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What is the purpose of freedom of expression?

Abstract

A recent controversy between the Canadian Islamic Congress and Maclean's magazine over an allegedly Islamaphobic article has sparked renewed public debate as to the nature and limits of freedom of expression in Canada. Since freedom of expression is a Charter right, its purpose (or purposes) must be understood in relation to the broader values of the Charter. This note considers whether the traditionally articulated purposes of freedom of expression actually cohere with the values of the Charter framework in which the right of freedom of expression arises. The Supreme Court of Canada conceives of freedom of expression as (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. The author finds that, of the purposes traditionally understood to underlie freedom of expression, only the dignity of persons relates the broader values of the Charter framework to the realm of expressive activity. The author formulates a dignity-based conception of freedom of expression, defends it from objections, presents its doctrinal implications, and applies it to the recent controversy between Maclean's and the Canadian Islamic Congress.

Resume

La reaction puissante du Congres Islamique du Canada contre la decision du journal Maclean's de publier un extrait du livre America Alone de Mark Steyn, qui etait presume etre anti-islamique, a renoue le debat publique sur la liberte d'expression au Canada. Puisque la liberte d'expression est un droit de la Charte, son but (ou buts) doit etre compris en relation aux valeurs generales de la Charte. Cet article considere si les buts qui sont traditionnellement associes avec la liberte d'expression s' accordent vraiment avec les valeurs de la Charte. La Cour Supreme du Canada decrit la liberte d'expression comme (1) un instrument pour realiser la verite; (2) un instrument d'un gouvernement democratique; (3) un element de la realisation propre a la dignite humaine. L'auteur trouve que, de tous les buts qui sont traditionnellement associes a la liberte d'expression, seulement la dignite des personnes unie les valeurs fondamentales de la Charte avec le domaine des activites expressives. L'auteur formule une conception de la liberte d'expression qui est basee dans la dignite, la defend contre des objections potentielles, et l'applique a la dispute recente entre Maclean's et le Congres Islamique du Canada.
I    INTRODUCTION

II   CONFLICTING CONCEPTIONS OF FREEDOM OF EXPRESSION

III  RIGHTS-PROTECTION UNDER THE CHARTER FRAMEWORK

IV   THE PURPOSES OF FREEDOM OF EXPRESSION AND
     THE CHARTER FRAMEWORK

V    ON WHAT GROUNDS MAY FREEDOM OF EXPRESSION BE LIMITED?

VI   THE CHARTER FRAMEWORK AND THE PROBLEM
     OF INCOMMENSURABLE PURPOSES

VII  APPLICATION OF THE CHARTER FRAMEWORK

VIII CONCLUSION


I INTRODUCTION

Since freedom of expression is a Charter right, its purpose (or purposes) must be understood in relation to the broader values of the Charter. Justice Lamer stated in Dubois v. R.: "Our constitutional Charter must be construed as a system where 'Every component contributes to the meaning as a whole, and the whole gives meaning to its parts....' The court must interpret each section of the Charter in relation to the others." (1) In Hunter v. Southam Inc., Dickson J. characterized the Charter as a whole as a "purposive document" that seeks "to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines". (2) Accordingly, to discern the purpose (or purposes) of freedom of expression, we must consider its role within the broader values of the Charter as a rights-protecting framework.

The Supreme Court of Canada has repeatedly declared that freedom of expression has three purposes. Freedom of expression is (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. (3) This note considers whether the traditional purposes of freedom of expression cohere with the values of the Charter framework in which the right of freedom of expression arises. It is surprising that the Supreme Court of Canada has not engaged in such an analysis, given the transformative implications of the Charter (4) and the Court's indications in R. v. Keegstra that the purposes invariably taken to underlie freedom expression may be inadequate. (5)

I proceed in six sections. The first presents a recent controversy between Maclean's magazine and the Canadian Islamic Congress (CIC) in which contrary conceptions of freedom of expression emerge. Because freedom of expression arises within the framework of rights-protection established by the Charter, the second section distinguishes between the framework of rights-protection under the Charter and under the system of parliamentary supremacy that the Charter has displaced. The third section considers the three purposes that are traditionally taken to underlie freedom of expression. I argue that the purpose of realizing human dignity alone coheres with the system of rights-protection established by the Charter. In turn, the democracy and truth rationales for freedom of expression invoke a parliamentary conception of democracy that the Charter supplants. The fourth section determines the grounds on which limitations of free expression may be justified in a free and democratic society. The fifth section claims that the removal of the extrinsic purposes of freedom of expression introduces a doctrinal clarity to s. 1 analysis that is absent from previous Supreme Court of Canada decisions, which admitted a single constitutional right to be founded on conflicting and incommensurable purposes. The final section applies the Charter framework developed in the prior sections to the Controversy between Maclean's and the CIC.

Throughout, my aim is not to provide a conclusive theory of freedom of expression, but to sketch an approach to freedom of expression that resonates with Canada's commitment to a rights-based constitutional democracy. Given the nature of the dispute between Maclean's and the CIC, I will be illustrating my arguments with examples involving hate speech. (6)

II CONFLICTING CONCEPTIONS OF FREEDOM OF EXPRESSION

In October 2006, Maclean's published an excerpt from Mark Steyn's book America Alone entitled "The New World Order". (7) The article seeks to warn the West of the danger posed by its own decline and radical Islam's global ambitions. (8) Steyn claims that the central factors underlying the decline of the West are "demographic decline; the unsustainability of the social democratic state; and civilizational exhaustion". (9) The demographic decline of the West is evident once one contrasts its dropping birth rates with the booming birth rates of the Middle East. Yemen, for example, will have a larger population than Russia by the middle of the 21st century. (10) Steyn summarizes his conclusion about the demographic disparities in the West and the Middle East: "A people that won't multiply can't go forth or go anywhere. Those who do will shape the age we live in." (11) The second factor supporting the decline of the West lies in the unsustainable character of the multicultural social democratic state, which cannot provide an animating principle that appeals to large immigrant populations. In search of such a principle, immigrants "look elsewhere and find the jihad". (12) Steyn contrasts the vulnerability of the West with the strength of Islam: "Age + Welfare--Disaster for you; Youth + Will = Disaster for whoever gets in your way.... Islam has youth and will, Europe has age and welfare." (13) The third factor contributing to the decline of the West is a blinding cultural relativism that prevents persons in Western societies from seeing these very dangers. Steyn warns that the combination of the demographic shift and the weaknesses of Western democracies will result in the transformation of Europe into Eurabia in which western societies weakened by their own cultural relativism and the terrorist acts to which they are subject--succumb to Islam's global ambitions. In the rhetorical climax of the article, Steyn writes:
   On the Continent and elsewhere in the West, native populations are
   aging and fading and being supplanted remorselessly by a young
   Muslim demographic. Time for the obligatory 'of courses': of
   course, not all Muslims are terrorists--though enough are hot for
   jihad to provide an impressive support network of mosques from
   Vienna to Stockholm to Toronto to Seattle. Of course, not all
   Muslims support terrorists--though enough of them share their basic
   objectives (the wish to live under Islamic law in Europe and North
   America) to function wittingly or otherwise as the "good cop"
   end of an Islamic good cop/bad cop routine. But, at the very
   minimum, this fast-moving demographic transformation provides a
   huge comfort zone for the jihad to move around in. (14)


The CIC responded to the article by demanding that Maclean's allow an unedited rebuttal of equal length. (15) Maclean's refused to yield editorial control over the magazine. In December 2007, the CIC brought human rights complaints against Maclean's for publishing articles, such as Steyn's, that were "flagrantly Islamophobic" and that subjected "Canadian Muslims to hatred and contempt". (16) While this complaint was dismissed by the Canadian Human Rights Commission (17) and was held to be outside the jurisdiction of the Ontario Human Rights Commission, (18) a hearing was held before the British Columbia Human Rights Tribunal in June 2008. At issue was whether the article breached s. 7(1)(b) of the British Columbia Human Rights Code by subjecting persons to hatred and contempt on the basis of their religion. In October 2008, the Tribunal held that although the article was offensive and at times inaccurate, it did not breach s. 7(1)(b) by exposing persons to hatred and contempt. (19)

