The Canadian Approach to Free Speech

In a 1992 interview with the Globe and Mail, the Chief Justice of the Supreme Court of Canada, Antonio Lamer, noted that the adoption of the Canadian Charter of Rights and Freedoms had “Americanized” the court. Yet, when dealing with hate speech and pornography, the Supreme Court of Canada has taken an approach diametrically opposed to that of their American counterpart. Rather than expanding free speech, the court has favoured a communitarian philosophy that emphasizes social equality and multiculturalism. This approach has influenced Canadian society, distinguishing it from America.

In part, Canada’s focus on equality and multiculturalism comes from the Charter of Rights and Freedoms itself, adopted in 1982 and serving as the bill of rights within the country’s constitution. Section 2(b) guarantees “freedom of thought, belief, opinion and expression,” but is limited by a prior section, which states that the Charter’s rights and freedoms are subject to “such reasonable limits prescribed by law as can be demonstratively justified in a free and democratic society.” What would constitute such a limit? Two other sections underscore that such limits can involve multiculturalism and gender equality: Section 27 provides that the Charter “shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians,” and Section 28 emphasizes that Charter rights “are guaranteed equally to male and female persons.”

The commitment to this communitarian philosophy has subsequently been expanded by rulings of the Supreme Court of Canada. On February 1992, the Court considered the constitutionality of Canada’s obscenity law in Regina v Butler. The case involved the owner of a Manitoba shop that sold explicit videos and magazines. The owner, Donald Butler, was prosecuted under laws targeting the “undue exploitation of sex” by prohibiting the making and distribution of obscene material. As the statute remained vague, the judges defined the exploitation of sex as “undue” at the point when most Canadians would not tolerate other Canadians being exposed to such material. The court held that the degree to which community standards are offended is dependant on the degree of harm likely to be caused by society’s exposure. The material in question was found to be obscene because it was found to be degrading to women, and thus likely to cause harm to society. Forced to choose between protecting free expression and gender equality, the court picked the latter.

This approach to obscenity differs from the legal interpretation accepted south of the border. Catharine A. MacKinnon, a University of Michigan law professor who helped argue for restrictions, described the difference. “In the United States the obscenity laws are all about not liking to see naked bodies, or homosexual activity, in public,” she said. “Our laws don’t consider the harm to women. But in Canada it will now be materials that subordinate, degrade or dehumanize women that are obscene.”

Ultimately, the effect of the Butler ruling was much more limited than its advocates had hoped. Butler has only rarely been applied to adult obscenity, and almost never to commercially-marketed heterosexual pornography. Even material that presents violence against women has been found acceptable. Ironically, this is in part because this material has become so widely available, thus normalizing the content. Yet, the decision to limit free expression in the name of equality and societal well-being has set a precedent for the court’s subsequent decisions.

In another important cases, James Keegstra, a high school teacher, was convicted by the court for communicating anti-semitic teachings to his students. He was convicted under a statute which prohibits communicating statements, other than in private conversation, that promote hatred against an identifiable group. This conviction would not have been possible in the U.S., as the First Amendment has been construed to protect speech like Keegstra’s as long as it doesn’t constitute a “targeted racial insult”. In this decision to uphold the statute as constitutional, the court held that “the special role given equality and multiculturalism in the Canadian Constitution necessitate a departure from the American view… that the suppression of hate propaganda is incompatible with the guarantee of free expression.” The court concluded that hate propaganda represents a pressing concern in a free and democratic society, as it has the potential to cause emotional damage to members of the target group. As hate speech harms individuals’ dignity, this denies individual respect as an equal member of the community—thus harming Canadian democracy.

Invariably, all democratic societies will be confronted with the problem of how to balance promoting freedoms with promoting equality and respect. In the United States, there is no clear sense of how to prioritize free speech protected by the First Amendment with equal respect enshrined in the Fourteenth. As a result, courts have tended to leave a wide scope for free speech, even when this may be damaging to some members of society. In contrast, Canada has decided to explicitly limit freedom of expression in order to guarantee equality and multiculturalism.