Truth, freedom of speech go hand-in-hand
By Alan Shanoff, Toronto Sun
Civil defamation laws, which protect harm to reputation, allow a defence of truth. Criminal charges involving publication also allow truth as a defence. Truth is a defence to a criminal charge of willfully promoting hatred against any group distinguished by colour, race, religion, ethnic origin or sexual orientation. An essential element of the criminal charge of defamatory libel requires an accused to publish a statement “he knows to be false”.
But in the recent William Whatcott decision, the Supreme Court of Canada has declared that truth is not a viable defence to a hate speech charge under human rights legislation. It’s a ruling that has many puzzled. After all, freedom of expression is a constitutionally protected right in Canada and should only be restricted as minimally as possible to meet a pressing and substantial concern.
So how can we justify prohibiting a defence of truth?
Why does the court fear the truth?
The Supreme Court’s justification for allowing this remarkable bit of state censorship is simply put that “even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.” Thus we have elevated the right of a vulnerable group to be free from expressions of hatred to be paramount to the ability to speak the truth.
Our highest court has affirmed Canada as a country where accurate statements of fact may result in human rights complaints, expensive and lengthy hearings and imposition of significant financial penalties whenever a vulnerable group has been or is likely to have been exposed to hatred. All this, with no legal or financial exposure to the person or persons filing the human rights complaint.
The Supreme Court has provided little comfort by telling us that “in the normal course of events, expression that targets a protected group in the context of satire, or news reports about hate speech perpetrated by someone else, would not likely constitute hate speech. That merely leaves the door open for human rights complaints in respect of comedy acts and news reporting, in addition to any electronic publication.
Remarkably, the Whatcott decision was a unanimous decision of the Supreme Court. Not one justice expressed any dissent regarding any aspect of the case, not even the Chief Justice of the Court, Chief Justice Beverley McLachlin, who wrote a dissenting opinion in the 1990 Taylor decision which considered a similar provision in the Canadian Human Rights Act.
In the Taylor decision, Chief Justice McLachlin reminded us that “individuals in a free society assume that, whatever restriction it may be necessary to place on free speech, they will always have the right to say what is true. That right cannot lightly be restricted. Thus, the exclusion of the defence of truth . . . cannot but seriously increase the degree of infringement of freedom of expression which the provision effects.” She also told us that “rights and freedoms guaranteed by the Charter cannot be left to the administrative discretion of those employed by or retained by the state.” But that’s precisely the state in which the Whatcott decision leaves us. We are left at the mercy of human rights commissions and tribunals, not judges.
See the full article at: http://www.lfpress.com/2013/03/08/shanoff-truth-freedom-of-speech-go-hand-in-hand