Cultural debates reveal common misconceptions about legal right and their limits, experts say.
TORONTO STAR LEGAL AFFAIRS REPORTER
Is a person entitled to say whatever they like without ever having to fear consequences?
The answer is no, though you’d be forgiven for thinking it was yes.
Issues around freedom of speech are raised frequently these days, and it’s clear that there’s often a misunderstanding when it comes to what the right to that freedom entails.
In the wake of Don Cherry’s firing by Sportsnet from “Hockey Night in Canada” for making anti-immigrant remarks in a Coach’s Corner segment, and a speech by controversial writer Meghan Murphy held at a Toronto Public Library branch, the Star spoke to legal experts about some of the public’s biggest misconceptions.
Whatever happened to free speech?
Clearly, there are many, with one example being the number of people who called out Cherry’s firing, wondering whatever happened to free speech?
The bottom line is that the right to freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms only protects a person’s speech from government interference.
That means the government can’t try to throw you in jail for what you say — in most cases.
“People tend to confuse freedom of speech as a right against government with a right to say anything, anywhere, any time without consequence,” said Brenda Cossman, a law professor at the University of Toronto.
“Freedom of speech is the freedom tc speak free from government censure and/or arrest, unless the speech crosses the line over to hate speech.”
And so, even when it comes to the right to speak free of state sanctions, there are indeed limits, as there are for all charter rights.
Charter of Rights and Freedoms
Section 1 of the Charter of Rights and Freedoms states that it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”
Limits to free speech
In the case of freedom of expression, the state has imposed some limits that have been upheld by the courts, primarily in the form of laws against hate speech.
One common misconception is that Section 1 of the charter allows the state to severely limit free speech, said University of Ottawa law professor Carissima Mathen.
The public tends to think of Section 1 as “this constant loophole to interfere with expression, and it’s not,” she said. “People tend to think that there’s just more scope for the state to go willy-nilly and slap all kinds of restrictions on speech.”
Experts say the threshold for a charge and then a conviction for hate speech is high.
“The threshold is quite high because we don’t want to fall into the slippery slope of having the government decide what speech should be limited because it might cause offence or criticizes a certain community” said criminal defence and constitutional lawyer Annamaria Enenajor.
“That’s not to say there are not legitimate consequences for one’s expression, like getting fired by Sportsnet.”
Hate speech offences
The Criminal Code sets out two main hate speech offences. The first is public incitement of hatred, of which a person is guilty if they, “by communicating statements in any public place, (incite) hatred against any identifiable group where such incitement is likely to lead to a breach of the peace.”
The second is wilful promotion of hatred, of which a person is guilty if they, “by communicating statements, other than in private conversation, wilfully (promote) hatred against any identifiable group.”
In upholding the wilful promotion of hatred offence, the Supreme Court of Canada found that although it does infringe the right to freedom of expression, that is justified under Section 1 of the charter.
‘Hatred’ in speech
“In my opinion the term ‘hatred’ connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation,” former chief justice Brian Dickson wrote for the majority in the 1990 case dealing with the issue, R v. Keegstra.
The Criminal Code includes four defences to wilful promotion of hatred:
- if the statements can be proven as true;
- if the person attempted to establish an opinion “on a religious subject or an opinion based on a belief in a religious text”;
- if the statements were relevant to any subject of public interest and the person reasonably believed the statements to be true; or
- if the person was trying to shed light on issues “tending to produce feelings of hatred toward an identifiable group.”
Cherry was fired for saying on TV: “You people that come here … whatever it is, you love our way of life, you love our milk and honey, at least you could pay a couple of bucks for a poppy.”
What he said did not amount to the criminal definition of hate speech (he has not been charged), but he was widely condemned for the remarks. Sportsnet, a private entity and most definitely not the state, was perfectly entitled to fire him if it didn’t like what he said, experts point out. And while Cherry may have been sacked, his right to freedom of expression remained intact.
“Most people believe it’s an inherent right connected to our very human nature to have opinions and be free to express them, but I think it’s also in our human nature that not all opinions are of the same value, and that some forms of expression are going to cost you more to hold and express than others,” said Faisal Bhabha, a professor at York University’s Osgoode Hall Law School.
Cherry was removed from his platform
“The victim narrative is that he’s somebody who’s being muzzled, which is absurd, because Don Cherry has a voice, he has a name and he has technology at his disposal. In this day and age, to be taken off a popular TV spot is far from being muzzled. You’re just losing a very privileged platform.”
The issue of a recent talk at a Toronto Public Library branch by writer Meghan Murphy, who has made controversial statements on transgender people and voiced opposition to federal legislation banning discrimination on the basis of gender identity and expression, is perhaps not as clear cut as the Cherry case. experts say.
News of the event, which was hosted by the group Radical Feminists Unite—Toronto, led to a public outcry and calls to boycott the library. Murphy has been the subject of controversy for years; she has been accused of being transphobic (which she denies) and has been banned by Twitter for tweets that included saying “men aren’t women.”
Public library is not Sportsnet
Unlike Sportsnet, the library is a public institution, subject to the charter and its protection of the right to freedom of expression. Murphy has not been charged criminally with hate speech, and experts have been doubtful as to whether she would be.
“If you object to the scope and definition of gender identity as a protected ground, is that hate speech?” Mathen asked. “I would have to think that if you were offering it in a relatively sober way, you’re expressing the ideas in a sober way, and you’re literally just taking exception to legislation or legal definitions, I don’t think a court would be comfortable saying that’s hate speech.”
Room booking policy opposes ‘attack’ speech
Adding a layer to this topic is the fact that the library has a policy for booking rooms, which states the party booking the room “will not promote, or have the effect of promoting, discrimination, contempt or hatred for any group or person on the basis of” a number of grounds, including gender identity.
The library concluded that Murphy’s talk, titled “Gender Identity: What Does It Mean for Society, the Law, and Women?” did not violate the policy, though a number of trans people, activists and other members of the public thought otherwise, going as far as to say that it did constitute hate speech against trans people.
“While much was made about whether Murphy’s speech is hate speech — and it is true that she has never been charged —hate speech is not the threshold for rental,” Cossman said.
Hate speech – promotion of discrimination
“The question vis-a-vis Murphy and the room booking is then not one exclusively of hate speech, but also of promoting discrimination. That is a much lower threshold than hate speech. It is conceivable that if a per-son/organization was denied a room on the basis of the promotion of discrimination, they could bring a charter challenge to the policy as a violation of freedom of expression. But, that has not (yet) occurred.”
Murphy may have been permitted to speak, but that doesn’t mean there were no consequences for that speech, particularly where the library itself was concerned — for instance, Pride Toronto threatened to ban it from next year’s Pride parade. Articles critical of Murphy and the library were published and widely circulated, and hundreds of protesters held a large, peaceful demonstration outside the Palmerston branch while Murphy spoke there last month.
“And that’s also protected by freedom of expression,” Enenajor said.