Among the best-known maxims of freedom of speech in the United States is Justice Holmes’s “freedom for the thought that we hate.” It would not be an apt description of the law of free expression in Canada. As Camden Hutchison explains in Freedom of Expression: Values and Harms, the Supreme Court of Canada (SCC) ranks speech according to subjective judgments of value, and woe to those whose thought it does not think much of. Hutchison makes a compelling case for why this is the wrong approach to adjudicating freedom of expression claims, and an intriguing suggestion for what may replace it.
As Hutchison points out, and as I have noted elsewhere, things didn’t start out this way. At first, the SCC held that any law whose purpose was to restrict expression amounted to a limitation of the freedom protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, which could only be upheld under s. 1 of the Charter if “demonstrably justified in a free and democratic society.” Only when the impugned law affected expression incidentally would the values associated with this right be relevant: political participation, the search for truth, and individual self-fulfillment. If these were impaired, a potential violation of s. 2(b) might still be on the cards, subject to justification under s. 1.
But the tail quickly came to wag the dog. When it was asked to consider the constitutionality of prohibitions on hate speech in R v Keegstra, the SCC chose to assess the expression at issue with reference to these same values. While it held that hate speech was prima facie protected expression, hate speech’s failure in the SCC’s eyes to do much for political participation, the search for truth, or even self-fulfillment meant that bans were justified.
This was so not only for the provisions of Canada’s Criminal Code, which provide a number of important safeguards and defenses, notably truth, but also for prohibitions in anti-discrimination statutes, to which even truth is no defense. As Hutchison summarizes Whatcott v Saskatchewan (Human Rights Commission), the SCC’s most recent decision in this area, “certain forms of expression advance free expression values, while other forms of expression serve to undermine those values. If expression is found to undermine free expression values, then the government will have freer scope to legally restrict it.”
Hutchison’s careful reading of the SCC’s hate speech jurisprudence exposes its incoherence, subjectivity, and indeed failure to protect the values it invokes as constitutive of the freedom of expression. Instead of protecting the search for truth by individuals, however misguided this may sometimes prove to be, this case law rests on the conceit that the SCC has access to the truth, and that little is lost when competing views are prevented from being aired. Since the SCC has upheld hate speech bans that make no exception for true statements, its commitment to the value of truth seems rhetorical at best. The value of self-fulfillment, meanwhile, is turned from a justification for free expression into one for censorship in the name supporting the collective well-being of the groups victimized by hate speech. Last but not least, democracy is made into a synonym for tolerance―which, as Hutchison rightly notes, it isn’t always in Canada, any more than in other places―and, thus, into yet another justification for silencing those who will not get with the program.
Hutchison’s focus is on the SCC’s hate speech cases. However, his charge that the SCC’s invocation of the values that support freedom of expression is no more than a rhetorical smokescreen for restricting expressive freedomis borne out by the SCC’s treatment of other issues. For example, it has upheld the use of compelled speech in the face of a dissenting judge’s protestation that ordering a person to make “statements of facts in which, rightly or wrongly, he may not believe, or which he may find inaccurate, misleading or false” amounts to ordering him “to tell a lie.” So much for the search for truth.
Democratic participation fares little better. As I have pointed out elsewhere, “no debate in Canadian society is so regulated as the one at the heart of our parliamentary democracy and thus of the protection of the freedom of expression.” Thus, the SCC has upheld restrictions on independent campaign expenditures so draconian that they prevented the publication of an ad in a national newspaper, back when ads in newspapers were still a thing. This was done, needless to say, in the name of enhancing the democratic process.
To address the flaws he identifies in the SCC’s freedom of expression jurisprudence, Hutchison proposes a new approach to the proportionality analysis that, through s. 1, governs the justification of limitations on Charter rights. This approach would “focus on the impairment of actual expression rather than underlying values,” which can be “easily employed to justify the suppression of disfavoured ideas.”
