Statement made on 24 March 2011 by Senator Mobina Jaffer
Hon. Mobina S. B. Jaffer:
Honourable senators, I rise today to speak with regard to the inquiry on the erosion of freedom of speech in Canada. This matter was brought to the Senate last year by the Honourable Senator Doug Finley and has been commented on by many honourable senators since. I believe all our discussions have been truly productive and much needed. In a democracy, we have an obligation to extensively discuss matters as such and listen to the varying viewpoints.
I believe, here in Canada, the issue at hand is not so much with the concept of freedom of speech itself, but rather its precise definition and limitations. This is where the point of disagreement emerges.
During the course of the debate in the Senate, I have noticed two prevalent schools of thought in relation to the matter of freedom of speech. The first one interprets freedom of speech as allowing a person to say anything they want without fear of limitations or repercussion. If there are any, they are minimal at best. In the second, an individual still has the right to say what they want, but within a certain structural framework.
Under this structural framework, one has the right to their freedom of speech, but must be cautious and aware that their exercise of said freedom does not infringe upon or impede upon another Canadian's fundamental rights and freedoms. This is not to say that one is being restrictive in terms of expressing themselves, but rather, that one works within a framework of caution so as to protect Canadians at large.
Specifically, I believe this framework of caution to be with regard to defamation and hate speech. An individual should be allowed to speak, but they should be cautious that their words neither not incite nor are seen as defamation or hate speech. I believe all honourable senators can agree that the effects of words in a negative light can have great impact on individuals, groups and society at large.
Recently I returned from Kenya and I witnessed firsthand the terrible destruction of lives and property as a result of hate speech. Even today, many innocent Kenyans are sitting in internally displaced persons camps, or IDP camps. The inmates have been referred to the International Criminal Court, but the Kenyan government is resisting this referral.
Honourable senators, yes, hate words can kill. Having just returned from Kenya, I witnessed the pain of families who lost family members, killed because of words of hate by some of their leaders.
I want to highlight here the 1990 Supreme Court case of R. v. Keegstra, which deals with the restrictions of free speech under certain situations. I will cite University of Windsor Law Professor Richard Moon's analysis of the case.
For 10 years, James Keegstra, a high school teacher from Alberta, taught his students that Jews are "treacherous, subversive, sadistic, money-loving, power hungry and child killers."
When Mr. Keestra's statements were made public, he was dismissed from his post and a year later charged under subsection 319(2) of the Criminal Code with wilfully promoting hatred. Keegstra challenged the constitutionality of subsection 319(2), suggesting it violated his freedom of expression under the Charter of Rights and Freedoms.
Chief Justice Dickson, writing for the majority of the Supreme Court of Canada, accepted that subsection 319(2) of the Criminal Code restricted expression and thus the provision violated freedom of expression under section 2(b) of the Charter. However, he found that the restriction was justified under section 1, the Charter's limitation provision, because, first, it limited "a special category of expression which strays some distance from the spirit of section 2(b) "; second, it advanced the important goal of preventing the spread of racist ideas; and, third, it advanced this goal rationally and with minimal impairment to freedom.
This landmark Supreme Court decision emphasized that the right to free speech in Canada is not an open-ended right, but one that should operate within a certain framework of caution. Such a system protects and promotes the rights of not only a few individual Canadians, rather all Canadians. Honourable senators, I agree that the rights of all Canadians should be protected.
After Senator Finley first spoke on the matter of freedom of speech last year in the Senate, Senator Chaput asked Senator Finley:
. . . at what point does freedom of expression go too far and can it go too far?
For example, is it not an abuse of the freedom of expression to incite hatred in others, or cause feelings of rejection or destruction?
Senator Finley agreed that it was a very thin line indeed. He suggested that:
If the line is crossed to the extent that it is clearly a hate crime, in other words, if someone counsels or encourages some kind of unrest or malice towards someone based on gender, creed, race or religion, then I agree that line has been crossed.
He further went on to state:
However, this is why I would like to see a debate to define our view as to what is appropriate or not. That should be part of the debate.
I agree with Senator Finley in that, within the current framework, there may be instances of uncertainty with regard to what defines the "line." Because of this, in some situations we disallow individuals from practising their right to freedom of speech or punish them for doing so when, in fact, we should not. Thus, for certain circumstances, we need to clearly define our views as to what is appropriate and what is not.
