"Canadians Don't Have Free Speech"
The degree to which countries have free speech is being actively measured in political media right now. JD Vance gave a talk at the Munich Security Conference criticizing European countries for having poor freedom of speech (amongst other things). The extent to which free speech is treated as absolute is being used by the US to justify unilateral action.
As Canadians, we must each arm ourselves with an intelligent response to "Canadians Don't Have Free Speech" challenges coming from Americans.
Some people believe a country without free speech is undemocratic, doesn't deserve to be in a military alliance, or otherwise needs to be overthrown or annexed. It is patriotic to have a measured understanding of your rights and to speak clear truth to this veiled aggression.
So, how does our freedom of speech stack up to the US, and to Europe?
This post digs into a few key points about the limitations of Canadian speech, giving you the facts to draw your own conclusions, and to be able to respond intelligently to this inflammatory comment.
Legal Disclaimer
I am not a lawyer, and will never be one. But that's also a silver lining: I am a layman giving a layperson's perspective on our rights. So when you are challenged by someone who says "Canadians don't have free speech", you can respond like an intelligent layperson.
Freedom of Expression
Firstly, Canadians have Freedom of Expression. Expression is a superset of speech, covering speech but also all forms of communication, including non-verbal. All speech is a form of expression, but not all expression is speech.
Canada has exceptions to the freedom of expression covered under speech. It is not absolute. It can be limited by law if the limits are:
- Prescribed by law
- Justified in a free and democratic society
These Canadian constitutional limits mean that while freedom of expression is a fundamental right, the government can impose restrictions more easily than in the United States, where Supreme Court rulings set limits on free speech.
Wilful Promotion of Hatred
One of the most cited limitations on free speech in Canada is our hate speech laws, particularly Section 319 (2) of the Criminal Code -- Wilful Promotion of Hatred.
Our wilful promotion of hatred statutes have been in place since 1970, but hate speech restrictions date back further, with recommendations from the 1965 Cohen Committee shaping modern legislation.
It is legal to criticize policies using factually supported arguments, as long as they do not promote hatred or incite violence.
Repealed: Section 13
Canadians' speech has arguably become more free in recent years. The Harper government repealed Section 13 of the Canadian Human Rights Act. Section 13 was a civil provision (not criminal) that allowed individuals and groups to file complaints about hate speech online or through telecommunications.
This repeal occurred in 2013, with proponents arguing it was too broad, subjective, and had a chilling effect on free speech. There have been attempts to bring similar legislation into play with the current Canadian government, but they have not been successful as of yet.
Repealed: Blasphemy Laws
Before 2018, Canada had a blasphemy law under Section 296 of the Criminal Code, which made it illegal to publish blasphemous libel.
The Liberal government repealed this act. Mocking or burning a religious text as a form of personal protest is legal in Canada, but doing so with intent to incite hatred could be prosecuted under hate speech laws.
Other Limitations to Speech
Like in the US, there are other carve-outs to speech in Canada other than hate speech.
- Defamation: False statements that harm reputation
- Obscenity: Selling extreme pornography or child exploitation
- False Advertising: Fraudulent claims
- National Security: Advocating terrorism is illegal
- Publication Bans: Some trials are protected by media bans
- Cyber-bullying: Revenge porn, doxxing and harassment are crimes
- Inciting Crime or Violence: Encouraging crime is illegal
- Contempt of Court: Interfering with trials or refusing court orders
How Does Canada Compare to Europe?
In Germany, it is a criminal offense to insult public officials, including politicians under the German criminal code. We have no similar legislation in Canada. Canadians can insult their politicians freely.
Europe's Digital Services Act requires content moderation to swiftly remove illegal content, and address "systemic risks" that include misinformation. While Canada has a history of pressuring social media platforms, it does not make misinformation illegal.
In addition to these, European countries have hate speech laws which can be measured to be similar to Canada.
How Does Canada Compare to the US?
Free speech isn't absolute in the United States, either. There are major free speech exceptions in the US as well.
Broadly, the two biggest differences are commercial speech and hate speech. On the commercial side, we heavily regulate tobacco, alcohol and prescription drug marketing and have stricter privacy and consumer protection laws.
This leaves hate speech as the primary difference between the US and Canada. The US does not criminalize hate speech unless it incites "imminent lawless action". This is a very high bar for speech restrictions, and arguably the biggest difference between US and Canadian speech laws.
In the US, Neo-Nazis, white supremacists, and hate groups can legally march, protest, and distribute literature, unless they incite violence. Each individual in the US must confront these awful ideas themselves, and consider what they mean to them instead of having their government silence them.
Ultimately, Canada balances free expression with protections against hate speech, placing it between the US and Europe in terms of speech restrictions.
Reminder: I am not a lawyer. Just a layman doing his own research. Seek legal advice before taking action.
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