ZGram - 12/2/2002 - "Why Canadians Can't Speak Freely"

[irimland@zundelsite.org]

ZGram - Where Truth is Destiny

December 2, 2002

Good Morning from the Zundelsite:

NOW they are yammering!  What did Ernst Zundel tell them through the 
ordeal of his trials to keep free speech in Canada?

Sent to the Zundelsite from the Canadian Association of Free Expression: 

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Why Canadians can't speak freely

Andrew Coyne 
National Post

Monday, November 25, 2002

'I'm with you on the free press," says the character in Tom Stoppard's
Night and Day. "It's the newspapers I can't stand."

That is more or less the Canadian attitude to freedom of speech, generally.
We're all for it, in principle -- indeed, our Charter of Rights proclaims
our belief in "freedom of thought, belief, opinion and expression,
including freedom of the press and other media of communication." It's the
actual examples of it we can't stand.

No freedom is absolute. But Canadian governments have discovered all too
many "exceptions to the rule" over the years, even after the Charter's
passage. Consider the many kinds of expression that have been banned, or
were until quite recently. Libel and slander, of course. Incitement to
violence, naturally. But also speech that "promotes hatred," or that
spreads "false news." Also obscenity, including "crime comics." Don't
forget pornography, and child pornography, defined to include pornography
made without children.

The Canada that boasts of its devotion to freedom of speech is also the
Canada in which artists have had their work seized, films have been banned
or censored, books have been impounded at the border -- not in the distant,
half-remembered past, but within the last few years. To this day, the state
uses its power to impose sweeping publication bans in important trials, to
prohibit certain forms of advertising and to force radio and television
shows it dislikes off the air.

And that doesn't begin to exhaust the list. You can be prosecuted in Canada
for leaving a discriminatory message on your telephone answering machine.
It wasn't too long ago that a major political party proposed, as part of
its election manifesto, to ban "serial killer trading cards." And lest you
think these are trivial examples, that the so-called core functions of
speech -- vigorous political debate, competition in the marketplace of
ideas -- are safe, think again. It is against the law in Canada to publish
the results of new opinion polls on election day. It is also against the
law (though an Alberta court has ruled against it) to spend more than a
trivial amount in the course of that campaign to promote your views. That
is, it is against the law for you: it is not for the political parties.

How did we get into this mess? Why don't we live up to the ideals we
espouse? Start with that notion I introduced in the last paragraph: that
there are such things as "core" functions of speech, "good" speech that
should be safeguarded, as against "bad" speech less deserving of
protection. The effect is to put the onus on the speaker to prove that his
speech is good, or useful, or contributes to society in some discernible
way. That is what we mean, for example, by those provisions in the
pornography law exempting works of artistic or scientific merit.

But this is too narrow a construction of the uses of speech. Indeed, it is
a perversion of the very principle of freedom of speech, which is not a
privilege the state confers upon the citizens, but a right the state may
not infringe upon except in extraordinary circumstances. You have the right
to speak freely for the same reason, and to the same degree, that you have
the right to be presumed innocent until proven guilty. The burden of proof
is not upon you to show that your speech is useful. It is upon the state to
show that it is harmful -- harmful, not in some vague, subjective, general
way, but specifically, objectively, individually; harmful, not as a matter
of supposition or conjecture, but as supported by evidence and proved
beyond reasonable doubt.

Ah well, we expect politicians to get that sort of distinction wrong. What
is most distressing is to see how regularly the courts make the same
mistake -- even, or perhaps especially, the Supreme Court. After all, it is
supposed to be the backstop, the thin blue line when the politicians run
riot, holding them to the promises they made in the Charter.

Sometimes, it is true, it has. But for every gain for free speech, the
Court seems to attach a loss. In Irwin Toy, for example, an early Charter
case, the Court rightly held that freedom of speech applies as much to
commercial speech as any other kind -- yet the same judgment approved legal
restrictions on advertising "directed at" children, based not on any
conclusive evidence of the evils of advertising children's toys, but mostly
on supposition. That trend was continued in the Butler case, which
established the criteria for deciding whether material is criminally
obscene in terms of harm to society, rather than mere immorality. Again,
the link between pornography and violence against women -- the purported
harm -- was simply taken on faith.

Indeed, the Court, apparently under the spell of the American legal
theorist Catherine MacKinnon, seemed to equate "harm" with women's
subjective experience of porn -- those women who object to it, at least. If
every group that was upset by some sort of expression could claim to be
"harmed" in this way, freedom of speech would soon be emptied of content.
Similarly, in the case of James Keegstra, the Alberta teacher and
Holocaust-denier, the Court has upheld federal legislation banning the
"willful promotion of hatred," on the basis of the perceived threat to
minority groups, though there is another, perfectly adequate law against
incitement to violence on the books -- and though it had previously thrown
out a similar law banning "spreading false news" in a similar case (R. v.
Zundel).

Even when the Court gets it right, it is as often as not for the wrong
reasons. The tobacco advertising ruling, RJR Macdonald, is a case in point.
The Court's majority was at least able to find that the law prohibiting
tobacco ads was an unjustifiable restriction on freedom of expression, at
least in the absence of any evidence that the ban had had any effect on
consumption. (Evidence! Eureka!) This was too much for the minority, for
whom even the standard of a reasonable limit was too severe: It was enough
that it be reasonably reasonable. As Mr. Justice G=E9rard LaForest put it,
the evils of smoking were such that "an attenuated level of (Section 1)
justification is appropriate." In place of the usual tests of
proportionality, minimal impairment and so on, "the Attorney-General need
only demonstrate that Parliament had a rational basis for introducing the
law," namely, "protecting Canadians from the health risks associated with
tobacco use."

It mattered not, in other words, whether the means were proportionate to
the ends, or whether the legislation infringed upon rights to the least
extent necessary -- or even whether it was likely to achieve the desired
result. The government had only to show that its intentions were good --
that it had some high-minded motive for passing the law, rather than, say,
doing it on a dare.

But the majority's reasoning was scarcely better. While it could not bring
itself to ban "purely informational" advertising, this was strictly on the
grounds that this type of advertising had not proved terribly effective.
But the more persuasive, "lifestyle" advertising? The Court would ban that
in a minute. It's all right to advertise tobacco, in other words, as long
as it doesn't work.

After all, as the majority noted approvingly, the intent of the legislation
was "to prevent Canadians from being persuaded" by tobacco ads. Not to
prevent Canadians from being misled, note. Not alarmed, or defrauded, or
even corrupted. Persuaded. Could there be a more succinct expression of the
censoring mind?

www.nationalpost.com/ strongandfree

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