Andrew Coyne’s trenchant criticism of the Supreme Court of Canada’s decision this week in Saskatchewan Human Rights Commission v. Whatcott 2013 SCC 11 caused me to read more carefully the following paragraph from the court’s reasons for judgement:
 The purpose of hate speech legislation is to restrict the use of representations likely to expose protected groups to hatred and its harmful effects. The expression captured under hate speech laws is of an extreme nature. Framing that speech as arising in a “moral” context or “within a public policy debate” does not cleanse it of its harmful effect. Indeed, if one understands an effect of hate speech as curtailing the ability of the affected group to participate in the debate, relaxing the standard in the context of political debate is arguably more rather than less damaging to freedom of expression.
Apart altogether from the merits of the decision as a whole – and I am not writing about that here – there’s something troubling about this paragraph. The Court is saying that a “relaxed standard” to hate speech in the context of political debate is harmful to freedom of expression itself. I’m not sure there is any difference between saying it that way, or simply saying (what I believe the Court intends) that speech is not truly “free” unless it is regulated, in this case by preventing hate speech.
May I respectfully disagree?
Our constitution attempts to strike a balance between the protection of free expression and the limits which may justifiably be imposed upon free expression. The Constitution allows legislatures to restrict free speech. But please don’t try to convince me that something which is actually a restriction on free speech is necessary if speech is to be truly “free.” That’s an intellectual slight of hand which is unhelpful, and also unsupported by our constitution. Speech is truly and completely free when it is, well, truly and completely free. Unrestrained, unregulated, untrammeled, and sometimes, yes, unhinged. But free nonetheless.
When we decide whether or not we are going to restrict free speech let us do so only as the Charter both allows and requires, namely by asking whether the restriction in question can be demonstrably justified as a reasonable limit in a free and democratic society. That’s the balancing act provided for in our Constitution. We do ourselves no favours if we try to avoid that exercise by pretending that some forms of regulation are necessary to make speech truly “free.”