This controversy produced a whirlwind of media coverage that was overwhelmingly critical of both the CIC and human rights bodies. The New York Times ran an article contrasting the First Amendment right of newspapers and magazines to "say what they like about minorities and religions--even false, provocative or hurtful things--without legal consequence" with the situation in Canada in which an article that is merely "mocking and biting" attracts legal sanction. (20) The Globe and Mail insisted that while Steyn may be provocative and his demographic predictions outlandish, the publication of his article "did not violate anyone's human rights". (21) The National Post published an editorial criticizing the CIC for failing to understand that freedom of expression neither provides the right to publish one's own opinions nor entails a duty on media to publish articles that editors and owners oppose. (22) Barbara Kay, a journalist at the National Post, warned that fundamentalists no longer feel the need to censor through violent fatwas. Human rights bodies can be co-opted into participating in a "soft jihad" that "exploits liberal discourse and weaknesses in our legal system to induce guilt about a largely mythical 'Islamophobia'". (23) Similarly, Alan Borovoy, the founder of the Canadian Civil Liberties Association, expressed concern that human rights bodies are serving as "thought police, charged with stamping out all unpleasant arguments and ideas". (24)

Although the CIC and Maclean's maintained that their respective actions accorded with the values of the Charter, divergent conceptions of freedom of expression crystallized throughout this controversy. The CIC claimed that Steyn's article contained "demonstrable evidence of hatred", (25) which violates the right of persons "to be free from discrimination and hatred on the basis of religion or race". (26) For the CIC, rights are not absolute and can be limited in order to achieve the constitutional values of multiculturalism and toleration. In turn, Maclean's and its supporters argued that the article was not hateful, that political speech must be protected in a democracy, and that the government must not interfere in the marketplace of ideas: "Mark Steyn is a thoughtful and experienced journalist, and the piece was a commentary on important global political issues. It was not in any sense Islamophobic, and Maclean's is confident that the Human Rights Commissions will find no merit in the complaints." (27) Maclean's also emphasized that the CIC does not merely seek to censor political speech, but also to use human rights bodies "to force magazines, newspapers, broadcasters and others to print or run at the latter's own expense replies of equal length and prominence to publications they disagree with". (28)

On each side of this dispute lies a distinct conception of freedom of expression and its role within the system of rights that the Charter has enacted. I therefore turn to consider the Charter framework in order to set the stage for an analysis of the purposes that animate freedom of expression under the Charter, the grounds on which freedom of expression may be justifiably limited, and the distinction between hateful and merely offensive expression.

III RIGHTS-PROTECTION UNDER THE CHARTER FRAMEWORK

In 1982, a "new social contract" transformed Canada "from a system of Parliamentary supremacy to constitutional supremacy". (29) This section explicates this transformation in order to provide a normative context for the discussion of freedom of expression that follows.

Parliamentary supremacy involves a majoritarian conception of democracy in which sovereignty resides in the people. The people, in turn, exercise their sovereignty in regularly held elections by selecting representatives to act on their behalf in the state's legislative body. The legislature is entrusted with pursuing the common good of the society as a whole. In a system of parliamentary supremacy, the rights of persons are protected and advanced insofar as they are instrumental to the promotion of the common good. If the legislature's perception of the common good inclines against the protection and advancement of rights, then the legislature may, as the sole representative of the common good, sacrifice rights. In a system of parliamentary supremacy, the judiciary has no standing on which to constrain majoritarian lawgiving for the purposes of rights-protection. As legal arrangements result from the lawgiving of the majority, the rights of minorities in a system of parliamentary supremacy may become vulnerable should they come into conflict with popular perceptions of the common good. Although the majority need not be hostile to minorities, minorities are necessarily vulnerable insofar as their legal status in the community is subject to the will of others. This vulnerability is particularly acute for those minorities whose interests are consistently at odds with those of the majority or who lack the capacity to have their concerns heard. (30)

With the adoption of the Charter, Canada became a constitutional democracy. Constitutional democracy involves both a formal and a substantive aspect: (31) the formal aspect consists in the majoritarian procedures through which laws are enacted; the substantive aspect consists in the values that animate and constrain the exercise of all state power. (32)

The Charter repudiates the majoritarian model of rights-protection found in systems of parliamentary supremacy. Whereas in a parliamentary supremacy model the government may deny the rights of persons in order to accomplish political purposes, a rights-based constitutional supremacy model removes incursions upon fundamental human rights and freedoms from the reach of majority rule. (33) Under the constitutional supremacy of the Charter, all public power, including legislative power, is bound by values that are intrinsic to the constitutional order. In R. v. Oakes, Dickson C.J. formulates a non-exhaustive list of such values, which includes "respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of groups in society". (34)

The transition from parliamentary to constitutional supremacy reconfigures the relationship between individuals and their government. Whereas the government in a system of parliamentary supremacy may treat persons as means for the achievement of a collective purpose, the Charter requires that all branches of government respect the dignity of persons as ends in themselves. As Wilson J. writes:
   I believe that the framers of the Constitution in guaranteeing
   'liberty' as a fundamental value in a free and democratic society
   had in mind the freedom of the individual to develop and realize
   his potential to the full, to plan his own life to suit his own
   character, to make his own choices for good or ill, to be
   non-conformist, idiosyncratic and even eccentric--to be, in today's
   parlance, 'his own person' and accountable as such. John Stuart
   Mill described it as 'pursuing our own good in our own way'. This,
   he believed, we should be free to do 'so long as we do not attempt
   to deprive others of theirs or impede their efforts to obtain it'.
   (35)


In a free society, persons may cultivate a multitude of tastes, opinions, preferences, and aims. The role of the state is not to impose purposes upon people but to respect their purposiveness, that is, the capacity of autonomous persons to realize their own personalities. Insofar as the fundamental freedoms are to be accessible to all members of Canadian society, (36) the state is under an obligation to ensure that all have the opportunity to realize their autonomy within society.

The judiciary maintains the "new social contract" (37) by relating its majoritarian and substantive elements. The relationship between the majoritarian and substantive elements of Canadian democracy is expressed in s. 1 of the Charter: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." (38) all majoritarian lawgiving must be consistent with the foundational values that underlie the democratic order. The rights enumerated in the constitution are themselves expressions of these values. Legislation that infringes a right will, in most cases, infringe an underlying value and therefore be inconsistent with the constitutional order. But the values underlying rights also provide grounds for the limitation of rights. In the words of Dickson C.J.:
   The underlying values and principles of a free and democratic
   society are the genesis of the rights and freedoms guaranteed by
   the Charter and the ultimate standard against which a limit on a
   right or freedom must be shown, despite its effect, to be
   reasonable and demonstrably justified. (39)


In other words, insofar as rights are themselves reflections of deeper underlying values, rights may be limited when the values that give rise to them are better realized by limiting the right than by upholding it.

Both parliamentary supremacy and constitutional supremacy conceive of rights as subject to limitation. They may be differentiated by the grounds of limitation. In a system of parliamentary supremacy, a right may be limited through the will of a legislative majority, that is, through law. In the Charter framework, however, a right may be limited through law only if the legislature has a pressing and substantial purpose, and the substantive value underlying the right inclines toward its limitation, as revealed by a proportionality analysis. Thus, the principles of a free and democratic society are the basis of both rights guarantees and limitations.

IV THE PURPOSES OF FREEDOM OF EXPRESSION AND THE CHARTER FRAMEWORK

Charter rights reflect Charter values. The present section considers whether the traditional purposes underlying freedom of expression cohere with the values underlying rights-protection in the Charter framework. The Supreme Court of Canada conceives of freedom of expression as (1) an instrument for the realization of truth; (2) an instrument of democratic self-government; and (3) an aspect of self-realization or human dignity. (40) I will consider each of these purposes in relation to the broader values of the Charter framework.

