Supreme Court Fails to Protect Free Speech

There was reason to believe that the Supreme Court of Canada might strike a blow yesterday for freedom of speech.

 

Back in 1990, the high court narrowly upheld the censorship provisions of the Canadian Human Rights Act - in fact, current chief justic Beverly McLachlin wrote the very compelling dissent for the court. Much has changed since the Taylor ruling, and a case involving a Saskatchewan anti-gay crusader gave the court cause to revisit the matter.

 

William Whatcott had been convicted by the Saskatchewan Human Rights Tribunal over four anti-gay pamphlets he had prepared. The Saskatchewan Court of Appeal overturned those convictions in a rousing defence of free speech noting that even though Whatcott's flyers were " “crude, offensive, and pejorative” they should not be prohibited because "debate will sometimes be polemical and impolite". That's what free speech means.

 

The Saskatchewan Court of Appeal decision was appealed to the Supreme Court, and yesterday the court came back with a disappointing, albeit a mixed, decision.

 

In a unanimous decision, the court struck down some language in the provincial code, which cleared Whatcott in connection with two other flyers.

But the other two convictions have been restored.

 

Here's the confusing part of the ruling: the provisions of the law banning speech which, "ridicules, belittles or otherwise affronts the dignity of" have beebn struck down. Yet provisions banning speech which "might expose individuals or groups to hatred" remain. Is there really a significant different between the two?

 

Hatred is an emotion, and therefore subjective. The court gives us no way to objectively identify hatred, nor is their any expectation that any harm be demonstrated. The court simply assumes that harm exists, when it may in fact be the opposite. Whatcott's pamphlets may have hurt his cause, and pushed people into the camp of supporting gay rights.

 

The other problem here is that by trying to censor Bill Whatcott we've given him a much bigger platform. Had he been left alone he would still be a hateful marginal nobody.

 

The court's ruling even re-publishes Whatcott's flyers, which is supremely ironic given that under the law coourt just upheld, intent is no defence when it comes to publishing hateful material. And it should be noted, truth is no defence either.

 

There is still a chance for governments to do the right thing. The Supreme Court has upheld these laws, but not declared them to be mandatory.

 

In order to protect freedom of speech, governments could remove these laws from the books. Ottawa is moving in that direction, and of course Alison Redford once promised to do the same here in Alberta.

 

Even though the court has failed to stand up for free speech, we can still demand our elected politicians do so.

 

 

Further analysis of the court's decision from the Canadian Constitutiuon Foundation, Lorne Gunter, Emmet Macfarlane, Andrew Coyne, John Carpay, Charlie Gillis, and Jonathan Kay. My previous thoughts on the Whatcott case here.

  

Supreme Court of Canada ruling on hate speech - Feb. 27, 2013 by

He Said What? (UPDATE: Flanagan's Sorry)

UPDATE (March 4) - Tom Flanagan explains and defends himself in an op-ed for the National Post
Political advisor and University of Calgary political science professor is under fire today for some remarks he made last night during a speech at the University of Lethbridge:

People can't distance themselves fast enough from Flanagan, it seems. The Wildrose Party has severed all ties with him.  The CBC has fired him. The Prime Minister's Office has condemned him.
Virtually no one is stepping up to defend Flanagan - indeed, it would be very difficult to do so.
The closest I could offer in terms of a defence is that it's unclear whether Flanagan is talking about actual photographs and video (although it seems as though he is). If he's talking about writings and drawings, then it's at least a defensible position - such a stance would be in keeping with how the Supreme Court has ruled. In fact, it should be noted that prior to the Supreme Court ruling in the Sharpe case, the BC Supreme Court struck down the entire law dealing with possession of child porn.
I'm sure Flanagan is laying low at the moment, but he needs to explain himself and clarify his remarks. The sooner the better.
UPDATE: Here's the statement from the University of Calgary
UPDATE #2: Flanagan apologizes
UPDATE #3: Flanagan will retire from the U of C at the end of June

Fear and Loathing in Alberta (Over the PST)

My latest Calgary Herald column looks at the merits of shifting away from taxing income and toward taxing consumption and why it is that Alberta politicians are so afraid to make the case:

