PART 2IntroductionCanada is one of the most democratic nations in the world; the government guarantees certain rights and freedoms. One of the most important rights in Canada is the freedom of expression. Section 2(b) of the charter states that people have the following fundamental freedoms: freedom of belief, thought, opinion and expression including the freedom of the press and all other media communications (Mahoney, 1992). This section also covers wider areas from journalist privilege to hate speech and commercial expression. Freedom of expression is the cornerstone of any democracy whether developing or developed. Freedom of expression brings certain values to a society which include; assuring self-fulfillment, attaining the truth, and striking a balance between stability and change in the society so that participation by members of the public is secured.
The right to express yourself and your opinions is an essential part of democracy; freedom of expression is a core part of the right to dissent and personal development (Mahoney, 1992). Through different opinions and ideas, every person is given an opportunity to make their informed choices and beliefs. Restrictions on freedom of expression come in different ways which may include criminal code and the human rights provisions which limit civil defamation and hate speech. Section 2(b) allows for a wider “expression” on the concept of freedom of expression.
In Canada, however, there are several limitations to the freedom of expression and free press. The press enjoys some constitutional rights through publication, but they do lack protection for all the methods and means they choose to use. The press, for example, does not have protection if they run a pedestrian down when pursuing a story in the guise of freedom of expression. A violent attack on someone is not regarded as freedom of expression. Understanding freedom of expression requires the understating of its place in the constitution and its application in society and its values. The importance of freedom of expression cannot be overlooked as it includes the public’s opinion and sometimes the criticism of political leadership.
The Supreme Court in Canada is considering throwing away the provisions of the Saskatchewan Human rights. These provisions restrict free speech when there is minority interest involved. Legal Issues and Freedom of Expression in Canada In Canada, various laws at the territorial, provincial and federal levels impose certain levels of restriction on the freedom of expression. Freedom of expression is guaranteed in section 2(b) of the Canadian Charter of Rights and Freedoms. The criminal code has many restrictions in offenses such as perjury, counseling suicide, defamatory libel, and fraud.
Judge Antonio Lamer of the Supreme Court has argued that offenses can be divided into several categories; those related to public morals and disorderly conduct, offences that in any way go against the administration of law and justice, wrongdoings against any person and reputation, offenses related to falsehood, and offenses against the public order (Mahoney, 1996). The law that restricts freedom of expression in Canada is called the anti-hate law as it restricts publication of messages that may incite hatred towards members of minority groups. Section 13 of the Canadian Human Rights Act (CHRA) defines a discriminatory practice as when a person expresses hatred towards a person or people because they are associated to a particular racial group. Section 318 and 319 of criminal code prohibits genocide or inciting the public.
The Supreme Court has found that the restrictions on freedom are justifiable in the charter. The limitations are also reasonable in that they allow freedoms and rights in a democratic and free society (Mahoney, 1996). The Supreme Court found that the harm caused by propaganda does not coincide with the freedom of expression and the values of multiculturalism that are found in section 15 and 27 of the charter. In recent years, many individuals and organizations have called for reforms in the Canadian anti-hate laws. Sections 13 of the CHRA have been targeted to be repealed including the private number bill which was introduced in the parliament in 2011. Other people have also called for reforms of the Canada human rights to change the manner in which they handle complaints associated with propaganda. These reforms should ensure that the parliament maintains its jurisdiction and the Canadian Human Rights Tribunal hear cases related to hate and propaganda (Mahoney, 1996).
Freedom of expression in Canada is associated with the constitution and protects the freedom of thought, expression and opinion. The section adds that these rights include freedom of the press and media. The freedoms contained in section 2(b) and other charters do have some limitations though. Freedom of speech is a fundamental right as per section 1(d) of the Canadian Bills of Rights. In Canada, Federal and Provincial laws sometimes restrict freedom of expression whether through indirect consequence or intended purpose. When restrictions are challenged in a court of law, the judge decides whether the laws will be upheld by section 1 of the charter which contains the limitation clause. Justifying limitation for freedom of expression involves a balance in competing values.
For example, television programs and films that deal with adult contents are censored to prevent children from seeing them (Mahoney, 1996). Balance is struck between the filmmaker’s freedom of expression and the desire to protect children from watching adult content. Canadian courts, legal experts, and other interested parties have written a lot about the rationales for freedom of expression and for imposing restrictions on freedom as well. The debate for guaranteeing or restricting freedom of expression is still ongoing; this debate is constantly reviewed when there is new technology that produces new forms of expressions that must be regulated by Canadian laws. In efforts to promote the right to freedom of expression, experts have argued that this right plays an important role as an instrument of democratic government, truth and personal fulfillment.