The most dominant version of the truth-based rationale for freedom of expression is the metaphor of the marketplace of ideas. Justice Holmes used this metaphor to suggest that freedom of expression is instrumental in promoting the advancement of truth within a society:
   [W]hen men have realized that time has upset many fighting faiths,
   they may come to believe even more than they believe the very
   foundations of their own conduct that the ultimate good desired is
   better reached by free trade in ideas--that the best test of truth
   is the power of the thought to get itself accepted in the
   competition of the market, and that truth is the only ground upon
   which their wishes safely can be carried out. (41)


The premise of Holmes' analogy is that the features at work in the laissez-faire economic marketplace are analogous to those that govern the marketplace of ideas. Just as free trade produces the greatest wealth for the greatest number, so too the free trade of ideas produces the greatest truth within a society. And just as government interference hinders the natural efficiency of the economic marketplace, so too government interference hinders the capacity of the market place to determine what is true. After all, truth is determined by the activity of the marketplace rather than the exercise of political power. As economically self-interested actors pursue their own interests and thereby spread wealth throughout the marketplace, so too rational actors evaluate the adequacy of available opinions and thereby spread truth throughout the marketplace of ideas. While the economic marketplace requires competition to produce an efficient result, the marketplace of ideas weeds out hateful or false ideas not through silence but through, as Brandeis J. suggests, "more speech". (42) On this view, the truth of a proposition is determined not by its ability to withstand criticism, as would be the case in the liberalisms of Mill (43) or Kant, (44) bur by the number of adherents that it amasses in the marketplace of ideas. If hate speech is false, then the market will reveal its falsity. If hate speech is restricted, then the process in which truth is established by rational actors may be obfuscated. In either case, the marketplace of ideas rationale requires the permissibility of hate speech.

The marketplace of ideas rationale conflicts with the larger purpose of the Charter framework, which requires the constitutional state to abandon its neutrality and to uphold an objective conception of truth rather than affirm the veracity of whatever belief the marketplace endorses. Rights-based constitutional democracies arose in the context of the historical failure of majoritarian democracies to respect the fundamental interests of all individuals among the people, particularly those belonging to minority groups. The constitutional state must ensure that the injustices that precipitated the transition to a rights-based constitution do not recur and that the state realizes arrangements that approximate its normative aspirations. The duty to bring existing arrangements into closer conformity with normative aspirations presupposes that the state recognize the disjuncture between its normative aim, on the one hand, and its past actions and present arrangements, on the other. Consequently, the constitutional state can neither display ambivalence about whether the injustices that it committed in the past actually occurred, nor can it idealize present conditions that fail to conform to constitutional norms. Ambivalence or idealization about past or present injustices would be inconsistent with the dignity of persons, who cannot be assured that past injustices will not recur and that present ones will be addressed if the state does not acknowledge its failings and hold itself, both in the present and in the future, to a standard of conduct that harmonizes with its fundamental norms. It may be "a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas", (45) but the same is not true of the Charter. Such neutrality would entrust both the meaning of fundamental norms and judgments about the extent of their realization to a majoritarian determination, which is the very arrangement that the Charter was to overcome. Insofar as rights are reflections of Charter values, a right cannot be supported by a value that the Charter repudiates. Since there can be no assurance that the popular conclusions generated by the marketplace of ideas will accord with the state's duty to realize Charter values in Canadian society, the determination of truth through the operation of a marketplace of ideas cannot be a purpose that underlies freedom of expression.

The democratic rationale claims that freedom of expression is the foundation of a democratic system of government. Democracy is a system of government in which free persons give laws to themselves through their representatives. The representatives, in turn, govern with the consent of the people. Consent can only be validly given, however, if the people may freely express their preferences on matters of public importance, criticize less favored views, and provide alternatives to the present government. If the government must use its public power on behalf of the people, then the people must be free to express their purposes publicly--whatever their purposes may be. On this rationale, hate speech must be permitted within a democracy because it is political speech. Stifling political speech on the basis of its content would stifle the very freedom on which democratic government is founded.

Such an argument overlooks the way in which the Charter transforms the conception of democracy at work in Canada. Whereas in a system of parliamentary supremacy, democracy consists in the unconstrained choices of legislative majorities, the Charter requires that all political activity conform to the constitutional values of a free and democratic society. Within the Charter framework, democracy is not an open-ended activity that determines its own purposes, but the mode of lawgiving through which a free people gives itself laws that bring society into closer conformity with "substantive goals". (46) Thus, the democratic rationale, so prevalent in case law and academic literature, invokes a majoritarian conception of democracy that recognizes no constitutional aims that regulate democracy's operation. Hate speech, for example, seeks to deny the humanity of its targets on the basis of their race, ethnicity, or religion. In denying their humanity, hate speech seeks to reduce persons to the status of things, that is, entities that lack rights. Beings without rights cannot impose legal obligations that restrict the liberty of others, and so cannot be wronged by them. (47) The use of speech to reduce human persons to the status of things is "wholly inimical to the democratic aspirations of the free expression guarantee" because it violates the democratic values that lie at the Charter's core, which include the inherent dignity of all persons and the participation of all in the democratic process. (48) Politics must operate in fidelity to the democratic values intrinsic to the constitutional order.

The Charter framework rejects the democratic rationale for free expression for the same reason that it rejects the marketplace of ideas rationale. The Charter requires the state to respect and protect the dignity of rights holding persons as ends in themselves rather than as means in the collectivity's production of truth or its maintenance of the political system:
   The Charter is predicated on a particular conception of the place
   of the individual in society. An individual is not a totally
   independent entity disconnected from the society in which he or she
   lives. Neither, however, is the individual a mere cog in an
   impersonal machine in which his or her values, goals and
   aspirations are subordinated to those of the collectivity. The
   individual is a bit of both. The Charter reflects this reality by
   leaving a wide range of activities and decisions open to legitimate
   government control while at the same time placing limits on the
   proper scope of that control. (49)


The marketplace of ideas rationale is at variance with the constitutional state's duty to uphold a conception of truth that is prerequisite to the achievement of its constitutional duties. The democratic rationale is at variance with the constitutional state's duty to ensure that the political system operates in fidelity to Charter values.

Whereas the truth rationale and the self-government rationale conceive of free expression as an instrument for the achievement of a collective goal, the human dignity rationale conceives of free expression as an intrinsic aspect of individual autonomy. As Thomas Emerson puts it, "The right to freedom of expression is justified first of all as the right of an individual purely in his capacity as an individual." (50) The basis of this right lies in the autonomous character of rational persons, whose fulfillment involves pursuing purposes of their own choosing. In doing so, persons engage in acts that express their thoughts, beliefs, emotions, and commitments. It is through these acts that individuals realize their personality and find meaning within their world. Free expression is an aspect of the autonomy of individual persons.

Of the three purposes that are invariably cited as the basis of freedom of expression, only human dignity is consistent with and expressive

of the normativity of the Charter framework. Justice Wilson describes the conception of the person as a bearer of dignity as unifying the diverse array of Charter rights:
   The idea of human dignity finds expression in almost every right
   and freedom guaranteed in the Charter. Individuals are afforded the
   right to choose their own religion and their own philosophy of
   life, the right to choose with whom they will associate and how
   they will express themselves, the right to choose where they will
   live and what occupation they will pursue. These are all examples
   of the basic theory underlying the Charter, namely that the state
   will respect choices made by individuals and, to the greatest
   extent possible, will avoid subordinating these choices to any one
   conception of the good life. (51)


For Wilson J., the Charter framework seeks to respect the purposiveness of persons, that is, their capacity to determine and pursue their own ends, without imposing purposes upon them. The Charter creates spheres of freedom in which persons can both determine and pursue their own purposes. (52) Of the traditional rationales for freedom of expression, the dignity rationale alone relates the broader purposes of the Charter framework to the realm of expressive activity.

