Hon. James S. Cowan (Leader of the Opposition):

Honourable senators, I am pleased to join in the debate initiated by Senator Finley on the issue of freedom of speech in our country.

The concept of freedom of speech or freedom of expression comes to us from the very earliest times. Moses had the temerity to argue with God in the Old Testament. Far from being struck down for such audacity, he is revered by adherents of different faiths as one of the great leaders in history.

From the ancient Athenian democracy, we read in Plato's Socratic dialogues that freedom of discussion among citizens is an absolutely essential component of a great democracy.

In our country, the concept of freedom of speech can be traced back directly to the British Bill of Rights of 1689. Interestingly, that Bill of Rights enshrined freedom of speech in Parliament. It stated, in relevant part:

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

A century later, the French National Assembly's Declaration of the Rights of Man and the Citizen in 1789 took the leap of characterizing this right of free speech as a right for all times and for all nations. Article 11 reads:

The free communication of ideas and of opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law."

This declaration was, of course, not without controversy. Indeed it was truly revolutionary. Senator Finley and other colleagues opposite are no doubt very familiar with Edmund Burke, the so-called father of modern conservatism, who railed against these "metaphysical rights," as he dismissively called them. In retrospect, he was not on the right side of history because this was an idea and an ideal which spread throughout the world.

Twenty-eight years ago, building on what Prime Minister John Diefenbaker started with the Bill of Rights in 1960, Canada enshrined in its Constitution its own declaration concerning freedom of speech. Section 2 of our Charter of Rights and Freedoms states:

Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

The Charter, of course, emerged from Prime Minister Trudeau's vision of a "just society" for Canadians.

What is the Harper government's vision of Canada as a just society? A criminal code filled with ever-longer prison sentences, and Canadians kept busy building and paying for more and bigger prisons to hold all these convicted under those laws. It is a small wonder that Prime Minister Harper has little appetite to draw attention to the contrast his approach provides with the principles and vision reflected in our Charter of Rights and Freedoms.

I was pleased to hear Senator Finley initiate this inquiry. As he stated in his motion, his purpose was to call the attention of this chamber to the erosion of freedom of speech in our country.

First and foremost, freedom of speech relates to government action. Our Charter is a statement of Canadians' fundamental rights and freedoms vis-à-vis their government — not vis-à-vis their neighbours, family members or employers. To properly examine whether our freedom of speech is being eroded, we must look first and most critically at the actions of our government. Honourable senators, I agree with the premise of Senator Finley's inquiry: The actions of the Harper government indeed are seriously eroding freedom of speech in this country.

Some Hon. Senators: Hear, hear.

Senator Cowan: Senator Finley apparently was prompted in part to initiate this inquiry because of the incident when Ann Coulter was supposed to speak at the University of Ottawa. I do not propose to address this at length. I do not agree with much of what I have read or heard of Ms. Coulter's views, but I have no difficulty with her being free to express those views in Canada.

The actions in question were actions of the university or of Ms. Coulter's organizers, not the government. Of far greater concern to me are the actions taken directly by the Government of Canada that have the effect of preventing or impeding individuals from expressing their views.

Ms. Coulter, an American citizen, had no difficulty entering Canada to speak at the University of Ottawa and subsequently did speak at the Universities of Calgary and Western Ontario. Others whose views may not meet with the same support and approval by members of this government have not been so fortunate.

Senator Downe asked Senator Finley whether he believed the government had made a mistake by restricting people who want to come to Canada to speak by not allowing them entrance to the country. Senator Finley replied that he assumed Senator Downe was referring to George Galloway and that he, Senator Finley, was disappointed that Mr. Galloway was not given an opportunity to express himself here in Canada.

In recent days, we have read in the press that while at the time the Minister of Citizenship, Immigration and Multiculturalism, the Honourable Jason Kenney, stated that neither he nor his staff had been in direct contact with Canadian Border Services Agency officials over Mr. Galloway's status, in fact, documents released since suggest that there was, as one report described it, "a short but intense campaign on the parts of Kenney's office and government officials to keep Galloway out of Canada."

