What is the Standard of Free Expression in Canada?

In the United States, the standard for free speech and free expression has traditionally been “clear and present danger”. For a while I thought Canada had a similiar standard to ours. Canada is often as liberal as us, if not more so, in most ways when it comes to civil liberties. Then, more recently, I started hearing Canada had laws against “hate speech”. Specifically, I heard that the homophobic Rev. Phelps was prevented from speaking in Canada with this. I also heard that someone was threatened with prosecution under this same statute for merely suggesting people read several passages in the Bible, thought to be anti-gay.

Now, I am obviously pro-gay. But I am also a staunch civil libertarian. And I find the fact that Canada might have such a broad hate speech statutes troubling. So what exactly is the litmus test for free expression in Canada, if it isn’t “clear and present danger” or something similiar to that?

Remember, I am not trying to strike up a debate about the rightness and wrongness of this statute. My question simply is, what is the Canada Supreme Court standard for free speech.


Well IANALaywer but I’ll take a stab at it.

First off I doubt very much that “clear and present danger” constitutes a standard in the US given the fact that pornography is curtailed and has been by the SC. Secondly I believe the US has hate laws as well making. I know it’s GQ but a cite would be appreciated.

Now here we go. From the Canadian Charter of Rights and Freedoms

Now note the following call to promote a multicultural heritage

So the second point could be used, I suppose, as a qualifier to section 2. However note the absolute nature of the fundamental freedoms laid out in section 2. I would imagine that the court would have to find willful intent to spread hatred against an identifiable group before beginning to consider the limiting of the freedom of expression.

Ernst Zundel is the prime example of laws in action. He is a holocaust denier and has been in court pretty much the entire time he has been in Canada for his spreading pro Nazi literature/propaganda. In fact he is in court again.

I’m sorry that I can’t tell you what his current legal standing is in Canada, but I think he is really a persona non grata.

What has the knickers of a certain segment of “free-speech advocates” in a twist is the provisions relating to hate propaganda in our Criminal Code, effectively limiting “freedom of expression” in very specific instances which are generally considered to be acceptable limitations by the public at large – specifically, advocating hatred against (or genocide of) identifiable groups. The Christian Right took it real hard when a private member’s bill amended it to include language specifically noting sexual orientation as a category of identifiable people.

It’s hard to find circimstances where this limits the sort of speech that ought to be considered acceptable:

The crime of “publicly inciting hatred” has four main elements. To contravene the Code, a person must:[ul][li]communicate statements,[]in a public place,[]incite hatred against an identifiable group,in such a way that there will likely be a breach of the peace.[/ul][/li][/quote]
I can live with that, thank you.

Disregarding the typos and unwieldy sentence above, (sorry!) I just realized that I made a couple of seriouse gaffes here:

First, “The Christian Right” is probably too vague in this context. “Certain conservative Christians, as well as a number of secular bigots” would probably be closer to the mark.

More importantly, I was confused about the status of Bill C-250. I was under the impression that it had already passed into law.

Actually, it’s still on the table. (I am given to understand that it is expected to pass.)

That doesn’t seem like a GQ type response to me.

Does it not? Effectively, what it means is that the only type of speech it limits is along the lines of “Hey! Let’s get those guys!”

The OP specifically asks for a litmus test for acceptability of speech in Canada.

We often hear from certain elements that “There is no free speech in Canada” because of our hate-crime legislation.

The legislation is carefully worded to ensure that the only type of communication which is forbidden is that which is demonstrably harmful in such a way that there will likely be a breach of the peace.

It further has built-in exceptions to make sure that the law isn’t invoked in a way that puts unreasonable limitations on Canadians:

Can you imagine any types of speech that are outlawed here which you can make a reasoned argument in favour of without offending just about everyone here?

I’d still like a cite for the “clear and present danger” bit.

Grey, I assume that the OP was referring to “the riot act” which puts certain limitations on the right to free assembly, which is pretty close to “free speech”:

I have a question about US law:

I was under the impression that “uttering threats” was a specific crime in the US, like it is in Canada, but I can only find reference to uttering threats against the President And Successors To The Presidency, Foreign Officials, Official Guests, Or Internationally Protected Persons. (There’s a law against mailing threats to individuals, though.) Is it really legal to walk up to someone and say “If I ever see you in the street again, I swear to god I’ll cut your f-ing throat!” or am I just looking in the wrong place?

It is legal to say that in much of the USA. The person you say it to can then legally take defensive measures.

No; it’s a statement of opinion, not fact.

And you present a law. One law does not a litmus test make. For all I know there’s completely different law prohibiting people from criticizing maple syrup.

Actually, come to think of it, not only is presenting a single law nonprobative, but even if no law interferes with free speech, that wouldn’t answer the question. My understanding of the OP is that he’s asking “What is the standard for free speech with which the government may not interfere?” I.e. what is generally understood to not be withing government purview? The question of what the government does interfere with is quite different from the question of what the government is not allowed to interfere with.

Actually The Ryan, AFAIK the two are pretty much the same here in Canada.

That is, that which the Govt is alowed to prosecute, it does.