By conceiving of freedom of expression as rooted in the human dignity of persons, we invite a series of familiar objections. Scholars have both formulated and criticized conceptions of human dignity that emphasize the liberty of the speaker at the expense of other persons. Ronald Dworkin, for example, conceives of autonomy as a right to moral independence. The moral independence of persons precludes the state from limiting the liberty of persons "on the ground that their officials or fellow-citizens think that their opinions about the right way for them to lead their own lives are ignoble or wrong". (53) The limitation of a person's freedom of speech on such grounds would fail to respect that person's autonomy. Although those who disapprove of explicit speech may take offense, persons have no right to not be offended. (54) Thus, Dworkin concludes that hate speech must be permissible since its limitation denies the autonomy of the speakers and its permission does not undermine the autonomy of others. Dworkin's argument has drawn criticism for overlooking the general motivation for restrictions on hate speech. As Susan J. Brison notes, restrictions on hate speech are generally motivated "by concern for the rights of victims of hate speech not to be harmed unjustly by it, rather than, as Dworkin assumes, by moral disapproval of those who engage in, or willingly listen to, such speech". (55) By focusing on the autonomy of the speaker, Dworkin overlooks the capacity of hate speech to undermine the autonomy of others.

Such a criticism does not apply to the Charter framework. Under the Charter framework human dignity is inherent and therefore present in all persons, regardless of whether they are expressing themselves or directing their attention to another's expression. Accordingly, the Charter neither seeks to realize a particular right, such as freedom of expression, nor the rights of a particular person. In a free society, all persons are to have access to a system of rights-protection that protects the fundamental freedoms of everyone through law. (56) We need not concern ourselves with objections to a framework that diverges so markedly from our own.

Other objections import a conception of rights-protection that diverges from the Charter framework. Frederick Schauer, for example, argues that human dignity cannot be the justification for freedom of expression because it imposes limits on freedom of expression. (57) Such an argument, however, is unpersuasive when applied to the Charter framework, which conceives of rights and limitations of rights as rooted in common normative values. The two-stage approach to rights-protection provides for a generous interpretation of the right, and if the right is violated by law, the Court then requires the government to justify the limitation of the right. Such a methodology ensures that considerations that favor the limitation of a right do not overwhelm its scope.

A further objection maintains that the dignity rationale is too narrow to protect core expression, such as political speech. (58) On this view, human dignity must be supplemented by additional rationales if the requisite expressive activity is to be protected. Such an objection overlooks the relationship between dignity, democracy, and political speech. Dignity requires democracy; democracy requires political speech. Democracy is the form of government in which persons give themselves laws that are expressive of their freedom. Democracy, in turn, entails the protection of political speech. If political speech were not protected, persons could neither criticize legal arrangements nor formulate alternatives. Such persons would be mere passive citizens who lacked the legal capacity to direct their own representatives. (59) While a government that does not allow political speech need not be oppressive, it necessarily denies the capacity of persons to govern themselves. (60) Political speech is not protected merely because it is political or merely because it is speech, but because its speakers are dignified. If political speech is a precondition of lawgiving that is expressive of their dignity, it must be protected by the Charter framework.

V ON WHAT GROUNDS MAY FREEDOM OF EXPRESSION BE LIMITED?

Just as the Charter framework indicates the purpose that underlies freedom of expression and the purposes that are extrinsic to it, so too the Charter framework indicates the ground on which limits of freedom of expression may be justified. The basis of this symmetry lies in the proportionality analysis that Dickson C.J. develops in Oakes. Both the rights that the Charter guarantees and the limitations of rights that it justifies are grounded in the values of a free and democratic society. Insofar as rights are but emanations of these values, rights may be limited in order to further their realization.

Here we encounter a general objection to the attempt to ground both the right of freedom of expression and the limitations of that right in the human dignity rationale. In Keegstra, McLachlin J. (as she then was) claimed that human dignity alone "is arguably too broad and amorphous to found constitutional principle". (61) Similarly, Grant Huscroft states that the dignity rationale is "so broad as to suggest almost boundless protection". (62) I respond to this objection by arguing that inherent human dignity is a self-limiting concept--dignity provides a normative basis for both the protection and limitation of freedom of expression.

In this section I consider three particular versions of the general objection, each of which questions the limits that the Charter framework imposes on freedom of expression. The first and second objections are raised by Mark Steyn's supporters. The first objection maintains that if the state may restrict speech on the basis of its content, then it may restrict valuable forms of expression, such as the expression of minorities or dissenters. The second objection holds that government lacks the capacity to determine what expression should be restricted. The third objection, raised by the CIC, asserts that freedom of expression should be limited in order to protect religious sensitivities. I will respond to each of these objections by drawing on the relationship between the institutional structure of the Charter framework and its commitment to human dignity.

First, if the state is permitted to restrict freedom of expression on the basis of its content, what is to prevent the state from abusing its power by silencing minorities and legitimate dissenters? (63) I respond that the fear that government may restrict the speech of minorities is a worry about the majoritarian state in which parliament is supreme and its will unconstrained. On the majoritarian view, in order to restrict speech on the basis of its content, the state must abandon its neutrality and affirm a substantive value. The state that may affirm substantive values, may affirm substantive values that silence minorities or dissenters. Accordingly, the state should not restrict speech that targets minorities and dissenters on the basis of a substantive value because the state that may adopt substantive values might, in rime, affirm a particular value that may threaten the very vulnerable groups that the state now wishes to protect. So the argument concludes that the state should not protect the dignity of minorities and dissenters in the present because the powers that the state requires to do so may be directed towards oppressing those groups in the future.

Such an argument poses no threat to the Charter framework, in which content-based restrictions on speech emerge not from a majoritarian preference but from values that reflect the dignity of all persons. Within the Charter framework, constitutional principles are to animate and constrain the activities of legislative majorities. Accordingly, all content-based limitations of free expression must be prescribed by law and justified on the basis of a substantive Charter value. The state is under a constitutional duty to respect and protect the dignity of everyone, including minorities and dissenters both in the present and in the future. (64) As the guardian of the constitutional order, the independent judiciary is empowered to strike down laws that are at odds with the values of a free and democratic society. The substantive values within the Charter framework justify the prohibition of hate speech because it is inconsistent with the dignity of minorities. In turn, laws that seek to silence dissent would be inconsistent with the self-realization of persons, so long as those dissenters themselves operated in fidelity to the Charter framework.

The second objection avows that government must not be permitted to make content-based restrictions on speech because government lacks the capacity to arrive at adequate judgments about what content should be restricted. For the proponent of this objection, the basis of this incapacity is inherent to the structure of government itself. It is to the advantage of government to consolidate its power by silencing critics and dissenters. Insofar as the government is the highest legal authority, a government that restricts free expression acts as judge in its own cause and so lacks the ability to impartially consider the issue. Numerous historical examples can be produced to support the "argument from governmental incompetence", including the silencing of Galileo and the repression of great works of art deemed obscene. (65) Although this objection does not suggest that expression should never be restricted, it does suggest that every restriction of expression should be viewed with suspicion as an act by a fallible and self-interested government. Frederick Schauer calls the argument from governmental incompetence "the most persuasive argument for a Free Speech principle". (66)

This claim presupposes a set of institutional roles and incentives that are foreign to the Charter framework. To be sure, the government of the day may have an interest in consolidating their power by silencing dissenting expression. For this reason, the Charter framework does not place fundamental rights, such as freedom of expression, in the hands of those that benefit from their violation. The legislative and executive branches of government are not judges in their own self-interested cause. Rather, the judiciary is the guardian of the constitutional order. The independence of the judiciary is the "lifeblood of constitutionalism in democratic societies". (67) The judiciary is removed from the political process. Judges enjoy security of tenure, financial security, and administrative independence. (68) As the guardians of the constitutional order, the judiciary is to protect the "Constitution and the fundamental values embodied in it". (69) It is the independent judiciary that must determine whether content-based restrictions on speech are consistent with the core values of the constitutional order. Those restrictions that limit freedom for the sake of political advantage cannot be justified because Charter values apply to all persons and not merely those with political leanings that favor the purposes of the present government. Under the Charter framework, acts of government incompetence that violate constitutional rights and are not prescribed by law or not consistent with constitutional values, as determined through a proportionality analysis, will not be justified.