The Canadian laws limit freedom of expression in some ways and purposes. Canadian Human Right Act (CHRA) and the Criminal code have several prohibitions against publication of any message or information that may cause hatred. Creating child pornography, perjury, and counseling suicide are all forms of expression, however, such acts have been prohibited and are considered to be criminal offenses (Walker, 2013). Election surveys are not allowed to be published on Election Day while the polling stations are open.
This limits the freedom of press expression, but it is intended to prevent the voter from being influenced by the polls. Certain forms of media such as books, films, and magazines are either censored or their distribution is restricted. The federal and provincial laws associated with defamation in Canada are an example of limitation to freedom of speech. These laws are made so that they can protect the reputation of individuals and companies. All the examples that have been given show that freedom of expression is not absolute in Canada. Freedom of expression is sometimes limited so that it can promote certain values that are considered to be of greater importance than the expression itself.
One of the laws that limit freedom of expression is the hate promotion offenses in the Criminal Code. The hate propaganda provision was enacted in 1970 under the Criminal Code. The laws were added by the parliament to handle a series of developments and events in the 1960s when white supremacists and neo-Nazi’s mostly residing in the United States were in Canada. These individuals and groups were anti-black and anti-Semitic. The hate propaganda law was enacted to target such activities. Hate-related provisions and offenses are found in sections 318-320.1 in the criminal code.
Under section 318, a person who promotes or advocates genocide is guilty of an offense which is punishable by up to five years in prison. The term ‘genocide’ means killing of members of a specific or identifiable group. Section 318(4) defines an identifiable group as a group that is distinguished by religion, color, race, ethnic origin or sexual orientation.
Under section 319(1) of the criminal code, anyone who communicates statements in a public place which incites hatred towards a certain group of people is guilty of a criminal offense which can lead up to imprisonment of two years (Walker, 2013). Section 319(1) makes it a criminal offense to communicate statements that will promote hatred towards a certain group of people. The communication must happen in public though. Section 319 defines communicating as including broadcasting, telephone, or other visible means. A public place is defined to mean places that the public has access to whether by invitation, right, implied or express. Statements include words that are written, spoken or recorded. It also includes gestures, signs and other representations that are visible (Walker, 2013). Prosecution under section 319(2) cannot be initiated without the consent of an Attorney General.
A person charged under section 319(2) of the criminal code has four available defenses that are set in section 319(3). The defenses are that the communicated statements are true, that the opinion was expressed in good faith, that the statements were relevant to the subject of the public interest, and last, that the statements were meant to point matters that produce hatred towards a group (Walker, 2013). The special defenses are not available for people who have been charged under sections 319 and 319(1). Sections 320 and 320(1) specify that a judge may issue an order for confiscation of hate propaganda which is in any form, including data that is stored in a computer. Hate propaganda is defined as any sign or writing that is visible and is promoting genocide. The material has to be targeting a specific group of people (Walker, 2013).
The permission of the attorney general is required before provisions of the confiscation of any material can be issued. The Canadian Human Rights Act (CHRA) does not have a charter or code. It states in section 13 that certain conducts are discriminatory and are subject to a complaint to the CHRA. A person who engages in a discriminatory practice is asked to provide a remedy. CHRA was adopted in 1977; it stated that using telephone services to promote hatred in Canada was considered to be a discriminatory act (Walker, 2013). When it was first adopted it was intended to respond to neo-Nazi’s who used to distribute phone numbers on the public streets; the telephone answering services them responded with pre-recorded racist messages. These provisions were used to prevent hate messages in the 1980s and 1990s. As the internet age came, the provisions were used to prevent hate speech by restricting websites and their operators.
CHRA investigates and settles complaints of discrimination in the provisions of the federal jurisdiction. Until the mid-1990s, CHRA was mainly used for the prevention of hate speech but this changed in 1996 when the first complaint against website user was made (Walker, 2013). In 2001 section 13 was amended to clarify that internet hate messages were restricted under the CHRC. This amendment was made as an anti-terrorism package after the attack on the USA by terrorists.