At the balancing stage of the proportionality analysis, Hutchison argues, the limitation of the freedom of expression should be set off not against the government’s objectives, as is now the case, but “the individual or social harms prevented by the restriction.” The harms, moreover, must be more than speculative—another distinction with current law, which gives considerable leeway to the government’s “reasonable apprehensions” of harms that might be produced by unregulated expression.
The language of harm can be, and in recent years has been, deployed expansively to justify all manner of restrictions on speech. Hutchison proposes a cabined definition to prevent the notion of harm from becoming a stand-in for the “values” he urges the SCC to discard, as well as to promote consistent and predictable adjudication in freedom of expression cases. Drawing on other cases that have considered the notion of harm, he suggests that limitations on the freedom of expression can only be justified where there is “tangible” “evidence that the targeted expression is likely to cause either (1) harm to individuals whose autonomy or liberty may be injured or (2) harm to society by predisposing individuals to antisocial conduct.” Harms that have not yet eventuated need to be discounted by the likelihood of their doing so.
This part of Hutchison’s argument is, I am afraid, vulnerable to criticism. I may trust him with applying the harm test as he frames it ― though, as will presently be apparent, I will not always be happy with the outcomes ― but I do not think I would trust the SCC. Hutchison’s test is an improvement on the Court’s current free-flowing invocation of “values,” but I doubt that whether an individual’s autonomy is injured by speech, let alone whether she will be predisposed to anti-social conduct, are matters that can be objectively resolved on the basis of judicially cognizable evidence. The prospect of manipulation by a willful court—which after all is the reason why Hutchison’s article is necessary and important—still lurks. Even apart from that, these questions are surely subject to reasonable disagreement.
Thus, Hutchison argues that Canada’s criminal hate speech statute would be constitutional on his approach. This is partly because of the various protections, including the defense of truth, available to the accused. Partly, though, this is because he believes that his harm requirement was met on the facts of Keegstra. There, a teacher’s antisemitic rants to his students “targeted a minority group that, within living memory, was subject to one of the deadliest extermination campaigns in human history” and “by denying the reality of the Holocaust itself … might increase the risk of similar tragedies occurring in the future.” One might wonder what tangible evidence there would be for such pessimism. One might also argue, or at any rate I have argued, that it is not hate speech, but the more polished and insidious insinuations of politicians that truly imperil minorities.
Nonetheless, Hutchison’s arguments have the merit of calling attention to the subjectivity of the SCC’s current approach to the justification of limitation on the freedom of expression, and indeed of other rights. His call for a more objective approach is no less important ― perhaps all the more so ― even if there is reason to doubt that his own proposal is objective enough. So is the focus on the costs and benefits to actual people rather than to abstract values. And so too is Hutchison’s insistence on real evidence to support the government’s claim that it has good reason to limit constitutional rights. The Charter itself, after all, only condones limitations “demonstrably justified in a free and democratic society.”
In short, Hutchison has done the Canadian legal community, and indeed the Canadian public, a considerable service. He has shown that the SCC’s long-dominant approach to freedom of expression cases is only a pretense of a defense of this right. In truth, freedom of expression in Canada is a privilege for those whom the SCC considers sufficiently inoffensive to the values of which some its judges have openly proclaimed themselves the ultimate guardians. There is a lesson there, too, for those in the United States and elsewhere who may look to Canada for what they may deem a more balanced approach to reconciling the imperative of the freedom of speech with the reality that speech can, indeed, deserve our hatred. The Canadian model is not a reconciliation, but a usurpation. Be careful what you wish for.
I would conclude with the following observation. Hutchison is not primarily a constitutional lawyer; he is a scholar of corporate law. His ability to challenge the entire framework of freedom of expression law built up by the SCC over more than 30 years ― something that, as Paul Horwitz has noted elsewhere, seldom happens in the cozy world of Canadian public law ― is above all proof of his curiosity and willingness to pursue interesting questions wherever they lead. But it is also testament to the value to scholarship and to legal inquiry more broadly of outsiders, in the broadest possible sense of the word. People who dare cross disciplinary boundaries or, in other cases, jurisdictional, or indeed ideological ones, can teach us more than those who never leave their geographical and metaphorical home.
