Liberty, Community, and Censorship: Hate Speech and Freedom of Expression in Canada and the United States
Newman, Stephen L., American Review of Canadian Studies
Congress shall make no law... abridging the freedom of expression.
First Amendment to the United States Constitution
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression...
s. 2(b) of the Canadian Charter of Rights and Freedoms
Canada and the United States are not alike in every way, nor have the documents entrenching rights in our two countries arisen in the same context. It is only common sense to recognize that, just as similarities will justify borrowing from the American experience, differences may require that Canada's constitutional vision depart from that endorsed in the United States.
C.J. Dickson in R. v. Keegstra
Both the First Amendment to the United States Constitution and s. 2(b) the of the Canadian Charter of Rights and Freedoms protect the freedom of expression. (1) Yet in both countries governments motivated by concern for the public welfare have attempted to suppress "hate speech," a category of expression commonly defined as consisting of offensive, abusive, and insulting language that targets individuals and groups on the basis of race, ethnicity, religion, or gender. Hate speech is undeniably ugly, so much so that even persons normally leery of censorship might be tempted to agree that nothing of value is lost by its suppress ion. But constitutional guarantees cannot be evaded so easily. Hate speech is still speech, and thus would seem to fall under the protection of the First Amendment and s. 2(b) of the Charter. From the legal standpoint, the question is not whether laws for the suppression of hate speech are desirable as a matter of public policy; the question is, are they constitutional?
In roughly parallel cases decided within two years of one another, the Supreme Court of the United States and the Supreme Court of Canada gave diametrically opposed answers to this question. In the American case, R.A.V. v. St. Paul (1992), the U.S. Supreme Court disallowed a municipal ordinance making it a crime to display symbols, including but not limited to a burning cross or Nazi swastika, that are known to arouse "anger, alarm or resentment" on the basis of race, color, creed, religion, or gender. (2) In the Canadian case, R. v. Keegstra (1990), the Supreme Court of Canada upheld the constitutionality of as. 319(2) of the federal Criminal Code penalizing the willful promotion of hatred against an "identifiable group," namely "any section of the public distinguished by colour, race, religion or ethnic origin." (3) And therein lies a puzzle. Why did the American and Canadian high courts disagree over the constitutional status of hate speech?
Chief Justice Dickson, who wrote the majority opinion in Keegstra, attributed the divergence of Canadian and American law on this point to differing "constitutional visions." Presumably what he had in mind was a philosophical difference affecting how rights are understood by the courts and also the balance that legislatures and courts must strike between individual rights and other societal interests. In point of fact, however, Keegstra was decided by the narrowest of margins--the vote was four to three (4)--and the dissenting opinion by Justice McLachlin relied heavily on American precedent. I read Dickson's majority opinion as a conscious attempt to carve out a distinctive Canadian approach to free speech. Only time will tell whether the Keegstra decision proves to be foundational in this sense. The portents are uncertain. The same court's subsequent decision in R. v. Zundel (1992), which invalidated another anti-hate speech provision of the Criminal Code, was authored by Justice McLachlin and suggests at t he very least that the court's appetite for suppressing hate speech is limited. (5) Nonetheless, Dickson's allusion to differing constitutional visions should be taken seriously, and the majority opinion in Keegstra does rest on a different philosophy than the R. …