The Hon. Mr. Justice John Sopinka, Justice of The Supreme Court of Canada
FREEDOM OF SPEECH UNDER ATTACK
Introduction: John F. Bankes
President, The Empire Club of Canada
"I used to be a lawyer," Woodrow Wilson once said, "but now I am a reformed character."
I, too, used to be a lawyer. In preparing these introductory remarks for today's Empire Club speaker, Mr. Justice Sopinka, I had to dig into my memory bank for personal archival material from my previous incarnation as a lawyer. (In this regard, I found a speech by President Neil Rudenstine of Harvard delivered at the launch of a law school fundraising campaign to be particularly helpful.)
Law is rooted in the most fundamental of all human inclinations: the desire to discover and to bring reasonable and fair order into our lives and our behaviour.
Law also incorporates all those complicated impulses that make us want to judge and measure things accurately, while simultaneously wanting to make due allowance for extenuating circumstances, for honest doubt and for the simple desire to pardon and forgive as well as to fix blame or to seek retribution. In these and other ways, the law requires not only knowledge and the capacity to reason or argue rigorously; it demands those other capacities not so easily categorized--insight, intuition, imagination, wisdom and courage.
In short, the law is intensely human, touching on everything that is essential to our lives.
While delving into my memory bank to prepare these brief remarks, I experienced some flashbacks to my own very first brushes with the law, almost 40 years ago--although, I would not at the time have used the term "law" to describe these experiences. They happened in the context of family life.
My parents were very successful amateur lawyers, judges and legislators. But they had, I fear, only the most unorthodox and woefully elementary appreciation of the concept of "due process"--particularly when faced with the infrequent examples of my misbehaving.
I'm also quite certain that they had not read Blackstone or Montesquieu, and surely not James Madison, because they paid absolutely no attention to the idea of the separation of powers! More than once, I was outraged to see that they had appropriated to themselves all executive power, all capacity to legislate instantaneously and they even vetoed their own laws, when it was convenient.
My parents would insist this legal system was for my own good. Invoking Otto von Bismarck's maxim, they pointed out: "Laws are like sausages. It's better not to see them being made!"
My parents had no interest--as far as I could see--in the notion of one person-one vote. And there was, as far as I could ever discover in the entire house, no written constitution. Not even a single scrap of paper with anything written on anywhere having to do with the law. In other words, my mother and father exercised the purest form of in loco parentis.
Yet, their system of justice had most of the properties of any good legal system: rules (more or less), a concept of promises and contractual arrangements and (on occasion) fair play. And lots of ingenious discovery procedures! Unquestioned authority. Judgments rendered. And even occasional punishments. And it operated mainly on the basis of intuition, accumulated worldly experience and human understanding--guided by the greatest possible concern for the welfare and fate of those unwitting creatures like myself who were somehow caught up in the whole system.
Today's address by Mr. Justice Sopinka is on the subject of free speech--another of those basic legal precepts which was, from time-to-time suppressed by my parents.
Over the past few years, the world has witnessed several sea changes. Perhaps none is more dramatic than the sight of a Russian citizen, in the age of Glasnost, being interviewed on the streets of Moscow and criticizing his government.
The Iron Curtain has been replaced by an open picture window. But, the window is also a mirror that allows us to examine the state of freedom of speech in our own society.
Some difficult questions on this subject need answers. Beyond the superficial level, is freedom of speech in Canada flourishing or is it under a threatening cloud? What impact is "libel chill" and the test of "political correctness" having on the ability of concerned citizens to express themselves freely?
One of the strengths of democracy has always been the fact that ideas must stand the test of the marketplace. But, as Thomas Mann observed: "It is impossible for ideas to compete in the marketplace if no forum for their presentation is available."
Mr. Justice Sopinka has dealt with the issue of freedom of speech from both sides of the bench--as a practising lawyer for 28 years, lecturer at Osgoode Hall and University of Toronto Law Schools, author of several legal articles and texts, director of the Advocates' Society, and a former Bencher of The Law Society of Upper Canada.
Since being appointed to the Supreme Court of Canada in May of 1988, Mr. Justice Sopinka has had the opportunity to help blaze a trail in the new frontier of justice opened by the Charter of Rights and Freedoms in Canada. (As an aside, tomorrow represents the 10th anniversary of the Charter's enactment and the patriation of the Canadian Constitution.)
