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.
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?