable limitations.”

This is a legal truism, but as always it is as important what the Court did not say. It did not choose to begin a ruling on an important freedom of speech case with a ringing affirmation of the importance of free speech, or what an extraordinary thing it is to place restrictions upon it.

Indeed, in its haste to get on with the limiting, it did not even pause to properly quote the section of the Charter that grants the state such authority. The Charter “guarantees” the rights set out in it, Section 1 declares, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The limits don’t just have to be reasonable. They have to be “demonstrably justified.”
Another columnist, Jonathan Kay (who, I believe, is not a Christian), noticed the effect the Whatcott ruling will have on the ability of Christians to express their views. As he stated on February 27, 2013:

...A better judgment would have been one that entirely took censorship out of the hands of human-rights commissions — which tend to be staffed by former activists instead of qualified judges; do not respect the ordinary legal rules of due process; and regularly stack the deck in favour of complainants, who (perversely) are offered cash bounties as rewards for their identity-politics grievances ($17,500 in the Whatcott case, for instance). Canada already has a federal hate speech law, after all: Section 319 of the Criminal Code, which is narrowly tailored, and contains safeguards against frivolous prosecutions. To the extent Canada needs any hate-speech censorship regime at all, Section 319 does just fine.

But given the mania for censorship sweeping many other developed nations, especially in Europe, the Supreme Court judgment in Whatcott was far from a worst-case scenario. It signals that political correctness has its limits in Canada. As the Court stated: “Representations belittling a minority group or attacking its dignity through jokes, ridicule or insults may be hurtful and offensive. However … offensive ideas are not sufficient to ground a justification for infringing on freedom of expression.”

(In this respect, the Supreme Court’s language echoed that of an important 2012 Alberta Court of Appeal decision, which upheld the right of Red Deer, Alta. pastor Stephen Boissoin to excoriate the “homosexual machine” and “militant homosexual agenda” in the pages of a local newspaper. “Matters of morality, including the perceived morality of certain types of sexual behavior, are topics for discussion in the public forum,” properly concluded Mr. Justice Clinton O’Brien in that case. “Freedom of speech does not just protect polite speech.”)

The complication is that millions of Canadians do see homosexual behaviour in...fire-and-brimstone terms, even if the rest of us (myself included) do not. They include not only many religious Christians such as Mr. Whatcott, but also many religious Muslims and Jews. And there is no sugar-coating the fact that — despite its claim to be “balancing” the rights of all concerned — the Court effectively has privileged the protection of gay Canadians over the right of religious Christians to promote what they view as the established, Biblical take on homosexuality.
The paragraph in which Justice O'Brien's statement is cited reads:

Matters of morality, including the perceived morality of certain types of sexual behaviour, are topics for discussion in the public forum. Frequently, expression on these topics arises from deep seated religious conviction , and is not always temperate. It is unfortunate when some choose to express their opinions in a crude and offensive manner, but sincerely held convictions sometimes give rise to extreme polemical speech. Freedom of speech does not just protect polite speech. Further, in my view, some latitude should be given to those who do not have the educational advantage of being able to communicate their message in more sophisticated language. Indeed, a message in sophisticated language may be capable of greater harm, as listeners may give it more credence than a message delivered in coarse and crude language.
Rex Murphy offered his views in his National Post column of March 2, 2013:

...You can say what you like in Canada — to yourself, in a low voice. According to our Supreme Court, free speech is secondary to the right not to feel offended.

I join with Andrew Coyne...in expressing bewilderment at one particular statement from this week’s decision in the case of Saskatchewan Human Rights Commission v. Whatcott — the one where the Justices write: “truth may be used for widely disparate ends.” What an eerie caution.

The court wants to make sure that disreputable forms of truth can’t serve to get Canadians off the hook for hate speech.

After all, truth is such a wily, insidious, sly concept. Allowing Canadians to use it any way they please … why, that way lies anarchy and uncomfortable dinner tables...

...There have been, in recent decades, any number of commentators pointing out the follies and failings of our human rights commissions and tribunals. In rendering their judgment on Whatcott — which arose from the machinations of this same human-rights industry — could not the Justices have offered some view on the often outrageous manner by which this industry operates?

The Court was silent on the manner by which human rights tribunals stack the deck in favour of the offendee against the alleged offendor. The victim-complainant is given all manner of succor and support from bureaucrats. The “offending” party, on the other hand, is left to bear the time and burdens of hearings and rulings. Often, he must go out and get a lawyer, at his own expense...

...Where are the voices of Messers. Harper, Mulcair or Trudeau on so fundamental an issue as freedom of speech? None has the courage to grasp the nettle on this.

It is a remarkable shame that freedom of speech and freedom of religion are being trimmed and sliced, cut down and made secondary to transient fashions. Meanwhile, our leaders — while brave on petty things — keep long silence on matters that are at the centre of how we have governed ourselves for generations.
Finally, George Jonas offered a historical persepctive in his National Post column of March 2, 2013:

...it seems ethnic jokes aren’t being outlawed. Well, thank God for small mercies. I never much liked ethnic jokes, but then I never looked at them as the symbolic remnants of what used to be a fundamental freedom...

...When I stepped ashore in the last days of December, 1956, same-sex practices between men were against the law...It was in the spring of 1969 that Pierre Trudeau’s Bill C-150, the amendment to decriminalize homosexual acts, which Trudeau introduced as Justice Minister in 1967, received its third reading in Parliament...Back then, the liberal position was that homosexuality wasn’t a sin but an illness, and while making a sin a crime was one thing, making an illness a crime was like recommending jail for someone with gallstones. Those who defended the status quo made frequent references to Sodom, and Trudeau, who coined the phrase about the state having no business in the nation’s bedrooms, was described correspondingly as a Sodomite.

Human Rights Commissions, had they existed back then, could have had a field day prosecuting participants on both sides of the debate. Some of the arguments used to push for decriminalization were as politically incorrect as the moral and religious injunctions offered for retention. (Imagine a “progressive” debater arguing that those seeking libidinal congress with their own, rather than with the opposite sex, aren’t bad people, only crazy. Chances are he’d be on the wrong side of the Supreme Court’s hate-speech line before he could say “Bill Whatcott.”)

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