While the previous objections attempt to disclose the excessive power that restrictions on expressive activity provide the government, the third objection attempts to realize the power that the Charter framework seems to provide individuals and groups to limit the expressive activity of others. If hateful expression may be restricted because it infringes the dignity of religious and racial groups, then--to cite an example raised by McLachlin J. in R. v. Zundel--perhaps Rushdie's Satanic Verses should be subject to restriction as well since it is "viewed by many Muslim societies as perpetrating deliberate lies against the Prophet". (70) Such a principle, when generalized, would subject the constitutional permissibility of any form of expression to the whim of a private person or group that claims that their dignity has been infringed. As Dieter Grimm has explained"
   One of the consequences of the violent reactions to the Danish
   cartoons was a call for better protection of religious
   sensibilities. The demand came not only from Muslim groups but also
   from the Christian Churches and found some resonance with
   politicians as well. Some saw the solution in press
   self-censorship. Others asked for new laws. Since it will usually
   be through speech that religious feelings are hurt, increased legal
   protection against offending religious feelings will entail more
   restrictions on freedom of speech. This raises the question of
   whether liberal democracies can fulfill this demand without
   violating their constitutions.... A general prohibition against
   hurting religious feelings would put the public discourse at the
   mercy of the sensitivity of religious groups, and particularly of
   the most militant among them. (71)


This example raises the possibility that dignity is not a self-limiting but a self-consuming concept; just as dignity gives rise to a domain of constitutionally protected expressive activity, so too it culminates in a domain of religious freedom that consumes the domain of protected expression. This claim strikes the core of the Charter framework because if it is correct then Charter rights are consumed rather than illuminated by their underlying value.

I respond that a constitutional democracy creates neither a particular right nor rights for particular persons but a system of rights-protection in which all persons can enjoy their freedom by acting in consistency with the freedom of all others. If each person is to have a sphere of freedom in which to pursue their own purposes, then there must be limits on the freedom of everyone. Religious freedom, like the other freedoms in a constitutional democracy, is not absolute. Rather, religious freedom draws out an aspect of an individual's freedom to set and pursue his or her purposes in harmony with all others. Accordingly, if the conflicting religious freedoms of distinct persons are to co-exist, they must be limited through law. But since laws reconciling religious freedoms are to be created through a democratic process of debate and deliberation, this process cannot be limited on the basis of religious claims. In a free and democratic society, the very process through which limits on religion are established presupposes a public debate. (72) While the constitutional state must protect religious groups from hatred, it cannot shield them from criticism. As Grimm remarks, "the more a religious group claims public recognition and respect for its religious norms, the more it must be exposed to public discourse". (73)

The basis of rights limitation entails a distinction between expressive activity that is inconsistent with the dignity of all persons, and expressive activity that is merely offensive. (74) Whereas dignity is the public value that underlies our constitutional order and requires that persons not be subject to hatred, offense is a subjective reaction rooted in the beliefs of private persons and associations. The Charter framework establishes that individuals are free to determine the way in which they live their lives, which may include participating in religious associations. Such associations may govern the beliefs and practices of their members. For example, a religious group may conceive of blasphemy or the creation of visual depictions of its founder as sinful. Bur that a sin is recognized by members of a voluntary religious association does not entail that it should be recognized by society's coercive laws and enforced against all others. Dignity is a Charter value; its meaning is not determined unilaterally by private persons nor by the associations that they form, whether religious or otherwise. Thus, the offense taken to Rushdie's or Steyn's work by particular Muslims, by Muslim groups, or by Muslim societies--some of which place onerous restrictions on freedom of expression--does not itself settle the issue surrounding the permissibility of an expressive act in a free and democratic society. After all, it is the conception of the person as dignified that underlies both the duty of the state to respect the rights of persons to enter into voluntary religious associations and to protect persons from the imposition of religion. The right of believers to enjoy freedom of religion does not trump the right of others to be free from religion and to express their beliefs on matters of public importance. As Dickson C.J. remarks in R. v. Big M Drug Mart: "What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view." (75) Since dignity is a public value, claims about its meaning cannot be grounded in private beliefs. (76)

V THE CHARTER FRAMEWORK AND THE PROBLEM OF INCOMMENSURABLE PURPOSES

That the Charter framework excludes the marketplace of ideas and democratic rationales has significant doctrinal implications. This section explores the doctrinal clarity that emerges in a s. 1 analysis once the extrinsic purposes underlying freedom of expression are excised.

Under the test laid out by the Supreme Court of Canada in Irwin Toy Ltd. v. Quebec (Attorney General), (77) content-based restrictions on speech, such as those that prohibit hate speech, infringe s. 2(b) of the Charter. Accordingly, the greater part of the analysis occurs at the s. 1 justificatory stage, in which the onus is placed on government to demonstrate that the infringement of freedom of expression is justified in a free and democratic society. The standard of justification is informed by the context-sensitive approach, which considers the extent to which "the expression at stake in a particular case promotes freedom of expression principles". (78) if the expressive activity lies at the core of s. 2(b), then the Crown faces a higher burden at the s. 1 stage. Conversely, if the expressive activity lies at the periphery of s. 2(b), then the Crown's burden is correspondingly reduced. Whether expressive activity lies at the core or periphery of s. 2(b) is determined by its relation to the purposes that underlie the right. If the truth and democratic rationales of free expression do not cohere with the Charter framework, then whether an expressive activity lies at the core or periphery of the right must be determined solely on the basis of its relation to dignity.

By retaining only those purposes which cohere with the constitutional framework in which they arise, the legal debate over the constitutional permissibility of restrictions on free expression gains a new clarity. Precluded are arguments that pit the purposes underlying free expression against one another, as arose in Keegstra. For Dickson C.J., the prohibition of hate speech is permitted because hate speech seeks to deny the self-realization of its targets and so lies at the periphery of the purposes that underlie the right. For McLachlin J., content-based restrictions on hate speech strike at the core of the democratic rationale and the truth rationale insofar as hate speech is political speech and its restriction is at odds with the free operation of the marketplace of ideas. Thus, the context-sensitive approach is mired in a criss-cross of contrary purposes that render a common expressive activity at the core of the purposes that underlie the right in one respect and at the periphery in another. I call this the problem of incommensurability because there is no systematic relation among the supposed purposes underlying freedom of expression such that a concrete expressive instance that is core to one purpose must be core to all others. Indeed, there cannot be a systematic relation among these purposes insofar as only the dignity rationale coheres with the constitutional framework in which the right of free expression obtains.

Nevertheless, if the dignity rationale alone coheres to the Charter framework, then the incommensurability problem is resolved. On the analysis that I have presented, the context-sensitive approach would consider the relation between the self-realization of the expressive person, say, a hatemonger, and the self-realization of others, including his targets. Thus, rather than seeking to make conflicting and unrelated heterogeneous values commensurable, the judiciary would consider the relationship of the expressive activity to the value of self-realization alone. At the s. 2(b) stage the judiciary would provide a large and liberal interpretation of freedom of expression, which would be infringed by the content-based prohibition of hate speech. At the s. 1 justificatory stage, the self-realization of the hatemonger would be balanced against the self-realization of others within a free and democratic society. Limiting hate speech may inhibit the self-realization of the hatemonger; permitting hate speech may inhibit the self-realization of individuals whose identity is rooted in their membership in a racial or religious group that is the target of hate speech. (79) On the context-sensitive approach to the s. 1 analysis, hate speech would have a peripheral value because it denies the capacity of others to freely express themselves and so conflicts with the value that underlies the right, the inherent dignity of human persons. Hate speech may be limited because it seeks to use rights that are founded in the value of human dignity in a manner that denies the dignity of others, and the capacity of others to hold rights, including the right to free expression. To the extent that political and truth-seeking expression has relevance in the s. 1 analysis, they would only be considered as aspects of the self-realization of the rights claimant and the other inhabitants of a free and democratic society.

