A Rare Win For Free Speech In Court, But Trend Towards Further State Control Continues

The Liberal government continues to move ahead with restrictions on free speech, in an attempt to have the state supplant the individual choices of citizens when it comes to what content is consumed and what opinions are shared.

In a 5-4 decision, the Canadian Supreme Court ruled that ‘obnoxious speech’ is considered protected free expression:

“Even obnoxious speech is protected by freedom of expression, the Supreme Court has ruled in a 5-4 decision. The judgment comes ahead of cabinet’s reintroduction of a bill that would threaten bloggers and Facebook users with $70,000 fines for hurtful online comments: ‘Everyone can manifest their opinions however unpopular, distasteful or contrary to the mainstream.’”

The case in question regarded comedian Mike Ward, who had mocked Jérémy Gabriel, a young singer with a disability.

Gabriel’s parents had filed a complaint with the Commission des droits de la personne et des droits de la jeunesse.

The case went to the Quebec Human Rights Tribunal, which ruled that Ward had violated the Quebec Charter of human rights and freedoms. Ward argued that free expression protected his right to make his comments about Gabriel.

Here is how the Supreme Court of Canada described the situation:

“The Tribunal sided with the Commission. It found Mr. Ward had infringed Mr. Gabriel’s right to dignity, without discrimination, because of his disability under sections 4 and 10 of the Quebec Charter. The Tribunal also found that Mr. Ward’s comments exceeded the limits of what a “reasonable person” can tolerate as freedom of expression under section 3 of the Quebec Charter. In law, a reasonable person is a hypothetical individual that is used as a legal standard to determine how a typical person would think or behave. This concept is applied in many areas of the law. Mr. Ward’s appeal of the Tribunal’s decision was dismissed by a majority of the judges of the Quebec Court of Appeal. He then appealed that decision to the Supreme Court of Canada.

The Supreme Court has found that the Tribunal did not have jurisdiction to proceed with this case, because it was not a discrimination complaint.”

The Supreme Court further noted that – while the comments may have been ‘repugnant’ – they do not violate the bounds of protected free expression:

“The majority went on to explain the legal framework that applies to a discrimination claim involving a public figure’s right to dignity, on the one hand, and a professional comedian’s freedom of expression, on the other. Under the first requirement of this framework, the majority said a reasonable person would not view Mr. Ward’s comments about Mr. Gabriel as inciting others to detest or vilify his humanity. They wrote, “making fun of a person’s physical characteristics may be repugnant; it most certainly is when the person in question is a young person with a disability who contributes with determination to society. But expression of this kind does not, simply by being repugnant, incite others to detest or vilify the humanity of the person targeted.”

Under the second requirement of this framework, the majority said a reasonable person could not view the comments as likely to lead to discriminatory treatment of Mr. Gabriel.

As a result, the majority concluded that the comments, “exploited, rightly or wrongly, a feeling of discomfort in order to entertain, but they did little more than that”.

A rare win for free expression

This is a rare victory for free expression in Canada, but even that comes with caveats.

The fact that it was a 5-4 ruling shows how close this country came to having free expression further curtailed.

Much of comedy is about mocking people, and – in a ‘free’ society – we are supposed to be allowed to mock anyone for anything.

To have that restricted and curtailed would be incredibly dangerous.

Additionally, even in the ruling itself you can see how restrictive things already are. The idea that you can’t speak in a way that would cause people to ‘vilify’ someone is dangerously vague and open-ended.

For example, most political campaigns are contests between organizations attempting to cause wide swathes of the public to hate their opponents, and they use rhetoric designed to incite vilification.

Also, whether someone vilifies or hates another person is entirely subjective.

One person could watch a speaker criticize another person and leave with a feeling of hate and detestation for the targeted individual, while another would feel a much milder emotion.

This is why it is much better to use the standard of direct criminal incitement when it comes to free speech.

It is already a crime to directly incite violence or physically assault somebody/a targeted group.

Why do governments not just leave it at that?

Because, that wouldn’t afford them enough opportunities for control.

Dangerous trend continues

While individual moments garner headlines, trends are generally what matter most.

And, despite a positive ruling for free expression in Canada, the overall trend is going in the wrong direction.

Despite the massive opposition and backlash, the Liberals are still pushing forward with Bill C-10.

C-10 would move Canada closer to being a nation like Communist China, with centralized state control over expression online.

It would be a massive repudiation of Canada’s supposed values of free speech and free expression.

Indeed, C-10 would lead to Canada having one of the most restrictive internet environments in the world, including authoritarian states.

And that’s not all.

The Liberals are also seeking to bring in Bill C-36, which would expand the definition of hate speech online.

This will of course be used to narrow down the bounds of ‘acceptable’ expression, and give the government more power to declare opinions they dislike ‘hateful,’ and thus use state power to silence individuals with those opinions.

Canada is thus on a clear trend towards becoming a more and more authoritarian state.

The Trudeau government is taking advantage of the fact that many Canadians take freedom of speech and freedom of expression for granted, and think censorship and state restrictions on speech are things that happen ‘in other countries.’

They are also taking advantage of the fact that a whole generation has been taught to think that mean words are ‘violence,’ and are obsessed with feeling ‘safe’ above all else, meaning they are glad to use state power to silence anyone who disagrees with them.

We must fight against this trend, and hold the line in defense of free expression in Canada, because once free expression is lost, all other freedoms will soon be lost as well.

Spencer Fernando

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