WITH THOMAS FLANAGAN and William Whatcott so heavily in the news, section 2(b) of the Canadian Charter of Rights and Freedoms might well be designated trope of the moment. Section 2(b), as we are of late reminded, grants to Canadian citizens their freedoms of conscience and religion, thought, belief, opinion and expression. The Charter also submits these freedoms only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Reasonable limits, demonstrably justified: there, friends, is the rub. You’ll recall that this knotty business of balancing freedoms against proscriptions first got underway in 1990, when the Supreme Court deliberated three cases involving (among other things) holocaust denial and white supremacy. The most notorious concerned the anti-Semite James Keegstra, then a public school teacher in Eckville, Alberta. Recent editorial commentary of the Whatcott case suggests something fundamentally new has been added to the ledger, but as long ago as 1990 Sections 318, 319, and 320 of the Criminal Code (the provisions delineating “hate propaganda”) were being upheld both as constitutional and properly applied. In other words, hate crime has now reached the age of majority.
From the age of majority we arrive to the topic of dissenting minorities: Mr. Flanagan, who committed the offence of thinking out loud in the presence of a more numerous and differently-thinking audience. The swift drubbing that followed reminded me of R. v Sharpe, the 1995 child pornography case in which Justice Duncan Shaw not only thought out loud but issued a court decision as well. He took the side of John Robin Sharpe, ruling that section 2(b) of the Charter did indeed protect the possession of child pornography. (Justice Shaw’s ruling was overturned by the Supreme Court of Canada.) In flooded the mail and editorials, as well as death threats and calls for retribution.
Well, as noted in the Saskatchewan Court of Appeal ruling which contradicted the Saskatchewan Human Rights Tribunal’s censure of William Whatcott, “debate will sometimes be polemical and impolite.” By definition however this can be the case only insofar as the currency of unfashionable and unpopular and even offensive opinions is admitted to the marketplace of ideas. Polemic assumes sharp disagreement, and as Rosa Luxemburg observed, freedom of speech must always be for the one who thinks differently.
For near one quarter of a century now Canada’s justice system has provided for the criminalization of words, ideas and expressions. The guiding principle of this effort appears to be that hate speech tends toward hate acts. As the Supreme Court this past week put it:
Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide.
Numerous examples, as recent and divergent in character as Hutu Power and the suicide of Amanda Todd, establish the causal relationship of hateful expression and material harms. And who can doubt the cranking of the thermostat which would occur if the William Whatcotts had their way? (One can defend his right to free speech while having no illusions about the affront to personal liberty which the man represents.) The Keegstra case reminds us that it was millenia of blood libel and such from which the Shoah derived its impetus. Viewed in this way, Canadian hate speech laws may best be characterized not only as a striking of balance but as an essentially pre-emptive effort.
The Whatcott case establishes additional precedent, thereby further entrenching and clarifying existing principles. But the Flanagan case reminds us that even in the absence of a formal criminal charge, an offended majority will impose its justice of the marketplace.