What is the purpose of freedom of expression?

• Author: Weinrib, Jacob
• Position: Canada

Abstract

A recent controversy between the Canadian Islamic Congress and Maclean's magazine over an allegedly Islamaphobic article has sparked renewed public debate as to the nature and limits of freedom of expression in Canada. Since freedom of expression is a Charter right, its purpose (or purposes) must be understood in relation to the broader values of the Charter. This note considers whether the traditionally articulated purposes of freedom of expression actually cohere with the values of the Charter framework in which the right of freedom of expression arises. The Supreme Court of Canada conceives of freedom of expression as (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. The author finds that, of the purposes traditionally understood to underlie freedom of expression, only the dignity of persons relates the broader values of the Charter framework to the realm of expressive activity. The author formulates a dignity-based conception of freedom of expression, defends it from objections, presents its doctrinal implications, and applies it to the recent controversy between Maclean's and the Canadian Islamic Congress.

Resume

La reaction puissante du Congres Islamique du Canada contre la decision du journal Maclean's de publier un extrait du livre America Alone de Mark Steyn, qui etait presume etre anti-islamique, a renoue le debat publique sur la liberte d'expression au Canada. Puisque la liberte d'expression est un droit de la Charte, son but (ou buts) doit etre compris en relation aux valeurs generales de la Charte. Cet article considere si les buts qui sont traditionnellement associes avec la liberte d'expression s' accordent vraiment avec les valeurs de la Charte. La Cour Supreme du Canada decrit la liberte d'expression comme (1) un instrument pour realiser la verite; (2) un instrument d'un gouvernement democratique; (3) un element de la realisation propre a la dignite humaine. L'auteur trouve que, de tous les buts qui sont traditionnellement associes a la liberte d'expression, seulement la dignite des personnes unie les valeurs fondamentales de la Charte avec le domaine des activites expressives. L'auteur formule une conception de la liberte d'expression qui est basee dans la dignite, la defend contre des objections potentielles, et l'applique a la dispute recente entre Maclean's et le Congres Islamique du Canada.

I INTRODUCTION II CONFLICTING CONCEPTIONS OF FREEDOM OF EXPRESSION III RIGHTS-PROTECTION UNDER THE CHARTER FRAMEWORK IV THE PURPOSES OF FREEDOM OF EXPRESSION AND THE CHARTER FRAMEWORK V ON WHAT GROUNDS MAY FREEDOM OF EXPRESSION BE LIMITED? VI THE CHARTER FRAMEWORK AND THE PROBLEM OF INCOMMENSURABLE PURPOSES VII APPLICATION OF THE CHARTER FRAMEWORK VIII CONCLUSION I INTRODUCTION

Since freedom of expression is a Charter right, its purpose (or purposes) must be understood in relation to the broader values of the Charter. Justice Lamer stated in Dubois v. R.: "Our constitutional Charter must be construed as a system where 'Every component contributes to the meaning as a whole, and the whole gives meaning to its parts....' The court must interpret each section of the Charter in relation to the others." (1) In Hunter v. Southam Inc., Dickson J. characterized the Charter as a whole as a "purposive document" that seeks "to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines". (2) Accordingly, to discern the purpose (or purposes) of freedom of expression, we must consider its role within the broader values of the Charter as a rights-protecting framework.

The Supreme Court of Canada has repeatedly declared that freedom of expression has three purposes. Freedom of expression is (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. (3) This note considers whether the traditional purposes of freedom of expression cohere with the values of the Charter framework in which the right of freedom of expression arises. It is surprising that the Supreme Court of Canada has not engaged in such an analysis, given the transformative implications of the Charter (4) and the Court's indications in R. v. Keegstra that the purposes invariably taken to underlie freedom expression may be inadequate. (5)

