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Free speech a pillar of democracy

Arthur Zeilikman

A Supreme Court of Canada decision that struck down a small part of Saskatchewan's human rights code as an infringement on free speech and religion didn’t go far enough, says Toronto lawyer Arthur Zeilikman.

The court upheld the main anti-hate provisions in the province’s human rights law, ruling that the anti-gay speech found in flyers distributed by a Christian activist is not protected by the Charter, the Toronto Star reports.  Read Toronto Star ... Read Decision 

The ruling removed vague wording that prohibited the distribution of material that “ridicules, belittles or otherwise affronts the dignity” of people on the basis of their sexual orientation, the Star reports.

The high court found two of four flyers handed out by William Whatcott in 2001 and 2002 in Regina and Saskatoon crossed the line into “harmful” discourse, but two did not, the report continues.

“I disagree with the Supreme Court’s decision,” says Zeilikman. “I think that although the court decided to strike down the words ‘ridicules, belittles or otherwise affronts the dignity’ from the provision, it did not go far enough.

“This type of legislation seeks to protect society as a whole from knowing the communicated information that, if construed properly, may hypothetically result in the creation of contemptible and hateful feelings. To my mind, it is a power that is too broad to be given to the state and it stifles debate and free speech. I do not think that Human Rights Tribunals should be in the business of regulating words and ideas.”

Zeilikman says a section of the Criminal Code that also deals with free speech, while not perfect, provides a better guideline for dealing with cases of this nature.

“The law also allows for speech to be regulated under s. 319 of the Criminal Code,” he says. “At least this provision is accompanied by the traditional safeguards rooted in criminal law. For instance, there has to be clear intent on the part of the accused. Further, there is a heavier evidentiary burden before a person is found guilty. Finally, truth is a complete defence.

“The Criminal Code at least helps distinguish a conscious and willful desire to create harm through words from a legitimate conversation even if predicated on false knowledge,” says Zeilikman. “But most importantly, it helps to protect the most fundamental by-product of democracy – the quest for truth.”

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