Academic Freedom And Canadian Law

April 2003

In a nation at war or under apparently imminent threat of attack - especially attack by fanatical foes believed to have infiltrated its own society - the freedoms that individuals enjoy in normal circumstances must inevitably be curtailed to some extent.

Believers in liberty should insist, however, that all resulting restrictions on individual freedom should be demonstrably necessary, or at least clearly relevant to the purpose of enhancing national security and frustrating the enemy. Otherwise security may become a mere pretext for expanding the powers of the state at the expense of the public.

In the aftermath of the terrorist crimes of September 2001, the government in Ottawa extended the scope of Section 13(1) in the Canadian Human Rights Act - originally applicable only to telephonic communic-ations - to make it apply also to the Internet.

Section 13(1) permits legal action against persons whose statements are allegedly "likely" to expose racial, religious and various other identifiable groups to "hatred or contempt." In his book The New Anti-Liberals, published in 1999 by the Canadian Scholars' Press, A. Alan Borovoy - for many years the general counsel of the Canadian Civil Liberties Association - expressed alarm about the "sheer breadth of the prohibition against speech" even in the statute as it then existed.

Without gaining any real advantage in the struggle against terrorism, the government's action has potentially ominous implications for academic freedom - the Internet having become a significant means of scholarly communication - as well as for freedom of expression in Canadian society at large.

As Borovoy points out, the Act does not recognize any defence based on "truth or reasonable belief in the truth of the statements at issue." Truth or lack of it is simply irrelevant. Thus, if it makes points distasteful to a particular group, even a scrupulously documented scholarly work may provoke a legally valid complaint.

There is also no need for an accuser to provide evidence that the accused had any intention or desire to promote "hatred or contempt." Like truth, intention is irrelevant.

To make matters worse, an accuser is not required to show that the words of the accused really did promote "hatred or contempt," but merely that they were "likely" to do so. An assessment of the "likely" consequences of anything is bound to be more subjective than a judgment based on ascertainable facts about what has actually occurred.

Moreover, since the prohibitions included in the Human Rights Act are not part of the criminal law, an accused can be subjected to penalties without either trial by jury or a requirement that guilt be proved beyond a reasonable doubt.

Borovoy warns that even if such repressive legislation is not often used, the threat of legal sanctions may well be enough by itself to inhibit the expression of controversial views, including "important political, historical, and social commentary." For example, an historian's account of atrocities committed by a group in the past, or a sociologist's discussion of a group's exceptionally high rates of crime, alcoholism, or out-of-wedlock births, could be said to expose the group in question to "hatred or contempt."

In Canada, unlike the United States, the judiciary cannot be counted upon to overturn legislative attacks on freedom of expression as unconstitutional. To protect individual liberty, the law should be drastically revised.