Members and guests of The Empire Club of Canada, please join me in welcoming Mr. Justice John Sopinka.
One of the most difficult areas of the law with which the Supreme Court has had to deal is free speech. While one of the most cherished of freedoms, yet it is and has been over the centuries constantly under attack. The reason for this contradiction is that freedom for one group often poses a threat to others.
As observed by Professor Isaiah Berlin: "In a lake stocked with minnows and minnow-eating pike, freedom for the pike means death to the minnow."
Freedom of speech is not absolute. In some circumstances the exercise of this freedom poses a threat to others that is so great that it must be curbed. To illustrate, let me cite the time-worn example of falsely crying "fire" in a crowded theatre. The freedom to do so must be curbed in order to protect the safety of others. In deciding what should be the limits on free speech, we must balance the values inherent in the freedom against the rights of others who may be affected by its exercise.
I propose to examine a number of situations in which freedom of speech is under attack in an attempt to explore the current status of the right and whether it is in any danger.
Prior to examining the attacks on free speech, it is helpful to discuss just what is free speech and what are the means available for its protection.
Before the Canadian Charter of Rights and Freedoms came into effect, free speech depended for its protection on the force of public opinion and the pressure that it exerted on the legislature and other public bodies. In the period preceding the Bill of Rights, the Court recognized the importance of the right by developing what some commentators have referred to as a kind of surreptitious Bill of Rights to protect free speech.
Some provincial legislation which the Court viewed as a serious infringement of free speech was struck down under the guise of the ultra vires doctrine. It was odd, then, that when the Bill of Rights in 1960 empowered the Court to legitimately recognize free speech, the Court did so little with it. The Charter entrenched the right to freedom of expression in s. 2(b) which provides:
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;...
As with other rights, an infringement of this right could be justified under s. 1 if it were established by the party seeking to maintain the restriction that it was demonstrably justified
in a free and democratic society. This provided a specific procedure to enlist the aid of the courts when freedom of speech was under attack by any government action. This avenue of redress continues to be unavailable in the absence of government involvement and, with respect to attacks on freedom of speech that proceed from other sources, reliance must be placed on the force of public opinion.
Early in the life of the Charter, attempts were made to limit the ambit of s. 2(b) by arguing that certain types of expression were unworthy of protection. I made such an argument in 538745 Ontario Inc. v. Windsor (City). The City of Windsor passed a bylaw limiting the location of adult entertainment parlours. I submitted that the expression which was affected by the bylaw was obscene and therefore unworthy of protection. The bylaw was upheld.
The Supreme Court refused to give effect to this approach. It preferred to give s. 2(b) the widest scope, leaving it to s. 1 to justify restrictions on the grounds that the form of expression is unworthy of protection. Free speech was defined to include any activity that conveys or attempts to convey a meaning. Any expressive communication is covered, no matter how unpopular, distasteful or contrary to the mainstream. Only violent forms of expression are excluded. Even threats of violence which were said to be excluded in Dolphin Delivery were held to be included by the majority in R. v. Keegstrn.
Although not excluded from s. 2(b), some forms of expression are less worthy of protection. The core values that the section seeks to protect are: (1) the search for truth; (2) participation in the political process, and (3) individual self-fulfilment. The closer to core values the more difficult it is to justify the invasion of communication. Political free speech lies at the very heart of the values protected by s. 2(b) because of its importance to our democratic form of government.
We see this principle at work in Osborne v. Canada (Treasury Board), in which we struck down provisions in the
Public Service Employment Act because they prohibited all partisan-related political activity by all public servants.
On the other hand, in the recent case of R. v. Butler, we dealt with pornography. The operator of a hard-porn video boutique was charged under s. 163 of the Criminal Code with possessing and selling obscene material. The majority of the Court of Appeal took the view that the portrayal of explicit sex scenes by means of hard-porn videos was not expression at all and, if it was, it was not the kind of expression that the Charter was designed to protect.
We reversed the Court of Appeal and held that while this is a form of expression, it did not stand on an equal footing with other kinds of expression which directly promote the core values of freedom of expression.