VI APPLICATION OF THE CHARTER FRAMEWORK

We can now apply the Charter framework to the controversy between Maclean's magazine and the CIC. Within the Charter framework, rights and limitations are rooted in the dignity of persons who reside within a free and democratic society.

The central legal disagreement between Maclean's and the CIC is whether Steyn's article was hateful. Maclean's holds that Steyn's article is a non-hateful engagement with issues of public importance. In the language of the Charter framework, Maclean's position is that Steyn's article is an expression of his dignity that does not infringe the dignity of others. Accordingly, the limitation of Steyn's expression cannot be justified in a free and democratic society that seeks to respect and protect the dignity of everyone. In contrast, the CIC claims that Steyn's article contains "clear, concise" and "demonstrable evidence of hatred". (80) By subjecting "Canadian Muslims to hatred and contempt", (81) the CIC argues that Steyn violated various human rights codes. The Canadian Human Rights Act, for example, prohibits telecommunications on "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination". (82) Within the Charter framework, the CIC claims that since freedom of expression is founded on the dignity of persons, freedom of expression can be limited when it denies the dignity of others.

In Canada (Human Rights Commission) v. Taylor, Dickson C.J. reconciles the commitment of the Charter to freedom of expression with the limitations on expression found in human rights codes, such as the Canadian Human Rights Act. On one hand, human rights legislation must be recognized as a "fundamental law" and given a "fair, large and liberal interpretation." (83) On the other, the purposive interpretation of a human rights code must not be so expansive that freedom of expression is limited in a manner that would not be justified under s. 1 of the Charter. As Dickson C.J. explains:
   In my view, there is no conflict between providing a meaningful
   interpretation of s. 13(1) and protecting the s. 2(b) freedom of
   expression so long as the interpretation of the words 'hatred' and
   'contempt' is fully informed by an awareness that Parliament's
   objective is to protect the equality and dignity of all individuals
   by reducing the incidence of harm-causing expression. (84)


For Dickson C.J., the conflict between freedom of expression and its limitation is resolved by noting that each rests on a common normative foundation. Both Charter rights and their limitations in human rights legislation seek to recognize the dignity of persons. Chief Justice Dickson proceeds to interpret the meaning of 'hatred' and 'contempt' in the Canadian Human Rights Act in a manner that will not unduly circumscribe freedom of expression. Hatred is "'extreme' ill-will and an emotion which allows for 'no redeeming qualities' in the person at whom it is directed. 'Contempt' ... refers to unusually strong and deep-felt emotions of detestation, calumny and vilification." (85) By confining the meaning of s. 13 to the "extreme nature of 'hatred and contempt'", Dickson C.J. distinguishes between dignity-infringing expression that may be justifiably limited and expression that occasions a mete "subjective opinion as to offensiveness", which must be permitted in a free and democratic society. (86)

In Warman v. Kouba, (87) the Canadian Human Rights Tribunal expands on the definitions formulated in Taylor by providing a list of the "hallmarks of material that is more likely than not to expose members of the targeted group to hatred or contempt". (88) Hallmarks include portraying the targeted group as a "powerful menace" that subverts the social order through lies and extortion, (89) dehumanizing the target group through "comparisons to and associations with animals, vermin, excrement, and other noxious substances", (90) presenting persons within the targeted group as "devoid of any redeeming qualities and [as] innately evil", (91) employing "racist epithets and slurs to create a tone of profound denigration and disgust", (92) advocating "the exile or segregation of members of the targeted groups", (93) and exhorting readers "to 'take action' to stop the evil menace created by these people". (94) As the Tribunal explains, the hallmarks of hatred are unified insofar as all "involve an attack on the inherent self-worth and dignity of members of the targeted group". (95) Since freedom of expression in a free and democratic society is founded on the commitment to respect and protect human dignity, expression that denies the dignity of others may be limited through legislation, such as s. 13 of the Canadian Human Rights Act.

Although Steyn's work is provocative and perhaps intentionally offensive, it does not rise to the level of hatred and contempt expounded in Taylor. Nor does it bear the hallmarks of hatred developed in Warman. Steyn's article presents facts and arguments about the demographic decline of the West, the fragility of liberal democracies, and the global ambitions of a radical form of Islam. The Canadian Human Rights Commission characterizes the article as "polemical, colorful, and emphatic", and notes that it was "obviously calculated to excite discussion and even offend certain readers, Muslim and non-Muslim alike". (96) Similarly, the British Columbia Human Rights Tribunal describes the article as expressing "strong, polemical, and, at times, glib opinions about Muslims, as well as world demographics and democracies". (97) Both the Canadian Human Rights Commission and the British Columbia Human Rights Tribunal maintained that the article did not exhibit hatred and contempt. In the words of the Canadian Human Rights Commission:
   Overall, however, the views expressed in the Steyn article, when
   considered as a whole and in context, are not of an extreme nature
   as defined by the Supreme Court in the Taylor decision. Considering
   the purpose and scope of section 13(1), and taking into account
   that an interpretation of s. 13(1) must be consistent with the
   minimal impairment of free speech, there is no reasonable basis in
   the evidence to warrant the appointment of a Tribunal. (98)


A free and democratic society seeks to create the conditions in which the dignity of everyone is respected and protected. Constitutional rights draw out aspects of this dignity in the various spheres of human freedom, including freedom of expression. Human rights codes place limits on freedom of expression in order to protect the dignity of all persons, including those most vulnerable to hateful expression. Since Steyn's expression is an aspect of his own dignity but lacks the extremity of expression that denies the dignity of others, his expression must be permitted in a free and democratic society.

VIII CONCLUSION

Canada's jurisprudence on freedom of expression reflects the tension between its historic origins and its normative aspirations. This note seeks to reorient the debates surrounding freedom of expression by drawing out the transformative implications of the transition from parliamentary supremacy to the Charter framework. Since freedom of expression is a Charter right, it must be a manifestation of a Charter value. Within the Charter framework, rights reflect the dignity of persons as ends in themselves; rights are not instruments for the achievement of collective goals, whether the promotion of truth or the furtherance of majoritarian democracy. Of the purposes invariably taken to underlie freedom of expression, only the dignity of persons relates the broader purposes of the Charter framework to the realm of expressive activity. Moreover, the theoretical clarity of the Charter framework provides the touchstone for resolving longstanding doctrinal problems surrounding freedom of expression, including the problem of incommensurable purposes underlying the right and the grounds on which the right may be limited.

* The author gratefully acknowledges the assistance of the Senior Board Notes, Comments and Reviews Editors, in particular Lead Researcher Michelle Jackson, and the Senior Editors of the University of Toronto Faculty of Law Review. The author also thanks David Lepofsky.

(1) [1985] 2 S.C.R. 350 at 365 [references omitted].

(2) [1984] 2 S.C.R. 145 at para. 19.

(3) The classic account of these purposes is Thomas I. Emerson's "Toward a General Theory of the First Amendment" (1963) 72 Yale L.J. 878. Emerson provides a fourth rationale for freedom of expression which consists in "maintaining the balance between stability and social change in the society". This rationale is generally taken to be derivative of the democratic rationale and subsumed under it. The three purposes appear in Robert J. Sharpe, "Commercial Expression and the Charter" (1987) 37 U.T.L.J. 229 at 232. The Supreme Court of Canada invoked Sharpe's formulation of the three purposes in Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712 at para. 56. For further discussions of the purposes underlying freedom of expression, see R. v. Keegstra, [1996] 1 S.C.R. 458, McLachlin J. [Keegstra]; Canada (A.G.) v. Committee for the Commonwealth of Canada, [1991] 1 S.C.R 139, L'Heureux-Dube J.; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, McIntyre J.; R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 21, McLachlin C.J.

