Freedom of Expression & Its Limits

On March 8th and June 6th, 2017, the Minister of Justice introduced bills to amend the Criminal Code. The purpose of Bills C-39 and C-51 is to repeal a number of criminal offences. Blasphemous libel is on the list, but seditious libel and defamatory libel are not.

[Co-written with Andrea Gonsalves and Carlo Di Carlo] In late 2015, the Ontario Legislature identified a problem:  it saw an increasing number of defamation cases in which the plaintiff’s goal was not to obtain compensation, but instead to drag a defendant into interminable and costly litigation as a form of retribution against the defendant for speaking out against the plaintiff.

One gets the sense that the Supreme Court of Canada does not have a good feel for free speech questions. It took some time, for instance, for a majority of the Court to acknowledge that legal constraints might ‘chill’ free speech. The Court confidently proclaimed, on more than one occasion, that civil and criminal legal prohibitions should not be expected to deter speakers.

Strategic Lawsuits Against Public Participation (“SLAPPs”) are when Big Resources (private or public sector) sue Little Resources (individuals, non-profit organizations) in order to silence them.  If the person or organization being sued (often for defamation) can’t afford to fight the case, they are effectively prevented from speaking out on the subject that got them SLAPP’ed. The case may be weak or even ludicrous, but the merits of the case don’t matter if you can’t afford to defend yourself in court. 

In hate speech regulation a distinction is generally made between an attack on a (religious) group, which if sufficiently extreme may amount to hate speech, and an attack on the group’s beliefs, which must be permitted, even when it is harsh and intemperate. A ban on hate speech should apply only to assertions that the members of the group are less worthy or less human than others or that they necessarily share certain undesirable traits – that they are by nature dangerous and should be treated accordingly. Attacks on belief are a different matter.

The Peel District School Board, a public and secular board of education, met recently to decide what Muslim students should be permitted to say during their Friday Jumu’ah prayers. A secular non-Muslim authority is requiring students to have their approval for the content of religious observances. What does this say about freedom of religion? And what about freedom of expression?