What then are the attacks on free speech? An attack on free speech does not include disagreement, even violent disagreement, with what is expressed. An attack is any conduct by words or action which seeks to suppress expression or to punish a person for such expression. The attacks on free speech which I propose to discuss are as follows:
1.By penal sanctions
By Penal Sanctions
2.By civil sanctions
3.By demands for political correctness
4.By self imposed restraints
The source of this attack on free speech is from the state itself. While the more nefarious forms of speech regulation, such as silencing opponents of the government, are not prevalent today, the state still seeks to limit expression in some areas. Although free speech is a protected right, there are societal concerns that can in certain narrow and well-defined areas override this freedom.
In at least three major cases decided by the Supreme Court, free speech has had to yield to other compelling societal concerns. In the Prostitution Reference Case, the right to communicate for the purpose of prostitution was limited as a result of the public nuisance and other societal harms caused by public solicitation of sexual services.
In the Keegstra case, involving the dissemination of various anti-semitic messages, the freedom to express thoughts not widely held by others was limited by a concern that certain forms of hate literature would cause harm in the community. The concern of the state to reduce the harm suffered by target groups and the reduction of racial, ethnic and religious tension, and perhaps violence, was found to be a reasonable limit on the right of Mr. Keegstra to express his view of the world.
Finally, in the recent pornography decision, the threat of harm to women and children occasioned by some forms of pornography was found to be sufficient to restrict freedom of expression in certain instances.
Unquestionably, the threat of criminal prosecution is an attack on freedom of speech. As a result of decisions like Keegstra in particular, members of society are restricted to some extent in what they can and cannot say. The Court has attempted, however, to draw exceptions to the exercise of this freedom narrowly and demands that any restriction impair the freedom as little as possible.
The United States has a similar requirement that the state show a "compelling state interest" in order to justify infringement on speech. The fact that in both the Prostitution Reference Case and Keegstra the judges divided on the question of justification underscores the importance of free speech and may indicate that the matters are not settled.
By Civil Sanctions
As well as criminal prosecution, there is also the threat of civil proceedings. The attack on freedom of speech in this area most commonly takes the form of an action for libel or slander. According to the popular press, the threat of libel actions has had a chilling effect in some areas of public interest. In the last few years there have been numerous reports that publishers have refused to publish books and/or articles as a result of threats or libel proceedings.
This is particularly true if the potential plaintiff has deep pockets. While the defence of truth, privilege or fair comment is available in libel actions, many a publisher has discovered that such a defence can be costly.
Of course, the same concerns are present when an individual seeks redress from a well-funded media concern. While the United States' position is that libel laws, in general, are excluded from First Amendment protection, the U.S. has made it much easier for the media to defend against a libel action initiated by a public figure.
In New York Times Co. v. Sullivan, the United States Supreme Court held that where the speech is directed against a public official, it is protected by the First Amendment and may not be actionable under libel laws unless the speech was uttered with knowledge that it was false or with reckless disregard of whether it was true or false.
This amounts to a requirement that the public figure prove "actual malice." The plaintiff loses even if it is established that the defendant published a false story that injured the plaintiff's reputation. Thus a defence extending far beyond proof of truth is available in the U.S. This position is not without its difficulties. In allowing the freedom to criticize without knowledge of the truth of the underlying facts, the courts discourage people from entering public life where criticism based on falsehoods is not actionable.
Moreover, the U.S. position removes the one vehicle which a defamed person has to vindicate his or her character. Contrary to popular belief, most defamation actions are brought not for money but to clear the name of the person defamed. In the U.S., plaintiffs frequently lose who have established the falsity of the allegation. This fact is lost on the public who view the result as vindication of the defendant.
The purpose of libel laws is to protect the reputations of individuals and other concerns from falsehoods and malicious comment. Such laws must attempt to strike a balance between the protection of reputation and the protection of free speech.
It remains to be seen to what extent, if at all, the Charter will affect the law of libel. Libel laws are admittedly a restriction on free speech but it is a restriction with a history as long as the protection of free speech itself. The law simply extends a duty of care to those who choose to engage in expression which risks damage to the reputation of others.
The present law requires authors to ensure that the factual basis of their articles are true and that any comments they make fall within the ambit of "fair comment."
The defence of fair comment is a mechanism by which freedom of speech is protected and has been zealously guarded by the courts. As long as the facts are accurately stated, the scope of comment is very wide. As has been recognized in the protection of all rights, the use of a right or freedom by one person must yield if that use causes injury to another.
