Herald Column: Ideal Opportunity To Make Strides for Free Speech

My latest Calgary Herald column looks at an important Supreme Court case beginning tomorrow, and other developments which could have a very positive impact for freedom of expression in Canada:

With the Supreme Court of Canada this week hearing arguments in the case of Saskatchewan Human Rights Commission versus William Whatcott, it might just provide the ideal opening for the debate over freedom of expression to burst back into prominence.
Certainly we have an abundance of politicians all too willing to euthanize the debate and leave the status quo intact. Fortunately, that attitude is not universal.
Here in Alberta, our new premier has committed to eliminating Section 3 of the provincial human rights legislation, which prohibits the publication or display of anything deemed “likely to expose a person or a class of persons to hatred or contempt.”
The term “likely” is highly subjective, and it matters not whether what was published might also happen to be true.
Alison Redford’s response to a survey from the Rocky Mountain Civil Liberties Association was unequivocal: “...to better define and protect free speech in light of challenges to the statute in recent years. Freedom of expression must be shielded and Section 3 of the Alberta Human Rights Act should be repealed.”
If indeed the new premier wishes to represent change, what better than to follow through on a firm commitment that her predecessor was too timid to ever consider, let alone utter?
Federally, we shall see if the comforts of a parliamentary majority allow the Harper government to consider changes to Canada’s human rights legislation.
Despite an overwhelming call in 2009 by Tory members to strike down Section 13 of the federal human rights legislation, no action was forthcoming.
Alberta Conservative MP Brian Storseth has tabled a private member’s bill to do what presumably his party expects to be done, namely, eliminate Section 13 (which, much like Alberta’s legislation, speaks of that which is “likely to expose a person or persons to hatred or contempt”; and again, truth is no defence).
The case of Whatcott, however, comes via Saskatchewan, where the ostensibly conservative government of Brad Wall has seen fit to stand behind the Saskatchewan Human Rights Tribunal and the legislation on which the Whatcott decision was predicated.
Back in 2001 and 2002, Whatcott produced a number of pamphlets in which he was trying to alert the public about an apparently sinister gay agenda.
Two of the flyers were simply photocopies of classified ads from a gay newspaper. The others warned of “sodomites in schools,” reflecting Whatcott’s paranoia that this vast homosexual conspiracy was now creeping into the education system.
A human rights tribunal ruled the pamphlets promoted hatred against homosexuals and therefore violated the human rights code. Whatcott was fined $17,500.
A court of appeal took a more enlightened view of freedom of expression and overturned the ruling. That brings us to this week’s Supreme Court hearing, where hopefully, the top court will be similarly inclined to ensure freedom of expression is protected.
There are those, however, who appeal instead to a mysterious and vaguely defined “freedom from hate,” as did University of Calgary professor Darren Lund recently in these very pages.
Lund, though, failed to explain why the Criminal Code provisions with regard to publicly inciting hatred are insufficient. He also conveniently overlooked the court ruling dismissing Whatcott’s conviction, or for that matter, the court ruling acquitting Red Deer pastor Stephen Boissoin in a case brought by Lund himself.
The Saskatchewan Court of Appeal found the tribunal made no “attempt to balance the protection for freedom of expression” and declared that “anything that limits debate on the morality of behaviour is an intrusion on the right to freedom of expression.”
If people like Whatcott or Boissoin wish to describe certain behaviours as “wicked,” then perhaps their behaviour or beliefs could be described thusly.
Such name-calling might be counter-productive, but it is not the state’s role to force us to all get along.
As the Canadian Civil Liberties Association observes, “polemical statements of opinion, some of which may be offensive, are part of the protection for free speech. The best response to hateful speech is to denounce and counter it, not ban it.”
Hopefully, now circumstances will conspire to ensure our laws reflect those important principles.