Trying to eliminate offensive expression is dangerous

By Karen Selick
Ottawa Citizen
Sep 18, 2009

Remember Voltaire? He’s the 18th-century French philosopher whose views on free speech were summed up as, “I disapprove of what you say, but I will defend to the death your right to say it.”

No doubt he was in the minds of several lawyers appearing this week in a Calgary courtroom. They don’t necessarily agree with what Stephen Boissoin wrote in a letter to the Red Deer Advocate in July, 2002 but they were there defending his right to have written it.

Boissoin is the pastor who made headlines across Canada when he was hauled before Alberta’s Human Rights Commission for having expressed in fire-and-brimstone language his opposition to what he considered homosexual “brainwashing” in school curriculums. He was charged under Alberta’s Human Rights, Citizenship and Multiculturalism Act (HRCMA) with publishing a statement that was likely to expose a class of persons to hatred or contempt. Almost six years later, he was found guilty and ordered to pay damages of $7,000. As well, he was handed a lifetime prohibition on publishing “disparaging remarks” about homosexuals and about several non-homosexuals who had participated in his prosecution. Finally, he was ordered to provide a written apology for his opinions.

This week, Boissoin’s appeal went before the Alberta Court of Queen’s Bench. But there was more on trial than the pastor and his words. The law itself was also on trial.

Boissoin’s prosecution was conducted under so-called “human rights” legislation enacted by the province of Alberta. Canada’s Criminal Code also contains provisions outlawing “hate speech” but Boissoin was never charged criminally. No wonder — it’s much tougher to convict someone of a genuine criminal offence than a so-called human rights breach.

This difference formed part of the argument before the court. Under Canada’s Constitution, only the federal government has the power to make criminal law. The Canadian Constitution Foundation (CCF), an intervener in the case, contended that Alberta’s legislature has wrongly attempted to encroach on exclusive federal jurisdiction. The CCF also argued, based on many decades of jurisprudence, that there is no section of the Constitution permitting a province to outlaw speech. Without constitutional authority, a province cannot just merrily legislate on any subject it chooses.

Indeed, while every Canadian province has anti-discrimination laws that resemble Alberta’s HRCMA insofar as they outlaw prejudice in employment, housing and services, no province east of Manitoba has emulated Alberta’s attempt to slip wideranging restrictions on free speech in among those very different types of prohibitions. Had Boissoin written his letter in Ontario or further east, he could not even have been charged, let alone punished. If the Alberta law survives the current constitutional challenge, it will mean that Alberta residents have narrower rights to free speech than their eastern counterparts.

Of course, all Canadians are guaranteed the right to freedom of expression by Section 2 of the Charter of Rights and Freedoms. The Canadian Civil Liberties Association, another intervener in the case, argued that Alberta’s law is unconstitutional because it unjustifiably violates this Charter guarantee.

Those who advocate laws outlawing offensive speech demonstrate a dangerous short-sightedness. They support the construction of a huge state apparatus devoted to ferreting out and eliminating forms of expression they deem offensive. But their underlying assumption is that the machinery of state will always remain in the hands of the good guys — people they can trust to prosecute only genuine bad guys. They never seem to learn from history that things change, sometimes suddenly and in unexpected directions.

If the bad guys ever get into power, the last thing anyone should want them to have is a ready-made state censorship machine. The power of censorship in the hands of a tyrant is a far more fearsome evil than any number of petty bigots writing contemptible letters to newspapers.

Fortunately, Canadians’ complacency toward censorship seems to have been routed recently, thanks to the untiring efforts of a few individuals such as former magazine publisher Ezra Levant and writer Mark Steyn.

Earlier this month, the Canadian Human Rights Tribunal rendered a surprise decision in the Marc Lemire case, holding that the sections of the federal human rights law prohibiting publication of offensive words on the Internet are an unconstitutional violation of the Charter of Rights and Freedoms. It will be interesting to see whether the Alberta Court of Queen’s Bench continues the trend with the Boissoin case.

Karen Selick is a past director and a founding member of the Canadian Justice Review Board