The National Post
Monday, January 4, 1999

Can we talk?

Is Canada ceasing to be a country in which people can speak their minds? In the last 10 years, political censorship has become solidly ensconced in our legal institutions. It has reached the point that many judges and academics have come to identify the censorship of offensive ideas as a human right of those they offend. This ideological drift toward enforced orthodoxy took clear form in 1990 when the Supreme Court of Canada decided R. v. Keegstra. In that case, the court upheld a federal hate speech law mandating imprisonment for certain individuals who "wilfully promote hatred against any identifiable minority group". Although the court conceded that the law was prima facie unconstitutional under the guarantee of freedom of expression in the Charter of Rights and Freedoms, it was deemed acceptable because it served such overarching government objectives as promoting Canada's multicultural identity and demonstrating society's disdain for hate mongering.

In 1996, the Supreme Court took the campaign for ideological conformity to a higher level, with its decision in Attis v. Board of School Trustees. The case centred on the activities of Malcolm Ross, a New Brunswick school teacher who had authored various anti-Semitic publications. Despite an evidentiary fishing expedition that went back several decades, investigators found no evidence that Ross had conveyed his views to any of his students. Still, a New Brunswick Board of Inquiry concluded that Ross had indirectly produced a "poisoned environment" in the school; and it imposed a slew of remedial measures, including the extraordinary requirement that Ross be prevented from publishing any controversial material on pain of losing the non-teaching position to which he would now be relegated. Canada's highest court duly affirmed the finding of discrimination.

The combined effect of these two decisions is profound. In defiance of a western free speech tradition that extends from John Stuart Mill's On Liberty through George Orwell's 1984, the court has handed government the right to suppress unpopular opinions. The Attis decision was particularly disturbing. Under this precedent, protection from hateful views is now conceived as a garden variety human right -- to be read into the plethora of generic non-discrimination provisions in our statute books at every level of government.

Naturally, provincial human rights commissions have been eager to give teeth to this new orthodoxy. Their most recent victim was Fredericton mayor Brad Woodside, who was forced against his will to proclaim municipal recognition of a Gay Pride Weekend that, in the mayor's view, would arouse among his constituents neither pride nor gaiety. The board of inquiry that sat in judgment of Mr. Woodside, incidentally, was composed of one man -- Brian D. Bruce -- the same one man who produced the original Attis judgement in 1991.

Is all of this censorship really necessary to stem the spread of hate in our society? American experience suggests it is not. In the last decade, American courts have struck down numerous university speech codes and municipal ordinances that enforced the strictures of political correctness. In the United States, people are now equally free to burn flags and crosses (though few choose to burn either). This does not mean Americans are less hostile to hate mongering than Canadians. It simply means they embrace free speech, the marketplace of ideas, and the belief that evil ideas are more likely to flourish under censorship and suppression than when exposed to the light of day.

Unfortunately, in Canada, which is already a society saturated in public conformity, the trend is in the direction of more censorship. A November report indicates federal justice officials are contemplating a legislative proposal to expand Canada's hate speech laws. The putative statute would explicitly prohibit hate mongering on the basis of gender, sexual orientation, and disability; police would be empowered to seize computer hard drives they suspect contain hate material. Moreover -- and this is a potentially sinister provision -- accused hate mongers would no longer be permitted to invoke truth as a defence in certain situations.

It is not hard to imagine the authoritarian and illiberal purposes to which such legislation could be put. Nor to imagine how hatred and racism, pushed into hiding, might gradually spread unseen by courts, government, and the media. As the historian Thomas Macaulay said of the Stuart censorship that portrayed a loyal England to the very eve of the revolution that swept away King, Court, and Church together: "O wise policy. To leave the serpent his sting, and to deprive him only of his warning rattle."

Copyright © 1999 by Southam, Inc. All Rights Reserved. Reprinted with permission.