Free Speech In Name Only

Here's a tale of two Canadian liberties.

The first involves the right to own property. Over the past quarter century, this right has become steadily more firm and secure. Stocks, bonds, houses: Canadian capital assets of all kinds have soared in value. The stock of foreign investment in Canada has quadrupled since 1990. Lenders entrust money to Canadian borrowers at rates as low as 2.5%. Investors may worry about Canadian competitiveness--but fears of Trudeau-style expropriation have all but faded away.

The second right involves the right of free speech. Over the past quarter century, this right has become far less secure. It took almost a decade of litigation to confirm that it is legal to publish in a newspaper quotations from the Bible on the subject of homosexuality. In 2004, the Supreme Court of Canada upheld the constitutionality of federal election laws aimed at suppressing speech by private citizens during election seasons. At this very moment, the Western Standard magazine has been called before the Alberta Human Rights Commission to answer questions about its decision to publish the Danish Muhammad cartoons.

Yet it is the increasingly uncertain right of free speech that is supposedly protected by the Canadian Charter of Rights and Freedoms, while the increasingly secure right to own property is not.

A new poll on popular attitudes toward the Charter, reported this week in the National Post, reveals a strange paradox. A substantial majority of Canadians broadly support the Charter of Rights and Freedoms--despite having absolutely no idea of what the Charter does.

But maybe the paradox is not so strange. After all, if more people understood what the Charter did, they might not like it nearly so well.

The problem with the Charter begins with its name. The Charter supposedly protects both "rights" and "freedoms." The trouble is that the "rights" protected by the Charter often contradict the "freedoms."

For example, Section 2(b) of the Charter declares that everyone possesses "freedom of thought, belief, opinion, and expression, including freedom of the press and other media of expression." That seems clear enough.

But wait! Section 15 of the Charter simultaneously declares that every individual is entitled to "equal benefit of the law without discrimination." And while that certainly sounds fair, Canadian courts have consistently interpreted the Section 15 equality guarantee to include a right not to be spoken about in offensive ways.

It is not easy to reconcile your freedom to speak with my right not be spoken about in a way I don't like.

The courts have resolved this dilemma by conferring the right not be spoken about in a displeasing way to certain subgroups: homosexuals but not heterosexuals, blacks but not whites, women but not men, Muslims but not Christians, and so on. Although these rights are justified as necessary to "equality," in practice they are not applied at all equally. And really: How could they be? If everyone possessed the right to silence speech he disliked, nobody would speak at all. The only way to make any sense out of the privileges granted by Section 15 is to limit them to certain favoured segments of the population.

What the Charter process does, then, is to subject free-speech rights to a roving, fitful and ultimately unprincipled supervision by judges empowered to decide which groups are entitled to special protection, and which are not; which speech goes "too far" and which does not. This process leaves Canadian speech rights far more insecure and far less predictable than they were before the Charter was adopted to protect them.

On this anniversary, let us try to see things as they are. The Canadian Charter of Rights and Freedoms has greatly complicated Canadian law and vastly expanded the power of Canada's judges. It has conferred new privileges and advantages on certain favoured subgroups of Canadian society. What it has not done, however, is to enhance the freedom of most Canadian citizens. If anything, it has reduced them.

Does that make the Charter a failure? It depends I suppose on what you are trying to accomplish. As a Charter of Multiculturalism, Group Rights and Favoritism, yes, I think it has to be rated as a great success. But as a document to stand alongside the other grand milestones in the English speaking world's long evolution to liberty under law--no, in that regard, the Charter's record to date has to be reckoned one of shameful and ominous failure.