Wednesday, July 29, 2009

Freedom of Expression is NOT a Licence to Offend

I am a big fan of free speech, as regular readers of this blog will know. I am also a big fan of Human Rights Commissions and civil society. Still I see no legal reason to keep the hate speech provisions in Canadian human rights legislation, federally or provincially.

In the recently amended Alberta HR legislation Section 3 is the "offensive" section. Here it is:

3 (1) No person shall publish, issue or display or cause to be published, issued or
displayed before the public any statement, publication, notice, sign, symbol, emblem or
other representation that
(a) indicates discrimination or an intention to discriminate against a person or a
class of persons, or
(b) is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental
disability, age, ancestry, place of origin, marital status, source of income or family status
of that person or class of persons.
(2) Nothing in this section shall be deemed to interfere with the free expression of
opinion on any subject.

There are Criminal Code provisions that serve the same purpose and so it is arguable that these provisions in HR legislation are redundant. The Canadian Constitution Foundation has recently launched an Intervener Action to declare Section 3 of the Alberta HR legislation outside the jurisdiction of the province of Alberta. This matter will be in court in September and will be interesting to follow.

It was expected that the Alberta government would be repealing this Section 3 in the recent Bill 44 amendments to the new Alberta Human Rights Act. That repeal did not happen for some strange reason. Repeal was highly recommended by many informed sources including the Sheldon Chumir Foundation for Ethics in Leadership. No explanation for this unexpected shift in policy has yet been provided by the province of Alberta so far as I know.

For a more practical discussion and explanation of the implication and civil and ethical exercise of our Constitutional Right of freedom of speech I recommend this op-ed published in the Edmonton Journal. It is by Janet Keeping, President of the Sheldon Chumir Foundation. She really puts free speech matters in perspective.

I think her title for the op-ed frames the overarching duty for responsible speech perfectly, "Freedom of Expression Isn't a Licence to Offend." She, like me, endorses the principles behind Ezra Levant's push to eliminate Section 3. However Janet pushes back hard in this op-ed over how Mr. Levant is strategically pursuing his purposes.

She points out "It's not ethically OK to be obnoxious." She goes on to say "Even if you are legally entitled to be offensive, you are doing a bad thing - acting unethically - if you deliberately set out to harm people by your words or if you don't care about 'collateral damage' your offensiveness causes."

Life is not Disneyland easy. We can't live in a simple world like Bambi's mother described in admonishing Thumper: "If you can't say anything nice, don't say anything at all." We have too many fundamental differences and the world is very small, complex and inter-related place these days. Nobody is able to be an island any more. So while we can be definite and determined in our disagreements, we must also do it without being disagreeable or disrespectful.

What all this also means is that effective citizenship now requires that when we encounter offensive disrespectful speech, we must, as a matter of principle, actively speak up against such behaviours. To let it slide lets the offensive exercise of free speech become normative. Going along to get along is also an unethical and inadequate response.

Janet Keeping in her excellent op-ed serves as a role model. She is an example in how to be effective in taking on that responsibility of ethical citizenship and properly protecting of our right of free speech. Give it a read and share it widely.