Indeed, this campaign proceeded notwithstanding strenuous objection by the Canadian High Commissioner in Britain, who wrote to senior officials in both the Prime Minister's Office and the Privy Council Office, saying, among other things:

. . . my suspicion is that the Brits will be somewhat taken aback by such a Canadian decision, and some (possibly including the UK Government) will feel compelled to defend his freedom of speech, especially as he is a sitting MP.

In the end, of course, our government did not take the advice of our high commissioner and refused to give Mr. Galloway, a duly elected member of the British Parliament, permission to enter Canada.

Unfortunately, honourable senators, the Galloway incident is but one incident in what appears to be a pattern of conduct by this government.

On February 6, an American journalist was denied entry into Canada. Martin Macias, Jr. was reportedly detained by border officials at the Vancouver International Airport, questioned for several hours, and then denied entry and put back on a plane to Seattle. Mr. Macias is a reporter for, amongst other bodies, the online and news media outlet for Chicago Public Radio. He is also a member of No Games Chicago, an organization that opposed Chicago's bid for the 2016 Olympic Games. According to a CBC news report, he was travelling to Vancouver to attend various political events, including a two-day conference organized by the Olympic Resistance Network. He was to leave Vancouver on February 11, before the start of the Olympics. There was no suggestion that he was planning anything nefarious to interfere with the Games.

According to Mr. Macias, he was questioned aggressively for two hours about what he was going to do in Vancouver, who he was meeting with, who organized the conference, and even what they looked like. They took all his contact information, as well as the business cards of journalists and others he planned to connect with in Vancouver.

Amy Goodman is another American journalist. She is known as the principal host of "Democracy Now!," a U.S. syndicated radio program. She encountered problems when she sought to enter Canada. She was coming here as part of a book tour to promote her new book Breaking the Sound Barrier.

I will read to you from the CBC News story of November 26:

Goodman, 52, known for her views opposing the wars in Iraq and Afghanistan, told CBC News on Thursday that Canadian border agents asked her repeatedly what subjects she would cover at scheduled speaking engagements in Vancouver and Victoria. . . .

Goodman said her car was searched and officials demanded to look at her notes and her computer. . . .

"I am deeply concerned that as a journalist I would be flagged and that the concern — the major concern — was the content of my speech," said Goodman.

I guess the border officials were satisfied with what they heard of Ms. Goodman's planned content of her speech. They allowed her to enter Canada but returned her passport with a document demanding she leave the country within 48 hours. So much for her freedom of expression.

As I say, honourable senators, these incidents cause me even greater concern than the one at the University of Ottawa. Unlike the Ann Coulter case, these incidents involve actions by the Government of Canada to prevent expression in Canada of views that the government, for whatever reason, does not want expressed. Government officials are demanding to know what someone — journalists in both cases — will say, before deciding whether to allow them to enter and speak, as with Ms. Goodman, or deny them entry and put them on a plane back out of Canada, as happened to Mr. Macias. Interestingly, there is no suggestion that Ms. Coulter, whose views are often aligned with those of the Harper government, was even questioned at the border.

I hoped that when Senator Wallin and Senator Duffy, who both have impressive journalistic pedigrees, participated in this inquiry, they would have said something about their fellow journalists, Mr. Macias and Ms. Goodman. Both Senator Duffy and Senator Wallin travelled to the farthest corners of the globe during their journalistic careers, but now sit in this chamber supporting a government that denies other journalists entry into their own country.

Yes, honourable senators, we indeed have a serious problem with the erosion of freedom of speech by the Harper government and it is not confined to selective harassment of individuals at the border.

Frankly, I was somewhat surprised that it was Senator Finley who initiated this inquiry. Perhaps these months of serving in the Senate have opened his mind on some issues.

Judging from a report in the Toronto Star in 2008, freedom of speech was not particularly high on Senator Finley's priority list while he was national campaign director for the Conservative Party.

The story describes how, in 2007, Mark Warner, an international trade lawyer who had been chosen as the Conservative Party candidate in the riding of Toronto Centre and had already been actively campaigning, received a letter informing him that he would not be allowed to run as the Conservative candidate. Honourable senators, guess who signed that dismissal letter. I was our good friend Senator Plett.

The 2008 Toronto Star article went into some detail about what reportedly happened:

"I wasn't supposed to talk to the media," says Warner. "I told them I couldn't have a non-existent media campaign when I was running against Bob Rae because I'd get killed."

