By Paul Esau (The Cascade) – Email
Print Edition: March 13, 2013
A few weeks ago in an internet café in Berlin, U.S. Secretary of State John Kerry stated “in America you have a right to be stupid if you want to be. And you have a right to be disconnected to somebody else if you want to be. And we tolerate it … and I think that’s a virtue, I think that’s something worth fighting for.”
Admitting that your country considers stupidity a ‘right’ seems pretty funny. Still, jokes aside, Kerry’s statement sits in stark contrast to a Supreme Court ruling in Canada only a few weeks later – a ruling that suggests that in Canada you don’t have the right to be “stupid,” or perhaps even to tell the truth. Perhaps, stupid Americans aren’t the largest of our problems.
The ruling was for a case known as “Saskatchewan (Human Rights Commission) vs. Whatcott,” a case against an old, white male named Whatcott who was accused of passing out homophobic fliers containing hate speech. The court attempted to reconcile the tension between Whatcott’s freedom of expression and freedom of religion, and the Charter-guaranteed right of Canadians not to be discriminated against on a “prohibited ground” (race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for a pardoned offence).
The court ruled that Whatcott was indeed guilty of hate speech in two of the four types of fliers he distributed, but only by setting new precedents for acceptable infringement upon the rights to expression and religion guaranteed by the Charter. It’s these precedents which have many journalists and commentators worried, since they would seem to place serious constraints upon free speech in Canada.
One of the most blatant changes is to the legal understanding of ‘hate’ itself, which has been reinterpreted. “The term ‘hatred’ contained in a legislative hate speech prohibition,” reads the ruling, “should be applied objectively to determine whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination.”
This is remarkable when combined with the section of the Saskatchewan Human Rights Code that Whatcott was found to have violated [14(1)(b)], which prohibits the distribution of material “that exposes or tends to expose to hatred … any person or class of persons on the basis of a prohibited ground.”
How exactly does any reasonable person decide what is “likely” to expose someone to “detestation,” or what “tends to expose to hatred” in a possible future circumstance? How can an individual be convicted of a hate crime on the possibility that what they’ve said could potentially expose another person to hatred? How many levels of separation can the court allow between an individual and his or her alleged crime?
In the U.S. this dilemma is avoided by forcing the prosecution to prove that the very utterance of hate speech inflicted injury or historically tends to incite a breach of the peace. In Canada, no such proof is apparently required.
To add insult to injury, the ruling explicitly states that even “truth” is no longer a defence against an accusation of hate speech, since “truthful statements can be presented in a manner that would meet the definition of hate speech, and not all truthful statements must be free from restriction.” As Andrew Coyne stated in his Feb. 27 piece in The National Post, “I cannot quite believe I am reading these words, even now.”
Further changes come thick and fast. Proving that the defendant’s “intent” was to be hateful is no longer necessary to gain a hate speech ruling, and the law no longer provides any acceptable defence once the definition of hate speech has been satisfied. Most worryingly for some religious groups, the courts no longer recognize one’s sexual orientation to be differentiable from one’s identity. An attack on the behavior is, by proxy, an attack on the group associated with the behavior, and therefore potential grounds for a hate speech charge (ie. Whatcott claimed to ’hate the sin, love the sinner,’ yet he was still convicted).
In a country and democratic system that supposedly prides itself on being a “marketplace of ideas” and allowing the free and transparent exchange of public discourse, the Whatcott ruling removes many of the barriers necessary to preventing systematic repression. Yes, Whatcott himself is a disgusting example of the consequences of free expression, but the alternative is far worse. Do we really have the right, after all, to decide who to silence and who to let speak based upon such generous criteria as what is “likely” or “tends” to cause hate?
Do we have the right to convict someone based upon the possibility that their remarks may lead to hatred of a certain minority group? Or to ignore the annoying detail that their remarks might actually be true, if poorly stated?
Hopefully, the Whatcott ruling is a hiccup in the history of the Canadian courts and its precedents will be quickly overturned. I would hate to imagine a society in which the robust discussion of ideas is not the accepted means to pursue truth, but that instead “truth” is a politically-correct commodity decided upon by the courts and the thin-skinnedness of the citizenry.
Maybe you already considered stupidity to be an inalienable right of Americans, maybe you even considered it a birthright, but remember that the right to pursue stupidity is inversely connected to the right to pursue wisdom and knowledge. In the U.S., the right to free expression is considered to be one of the central principles of a democratic state. In Canada, we’re frittering it away to prevent nutcases like Whatcott from passing out pamphlets door-to-door.
Does that sound like a fair exchange?