(4) For an account of the American origin of the truth and democracy rationales for freedom of expression, see Lorraine E. Weinrib, "Does Money Talk? Commercial Expression in the Canadian Constitutional Context" in David Schneiderman, ed., Freedom of Expression and the Charter (Toronto: Thomson, 1991) 336 at 339-41.

(5) Keegstra, supra note 3 at paras. 66, 92. In Keegstra, Dickson C.J. criticizes the truth-based rationale for invoking a conception of rationality that can no longer be endorsed. At para. 66, he quotes approvingly from the Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada (Ottawa: Queen's Printer, 1966) [Cohen Report]: "[W]e are less confident in the 20th century that the critical faculties of individuals will be brought to bear on the speech and writing which is directed at them. In the 18th and 19th centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, be would always distinguish truth from falsehood, good from evil. So Milton, who said 'let truth and falsehood grapple: who ever knew truth put to the worse in a free and open encounter'. We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under the strain and pressure in rimes of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field."

At para. 92, Dickson C.J. applies this criticism of the truth-based rationale to hate speech: "[T]he argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided."

(6) The meaning of the term 'hate speech' is notoriously difficult to define. I follow the definition used in the Cohen Report, ibid. Hate speech is the totality of expression "the main characteristics of which are a generally irrational and malicious abuse of certain identifiable minority groups". Such a definition includes the provisions of human rights codes and the Criminal Code. See Cohen Report, ibid. at 11. For a list of the hallmarks of hate speech, see section VII of this note, "Application of the Charter Framework".

(7) Mark Steyn, "The New World Order" Maclean's (20 October 2006) 30. For a rebuttal of Steyn's article, see Doug Saunders, "Baby-booming Muslim hordes take Europe? Rubbish!" The Globe and Mail (20 September 2008) F3.

(8) Steyn, ibid. at 31.

(9) Ibid.

(10) Ibid. at 34.

(11) Ibid. at 31.

(12) Ibid. at 32.

(13) Ibid. at 31.

(14) Ibid. at 36.

(15) Brian Hutchinson, "Steyn watches as tribunal winds up" National Post (7 June 2008) A8.

(16) Ezra Levant, "Censorship in the Name of 'Human Rights" National Post (18 December 2007) A20.

(17) Canadian Islamic Congress v. Rogers Media Inc. (25 June 2008), C.H.R.T. 20071008, online: <http://www.macleans.ca/multimedia/pdf/CHRC.pdf> [C.H.R.T.].

(18) Ontario Human Rights Commission, "Commission Statement Concerning Issues Raised by Complaints Against Maclean's Magazine", online: <http://www.ohrc.on.ca/en/resources/news/en/resources/news/statement>.

(19) Elmasy and Habib v. Roger's Publishing and MacQueen (No. 4), [2008] B.C.H.R.T. 378 at paras. 150, 160 [B.C.H.R.T.].

(20) Adam Liptak, "Freedom to Offend Outside U.S., Hate Speech Can Be Costly" The New York Times (12 June 2008) A1.

(21) Editorial, "Shake that role of policing ideas" The Globe and Mail (4 February 2008) A12.

(22) "The Mark Steyn complainants don't understand freedom of speech" National Post (9 June 2008), online: <http://network.nationalpost.com/np/ blogs/fullcomment/archive/2008/06/09/the-post-editorial-board-the-mark -steyn-complainants-don-t-understand-freedom-of-speech.aspx>.

(23) Barbara Kay, "Paving the way for 'soft jihad'" National Post (23 July 2008) A14.

(24) The Globe and Mail, supra note 21.

(25) Sunny Dhillon, "Beware censorship, panel told" The Globe and Mail (7 June 2008) A12.

(26) Mohamed Elmasry and Neiyer Habib v. Rogers Publishing Ltd. and Ken Macqueen, [2008] B.C.H.R.T. 4855 at 4857 (Closing Submission of the Complainant).

(27) Kate Luneau, "Canadian Islamic Congress launches human rights complaint against Maclean's" Maclean's (30 November 2007), online: <http://www.macleans.ca/article.jsp?content=20071130_111821_7448>.

(28) Dhillon, supra note 25.

(29) Vriend v. Alberta, [1998] 1 S.C.R. 493 at paras. 131, 135, Iacobucci J. [Vriend].

(30) Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 81 [Secession Reference]; Vriend, ibid. at para. 176.

(31) Secession Reference, ibid. at 63-64.

(32) Vriend, supra note 29 at 140. The Supreme Court of Canada makes similar comments in the Secession Reference, ibid. at para. 64: "It would be a grave mistake to equate legitimacy with the 'sovereign will' or majority rule alone, to the exclusion of other constitutional values."

(33) I discuss the basis of justified limitations on rights below.

(34) R. v. Oakes, [1986] 1 S.C.R. 103 at para. 64 [Oakes].

(35) R. v. Morgentaler, [1988] 1 S.C.R. 30 at paras. 166-67 [Morgentaler].

(36) R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at paras. 94, 122, Dickson C.J. [Big M Drug Mart].

(37) Vriend, supra note 29 at para. 135.

(38) Canadian Charter of Rights and Freedoms, s. 1, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

(39) Oakes, supra note 34 at para. 64. See also Canada (Human Rights Commission) v. Taylor, [19901 3 S.C.R. 892 at para. 35, Dickson C.J. [Taylor]: "What is of utmost importance is a recognition that s. 1 both guarantees and limits Charter rights and freedoms by reference to principles fundamental in a free and democratic society."

(40) Supra note 3.

(41) Abrams v. United States, 250 U.S. 616 (1919) at 630.

(42) Whitney v. California, 274 U.S. 357 (1927) at 375.

(43) John Stuart Mill, On Liberty (London: Penguin Books, 1985) at 75ff.

(44) Immanuel Kant, Doctrine of Right in Kant's Practical Philosophy, trans, by Mary Gregor (Cambridge: Cambridge University Press, 1996) at 6:209; Immanuel Kant, Critique of Pure Reason, trans, by Paul Guyer & Allan W. Wood (Cambridge: Cambridge University Press, 1998) at Axi: "Our age is the genuine age of criticism, to which everything must submit. Religion through its holiness and legislation through its majesty commonly seek to exempt themselves from it. But in this way they excite a just suspicion against themselves, and cannot lay claim to that unfeigned respect that reason grants only to that which has been able to withstand its free and public examination."

(45) FCC v. Pacifica Foundation, 438 U.S. 726 (1978) at 745-46. For a comparative account of American free speech and bate speech, see Robert A. Khan, "Cross-Burning, Holocaust Denial, and the Development of Hate Speech Law in the United States and Germany" (2006) 83 U. Det. Mercy L. Rev. 163 at 165. For a general account of American exceptionalism in constitutional law, see Lorraine E. Weinrib, "The Postwar Paradigm and American Exceptionalism" in Sujit Choudhry, ed., The Migration of Constitutional Ideas (New York: Cambridge University Press, 2006) at 84.

(46) Secession Reference, supra note 30 at para. 64. In Vriend, Iacobucci J. identifies these substantive goals as the values of a free and democratic society that Dickson C.J. elucidated in Oakes. See supra note 34 and accompanying text.

(47) For an elaboration of this idea, see Julius Ebbinghaus, "The Law of Humanity and the Limits of State Power" (1953) 3 Philosophical Quarterly 14 at 20-22.

(48) On the tension between hate speech and the values of a free and democratic society, see Dickson C.J. in Keegstra, supra note 3 at para. 95: "I recognize that hate propaganda is expression of a type which would generally be categorized as 'political', thus putatively placing it at the very heart of the principle extolling freedom of expression as vital to the democratic process. Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee."

(49) Morgentaler, supra note 35 at para. 164, Wilson J.

(50) Emerson, supra note 3 at 879.

(51) Morgentaler, supra note 35 at 166, Wilson J.