He was told he could go to a Star forum on poverty where Rae spoke, but "not to say anything."

Warner says Finley's office summoned him to Ottawa, where he met with Finley on the 12th floor of Tory headquarters at 130 Albert Street. Finley apparently yelled at Warner several times during the five-hour session, including over his edict Warner couldn't fill out a questionnaire about equality from a gay-lesbian alliance. "He said if I answered it, I would be denounced by the Prime Minister and everybody else in caucus."

Warner, according to the news report, called the session a "Star Chamber." The article notes:

Warner was officially fired by senior official Don Plett, in a hotel room near the Toronto airport.

Honourable senators will understand why I found myself scratching my head listening to Senator Finley extol his heartfelt commitment to free speech. If duly nominated candidates for election are not allowed to exercise free speech — if Canadians are not allowed to learn where a particular candidate or his or her party stands on an issue — then what role is there for free speech?

Of course, we know this incident was not an isolated one. Candidates refused to attend all-candidate meetings. Cabinet ministers apparently are kept on a short leash, if indeed they are allowed out at all. God forbid that Canadians should actually hear what a cabinet minister thinks about a particular issue within his or her portfolio.

How many times have Canadians listened to news reports that conclude with the words, "The minister responsible declined our invitation to appear" or "declined to comment"? "The Current," a CBC Radio current affairs show, ran a segment entitled "Request Count," in which they tallied the number of requests made to members of the Harper government and tracked how many were accepted and how many refused. They finally stopped the on-air component — there were so few requests that were accepted. As of a few days ago, so far there have been 46 requests; 6 accepted and a full 40 declined — in this season alone.

Last week's issue of The Hill Times had a front-page article about the "unprecedented" control being exerted by the Prime Minister's Office and the Privy Council Office, the arm of the bureaucracy that serves the Prime Minister. It described how "Tory political staff have seized almost total control of routine government communications."

Diplomats are notoriously muzzled — one diplomat said that the Harper government's approach has "killed public diplomacy, outreach and media relations." Jeff Davis, the author of the piece, writes, "the Tories have wrapped all government communications up in political red tape, radically reducing the amount of information disclosed to the public." He quotes a diplomat who questions the government approach, noting that "public servants have not given up their freedom of expression."

David Akin, the respected Canwest reporter, wrote in his blog on January 29 about the continued limitations imposed on the Parliamentary Press Gallery by the Prime Minister's Office under Mr. Harper. He described the trip with the Prime Minister to the World Economic Forum in Switzerland, where members of the press galley were collectively afforded only two questions — one in English, one in French. One reporter who dared to ask a question at a photo op was warned immediately that if she continued, reporters would no longer be allowed to attend such photo ops — access would be denied. PMO staff also made veiled threats that the individual's organization might suffer further sanction — all because of the impertinence of asking a question.

Honourable senators, as is explicit in the language of the Charter of Rights and Freedoms, freedom of expression and freedom of the press go hand in hand. As Senator Fraser, Senator Munson, Senator Wallin and Senator Duffy in particular know, to choke a free press is to kill free speech. Yet this is business as usual for the Harper government.

In view of all I have described, I was not surprised to hear that yesterday, which was World Press Freedom Day, the Canadian Journalists for Free Expression awarded this government an "F" — a failing grade — for "the countless delays and roadblocks" put in the way of access to information. Several colleagues opposite used the term "Orwellian" in speaking to this inquiry. The phrase is more appropriate than perhaps they intended.

I mentioned the marketplace of ideas — a concept I thought would be understood by a Conservative government, which presents itself as committed to the principle of free markets. The fundamental premise of freedom of speech is to allow wide, open discussion — a busy, free marketplace of competing ideas from which citizens may choose, bringing to bear their own ideas, knowledge and critical, thoughtful analysis. However, the free market of information under the Harper government more closely resembles a store under the old Soviet regime: sparsely stocked — empty shelves with only a few closely controlled, government-approved goods — and long lines of hungry citizens waiting outside in the cold.

Honourable senators, there can be no meaningful freedom of speech if the government refuses to provide information to its citizens about the government's actions and activities.

