- Derek James From, Student-at-law, Canadian Constitution Foundation
This time of year we are called to remember the great sacrifices made by generations of young Canadian men and women. Our act of remembering, however, is not intended to glorify the wars fought. Instead, remembering the lives spent should remind us that our freedoms have been purchased at a great price. It is easy for those of us who have never fought or sacrificed for the basic freedoms we enjoy to overlook, to neglect, and to lapse into forgetfulness.
The same is true for our basic human rights. I am not referring to the high-minded and academic human rights that are commonly discussed in our modern dialogue. I am referring to a much more basic, fundamental, and significant cluster of human rights: the freedoms to be self-determining, make your own way in the world, and hold beliefs and opinions without fear of reprisal. These are basic human rights, and where these are lacking, there can be no true freedom. This is easy to forget.
Offensive but not harmful
On July 10, 2002, Stephen Boissoin wrote an inflammatory letter to the editor of his local paper. The content of this letter was offensive, but it caused no harm - -physical or otherwise.
Boissoin’s letter talked about his perception that there was a “homosexual agenda” at work in society. But his perception was just that: a perception. Since Boissoin’s letter did not produce any physical harm to any identifiable person, it would be easy to assume that Canada’s Charter would prohibit the Provincial or Federal governments from silencing him. This seems a clear example of what the guarantee of freedom of expression was crafted to protect - the expression of unpopular ethical ideas in a public forum.
Similarly, in 2001 and 2002, William Whatcott distributed flyers to mailboxes in Regina and Saskatoon. The content of these flyers was offensive, but it caused no harm - physical or otherwise. Whatcott’s flyers talked about policy decisions by the Saskatoon Public School Board that he believed promoted homosexuality. But Whatcott was merely expressing an opinion. His flyers harmed no one. It would be easy to think that the Canadian Charter protected Whatcott’s expression.
In both Boissoin’s and Whatcott’s cases, the answer as to whether the Charter protects their free expression is not yet clear. When dragged before their respective provincial human rights commissions, each was ordered to pay damages for expressing their ideas. Both men successfully appealed and got favourable decision in court. But these favourable decisions are now being appealed. Boissoin will soon appear in the Alberta Court of Appeal, and Whatcott will appear in the Supreme Court of Canada in the near future.
When a final decision is made in each case, nearly 10 years will have passed since the initial complaints. Even if Boissoin and Whatcott are completely exonerated, losing 10 years of their lives to legal conflict and turmoil is a high-price to pay for publically expressing an opinion.
Human Rights Commissions’ chilling effect
This is precisely how our human rights commissions have a profound chilling effect. Encumbering a person with 10 years of legal uncertainty is a backdoor means of making freedom of expression so costly that Canadians will choose to keep silent. How did Canada get to this point? We have failed to remember the lessons of the past.
Nineteenth century political philosopher John Stuart Mill wrote on the value of freedom of expression. Mill argued that freedom of expression is of high importance because it protects from political and social tyranny, it fosters respect, and it allows for a wealth of experience to enter public discourse without the concern of reprimand. If we consider an opinion to be taboo and it is correct, we do not avail ourselves of the wisdom that we could have gained. If we consider an opinion taboo and it is wrong, we do not gain the experience of enhancing our idea of what is right by comparing it to an example of what is wrong. In either instance, it is a greater injustice to silence an opinion than to learn from it.
In this season of remembrance, it would be good for us to pause and think about how we can ensure that future generations of Canadians inherit a country with meaningful guarantees of fundamental human rights.
The Canadian Constitution Foundation supports the constitutional right of Canadians freely and publicly express their opinions.
