BY KEVIN TJIA, LAW II
I’ve always liked to play the devil’s advocate (advocatus diaboli). Some people don’t like the devil. Thankfully, I didn’t run in those circles as a kid. Our Supreme Court really doesn’t like the devil. And I hope to run in that circle someday. This is tricky. Should I stop saying controversial things? Or should Chief Justice Beverley McLachlin stop treading on me?
To describe the issue of where the limits of our right to freely express ourselves should be set when dealing with hate speech as a “thorny and contentious” one would be an understatement. In R v Keegstra, the Supreme Court of Canada was given the chance to deliver a distinctively Canadian-nuanced analysis (overly-polite and way, way too sensitive) of the crossroads where freedom of expression and hate speech meet. In the competing opinions offered by the Justice Dickson-led majority and the Justice McLachlin-led (as she then was) minority can be found a compelling back and forth between the social democratic and the civil libertarian approaches to expression.
Briefly, Keegstra involved a public high school teacher from Alberta who taught his students an extremely vitriolic and anti-Semitic syllabus, which he then expected them to reproduce in their classwork and on their exams. After being charged under s 319(2) of the Code with unlawfully and willfully promoting hatred against an identifiable group in a public manner, Keegstra sought to have the section struck down because it violated his right to freedom of expression guaranteed to him under s 2(b) of the Charter. The court ultimately decided that s 319(2)’s violation of freedom of expression was justifiable under s 1 of the Charter. I think that its reasons are suspect.
Justice Dickson’s social democratic approach was the one taken by the majority of the court in Keegstra. This approach casts the individual expressing hatred as the antagonist, the identifiable group being exposed to hatred as the protagonists, and the state as the benevolent protector figure. Central to this approach is the idea that allowing certain kinds of expression can actually impede the pursuit of truth, which is one of the core values of freedom of expression. In other words, the hatred being propagated by Keegstra is framed as having very little value, and in fact, perhaps having negative value. For Dickson, the hate speech here has a very poor chance of being true, and if left unregulated, has a very good chance of stifling the identifiable group’s ability to achieve self-actualization. This line of argument is not persuasive to me. What about Mr. Keegstra’s right to self-actualization? What if it is central to his self-identity to espouse vitriolic and anti-Semitic ideas? In my view, he should be allowed the right to alienate himself from polite Canadian society if he so chooses. Stifling Keegstra through criminal legislation and punishing him through the criminal system only serves, as McLachlin persuasively argues, to feed those conspiracy nuts like Keegstra more ammo by publicizing their ideas (through the typically strong reaction generated in the media whenever the criminal law is used to restrict expression) and generating sympathy for their cause. After all, if the hate speech is so patently untrue, why not just let the open marketplace of ideas sort it out? Everyone should be free to contribute whatever they want to the public conversation, with the understanding that the valuable stuff will rise to the top and the ridiculous, hateful, and patently untrue stuff will sink to the bottom and be ignored (for the most part). This is essentially the civil libertarian approach.
McLachlin’s civil libertarian approach failed in Keegstra, although I feel it remains the more convincing of the two arguments. Here, the individual expressing hatred is cast as the protagonist, and the State, swooping in with its censors and criminal penalties, is cast as the primary antagonist. What motivates McLachlin’s position is a healthy skepticism of claims by the legislature or decisions of the judiciary that purport to claim a better knowledge of what is true than a member of the public. There is always a deferral to the marketplace of ideas with the libertarian approach, and the thinking goes that we as a society are not so idiotic as to believe historical revisionists and hateful propagandists like Mr. Keegstra. We’ll figure it out ourselves, says the civil libertarian, so keep your noses out of it federal government. McLachlin is right, and I have never been more persuaded by a slippery slope argument than in this instance: where does this deferral to the legislature and judiciary end? It provokes questionable actions on the part of authorities, and who is to say whether the legislature might be encouraged in the future to broaden the definition of hate speech to include the kind of edgy racial jokes that are the bread and butter of comedians like Chris Rock or Larry David? Could these comedians one day face penalties if they performed in Canada? Incredibly enough, this exact concern materialized in the recent 2013 Whatcott decision.
Whatcott involved a man who was found to be in violation of Saskatchewan’s Human Rights Code because the homophobic fliers he was distributing fell under the prohibition against “any representation […] that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person.” There are several distinctions to make between this prohibition and the one found in Keegstra: this prohibition does not require that the accused intend to promote hatred; this is human rights legislation within the civil domain, and consequently there is no defense of truth available to the accused. In other words, there is a laughably low threshold here that even Larry David could easily rise above by performing one of his skits poking fun at Orthodox Jews on the road in Saskatoon (unlikely, I admit, but humor me). And anyway, certainly not all Orthodox Jews are offended by Larry David having a bit of fun at their expense on his show Curb Your Enthusiasm, so why would we trust our judiciary to judge what does pass the threshold of affronting the dignity of another person?