Guy Giorno, Chief of Staff to the Prime Minister, told a committee in the other place that freedom of information is "the oxygen of democracy." This government's actions repeatedly belie that statement.

Robert Marleau, the former clerk of the other place, who was appointed Information Commissioner of Canada in 2007, reported in 2008 that contrary to Mr. Harper's election pledge to make transparency a hallmark of his administration, a "fog over information" had crept across the government's activities. He said that restrictions on the access to information process effectively put a stranglehold on communications.

Mr. Marleau's successor, Suzanne Legault, Interim Information Commissioner of Canada, recently issued a special report to Parliament containing the 2008-09 report cards on systemic issues affecting access to information in Canada. Ms. Legault entitled the report Out of Time. She did not mince her words. She said that Canadians' right to timely access to information "is at risk of being totally obliterated."

Honourable senators, my friends opposite would like Canadians to believe that the threat to free speech is some university students behaving badly towards an American political pundit. Imagine, university students behaving badly. How unprecedented. How shocking. Meanwhile, the Interim Information Commissioner reports that the right of Canadians to timely information from their own government is being "totally obliterated" — not just restricted, but "totally obliterated."

There is no story here for my friends opposite. Let us get our attention back to the real threat — to university students behaving badly. Talk about being both Orwellian and, in the words of Neil Postman, amusing ourselves to death.

We have repeatedly seen this government trying to prevent Canadians from being in a position to exercise their freedom of speech, by denying them the necessary building blocks of accurate information. The Director of Communications for the Honourable Diane Finley, Minister of Human Resources and Skills Development, was reported to have recently intervened to try to suppress the release of information under the Access to Information Act that would have revealed that Ottawa spent $5 million on a television advertising blitz surrounding the Vancouver Olympics.

Those stories followed a February 7 report of a Conservative political staffer who, when working for then Public Works Minister Christian Paradis, had apparently ordered the "unrelease" of a sensitive report on the government's real estate portfolio last July. According to the news reports, public servants, Department of Justice lawyers and consultants had agreed that there was no legal basis to withhold any of the 137-page document; yet this staffer reportedly ran — yes, ran — to the mail room to prevent a package of documents from being sent out in response to the access request. He subsequently pressured officials to release only 30 pages of that 137-page document.

The Hill Times then ran a story with the headline, "Cabinet ministers' offices regularly interfere in ATI requests, says Tory staffer." They quoted a Conservative political staffer who, understandably, did not want to be identified, as saying that Sebastian, the staffer who was running around trying to get things "unreleased" . . .

. . . has not, from my experience, done anything that is significantly different than what ministers' offices are expected to do by the PMO.

According to The Hill Times, the staffer said that the Prime Minister's Office has pressured ministerial staffers to head off the release of explosive information.

That article appeared on February 22. The next week, March 1, The Hill Times ran another story, which reported the following:

Early last week, a Tory staffer who asked not to be identified, encouraged The Hill Times to "keep going on this story about the ATIPs."

The staffer said despite PMO statements that all staffers have been directed to abide and uphold the Access to Information Act, the PMO interference continues.

"This still continues and staff are told publicly to 'respect the process' but are expected to find ways to thwart the process," the staffer wrote. "Trust me — despite the public musings — political staff were told 'not to interfere,' nudge nudge, wink wink."

The Harper government's wall of secrecy and muzzle on freedom of expression extends throughout the halls of government. I spoke earlier of the collective vow of silence that appears to have been adopted by all cabinet ministers, but this government muzzles even its scientists. Just last month, on March 15, the National Post, usually a determined cheerleader for the Harper Conservatives, ran an article headed "Scientists 'muzzled' by Tories' media policy." This was too much even for the National Post.

Just 10 days later, Lawrence Martin, the columnist for The Globe and Mail, could not hold back any longer. He wrote an article entitled "A capital where freedom's in short supply." I will quote just a few of the passages.

Silencing orders were going out all over Ottawa — to caucus members, civil servants, agency heads and military brass. They may have been able to state their view in the past. But not in the new Harperized capital. Not without prior approval from the Prime Minister's Office or the Privy Council Office.

