Before I answer this, let’s try a little experiment. I want you to imagine, for a moment, that I am a Nazi. (Trust me, this is more uncomfortable for me than it is for you.) Not a Nazi in Germany during the Second World War, but a Nazi living in your city. You can imagine me with a shaved head, if that helps you paint the picture. You should imagine me carrying a large flag with a swastika on it, and wearing a Nazi uniform. And then, in your imagination, surround me with a bunch of other Nazis.
Now let’s say that my friends and I announce that we want to march through a neighbourhood in your city that is largely Jewish. Let’s up the ante a little: Let’s make one out of every six residents a Holocaust survivor.
The mayor has told me I can’t do this. He will not allow it.
Let’s imagine that in this scenario you are the mayor’s boss. Or if that seems a little far fetched, let’s say you’re playing SimCity or something. Or you’re a god. Anyway, you have absolute power.
If you are the mayor’s boss (or Supreme Ruler or whatever you’re calling yourself in this perverse little fantasy of yours), do you intervene? Do you overturn his decision and allow me to march through that neighbourhood in the name of free speech?
Let’s try another: Imagine again that I am the leader of a white supremacist party in your city. This time I record a telephone message saying hurtful, deeply offensive things about Jews. I list the number in the phone book under the heading “White Power Message.” I refuse to take the recording down, even after told to repeatedly by the authorities. Do you send me to jail?
These two examples illustrate a fundamental difference between free speech in the United States and Canada. If you were leaning towards a “yes” on the first one, you probably support the American version of free speech. In 1977, the United States Supreme Court forced Illinois to honour the National Socialist Party of America’s right to march through Skokie wearing Nazi uniforms and displaying swastikas in an area where one in six had survived the Holocaust.
If, on the other hand, you feel that words that promote hatred against another group sometimes don’t deserve to be heard, you’re probably more comfortable with the Canadian version. In the 1980s, fascist John Ross Taylor was jailed in Ontario for refusing an order by the Canadian Human Rights Tribunal to take down the messages on his party’s phone line. In 1990, the Supreme Court of Canada upheld the ruling.
The difference boils down to a few seemingly minor differences in a couple of important documents and laws. The United States’ First Amendment states that “Congress shall make no law … abridging the freedom of speech, or of the press.” It also covers religion and the right to protest, but otherwise, that’s it. No caveat. In Canada, the wording is different: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
What does that mean, you ask? Good question. Philosophically, it means that Canadians are a bit more polite, and a bit more concerned about not offending people. In practice, it means Canada has criminal laws against hate speech and the U.S. does not.
That’s a big one. Here’s another, subtler, example: In Canada, it’s up to the defendant in a defamation suit to provide the proof. In the U.S., it’s up to the accuser.
Let me explain: Let’s say I write an article in which I say you are an ostrich bent on human destruction. You are not human, I say. I write this very convincingly because I am a good writer, and your family starts to believe it, and your spouse leaves you, etc.
“I’ve been defamed!” you cry. In a Canadian court, I would have to prove that my words were true, or I would be guilty. In America, you would first have to prove that my words weren’t true. So you would have to prove that you are not an ostrich. You would also have to prove that when I said you were, I said it with malicious intent. If you couldn’t, in the words of a famous Seinfeld Nazi: “No sue for you!”
This is a subtle but profound difference. Rick Mercer has complained vocally about how this muzzles Canadian comedians, because they are much more likely to end up in court. Next time you hear someone complaining about how The Colbert Report and The Daily Show are more biting than Canadian satire, tell them why.
On the other hand, we’re not talking vastly different realities here. An oft-repeated internet rumour from a few years ago claims that Fox news won, in court, the right to lie under the First Amendment. That’s not true–all American news outlets have that “right”, and they have for years. The FCC points out on its website that when responding to complaints about inaccuracies in the news, their “authority to respond to these complaints is narrow in scope and is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press.”
Americans, huh? Crazies. Their news isn’t even true! Thankfully, we Canadians can take the moral high ground here. Except that in 1992, the Supreme Court of Canada eliminated the part of the Criminal Code that made it illegal to print false information or news. So Canadian newspapers have had the right to lie for at least twenty years.
The fact is, we may be moving closer to the American model. The current government recently voted to repeal Section 13 of the Canadian Human Rights Act, the part that deals directly with hate speech on the Internet. Meanwhile, the Supreme Court is deliberating the case of William Whatcott, who distributed pamphlets calling homosexuals “sodomites” who “spread filth and disease”. Whether he should be allowed to do that or not is an important question, and one I believe every Canadian should think on. And it’s an especially important question right now, because if Whatcott had spread his views online instead of in print form, he might now be protected.
