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Bruce Pardy: C-9 is an affront to free speech, but the government took it away long ago

'Guaranteed rights' are doublespeak of the modern managerial state

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The federal government’s most recent assault on free speech — Bill C-9, the combating hate act — has been held up in committee as Liberals and Conservatives squabble over proposed amendments. If passed, Bill C-9 could be used, among other things, to prohibit peaceful protests that the government dislikes. But C-9 is not the cause of the long erosion of free speech in Canada. The Charter of Rights and Freedoms says we have free speech. Cereal boxes and tax returns show we don’t.

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Free speech is a “fundamental freedom” listed in Section 2 of the Charter. The Charter, of course, is part of the Constitution, the supreme law of the land. Free speech is a right we hold against governments. When governments do nothing, we have free speech. Governments protect free speech by getting out of the way.

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Yet in Canada, governments do the opposite. They have created a vast array of speech restrictions and compulsions. You can’t sell prepackaged food without French on the label. You must tell the government how much money you make. In some cities, you can’t protest within 50 metres of churches, daycares and schools.

You may not discriminate in your public statements. Comedians may not tell jokes intended to offend someone’s dignity on a protected ground. In some courts you must speak the pronouns that others require. Regulators discipline doctors for expressing medical opinions at odds with government policies, and nurses for stating facts that conflict with regulator ideology.

School boards require parent councils to recite land acknowledgements. Municipalities and local governments create codes of conduct that regulate the expression of their citizens. The Canadian Radio-television and Telecommunications Commission now has the power to regulate online streaming services.

And that is just the tip of the iceberg. In Canada, federal, provincial and municipal governments and the institutions that they spawn are obsessed with supervising speech. To many Canadians, some speech rules may seem trivial. Surely French on cereal boxes and mandatory tax returns are reasonable requirements for the public good?

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Almost a decade ago, at a Senate committee hearing, a senator questioned why I opposed requiring Canadians to use the preferred pronouns of transgender people. After all, he said, using someone’s preferred pronoun is reasonable. When governments dictate reasonable speech, I responded, speech is not free. Legislation that requires reasonable speech is totalitarian, since the government is choosing the words that come out of your mouth.

Everyone knows that free speech is not absolute and that some speech is not protected. Threatening violence, for instance, should rightfully be prohibited, since it infringes on the liberty of others. But courts draw the line between speech that is protected and speech that can be outlawed or compelled, and in Canada they do so for the wrong reasons.

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Speech should be protected, the Supreme Court of Canada has said, when the speech serves an important social function. Some speech, for instance, serves democracy or helps discover truth in a “marketplace of ideas.” Free speech should be preserved in such circumstances. Freedom of expression, in other words, is justified when it is beneficial to society. Which makes free speech subordinate to social benefit. Which means it is not really an individual right at all.

If free speech is an individual right, reasonableness is irrelevant. Public good is irrelevant. If you are free, you can express yourself even if it does not serve democracy or help to discover truth. You can speak your thoughts, whatever they are, for the sole reason that your thoughts are yours. You can keep your personal information from the government, even if it frustrates the collection of taxes. You can tell jokes about anything to anyone. You can put labels on your products in any language you please. You can hate other people, and you can say that you do.

Some may object to Bill C-9 because it goes too far. But “too far” is not much of a defence of free speech. If the Charter was honest, it would read: “Everyone has the fundamental freedoms that courts decide, from time to time, that they should have.” Which is essentially what Section 1 of the Charter, the clause stating there are “reasonable limits” to the rights in the document, has come to mean anyway. You may have rights, but they are subject to management, adjustment, reasonableness and public good. “Guaranteed rights” are doublespeak of the modern managerial state.

Bruce Pardy is executive director of Rights Probe and professor of law at Queen’s University.

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