Section 13 was added to include hate messages that were sent through the internet. The Supreme Court clarified that section 13 was not targeting expression that was offensive but targeted extreme forms of information. Section 13 was not enacted to replace the courts or the criminal code but was active as a complimentary. Other provisions prohibit hate speech in other federal statutes.
Section 8 of the Broadcasting Distribution and Regulation prohibits the broadcasting of abusive comments or pictorial representations that may expose a group, class or individual to hate due to ethnic origin, race, age, sexual orientation, religion or physical disability. The same regulations are found in the Broadcasting Act. The Customs Act and Customs Tariff prohibits the importation of propaganda from foreign nations. Legislature in Canada has passed many human rights laws to limit or prohibit discriminatory activities. Except for the Yuko’s Human Rights Act the other passed laws have similar provisions that are similar to section 12 (Walker, 2013). These laws prohibit some public display, publication or broadcasting that has the intention to discriminate or incite. The origin of these laws was a result of some public stores that used to prevent members of some racial groups form purchasing. The Ontario Human Rights note that these laws allow relevant agencies to enforce powers to deal with publications or housing services to those that discriminate people.
Section 13 has been subject to challenges in the Canadian courts in that they infringe on the freedom of expression that is guaranteed in section 2(b) of the constitution. The key Supreme Court decision on the constitutionality of section 13 of the CHRA was Human Rights Commission v. Taylor. The case involved Western Guard Party and John Ross Taylor (Walker, 2013). They were operating hate telephone promotion service. Section 13 was found to be inconsistent with section 2(b), and the case was saved by section 1 under the reasonable limit to any democratic society.
The Supreme Court concluded that the propaganda posed a serious threat to society.Increasing number of people in Canada are calling for amendment of section 13. Others have argued that the principles of section 13 should be followed agreeing that some of its provisions are necessary. The debate involves sensitive matters such as racism and freedom of expression.
Those supporting the repealing of section 13 are academicians and journalists. Even if section 13 were repealed, the criminal code would continue to operate as before. The Attorney General consent would still be needed. Those who advocate for the repealing of section 13 have two arguments; one is that the courts are the one who are supposed to handle hate propaganda and crimes, and judges are more trained in handling such cases. The second argument is that the restrictions on freedom of expression should be removed or minimized (Walker, 2013). They argue that the best response to hate is either by ignoring it or responding with better arguments.
Some people and organizations have come forward and opposed repealing of section 13; they argue that this section is very vital when it comes to the protection of minorities. Section 12 of the Canadian Human Rights Act states that it is prohibited to publish any symbol, notice or other representation that may be discriminatory or incite hate against an identified group of people (Walker, 2013). The discrimination implied must be described in sections 5 to 11 or in section 14. Section 12 does not create new discriminatory practices but adds the prohibition on publishing or displaying information with the aim of inciting or discriminating. This section is in a way similar to section 13 in several sub-sections. Media and law in CanadaThe media is a means by which we receive information; today there is a wide variety of visual and audio information that is conveyed to people. Most democracies have a free exchange of information which is recognized by the constitution.
In 1967, Canadians imported freedom of the press from the British constitution (Bailey, 2005). The Canadian rights and freedoms include freedom of thought, freedom of the press, and freedom of expression and opinion. There is also freedom of the press and all other media communication. While there are freedoms in Canada, some are limited by the constitution (Bailey, 2005). Limits on freedoms come in many forms; some limits apply to the media and journalism. The law of defamation is the general limit of the unfettered speech.
A defamatory message is conveyed regardless of the ultimate truth. Both the fair commentator and the defenses can be defeated if there is evidence that the reporter spoke with malice or ill will according to the laws of Canada. In Canada, there is no qualifying of the privilege in defaming a public figure (Jobb, 2006). People can comment on public figures relying on the defense of their comment. The comment made has to be provable, fairly stated, and also a matter of public interest. Another law that limits freedom of expression from the media is the law of privacy and criminal law, copyright, obscenity, hate, and propaganda. Each of the provisions can deal with publishers and individuals.
The media is also affected by the protection of personal information on the governments hands and the access related to it. When information is given to the media by government officials, its release is regulated. Canada has laws that limit the broadcasting spectrum. Broadcasting is not allowed to broadcast abusive words or pictures that can be associated with a group or a class (Jobb, 2006). Broadcasters are required by the government to adhere to the guidelines related to sex roles, violence, and alcohol advertising.
The CRTC determines who qualifies to be a Canadian broadcaster after once the content criteria is met.