In Saturday’s National Post, George Jonas
explained how Canada’s Supreme Court parsed the limits of free speech in the
case of Saskatchewan Human Rights Commission v. Whatcott:
Q: Dear Supreme Court, is there free speech in Canada?
A: It’s not absolute, you know.
Q: Well, yes, we know that, but is there limited free
speech?
A: There must be. The Charter says there is, and the
Charter wouldn’t lie. We support the Charter.
Q: Spiffy. So can I go and say whatever I like?
A: Yes, of course. That’s what “free” means. Unless you
cross a line. Like anti-gay activist Bill Whatcott. He said some nasty things, you
know.
Q: Is that the line, saying nasty things?
A: Oh no, you can say nasty things. It’s a free country.
Q: So where is the line?
A: When you cross it, we’ll let you know.
Q: Does it have a name?
A: We call it hate speech.
Q: What is hate speech?
A: It’s speech we hate.
Q: But speech you don’t hate needs no Charter
protection. What do you say to people who argue that unless the Charter
protects speech you hate, it protects nothing?
A: Let them say it, we say. It’s a free country.
Not every Canadian accepts that
their country’s reputation for civility is well served by how they treat the
LGBT community. Not every Canadian accepts
that Canada’s high standing as a free society is also tested by how they treat
those they think of as bigots and careless loudmouths.
Lack of unanimity on this
point is impossible and, thankfully, unnecessary. After all, they wrote a Charter of Rights and
Freedoms and set up an independent Supreme Court to restrain popular opinion
when it takes offense.
Didn’t they?
In Canada today, according to
the Supreme Court’s Whatcott judgment, you won’t get in trouble with the law
for being rude and impolite. You might, however, if your utterances are
hateful—if, potentially, they could interfere with the “self esteem” and
“self-fulfillment” of their intended target. Constructive criticism is fine.
However, even using bits of “truth” to serve hateful ends, sometimes, is not.
If you still know a Canadian
who expresses ugly ideas, or invents jokes that aren’t very funny, or a coffee
shop bore who asks rhetorical questions, you probably should ask whether he or
she knows the co-ordinates of a good lawyer.
Socrates wouldn’t have to
take poison for what he said in Canada. But he might get stuck with a criminal
record if he set up his famous Q & A Show in a public space in downtown Toronto
or Regina without a lawyer at his side.
The Canadian Supreme Court,
however, is not only worried about how cranky people express themselves.
They’re interested in what these people actually want to accomplish. Here their
assault on free speech is radical.
Innumerable bloggers and some
wonderful peace-loving polemicists actually get up in the morning to try to do real
harm to the self-assurance and reputations of those who promote and follow ideas
they don’t like.
What would the Supreme Court
have done if Christian fundamentalist Bill Whatcott had stood on a street
corner proclaiming: “Gay activists expect taxpayers to fund their Porn
Addiction” while Cambridge atheist Christopher Hitchens was still alive and
standing opposite, waving his placard: “God Is Not Great: How Religion Poisons
Everything”?
Would the judges want both of
them charged? Would they tell Whatcott that he’d do less harm and better serve
his own cause if he’d just ask Hitchens how to find a Canadian publisher? After hours, would any of the judges read Hitchens’s
polemic “God Is not Great” or only his memoir?
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