The scope of the clampdown was unprecedented. The government tried censoring coverage of dead bodies returning from Afghanistan. It tried to curtail freedom of the press like never before, at one point having the police move out journalists from a Charlottetown hotel lobby. Restrictions on the access-to-information process effectively put a "stranglehold" on communications, information commissioner Robert Marleau reported.

The long arm of the Prime Minister's Office has not stopped at the walls of its own public servants. According to a CBC report last year, a series of government emails showed that the Harper PMO directed the contents of news releases issued by the Transportation Safety Board of Canada, a supposedly arm's-length advisory body and, more than that, told the board to hold off on the release of the safety report into the high-seas death of Laura Gainey until after the October 14 general election. Indeed, the report, which was ready for release on September 24, was not released until October 30, two weeks after the election.

Perhaps it is no surprise that the safety board acceded to the Prime Minister's request. We have all seen what happens to independent watchdogs who fall out of favour with this government. It is the same old stuff; it is a story that bears repeating.

Linda Keen was fired from her position as chair of the Canadian Nuclear Safety Commission. This firing came the night before she was to testify before a parliamentary committee in the other place.

Peter Tinsley was chair of the Military Police Complaints Commission. In that capacity, he was attempting to conduct an investigation into the allegations around the Afghan detainee issue, an investigation that the Harper government was working to thwart and impede in every possible way it could imagine. In the middle of this investigation, Mr. Tinsley sent what I would have thought would have been a pro forma request for an extension of his term to complete his work. Instead, he received a letter from Defence Minister Peter MacKay, which said: "I encourage you to begin arranging your personal and professional affairs and start your career planning as soon as possible."

Mr. Tinsley told reporters at the time, last December, that it was unprecedented for the Harper government not to reappoint someone in the middle of a significant inquiry. He was quoted as saying:

Lack of cooperation by the government, or resistance [to] the roles of administrative tribunals, and the effect on the [cabinet] appointees, can have nothing but a . . . chilling effect across the field.

The article continues:

He said the fear is that watchdog chairs could be cowed by "an environment where the government of the day sends signals that if you don't guess right what the government of the day wants" there will be consequences.

Linda Keen spoke in January about the attitude of the Harper government to independent watchdogs like herself and Peter Tinsley. She did not mince her words. She said:

Administrative tribunal heads and, by extension, their tribunals and administrative law are under attack today in the federal government.

Honourable senators, under the Harper government, even independent watchdogs have lost their right to freedom of expression. They have lost their right precisely where it is needed most, on the issues where Canadians depend on their ability to speak openly and freely, without fear of reprisal, guided only by the Canadian public interest as they see it.

Mr. Tinsley's successor at the Military Police Complaints Commission, hand-picked by the Harper government, has not fared any better in prying open the clamp of secrecy, and the government has not hesitated to let the commission know just exactly who tells who what will happen and when. Just last week the new chair, Mr. Glenn Stannard, asked the government's representative, Justice Department lawyer Alain Préfontaine for a date when the commission could expect to receive certain requested government documents. Mr. Préfontaine replied: "This is not something I am at liberty to discuss with you."

Mr. Stannard, understandably dumbfounded, asked the question again. Mr. Préfontaine replied: "The documents will be given to your counsel when they are good and ready."

Mr. Stannard later told The Globe and Mail that since mid-February disclosure to the commission has nearly dried up. Thousands of documents have yet to be released and those documents that have been released have been heavily censored. Indeed, of even greater concern is that there appears to be a "weeding out of material" even before packages are handed over to the censors for scrutiny. Journalists are managing to obtain documents that it now turns out were never even given to the commission.

This government claims to be the government of transparency and accountability — the government committed to justice, and law and order. What sort of justice can result when documents are hidden from the commission? There is no transparency; there is only delay, censorship and arrogance. Instead of accountability to Canadians, there is disdain and contempt.

Honourable senators will understand why I find it difficult to take seriously this government's pious assertions of its devotion to the cause of freedom of speech, or the direction in which my friends opposite want to take this inquiry. They would rather not talk about Richard Colvin, who found himself in Afghanistan waging a different war from the one he accepted. His was a personal battle against the very government he was representing, as he tried to tell them his concerns about Afghan detainees.

