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Opinion Northwest

Join the informed writers of The Times' editorial board in lively discussions at our blog, Opinion Northwest.

February 25, 2013 at 5:56 PM

Free speech meets hate speech at Canada’s Supreme Court

The Supreme Court of Canada is scheduled to issue a ruling Feb. 26 on a big “hate speech” case, reports The National Post. Based on the oral argument, which took place in 2011, Canada’s high court is expected to narrow the definition of “hate speech” and widen the territory of freedom—which to this American sounds all to the good.

Canada has no First Amendment, and “hate speech” is a legal offense there. But what is hate speech? For the law, it is like defining obscenity: it is speech that gives people a certain feeling. Or, as Canada’s law says, provokes “unusually strong and deep-felt emotions of detestation, calumny and vilification.”

A feeling in one person? A hundred persons? A million persons? And how do you measure the feelings?

The case at hand is about William Whatcott, an anti-gay pamphleteer from Saskatchewan. He was arrested for passing out pamphlets in 2000 and 2001 that referred to gays as sodomites and child molesters. The Saskatchewan Human Rights Tribunal found him guilty in 2005 and ordered him to pay $17,500 to the people who complained. He appealed and made it all the way to Canada’s supreme court.

What do you do with a sleazeball like that? My answer is: let him pass out his pamphlets. Take his pamphlet and toss it. Don’t make a federal case out of him; you only make him famous. Ignore him.

Instead the Canadian state has made Whatcott a national figure: a bad idea.

A man like that should be denounced. Shunned. But dragging him into court goes against the tradition of English law that is the ancestor of both the U.S. and Canadian systems. Looking through the list of cases, it does seem that in many of them, the notions of English law have triumphed. A lot of these cases are dismissed.

Here’s one. It’s a bit old, but close to home: Khanna v. Common Ground Publishing (2005) at the British Columbia Human Rights Tribunal. It was about a magazine cover a reader found objectionable: a picture of Shiva, the Hindu god, with images of the seven deadly sins, including of a hand grasping dollar bills (greed), a hamburger (gluttony) and a man watching TV (sloth). This was the June 2004 cover of Common Ground, a free magazine.

Khanna thought the image sacrilegious. Hindu priest Pandit Mishra testified that the cover was painful for him to look at.

The tribunal ruled that the legal test was discriminatory effect. Had Hindus been stopped from getting jobs on account of the magazine cover? No one had reported it. “Although the image is certainly provocative,” wrote tribunal member Tonie Beharrell, “I cannot find that it has an inherently negative tone, expressing hatred or contempt of Hindus as a target group.”

She dismissed the complaint.

When Canada passed “hate speech” laws there were a lot of Americans, including I, who thought it an idea that would lead to bad results. Probably it has in some cases, but it does seem that the Canadians, whose legal system has the same English roots as ours, have tried to limit it. They should end it. Judging such opinions is too subjective, and freedom too valuable.

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