Look at the history of the jurisprudence in the Whatcott case to see what I mean. At the Saskatchewan Court of Appeal level, all three judges held that the four homophobic fliers distributed by Whatcott did not pass the threshold to meet a representation of hate speech. The Supreme Court of Canada, however, held that two of the four homophobic fliers were in fact illegal. Thankfully, the SCC also struck out the portion of the code that read, “ridicules, belittles or otherwise affronts the dignity of any person.” But that isn’t going far enough in my opinion. What I’m trying to highlight here is how hopelessly subjective it can be to decide what expression is and is not hateful. I want to be clear here that I am not attacking the intelligence of any of the members of the judiciary. What I am saying is that the illegality of any piece of expression, because of the way these prohibitions are worded, can only ever be in the eye of the beholder, and I don’t trust the judiciary anymore than I trust myself to judge on this issue. I’d rather leave it to the marketplace of ideas. To continue my example, if Larry David’s skits became too hateful towards Orthodox Jews, and were generally becoming unappetizing for the general public, then they would let him know that by refusing to go to his performances or to watch the show that he writes for. We wouldn’t need the Supreme Court to fine Larry David for us because the marketplace of ideas would make his expression extremely uneconomical for him to continue saying, not to mention alienating in the extreme.
Imagine my dismay when I discovered that Whatcott was a unanimous 6-0 decision with McLachlin voting on the side of the majority. What changed in the last 22 years? Unfortunately, the judiciary do not often reveal what goes on behind the closed doors of the Supreme Court so we are left to guess at McLachlin’s change of heart. What is often mentioned as the most likely explanation for this dramatic shift is that Whatcott did not involve the draconian punishments of the criminal law that Keegstra did. Perhaps it is because Whatcott only faced a civil punishment of fines that allowed McLachlin to come to a compromise with the other Justices on the SCC. It is interesting to note that it took 16 months for this decision to be handed down. An alternative explanation that I find particularly convincing is that Chief Justice McLachlin is nowadays so focused on achieving complete consensus in the Court that she was willing to concede on this infringement of freedom of expression if the other Justices would agree to strike down the portion of the code dealing with ridiculing and belittling other persons. But then I become even more scared at the possibility that whether or not to censor expression like, “A priest, a rabbi, and a lawyer walk into a bar and the bartender says, ‘What is this, a joke?’” was seriously something to debate among the Justices at our highest court. We will never be able to say for certain unless McLachlin herself chooses to one day explain her shift, but what I do know is that I find myself worried for the future of freedom of expression in Canada.
While Canadian society can be optimistically thought of as one that has a strain of Peace, Order, and Good Government running through it, I pessimistically see this as a gradual shift further towards a benevolent dictator-like judiciary. If I’m already finding their decisions in Keegstra and Whatcott questionable, I worry about a future where the Supreme Court of Canada becomes filled with judiciary who are ultra-sensitive to any form of expression that even mildly offends. It is foreseeable, I think, that the next generation of judiciary (I’m talking about you guys) might be even more willing to label expression that does not currently meet the threshold of hateful expression as hateful, perhaps in response to outspoken advocacy groups representing, for example, Boston Terrier owners, or people who really enjoy stargazing and the Dark Sky Society. I don’t want another doting parent/censor in the form of this country’s highest court to protect me from obscene pornography (think about the redundancy of this expression for a second), historical revisionists, or homophobes handing out pamphlets. These are all things that I deeply enjoy considering and rejecting (or accepting) on their own individual merits. To take away my ability to receive these “harmful” expressions is to take away the opportunity for me to march to the beat of my own drum.
Hate, whether the SCC likes it or not, is a reality of our world. To block it out and censor it is to refuse to acknowledge and perhaps address the underlying issues that led to that hatred developing in the first place. Rather than send Mr. Keegstra to jail, why not instead make sure that those students also got history lessons in an upper year course that taught them more mainstream perspectives on the Holocaust? Perhaps even more daring, why not teach those students about the rise of hate groups like the Neo-Nazis in America and engage them in dialogues around why they think these particular groups are so filled with hatred, to the point of absolute silliness, towards another identifiable group? Rather than fining Mr. Whatcott for his homophobic fliers, why not use Mr. Whatcott’s homophobic fliers as a jumping-off point to engage in a public discussion while standing at the crossroads where religion and homosexuality meet? We can only be lifted up further as a society by engaging in discussion, no matter how low in value the Courts might deem those initial “hateful” expressions that end up sparking a fire in the public consciousness. Let the open marketplace of ideas reign supreme. And don’t tread on me, Beverley.