Of course, honourable senators, as we all know too well, the Harper government's attempts to prevent Mr. Colvin from speaking out did not end in Afghanistan. Invoking national security yet again, the government tried repeatedly to prevent him from appearing before the Military Police Complaints Commission. Finally, after members of the other place stepped in so Mr. Colvin could speak here on Parliament Hill, the government resorted to that last refuge of scoundrels and shamefully tried to discredit Mr. Colvin's testimony. That is the true face of this government's commitment to freedom of speech.

Honourable senators, speak to people who work for non-governmental organizations across the country. Too many are afraid to speak out on various issues for fear of incurring the wrath of the Harper government and losing their critically needed funding.

Senator LeBreton finds this situation amusing, but I do not think the NGOs who are affected by this fear on a day-to-day basis find it nearly as amusing.

This past weekend, The Globe and Mail published an interview with Joanna Kerr, Chief Executive Officer of ActionAid International. She told the Globe:

It's so hard for NGOs to speak out, because they get their funding cut. That's what's been going on. If your mandate is to help people around the world, you're not going to rock the boat. It's a very, very unusual time in Ottawa, the kind of censorship that is happening.

Before I conclude, I want to speak briefly about section 13 of the Canadian Human Rights Act, which several senators have focused on in their remarks in this inquiry. I appreciate that there have been some real concerns about some cases that have been initiated under this section of the Canadian Human Rights Act. We should, of course, always be looking for ways to improve the laws of Canada. I was impressed with the arguments presented by several senators in this debate, in particular Senator Nancy Ruth and Senator Fraser, explaining the value served by having the provisions of that act in addition to those in the Criminal Code; the fact, for example, as pointed out by Senator Nancy Ruth, that the Canadian Human Rights Act covers hate propaganda based on sex, while this would not be covered by hate crimes under the Criminal Code. As Senator Fraser pointed out, the remedies available under the two acts are distinct, and are intended for different purposes.

I also believe that we should not lose sight of the reasons for particular laws. It is often said that bad facts make bad law — something this government should do well to remember when it jumps to introduce certain of its so-called law-and-order bills. The same logic applies when looking at certain questionable or even wrong decisions. The fact that one investigator, or even one adjudicator, has made a statement or decision we may disagree with cannot be sufficient cause to have us throw out the whole process. There have been many decisions over the years that I have disagreed with, even some by the Supreme Court of Canada, but that is surely not grounds for dismantling the court system.

Honourable senators, racism and hate propaganda are not issues for another time or another place. Sadly, they continue to have relevance here today, here in Canada, as well as around the world. As Senator Nancy Ruth eloquently reminded us, words are often not "only words." Words can be powerful and indeed, sometimes dangerous.

Scholars have observed that every modern case of genocide has been preceded by a propaganda campaign. Some go so far as to suggest that such a campaign may, in fact, be indispensable to genocide — a prerequisite, if you will. As Senator Dallaire could tell us, in Rwanda the genocide was preceded by several years of hate propaganda. The same was true in Bosnia and Herzegovina, and the same was true in Hitler's Germany.

Before genocide can occur, large numbers of people must be brought around to condone mass killing of the group in question. That is not to suggest that all expressions of racism or hatred are to be censored as necessarily leading to genocide — by no means. However, it does suggest that Canada is right to take hate propaganda seriously and we are right to struggle to find the line between free speech and inflammatory speech that requires action.

The issue, as is often the case, is one of balance; in this case, between speech that is and must be fully protected under our fundamental, critical right of freedom of expression and those communications that would constitute hate messages and run afoul of Canadian law.

Are there adjustments that can be made, such as procedural safeguards to guard against abuses of the law and to underscore the importance we place on freedom of speech? Perhaps, but, again, bad facts inevitably make bad law. We should always be open to considering proposed improvements, but the law as it stands now has proven effective in addressing serious cases of hate propaganda.

In conclusion, I want to thank Senator Finley for launching this inquiry. I agree with him: We indeed face a serious erosion of freedom of speech in this country, which is being effected as we speak by the Harper government. I look to Senator Finley and other colleagues who have risen to defend freedom of speech with such eloquence. I look to these honourable senators to join with us on this side and call the Harper government to account for its numerous actions that undermine free speech in this country. I am confident the honourable senators will join us and publicly denounce those actions by their government and work to uphold real freedom of speech in Canada.

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