Peter MacKinnon: The fight for free speech must continue

It was English author Evelyn Beatrice Hall, writing under the pen name of Stephen G. Tallentyre, who wrote in The Friends of Voltaire (1906): “I disapprove of what you say, but I will defend to the death your right to say it.”

Her words, often attributed to Voltaire himself, should be recalled in an age when censorious people — some in public life — strive to shut down voices at odds with theirs. It pains them to think there is disagreement with their views on contentious matters and so dissenters must be silenced.

Of course Hall’s dictum is not absolute, but is an important first principle for which exceptions must be few and justified. There may be adverse social consequences for unwise, untimely or intemperate speech but, in general, legal consequences do not follow.

From a classic example we learn that legal consequences may follow from falsely shouting “fire” in an occupied theatre or other enclosed space, but the example itself implies that there are few exceptions to the right to speak freely.

Another example, in Canada, is hate speech. In 1965, a government-appointed “Special Committee on Hate Propaganda” (commonly known as the Cohen Committee), which included future prime minister Pierre Elliott Trudeau as well as a future minister of justice and a sitting law dean, proposed that the incitement or promotion of hatred be made criminal. It was a controversial proposal because of concern that it might undermine freedom of expression, “a main cornerstone of our way of life.” The committee itself urged that “the case for restraint must be shown to be very strong indeed.” Despite hesitancy the new hate crimes were added to the Criminal Code in 1970, by which time Trudeau was prime minister.

The meaning of hatred, defined by the Supreme Court of Canada as including “a most extreme emotion that belies reason,” and the difficulty in proving it, meant that there would be few prosecutions and this has been the experience. But today, behaviours once seen as differences of opinion are more readily attributed to hate, and there is potential for this number to grow as the Supreme Court’s definition is broadened and extended to activities not previously criminalized.

The new Combatting Hate Act became law on July 18 and this potential may now be a reality. The legislation broadens the definition of hate, extending its reach into new areas. The Criminal Code amendments passed despite a joint letter from 37 civil society organizations that — with a solidarity that is unusual —  urged the federal government to reverse itself on the legislation and to explore alternatives that do not undermine the rights of Canadians.

Hall’s lesson from The Friends of Voltaire should prevail, and the reservations of the 1965/66 special committee should be remembered. Freedom of expression is a fundamental right that can admit of only narrow qualifications, and we must turn away from a path to diminish it.

National Post

Peter MacKinnon OC, KC is a former law dean and university president.