For anyone who is only mildly conscious, it was crystal clear who came out looking like a fool and who was the champion of freedom and democracy in the recent Star Chamber hearing against The Western Standard and Ezra Levant. There wasn’t much of a debate, of course, but even if there was, if the best the other side can do is what Warren “the twelve hit wonder” Kinsella wrote a few days ago in the National Post, then the debate really is over. By the way, why is Warren Kinsella being given a stage in the National Post when so few people care what he says anyway?
The sobering and troubling part of this whole thing is that if this thing does not go forward, we have not won anything as these Star Tribunals will continue to operate and pick off less notable personalities who don’t have the prominence or talent of Ezra Levant. And even Ezra will have lost, having had to fork over thousands of dollars in legal fees to date. That is no real victory, only a moral one. Ms. McGovern, the tribunalist who was questioning Ezra, is in a very difficult position. If she proceeds with the case, the HRCs will be seen, rightly, as oppressive and stalinist. If it does not go ahead, the AHRC will be seen as trying to sweep this challenge under the rug, in order to protect itself from a possible loss at the Supreme Court.
If this case is going to go to the Supreme Court, do we really have a chance at winning and, even if we do, will the decision mean that all HRCs will be declared unconstitutional in their present rolls as thought and speech police? Will the SCC decision, if it rules in favour of Ezra, only be a decision on his case alone, or will it give the same rights to ALL Canadians? And what about the precedent set out in Regina vs. Keegstra (1990) where the SCC set limits on free speech by ruling that statements by Alberta teacher Jim Keegstra did not deserve Charter protection for promoting hatred by making anti-Semitic statements to his students? How will this affect any possible challenge?
And then, of course, there is the leftist Supreme Court itself with Canada’s resident feminist, secular high priestess, Chief Justice Beverley McLauglin, presiding…
Remarks of the Right Honourable Beverley McLachlin, P.C.
Protecting Constitutional Rights: A Comparative View of the United States and Canada
April 5, 2004
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
2nd Canadian Distinguished Annual Address
Center for the Study of Canada
Plattsburg State University
Plattsburg, New York
April 5, 2004
I would like to briefly highlight three aspects of the constitutional protection of fundamental freedoms in Canada: First, the Canadian Charter of Rights and Freedoms contains an explicit recognition that rights are subject to reasonable limits flowing from public or collective interests. Second, the Canadian constitution guarantees rights that are intended to recognize minority communities and enhance their vitality. In both respects, the Canadian constitution is a product of Canada’s history. Third, many rights and freedoms in Canada are subject to a legislative override, found in the notwithstanding clause of section 33 of the Charter.
To make all of this more concrete, let us consider the constitutional protection of free speech in both countries. Canada, like the United States, has a constitutional guarantee of free expression. Our Charter of Rights and Freedoms guarantees freedom of expression, subject to such reasonable limits as are “demonstrably justifiable in a free and democratic society”. In other words, we have free speech, but the state can limit it in reasonable ways. This may be contrasted with the absolute language of the First Amendment of the United States Bill of Rights, which states: “Congress shall make no law … abridging the freedom of speech or of the press.” The words of the Canadian guarantee acknowledge the state’s right to limit free speech; the words of the American guarantee forbid the state from doing so.
This said, the explicit recognition that, in a democratic society, limits may be imposed on fundamental freedoms means that free speech is more narrowly conceived in Canada than in the United States, as is evidenced by our respective positions on pornography, hate speech and defamation. While the American right of free speech admits of some limits in the name of reason or practical necessity, the fact remains that what would be counted as a reasonable limit on speech in Canada would often amount to an unreasonable limit in the United States. Take pornography, for instance. Much of it is made in the United States. Some of it crosses the border and is sold in Canada. But there are limits to what Canadians will tolerate as protected speech in this area. In 1992, the Supreme Court of Canada in the Butler case upheld a section of the Canadian Criminal Code which banned the publication and distribution of obscene material. The law had been challenged on the ground that it infringed freedom of expression in a way that was not justifiable under s. 1 of the Canadian Charter. The Supreme Court disagreed. It unanimously held that freedom of expression was infringed by this section of the Criminal Code, but added that the state had a right to outlaw pornography which qualifies as an undue exploitation of sex, such as where the portrayal of sex is coupled with violence, involves children, or is degrading or dehumanizing. One of the key concerns was the risk that such pornography may be harmful to women and children and to society generally. To take another example, it is easier to sue for libel in Canada than it is in the United States. Application of the First Amendment’s guarantee of press freedom led in this country to New York Times Co. v. Sullivan (376 US 254 (1964)) which permits newspapers to publish false rumours and make false statements about people with impunity so long as they do not do so intentionally or recklessly. A few years ago, the Supreme Court of Canada in Hill v. Church of Scientology expressly declined to adopt the Sullivan approach. As a result, in Canada, newspapers print unverified material at peril of being sued for libel. The Supreme Court considered the argument that a Sullivan approach was required to prevent “chilling” the free dissemination of information essential for the working of democracy. It concluded that any chilling effect flowing from strong libel laws is outweighed by the importance of protecting people’s reputations against false and slanderous statements. Canadian law accepts that the goal of getting at the truth may be served by free exchange in the marketplace of ideas. But it also accepts that false words can do great damage to individuals and groups, damage that cannot always be repaired by debate and discussion. (Source)
There is indeed a legitimate debate between the balance between the common good and freedom of speech, but the whole leftist slant on it is wrong and misplaced. I hope to have some time to put a few words together on this subject some time in the near future.
The bottom line, for me at any rate, is that freedom of expression is not the ideal situation. Nobody wants to be offended. I don’t particularly like the idea of someone showcasing a crucifix surrounded by urine and calling it “Piss Christ”. I would like to see a limit on that trash since that is not art, but really incitement to contempt and hatred towards Christians. However, I realize that the only thing maintaining my freedom in speaking about the things that matter to me is having to endure such bigotry on the other side. And that’s the point. Without acknowledging this very necessary and basic principle, our civilization will start to disintegrate as the law will eventually be used to silence and intimidate discussion on something which is objectively true and therefore necessary for the survival of a culture – like, for instance, criticism of homosexuality. Furthermore, if a man cannot speak his mind without recrimination or sanction, then he will believe – rightly or wrongly – that he has the moral autothority to resort to violence to overturn something which he finds oppressive. Human nature abhors injustice and oppression, and it will not tolerate it. History has shown this time and time again, and yet we choose to ignore this and impose an unjust restriction on Canadian citizens.