Just how free is your speech?

Finding the right line between freedom of speech and the protection of rights and equality in Canada is an ongoing exercise, according to Western Law professor Grant Huscroft.

Western Law professor Grant Huscroft says balancing freedom speech and the protection of human rights is a difficult task.

“Protection of rights and free speech… you can’t have both, unfortunately,” says Huscroft. “We have the Charter of Rights and Freedoms, which looks very official, but the problem only comes when you have to put it to work.

“We’ve always had human rights laws in Canada. The moment the Charter came along to protect speech we set up a conflict.”

Speaking recently to senior alumni, Huscroft says Canada takes seriously the violations against human rights, yet set limits to those rights.

The Charter states rights are protected ‘subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

That’s where someone has to make a decision which rights should win out.

“Someone has to interpret this and put it to work, but there is no obvious answer to that,” says Huscroft. “You need to weigh the two. On one hand you’re fighting discrimination and on the other hand you have the loss of free speech. The gain must outweigh the loss. It’s about cause and effect.”

A prime example of this was the recent Human Rights Commission (HRC) case against Maclean’s magazine for publishing an article considered by some, including four Muslim students from York’s Osgoode Hall, to expose Muslims to hatred and contempt.

The article
discussed the high birth rate among Muslims and speculated Islamic people could become the majority population in Europe. It also says some Muslims are violent radicals.

The case was brought to the HRC in Ontario and British Columbia, as well as at the federal level. In two of the cases, the complaint was immediately dismissed without a hearing. In one, where there was a hearing, the complaint was also dismissed.

Each ruling stated there was no breach of human rights and no legal jurisdiction to proceed.

“Reasonable people, in good faith, are going to disagree about human rights. It’s what we should expect in our society,” says Huscroft, adding the case galvanized the academic and journalistic community around the issue of freedom of speech.

“Had this complaint succeeded, you would have had a lot of fear over anyone publishing anything.

“If causing offense will land you in a (human rights) tribunal, we are in trouble. It forces people to justify what they’re writing that may be controversial.”

While a majority of human rights complaints filed are legitimate, Huscroft says it has become too easy to file a claim – for example an article that may subject a group to hate or contempt – under commission rules.

In essence that is a type of harassment, since there is not a cost to file a complaint and the defendant is responsible for all costs, win or lose.

“I think it’s a real problem,” says Huscroft.