(52) On the idea of the Charter as protecting the purposiveness of persons without imposing purposes upon them, see Pierre Elliot Trudeau, The Essential Trudeau, ed. by Ron Graham (Toronto: McClelland & Stewart, 1998) at 124: "The very adoption of a constitutional charter is in keeping with the purest liberalism, according to which all members of a civil society enjoy certain fundamental, inalienable rights and cannot be deprived of them by any collectivity (state or government) or on behalf of any collectivity (nation, ethnic group, religious group or other). To use Maritain's phrase, they are 'human personalities,' they are beings of a moral order--that is, free and equal among themselves, each having absolute dignity and infinite value. As such, they transcend the accidents of time and place, and partake in the essence of universal Humanity. They are not coercible by any ancestral tradition, being vassals neither to their race, nor to their religion, nor to their condition of birth, nor to their collective history."

(53) See Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1986) at 353ff.; Dworkin, "The Coming Battles over Free Speech" The New York Review of Books (11 June 1992) 55 at 57.

(54) Dworkin, "The Coming Battles over Free Speech", ibid. at 61.

(55) Susan J. Brison, "The Autonomy Defense of Free Speech" (1998) 108 Ethics 312 at 325.

(56) On the foundational role of dignity in a free and democratic society, see also Big M Drug Mart, supra note 36 at para. 94, Dickson C.J.: "A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person."

(57) See "Speaking of Dignity" in Michael J. Mayer & William A. Parent, eds., The Constitution of Rights: Human Dignity and American Values (Ithaca: Cornell University Press, 1992) 179 at 189.

(58) Guy E. Carmi, "Dignity--The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification" (2007) 9 U. Pa. J. Const. L. 957 at 981.

(59) For a theoretical account of passive citizenship, see Jacob Weinrib, "Kant on Citizenship and Universal Independence" (2008) 33 Austrl. J. Legal Phil. I.

(60) Switzman v. Elbling, [1957] S.C.R. 285 at 306, Rand. J.: "Parliamentary government postulates a capacity in men, acting free and under self-restraints to govern themselves...."

(61) Ibid. at para. 190. Of course, the same objection could be made against many recognized constitutional principles, such as equality, a free and democratic society, and fundamental justice. For a comparative account of the concrete meaning of human dignity, see Edward Eberle, "Human Dignity, Privacy and Personality in German and American Constitutional Law" (1997) Utah L. Rev. 964 at 967. See also the Grundgesetz (English translation of The Basic Law for the Federal Republic of Germany (Berlin: German Bundestag, 2001), foreword, 5-6: "[Human dignity] is not an abstract philosophical concept, but a binding obligation and an enduring mission for all those who bear political responsibility in our democratic and social state under the rule of law." The classic case on the concretization of the meaning of dignity is Germany's Life Imprisonment Case (1977) 45 BVerfGE 187 in Kommers, Constitutional Jurisprudence of Germany (Durham: Duke University Press, 1997) at 307-08.

(62) Grant Huscroft, "The Constitutional and Cultural Underpinnings of Freedom of Expression." Lessons from the United States and Canada" (2006) 25 Queensland L.J. 181 at 186. See also Carmi, supra note 58 at 958, 976.

(63) Khan, supra note 45 at 165.

(64) David Partlett, "From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and Freedom of Speech" (1989) 22 Vand. J. Transnat'l L. 431 at 468-69: "Government--in the defense of interests of tolerance, pluralism, and individual autonomy--has a duty to speak on moral matters on behalf of those in the society who are inarticulate. Government is then acting as a facilitator for the expression of ideas, and it is difficult to attack the action from a free speech standpoint." This passage is quoted in Cory and Iacobucci JJ.'s dissent in R. v. Zundel, [1992] 2 S.C.R. 731 at para. 212 [Zundel].

(65) Keegstra, supra note 3 at para. 191. McLachlin J. attributes this argument to Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982) at 81-86. Galileo would not have run afoul of s. 319 of the Criminal Code because he did not spread hatred against an identifiable group. Nor would he have run afoul of s. 181, as he did not engage in the deliberate falsification of facts. On this point, see Zundel, ibid. at para. 239.

(66) Schauer, ibid. at 86. See also Canada (A.G.) v. Committee for the Commonwealth of Canada, supra note 3 at para. 69.

(67) The Queen v. Beauregard, [1986] 2 S.C.R. 56 at para. 24, Dickson C.J.

(68) Provincial Judges Reference, [1997] 3 S.C.R. 3. at para. 115.

(69) Ibid. at para. 123, Lamer C.J.

(70) Zundel, supra note 65 at para. 28. See also Peter R. Teachout, "Making 'Holocaust Denial' a Crime: Reflections on European Anti-Negationist Laws from the Perspective of U.S. Constitutional Experience" (2006) 30 Vt. L. Rev. 655 at 689: "Why is it, Muslim critics ask, that statements that affront Jewish sensibility are subject to state censorship bur statements that affront Muslim sensibility (such as the Muhammad cartoons) are treated as protected speech?"

(71) Dieter Grimm, "Freedom of Speech in a Globalized World" in Ivan Hare, ed., Extreme Speech and Democracy (Oxford: Oxford University Press, forthcoming in 2009). Grimm refers here to the controversy that erupted in 2005 when the Danish newspaper Jyllands-Posten published a series of editorial cartoons depicting the prophet Muhammad.

(72) Ibid.

(73) Ibid.

(74) The Canadian Human Rights Commission invokes this distinction when it suggests that Steyn's article is offensive, indeed, intentionally so, bur does not rise to the level of hatred or contempt as specified by the Supreme Court of Canada in Taylor, supra note 39.

(75) Big M Drug Mart, supra note 36 at para. 96, Dickson C.J.

(76) In Rawlsian terms, claims about public values must be expressed through public reason. See John Rawls, Justice as Fairness: A Restatement (Cambridge: The Belknap University Press, 2001) at 27: "To justify our political judgments to others is to convince them by public reason, that is, by ways of reasoning and inference appropriate to fundamental political questions, and by appealing to beliefs, grounds, and political values it is reasonable for others also to acknowledge. Public justification proceeds from some consensus: from premises all parties in disagreement, assumed to be free and equal and fully capable of reason, may reasonably be expected to share and freely endorse;"

(77) [1989] 1 S.C.R. 927.

(78) Keegstra, supra note 3 at para. 87, Dickson C.J. See also Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 at para. 30, McLachlin J.: "Placing the conflicting values in their factual and social context when performing the s. 1 analysis permits the courts to have regard to special features of the expression in question." For an account of the merits of a contextual approach, see Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at para. 12, Wilson J.: "The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding a fair and just compromise between the two competing values under s. 1."

(79) Keegstra, supra note 3 at 93, 208.

(80) Hutchinson, supra note 15.

(81) Supra note 16.

(82) Canadian Human Rights Act, S.C. 1976-1977, c. 33, s. 13.

(83) Taylor, supra note 39 at para. 59.

(84) Ibid. at para. 60.

(85) Ibid. at para. 61.

(86) Ibid. at para. 62.

(87) 2006 CHRT 50 [Warman].

(88) Ibid. at para. 22.

(89) Ibid. at para. 24.

(90) Ibid. at para. 62.

(91) Ibid. at para. 51.

(92) Ibid. at para. 83.

(93) Ibid.

(94) Ibid.

(95) Ibid. at para. 82.

(96) C.H.R.T., supra note 17 at 3.

(97) B.C.H.R.T., supra note 19 at para. 150.

(98) C.H.R.T., supra note 17 at 4. See also B.C.H.R.T., supra note 19 at para. 6: "The complainants have not met their burden of demonstrating that, read in its context, the article breaches s. 7(1)(b) of the Code. That is because the complainants have not shown that the Article rises to the level of hatred and contempt, as those terms have been defined by the Supreme Court of Canada, to breach s. 7(1)(b) of the Code."

JACOB WEINRIB, B.A. (Hon.) (Toronto), M.A. (Toronto), Third Year J.D./Ph.D. (Philiosophy) Candidate (Toronto).
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