In the debates we have had thus far, two particular issues have repeatedly been discussed, the first being the improper actions of both human rights commissions and tribunals in relation to freedom of speech in Canada, while the second relates to the matter of the redefinition of subsection 13.1 of the Canadian Human Rights Act.
With regard to the commissions and tribunals, while there have been a number of negative references made in terms of specific freedom of speech issues these institutions have undertaken and/ or judgments they have delivered, the general mandate and operations of such institutions are invaluable to the human rights framework within Canada.
I want to highlight a specific example here. In his October 2008 report to the Canadian Human Rights Commission concerning section 13 of the Canadian Human Rights Act, Professor Richard Moon refers to the 1996 complaint brought against Ernst Zundel, a Canadian resident who oversaw the operation of a U.S.-based website that promoted hatred against Jews.
In 1996, section 13 of the Human Rights Act prohibited hate messages that were communicated "telephonically." However, at that time, the term did not specifically apply to the Internet. It was the Canadian Human Rights Tribunal, through their work on this matter, that determined that section 13 did in fact apply to the Internet because it operated through the telephone system. Professor Moon wrote:
According to the tribunal, the term "telephonically" should not be understood as limiting the application of the section to "the precise sensory format" or to "the particular device used for communication."
In 2001, the federal government amended section 13 of the Canadian Human Rights Act by adding subsection (2), which prohibits hate speech on the Internet.
Honourable senators, it was because of the tribunal's particular actions then that the Canadian Human Rights Act is able to provide a greater level of protection to all Canadians now.
Human rights commissions and tribunals may have shortcomings, but they have played and continue to play a crucial role in the development of human rights in this country. We need them.
In terms of the second point, Senator Finley has proposed that he wants to re-define subsection 13.1 of the Canadian Human Rights Act.
As Senator Nancy Ruth has stated, this section:
. . . prohibits the repeated electronic transmission of messages that are likely to expose an individual or a group of individuals to hatred or contempt based on a prohibited ground of discrimination.
. . . race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for which a pardon has been granted.
Honourable senators, section 13(1) of the Human Rights Act is essential to Canadian society. It was constructed in a precise way so as to protect the rights and freedoms of all Canadians by establishing a general environment that prohibits the spread of hatred or contempt.
I believe all honourable senators would agree that these ideals are detrimental to Canadian society. In addition, as Senator Nancy Ruth has highlighted, the definition of "prohibited ground" under section 13(1) of the Human Rights Act is very comprehensive so as to protect the largest number of Canadians.
If a redefinition were to occur, then section 318 and 319 of the Criminal Code would be the only other legal mechanism providing definitions of prohibited grounds. These limited provisions only protect on the basis of race, religion, ethnic origin and sexual orientation. This lack of a comprehensive definition is truly counterproductive and must not be used under any circumstances.
Honourable senators, freedom of speech is one of the vital pillars that has allowed this great country of ours to develop to such a great extent. This freedom, in partnership with other fundamental rights, has allowed Canada to be a leader of human rights in the world. We have worked hard to create federal and provincial frameworks that operate succinctly with one another, so as to provide the greatest level of protection for Canadians. The Charter of Rights and Freedoms is one of these frameworks. Human rights commissions and tribunals are one of these frameworks, and every carefully written section of the Human Rights Act is also one of these frameworks.
I accept that there are shortcomings in some of these structures and, due to this, Canadians may not be receiving the utmost protection possible. This needs to be fixed. We must work to improve upon the already existing human rights structures we have by making appropriate reforms as we see necessary. What we should not do is break down or get rid of the institutions others have worked so hard to build. Doing so would be a step backwards for human rights in this country.
Honourable senators, we all agree that Canadians should have the right to freedom of speech, but it is the limits to which this freedom can be practiced with which we have issues. I hope that, through our work on this matter, we can move closer toward a conclusion where not only we, but all Canadians, are not impacted by words used to demean them.
All Canadians are deserving of respect. That is a Canadian core value. A value we are all proud of.
Freedom of expression, yes, absolutely, but this does not include the freedom to spread hate. The spreading of hate is not a Canadian value. Respect for our diversity is a value we are proud of.