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Erosion of Freedom of Speech -- Inquiry by Senator Doug Finley

Like other senators who have spoken before me on this matter, I am alarmed by the erosion of this most essential right, alarmed because freedom of speech is part of our Canadian identity. If we lose that freedom, we lose part of our Canadian-ness. Freedom of expression in all its forms, including freedom of speech, the press, the arts and religious and cultural expression, has always been one of Canada's most famous national qualities. In our increasingly multicultural pluralistic society, it ensures that everyone in Canada can find their voice and have their say.

Freedom of speech is the great equalizer for Canadians who seek to address their claims by appealing to our national conscience. In Canada, one does not need to have power or money to make a case, merely a passion to express an idea.

Freedom of speech is one of the most attractive qualities we offer to new immigrants, many of whom come from countries where political or even religious dissent is a crime, but free speech is not only part of our Canada today. It is also a great Canadian tradition. In his opening remarks on this subject, Senator Finley mentioned in passing the case of Joseph Howe. I will expand on that case because it sets an important precedent for the freedoms we enjoy to this day.

In 1835, nearly 200 years ago and a generation before Canada was born as our own country, Joseph Howe was put on trial for seditious libel because the newspapers he published had embarrassed local Halifax politicians by exposing their corruption. Mr. Howe knew that his own freedom was at stake. If he lost, he could have been imprisoned, but he knew that much more was on trial that day. The right to scrutinize and criticize their government was in question. Some would call that right the right to offend.

Here is what he said to the jury about what would happen politically if he were convicted:

Were you to condemn me, these men would say there is no truth in these charges, there is nothing wrong, and matters would continue in the old beaten track. If you acquit me, as I trust you will, they must form themselves into a court of inquiry for self-reformation; they must drive out from among them those men who bring disgrace on their ranks, and mischief on the community in which they reside.

Mr. Howe's case would set a precedent for Nova Scotia and the rest of Canada for centuries to come. Had the jury chosen to side with the Halifax elites, the politicians and other polite company who had been offended and embarrassed by him, corruption would have flourished and democratic criticism would have withered.

Howe's passionate defence of freedom worked. The jury defied the judge's instructions and acquitted him. That great triumph set Howe on course to one day become Nova Scotia's premier.

Let me quote one more passage from Howe's speech. Remember, his trial was not long after the American Revolution and the War of 1812. Canadians and Americans had taken two separate paths and were still wary of each other.

Howe clearly rejected the American way. He regarded their revolution as an act of rebellion and disloyalty. He was a fiercely proud Nova Scotian, but here is what he said:

Let not the sons of the Rebels look across the border to the sons of Loyalists, and reproach them that their press is not free.

Howe was not trying to impress the Americans, and he certainly did not believe that freedom of speech was only for Americans — in fact, the opposite. In his defence, he constantly referred to Canadian and British traditions of liberty. To Howe, all modern free peoples enjoyed freedom of speech. Far from being merely an American concept, Howe regarded it as quintessentially Canadian.

Joseph Howe set a great precedent, that the nature of freedom of speech is that it constantly must be supported for there are would-be censors in every generation.

In 1935, exactly a century after Howe's acquittal, across the country in Alberta, William Aberhart became premier. Like the political elites of Howe's Halifax, he found Alberta's newspapers to be troublesome and offensive.

Aberhart's election came in the face of nearly universal opposition by the newspapers of the day. By 1937, he was so frustrated that he introduced the Accurate News and Information Act, which required every newspaper in the province to run a rebuttal, correction or amplification when ordered to do so by the government.

Alberta's lieutenant governor refused to proclaim the law until the Supreme Court could assess its constitutionality. He was punished by being stripped of his official residence, car and staff.

Even without the law, Aberhart prosecuted his war against the press. The Alberta legislature ordered that a reporter for the Edmonton Journal, Don Brown, be jailed for misquoting a government backbencher. Luckily, national ridicule caused the government to back down before they could arrest him.