I proceed in six sections. The first presents a recent controversy between Maclean's magazine and the Canadian Islamic Congress (CIC) in which contrary conceptions of freedom of expression emerge. Because freedom of expression arises within the framework of rights-protection established by the Charter, the second section distinguishes between the framework of rights-protection under the Charter and under the system of parliamentary supremacy that the Charter has displaced. The third section considers the three purposes that are traditionally taken to underlie freedom of expression. I argue that the purpose of realizing human dignity alone coheres with the system of rights-protection established by the Charter. In turn, the democracy and truth rationales for freedom of expression invoke a parliamentary conception of democracy that the Charter supplants. The fourth section determines the grounds on which limitations of free expression may be justified in a free and democratic society. The fifth section claims that the removal of the extrinsic purposes of freedom of expression introduces a doctrinal clarity to s. 1 analysis that is absent from previous Supreme Court of Canada decisions, which admitted a single constitutional right to be founded on conflicting and incommensurable purposes. The final section applies the Charter framework developed in the prior sections to the Controversy between Maclean's and the CIC.

Throughout, my aim is not to provide a conclusive theory of freedom of expression, but to sketch an approach to freedom of expression that resonates with Canada's commitment to a rights-based constitutional democracy. Given the nature of the dispute between Maclean's and the CIC, I will be illustrating my arguments with examples involving hate speech. (6)

II CONFLICTING CONCEPTIONS OF FREEDOM OF EXPRESSION

In October 2006, Maclean's published an excerpt from Mark Steyn's book America Alone entitled "The New World Order". (7) The article seeks to warn the West of the danger posed by its own decline and radical Islam's global ambitions. (8) Steyn claims that the central factors underlying the decline of the West are "demographic decline; the unsustainability of the social democratic state; and civilizational exhaustion". (9) The demographic decline of the West is evident once one contrasts its dropping birth rates with the booming birth rates of the Middle East. Yemen, for example, will have a larger population than Russia by the middle of the 21st century. (10) Steyn summarizes his conclusion about the demographic disparities in the West and the Middle East: "A people that won't multiply can't go forth or go anywhere. Those who do will shape the age we live in." (11) The second factor supporting the decline of the West lies in the unsustainable character of the multicultural social democratic state, which cannot provide an animating principle that appeals to large immigrant populations. In search of such a principle, immigrants "look elsewhere and find the jihad". (12) Steyn contrasts the vulnerability of the West with the strength of Islam: "Age + Welfare--Disaster for you; Youth + Will = Disaster for whoever gets in your way.... Islam has youth and will, Europe has age and welfare." (13) The third factor contributing to the decline of the West is a blinding cultural relativism that prevents persons in Western societies from seeing these very dangers. Steyn warns that the combination of the demographic shift and the weaknesses of Western democracies will result in the transformation of Europe into Eurabia in which western societies weakened by their own cultural relativism and the terrorist acts to which they are subject--succumb to Islam's global ambitions. In the rhetorical climax of the article, Steyn writes:

On the Continent and elsewhere in the West, native populations are aging and fading and being supplanted remorselessly by a young Muslim demographic. Time for the obligatory 'of courses': of course, not all Muslims are terrorists--though enough are hot for jihad to provide an impressive support network of mosques from Vienna to Stockholm to Toronto to Seattle. Of course, not all Muslims support terrorists--though enough of them share their basic objectives (the wish to live under Islamic law in Europe and North America) to function wittingly or otherwise as the "good cop" end of an Islamic good cop/bad cop routine. But, at the very minimum, this fast-moving demographic transformation provides a huge comfort zone for the jihad to move around in. (14) The CIC responded to the article by demanding that Maclean's allow an unedited rebuttal of equal length. (15) Maclean's refused to yield editorial control over the magazine. In December 2007, the CIC brought human rights complaints against Maclean's for publishing articles, such as Steyn's, that were "flagrantly Islamophobic" and that subjected "Canadian Muslims to hatred and contempt". (16) While this complaint was dismissed by the Canadian Human Rights Commission (17) and was held to be outside the jurisdiction of the Ontario Human Rights Commission, (18) a hearing was held before the British Columbia Human Rights Tribunal in June 2008. At issue was whether the article breached s. 7(1)(b) of the British Columbia Human Rights Code by subjecting persons to hatred and contempt on the basis of their religion. In October 2008, the Tribunal held that although the article was offensive and at times inaccurate, it did not breach s. 7(1)(b) by exposing persons to hatred and contempt. (19)

This...