Currently a former Saskatchewan aboriginal leader is charged under the act that Larry cited for stating that the holocost was justified. Heres a news blurb:

I’ve only ever seen that particular act used in situations very similar to the Ahenakew one or in order to break up riots - others may have other instances.

The Ryan, I am unaware of any universal proscription against offering personal opinions relating to factual questions in GQ. Golly, the Jim B. even expressed some personal opinions in his OP.

I didn’t offer an opinion in place of a factual answer, I provided a factual answer with a link to the relevent legislation. Since Jim specifically mentioned that he found the possibility of the rumoured “broad hate speech laws” troubling, I don’t think it’s unreasonable to present the legislation itself for inspection and invite people to look for ways that it could be used against the public interest.

The OP notes

This is not surprising at all-- there is a good deal of this sort of misinformation surrounding the above mentioned Bill C-250, fears about which are easily allayed when considered in the context of the sections of the Criminal Code (linked to above!) to which it relates.

Oh, you know, now that you mention it, I was a bit distracted by the legislation that actually had the OP worried, and didn’t think it was worth mentioning that we all have to say nice things about Peter Mansbridge or he wishes us into the cornfield – since everyone knows that. The maple syrup thing is only in Quebec. :slight_smile:

Seriously, I’m sure that if there is any other legislation that places limitations of any sort on our freedom of expression, or anyone knows of I’m sure someone will mention it. What’s been linked to so far is the real meat, though.

Either there’s been some serious miscommunication, or Canada must be a horrible place to live. First of all, I hope that you’re aware that I’m using the word “government” in the US meaning of the word. Furthermore, by “allowed to interfere with” I mean the set of laws which would be generally accepted as valid exercises of legislative powers. I would think that if the government were to declare that all Jews are to wear a Star of David, the general belief among Candians would be that the government is being tyrannical and overstepping/misusing its authority. On the other hand, most people would not have a problem with a law saying that all cars must have working brakes. So given a law, we have two questions we can ask about it:
Would it be considered a valid law?
Has it been passed?

Are you really saying that the answers to those two questions are always the same? Every single law which would be considered valid has been passed?

Larry Mudd:
Another thing said in the OP was:
[qoute]Remember, I am not trying to strike up a debate about the rightness and wrongness of this statute.

Furthermore, the fact the OP was presenting a specific law does not mean that that specific law was meant to be discussed.

As an analogy, suppose the OP were to say “Most US states don’t allow gambling. But I heard there’s a hotel in Canada that has several blackjack tables. What are the laws in Canada regarding gambling?” Would you consider a detailed discussion of whether that hotel does in fact have blackjack tables to be the primary issue?

The standard was established in Schenk v. United States (1919), which upheld the Espionage Act.


Or better yet:www.bartleby.com/59/14/clearandpres.html

The smart money’s on ‘serious miscommunication.’

What alice is replying to is your comment that “the question of what the government does interfere with is quite different from the question of what the government is not allowed to interfere with.” You can’t prosecute someone without a having a law in place for them to run afoul of. We’ve defined the circumstances in which the government can intervene:

Can someone be shown to communicated statements in a public place, which incite hatred against an identifiable group, (by which we mean specifically, distinguished by their colour, race, religion or ethnic origin,) in such a way that there will likely be a breach of the peace, or advocated prejudicially killing members of an identifiable group, or infliciting condition which will necessarily lead to the group’s destruction? Can it also be shown that what the person is communicating is not, actually true, relevant to any subject of public interest, something which the discussion of is a benefit to the public, or something the speaker simply had reasonable grounds to believe? Also, are we sure that the person wasn’t just quoting hate speech in order to combat it? Are we absolutely positive that the person isn’t just expressing a sincere religious belief?

If all these conditions are met, the government can and will interfere. If these any of these conditions can not be met, that the government has no business poking its nose in, and therefore it doesn’t. What the government can interfere with also defines what it may not, and therefore the question of what the government does interfere with is actually the same thing as the question of what the government is not allowed to interfere with, as alice said.

I’m not sure that I understand the point of your gambling question analogy.

Jim B. asked ‘What exactly is the litmus test for free expression in Canada, if it isn’t “clear and present danger” or something similiar to that?’ I’ve done my best to answer this question as clearly as possible.

Look at it this way- A summary of the U.S. standard of free expression is this: The Bill of Rights assures that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” However, this is limited by the U.S. criminal code, which prohibits:

An isomorphic summary of Canada’s standard of free expression compares the similar guarantees which are provided in the Charter of Rights and Freedoms, and points out where in our Criminal Code you will find limitations. I’m not sure how you see it as analagous to the hijack you describe in your blackjack example.

If you have a response that you feel might be more helpful to the OP than those that have been presented here, open up.

That’s right. Neither am I. It never entered my mind for a moment that such an uncontroversial opinion would stir up a debate of any sort, here. Notice the complete lack of anyone jumping in with “Laws against riots and genocide are intolerable!”

I knew this was wandering into familiar territory:


Thanks to Earl of Sandwhich, I have a suddenly clearer understanding of the intended meaning of “standard of free expression,” and will now become much, much quieter, as I see that Grey provided a concise and definitive answer in the first reply to the OP.

Of course, I also extend a sincere apology to The Ryan, as his point has just become much clearer to me.