Those who complain of "libel chill" have argued that Canada's libel laws do more than just protect reputation but also inhibit debate on important issues. While it is true that debate on public issues should be robust, it must also be inhibited if the foundation of the debate is falsehoods or malicious comment which cause harm to members of society.
In the absence of this restraint, the media would simply be allowed to publish as they please. To the extent that the threat of libel has an undue chilling effect on free speech, it is due to the costs of an action and the size of the awards. Consideration should, perhaps, be given to these aspects of the libel laws before addressing the more difficult and serious question of increasing the burden of the plaintiff.
By Demands for Political Correctness
Threats to free speech are not confined to the legal system. In the last decade there has developed a phenomenon known as the demand for political correctness. Certain segments of society who are justifiably seeking equality for their particular interests have extended their demands so far that they threaten the freedom of others.
They not only criticize the expression of views that do not accord with their own but demand that contrary views be suppressed. Professor Alan M. Dershowitz, a Harvard law professor and civil rights activist writing in the Harvard Record, describes the effect which this movement has had on university life.
He refers to the demand for speech codes which would be enforced against politically incorrect ideas including criticism of affirmative action programs, opposition to rape-shield laws, advocacy of the criminalization of homosexuality and defence of pornography. And what is the effect of all this? He states:
As a teacher, I can feel a palpable reluctance on the part of many students--particularly those with views in neither extreme and those who are anxious for peer acceptance--to experiment with unorthodox ideas, to make playful comments on serious subjects, to challenge politically correct views and to disagree with minority, feminist or gay perspectives.
Professor Michael Bliss of the University of Toronto has had a similar reaction to this trend of self-censorship on the part of students:
You see, especially in undergraduate papers, the new idea that nothing offensive should be said or done. But universities are places where people will be offended and should be offended. It's very, very wrong when we won't publish anything that may be construed as offensive. Free speech is offensive.
Many of us who may support, in general, the objectives of the groups that comprise this movement cannot but be concerned about the intolerance for free speech which some of its members advocate.
Recently an article appeared in the University of Toronto newspaper, The Varsity, which was written by Glenn Sumi, himself a member of a visible minority. He decried the ban of a painting showing a black woman with a basket of bananas on her head by an art exhibitor. He concluded as follows:
Whether Robichaud's painting is racist or sexist is immaterial. What is important is that, under the stiff banner of political correctness and responsibility, the Women's Centre of Concordia has hidden from public view something with which they disagree. The issue is not art, good or bad, pleasant or offensive; the issue is censorship.
A further example arose out of the recent experience of an Alberta chemistry professor who wrote an article which appeared in the Canadian Journal of Physics. It suggested that working women were responsible for many family and social problems. This brought forth a campaign to enlist the aid of the National Research Council to recall the issue and reprint it without the offending article. This reminds one of attempts of the past to rewrite history to accord with the thinking of the day.
This movement has had its effect on the judiciary. It has not been all negative. Judges in the past have, on occasion, been insensitive to the legitimate concerns of minority or disadvantaged groups.
However, there is a cause for legitimate concern that overzealous dissection of every word that drops from the bench, with a view to finding some indicia of political incorrectness which may be the basis for a complaint to the Judicial Council, may result in decisions that are politically correct but not legally and factually correct.
A judge who is looking over his or her shoulder may decide a case in a way that will avoid the Judicial Council rather than accord with the material presented.
What may be thought to be correct today may very well be held to be incorrect tomorrow. John Stuart Mill said it this way back in 1859:
Ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.
Society should not seek to censor the speech of someone because it happens to be wrong or absurd in light of the conventional wisdom of today. It may become the conventional wisdom of tomorrow.
By Self-Imposed Restraints
The final attack on free speech comes not from the state nor from special interest groups but from self-imposed restraint by the judiciary. I refer to the restrictions which judges have imposed on themselves with respect to their public utterances.
Although there is no formal requirement that judges refrain from speaking in public, many judges feel severely constrained from doing so. Clearly there have been judges in the past who have felt that total abstention from speaking out is required. In a September, 1982, address to the CBA Annual Meeting in Toronto, Chief Justice Laskin said in part:
Surely there must be one stance, and that is absolute abstention, except possibly where the role of a court is itself brought into question. Otherwise, a judge who feels so strongly on political issues that he must speak out is best advised to resign from the bench. He cannot be allowed to speak from the shelter of a "judgeship."