For what it's worth, I believe Premier Alison Redford when she says the March  7 budget won't usher in a provincial sales tax.
The premier seems to be growing frustrated over the repeated questions about  the possibility of a PST at some point in the future. Last week, when asked the  question, Redford snapped, "Did I say it on Tuesday? Did I say it on Friday?  We're not introducing a provincial sales tax, period. I'll say it again tomorrow  if you'd like."
If that was the only time you've been exposed to the premier's response to  the question, you'd probably wonder why there was any ambiguity - she sounds  pretty unequivocal. But in the very same scrum with reporters, Redford refused  once again to close the door all the way.
When asked if she had any intention of introducing a PST during her term as  premier - in other words, beyond the upcoming budget - Redford simply replied,  "I don't see that there's a reason for that."
If the premier is growing exasperated over having to answer the same question  time and time again, she might want to think about her responses. For example,  "not now, not ever," might be an effective way of responding if the goal is to  leave no doubt, thus precluding any future questions on the matter.
Redford was just as vague last month when she hosted a teleconference with PC  party members.
When the topic of a PST came up, Redford had an easy opportunity to close the  door on any suggestion that she might be inclined to bring one in.
Instead, she offered this, "It's been a really important part of the  conversation that I think Albertans have started to have . . .
And I think there's a place for that conversation."
Compounding the situation is the fact that the recent Alberta Economic Summit  featured numerous speakers making the case in favour of a PST.
Given that the premier's office was directly in control of the invitations  for that summit, it's not unreasonable to wonder if that was by design.
But the biggest reason for the uncertainty around the premier's position is  that she has simply failed to articulate one. The premier has certainly  indicated an unwillingness to implement a PST, but we have no idea if that's  because she thinks a PST is bad policy, or that she is simply afraid of the  political repercussions.
If it's the latter, the premier has good reason to be afraid. A poll released  last week shows that almost three-quarters of Albertans oppose a PST and  approximately the same number oppose any move to change the law requiring a  referendum on the matter.
If it's the case that the premier and other Alberta politicians would support  a sales tax if it was politically safe to do so, then it suggests we're being  ruled by political cowards who would rather chase the polls than try to shape  them.
In a perfect world, we'd all support a PST - the debate would be between  adding a PST to the status quo and reducing other taxes to make way for a PST.  It's unfortunately the case that policy is not always guided by the best  evidence, but perhaps nowhere is that more evident than the approach in Alberta  to sales taxes.
There is a considerable body of evidence indicating that consumption taxes  are both the most efficient and least damaging forms of taxation. It should not  follow that it is also the least popular. In fact, many brag about Alberta being  sales-tax free (forgetting that we pay the GST), as though that confers upon us  some sort of advantage.
To cite just one example, University of Alberta economists Bev Dahlby and  Ergete Ferede recently demonstrated that lowering the corporate tax rate from 10  to five per cent and introducing a five per cent harmonized sales tax (HST)  would produce a per-capita economic gain of $19,300.
Redford is right to say that there is a place for this conversation. Her  cynical approach to the issue and her failure to explain her position to  Albertans help to ensure that a real conversation remains as elusive as  ever.

Alberta Needs Pipelines, Not Upgrader Pipe Dreams

My latest Calgary Herald column looks at the debate around whether Alberta should encourage more upgrading and refining here at home:

With all the discussion recently over the lack of so-called value-added jobs, one might wonder why that debate is confined to one sector of the economy.
For example, in 2010-2011, Canada exported more than 12 million tonnes of wheat. Also in 2011, a $100-million bread plant opened in Hamilton, Ont., bringing about 300 new jobs to that city. Presumably, more of that wheat could be “upgraded” here at home, thus creating more of the kinds of jobs that the Hamilton plant is providing.
The same could be true of the billions of dollars worth of lumber exports produced by Canada each year. Surely, we could provide a multitude of jobs in the production of kitchen tables and baseball bats by discouraging the export of such raw materials.
Fortunately, there are no serious calls for such interference in the economy — at least in those sectors. When it comes to the export of raw bitumen, though, there’s no shortage of such calls.
With the price differential for Western Canada Select (as measured against the price for West Texas Intermediate) oil having a significantly negative effect on Alberta’s bottom line, there have been demands for a government strategy to encourage more upgrading and refining in our province.
First of all, it should be noted that there is a great deal of such activity that already occurs. As a report last week from the Canada West Foundation notes, there are eight refineries operating in Western Canada — three of them are in Alberta, representing almost two-thirds of the West’s refining capacity.
Additionally, there are five upgraders in Alberta, and in fact, upgrading capacity in Alberta more than doubled from 2001 to 2011. That doesn’t include the recent expansion of Shell’s Scotford upgrader, and there is also the massive $5.7-billion North West Upgrader, which has just recently been approved.
So when the Alberta New Democrats and the Alberta Federation of Labour seize upon government documents as proving a “strong economic case” for more upgrading capacity, they overlook the fact that some companies have already made that bet.
But the decisions being made in the here and now tell a different tale.
Just last week, we learned that Suncor’s proposed $11-billion Voyageur Upgrader project is in serious jeopardy. The project has already been on hold for the past three years, and Suncor has confirmed that cancellation is now one of the options it is considering.
Suncor’s struggle illustrates the weaknesses and challenges in the economics of upgrading that the Canada West Foundation addresses in its report. There is surplus refining capacity elsewhere. There is falling demand for refined petroleum products. There is also, of course, massive upfront capital costs that are coupled with low returns.
If indeed there is a “strong economic case” for building new upgraders and refineries, then it does not follow that industry would need to be bribed, cajoled, or threatened into acting on it. True evidence for a strong economic case lies not in the analysis contained within some government document, but rather the actual investments being made by the private sector. Like, for example, the investments in new pipelines.
As University of Alberta economist Andrew Leach wrote last year, if we want more refining capacity, it’s likely to come at the government’s expense. He then frames the issue thusly, “should we be willing to subsidize ... upgraders and refineries in this country in order to export a higher value end product?”
To look at it that way illustrates for us how this notion of “value-added” is really a reallocation of the value that already exists in the resource.   Why should we value refinery construction jobs over pipeline construction jobs? Why are jobs at new upgraders more important than jobs in existing and new oilsands projects?
Both the Canada West Foundation analysis and a separate study last week from the U of C’s School of Public Policy illustrate the importance of additional pipeline capacity. Delays in proposed new pipeline projects are costing the economy millions of dollars daily.
Even if we were to do more upgrading here, we’d still need pipeline capacity to get that product to market.
The evidence is clear: Alberta needs more pipelines, not more pipe dreams.