In the spring of 1938, the Supreme Court ruled that Alberta's press act was illegal and that it violated Canada's unwritten bill of rights, the same code of freedom that had protected Joseph Howe. For its efforts in fighting against Aberhart's censorship, the Edmonton Journal was awarded a special Pulitzer Prize, the first time the citation was awarded outside the United States. It was a great Canadian moment.

There are many other of these moments in our history, some much more recently. It was not until 1955 that the University of Toronto shut down its art room where, until then, students had to prove they were free of mental problems before reading controversial books like Ulysses. The books were later moved to open shelves.

In the 1980s, in the case of Vancouver's Little Sisters bookstore, Canada Customs followed Memorandum D-911, which arbitrarily declared any description of gay sexuality to be obscene, a vague rule that was eventually thrown out by the Supreme Court.

Little Sisters continued its fight against Customs and Canada Post well into the 1990s; and until Prime Minister Mulroney overturned the order 48 hours later, Customs police briefly made Canada the only Western democracy to seize copies of Salman Rushdie's Satanic Verses after Iran's fatwa.

We are in the 21st century now and one would think that censorship would be obsolete, universally considered a relic of less enlightened times. However, nowadays it is not prudish Customs officers or thin-skinned politicians who are the main threat, it is Canada's human rights commissions — for which I disagree with my honourable colleague — that would have struck George Orwell as being perfectly named.

These commissions were started with the best of intentions, to help the poor and the weak from being bullied out of a job or an apartment. They have become censors, policing not death threats or incitement to violence or any other real crime, but rather the fake crime of hurt feelings. They have become what author Kathy Shaidle calls a "tyranny of nice."

Section 13 of our Canadian Human Rights Act makes it against the law to invoke feelings of hatred or contempt, but hate is a normal human feeling. What is not normal is to make these feelings against the law.

Of course we do not want people to turn their hard feelings into crimes. That is why we have the Criminal Code; but to have a government agency monitoring the Internet, searching for certain political views to prosecute, is anathema to a liberal democracy.

Senator Fraser already addressed the question of Mark Steyn. Maclean's magazine was put on trial for a week for publishing excerpts from his best-selling book on Islam. That is very stressful and expensive, and as Senator Fraser pointed out, it was overturned.

The Western Standard publisher, Ezra Levant, was prosecuted for 900 days — that is over three years — for publishing pictures of the controversial Danish cartoons of Mohammed.

Those are two famous cases, but many other people have been investigated by the government merely for having a certain point of view. Honourable senators, I refer you to Pastor Stephen Boissoin, who was given a lifetime speech ban by the Alberta Human Rights Commission; Father Alphonse de Valk of Toronto's Catholic Insight magazine; the Christian Heritage Party; and Bill Whatcott of Saskatchewan. Each man was prosecuted for expressing his religious beliefs — not for doing anything harmful, just for saying something that someone else found offensive.

Why do we have to buy the magazines? If we do not like them, do not buy them. If you do not like what is being said on television, turn off the television set. If you do not like an entertainer, walk out.

All these human rights issues show a systemic bias in our human rights commissions, and that is exactly the problem with vague political censorship. It is not about the law; it is about political favourites. It is about the way the wind is blowing.

There is a common thread to each one of these free speech battles. In each case, the targets of censorship were declared offensive or troublesome; but in each case, the success of these troublesome critics helped make Canada more inclusive and democratic.

Canada is the most peaceful and tolerant country in the world precisely because we allow people to disagree with each other passionately and even offensively. That clash of ideas is often noisy and occasionally upsetting, but through these vigorous discussions we have been able to navigate our way through hundreds of years of challenges and our national purpose has never been stronger.

Honourable senators, freedom of speech is not an abstract Canadian ideal; it is an active, living part of being Canadian. It is an integral part of the Canadian identity. Our citizens use it every day, more often than any other freedom.

To study our history is to see each generation of Canadians stand up for that freedom when it is challenged, as it has been several times recently with Mark Steyn, Ezra Levant and yes, Ann Coulter. These are small episodes but they all add up; and to learn from our history is to know that we must protect that great inheritance today and whenever in the future it may be challenged again.