Blog Update: The Limits Of Expression

In the November 19 blog entitled A Message Of Tolerance, I discussed the most recent decision by Alberta Provincial Court Judge Bascom to quash a University of Calgary trespass notice against William Whatcott for handing out anti-gay literature on campus. This case is an intersection of two current controversies surrounding freedom of expression: expression on campus and hate speech. 

Although wilfully promoting hatred under s. 319 of the Criminal Code infringes s.2(b) freedom of expression rights under the Charter, it is a justifiable infringement under s.1. In both the Keegstra case and the Zundel case, the Supreme Court of Canada recognized the expressive content of hate speech, albeit repugnant. It is under the s.1 analysis, wherein the Court determines if limiting the expression in a particular instance is justified, where the balancing of expression against Charter values of multiculturalism, equality, and human dignity occur. In this context, expression can and has been limited, particularly where such expression reaches criminal proportions.

However, it is in the non-criminal arena of human rights codes where the line between protection and limitation is not clearly drawn. Criminal hate offences require proof of a high level of subjective mens rea or fault element. Hate speech violations under the human rights codes do not require such a high level of intent, which is at the core of the issue in the other Whatcott case, now under reserve at the Supreme Court of Canada.

Similarly, the Boission v. Lund case, set to be heard at the Alberta Court of Appeal on December 7, raises the spectre of hate speech and limits to expression. There too the extent to which non-criminal hate speech can be restricted by human rights codes will be considered.

The other issue of interest, freedom of expression on campus, I have discussed in two previous postings: the November 8 blog on The Pridgen Case and Freedom Of Expression On Campus and the November 9 blog on Freedom of Expression in the Classroom. The Alberta Court of Appeal has reserved decision on the Pridgen case.

However, the ability of a University to restrict free expression, no matter how ugly, is a current issue, with Campus Pro-Life groups across Canada fighting against university prohibitions of their graphic anti-abortion campaigns. Currently, the Calgary group has a judicial review pending in the Alberta Queens Bench as of April 2011. Calgary, Carleton, Victoria and Guelph have all banned the clubs on campus.

Even university marching bands are not immune as the Queen's University marching band's explicitly discriminatory material against women has resulted in a suspension of the band's activities.

Although the intersection of expression and intolerance is not surprising, what is of interest is the locus operandi or the commonality of place, of this intersection: the university campus. As a result, how the Courts will determine expression limits on campus has just become even more complex.