Justice McIntyre similarly stated on the occasion of his retirement that: "...judges should speak on a subject but once, and then only in his [or her] reasons for judgment."
In a debate on this subject at the Cambridge Conference, Lord Ackner of the House of Lords defended what were known as the Kilmuir Rules. These rules forbade a judge to be interviewed by the media without the permission of the Lord Chancellor. The present Lord Chancellor revoked them. Recently, in Toronto, he stated: "Why should I make these decisions for them?"
In defending the rules, Lord Ackner said that the rationale for them was to prevent judges from making fools of themselves. My answer to that is this: If they can't speak in public without making fools of themselves, then why allow them to do it in their reasons for judgment.
My views on this topic are well known and are contained in a paper entitled Must a Judge be a Monk. After examining the formal restraints, I concluded that a judge should refrain from commenting on: (1) cases that are likely to come before the court and (2) issues of current political debate.
This leaves a wide range of issues upon which a judge can comment. In my view, there are even areas where a judge should comment, notably demystifying the workings of the judicial system for the benefit of the public. Topics that fall into the latter category include how a judge does his or her job, how the court functions, the work load, etc.
I also draw a distinction between cases pending before the court and those that have already been decided. In regard to cases already decided, I see no reason why a judge should not be able to discuss the current state of the law and how the law can be improved. The extent to which a judge can comment is subject to avoiding prejudgment of an issue that may come before the court.
In the area of "political debate," I am also unconvinced that all political topics are taboo. Surely a judge should be able to comment on matters relating to the administration of justice and any reforms to that system. As key players in the justice system their views should not be absent in fear of somehow entering the political fray on issues such as court reform.
I am the first to admit that many of the reasons for the restrictions on the freedom of judges to speak out are based on solid ground. My concern is that protection of the purposes of judicial silence does not support complete silence. The common law has long recognized the appearance of bias as a reason to remove a judge from a particular case.
Thus, if a judge insists on speaking out on cases likely to come before the court, that judge must be removed from these cases if they come before him or her in order to preserve the appearance of justice. As well, it is important that it not appear to the public that a judge, or the judiciary in general, has decided an issue before it is argued.
While I support this rationale for some restrictions on speech, the public must also realize that judges do have views on issues and must have the confidence that the judiciary is capable of setting aside personal political views when such views threaten to interfere with their impartiality in deciding particular cases.
Certainly upon resignation or retirement, judges should have the freedom to speak on any issue within the ambit of protected expression. It is difficult enough to give up temporarily, freedoms held by society at large, and it would be very difficult to recruit quality people for the judiciary if a judge permanently lost his or her right to freedom of speech upon appointment. Sometimes I wonder whether such strictures are more an excuse to protect the tranquillity of judges than because of some lofty goal of cerebral impartiality.
In these times, judges make decisions that affect the daily lives of thousands of citizens. They strike down laws passed by elected representatives. They can make decisions that have the power of life or death. There is a demand that the public know more about the people who have this power.
This demand is most often expressed in connection with the process for the appointment of judges. With the example of the confirmation hearings in the U.S. ever present, this procedure is invoked by some as the panacea for demystification of the judiciary.
Recent events have dampened the enthusiasm even of its U.S. supporters. The pros and cons of confirmation hearings are fit for discussion on another occasion. Nevertheless, the demands for more public knowledge about judges and their work is legitimate. Judges should be encouraged to respond to this demand. The extent to which a judge does so must be left to the individual judgment of the judge. Surely a judge entrusted with the extraordinary powers which I have mentioned should be permitted to decide what the limits are of his or her public participation.
The Charter has provided us with the means to ward off unwarranted attacks on free speech by the state. It may also fine-tune the libel laws if it appears that they are too restrictive. With respect to demands for political correctness, we must still rely on the common sense of public opinion to stand up for the rights to say things no matter how unpalatable they may seem.
It is, therefore, important for all of us to defend this right, no matter that we sympathize with the ultimate goals and objectives sought to be attained by those who advocate the contrary. Because we cannot turn to the courts for redress in this regard, the greatest threat to free speech does not come from actions of the state but from ourselves.
The appreciation of the meeting was expressed by John Campion, Partner, Fasken, Campbell, Godfrey, and a Director of The Empire Club of Canada.