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.

A Message Of Tolerance

Relying upon s.2(b) freedom of expression rights under the Charter, Judge Bascom of the Alberta Provincial Court stayed a trespassing charge against William Whatcott, who received the trespass notice when distributing anti-gay literature at the University of Calgary. An indefinite ban was also lifted. This decision is consistent with other decisions on hate speech: no matter how abhorrent the message may be, there is expressive content in the communication and therefore protected under s.2(b).

Another factor for Judge Bascom was the place of the communication. This too is consistent with expression cases, as discussed in my November 17 blog on the City of Montreal case. According to Judge Bascom, the fact the incident occurred at a University was significant as "the concept of free expression is part of the University of Calgary philosophy." Interesting comment in light of the Pridgen case as discussed in my blog post here.

William Whatcott has not only been the subject of a Provincial Court decision, but also a Supreme Court of Canada case. Whatcott's case, in which he argued the hate speech provision of the Saskatchewan Human Rights Code is unconstitutional, is currently on reserve. Further information can be found in my blog postings here.

The determination of Charter rights are complex when faced with competing rights such as s. 2(b) freedom of expression versus the right not be discriminated against under s.15 of the Charter. In those instances, we, as a society, must look to the Courts to balance both rights meaningfully and fairly, in the context of Charter values, to come to the appropriate decision. 

Sometimes, society can also take some sage advice from those individuals, who we deem wise and worthy. I end this blog with a link to a message from Nobel Prize recipient, Lord Bertrand Russell. The message of tolerance can be heard here.

The Art and Science of Connections

While reviewing my posts, I began thinking of connections and how seemingly unconnected events can provide meaningful and sometimes surprising connections, which can then further enhance our understanding of the subject. Every Friday, I read Simon Fodden's Friday Fillip blog and yesterday he too was discussing connections in his Degrees Of Connections posting. As opposed to Steven Johnson's concept of mentally connecting ideas for innovation, Fodden offered a mechanical option through Wikipedia's Xefer site. This search engine, using Wikipedia articles, can connect any three words to come up with a search list of articles connecting those concepts through a visual "tree of knowledge."

I plugged in three concepts from my previous blogs, not obviously connected: inherit the wind, redemption, discrimination. The results are fascinating as Art and Science truly come together. 

Of course, this mechanical connecting encouraged a mental one and I started making connections between my blogs. Here is my first "six degrees of connections": October 12 Law, Literature, And Inherit The Wind to November 9 Freedom Of Expression In The Classroom to November 8 The Pridgen Case and Freedom Of Expression On Campus to October 18 Wristbands Are In Effect: The Keep A Breast Campaign to October 25 On The Road To The Supreme Court Of Canada to October 22 The Road Taken By The Supreme Court Of Canada which leads back to the October 12 blog. Whew.

How did they connect? I went from Inherit The Wind, the play involving the prosecution of Mr. Scopes, a teacher who taught evolution in the classroom which connects to freedom of speech in the classroom and the PEI case of Mr. Morin showing a controversial documentary in his grade 9 class which connects to freedom of expression by students on campus involving the Prigden case just heard before the Alberta Court of Appeal which connects to freedom of expression of students wearing breast cancer wristbands which connects to what cases have been heard before the Supreme Court of Canada and the Whatcott case involving freedom of expression issues intersecting with freedom of religion issues which connects to the case the SCC should hear on freedom to be free of religion in the classrooms as a result of Morinville, Alberta school and the Lord's Prayer which connects back to Inherit The Wind and the freedom to be free of religion.

How was that for a weekend brain twister? Try it and make either mechanical or mental connections. Who know where they might lead? 

Freedom Of Expression In The Classroom

This morning, the Alberta Court of Appeal will hear arguments on the Pridgen case. As discussed in yesterday's post, Pridgen rests on the issue of freedom of expression on campus and whether non-academic misconduct resulting from Facebook postings criticising an University professor was a justifiable restriction under the Charter. If, however, we tweak the case and re-imagine it, we come up with a different, yet related, freedom of expression dilemma: the expressive rights of teachers in a classroom.

The discussion will not refer to Keegstra or Ross, who through their expression promoted discrimination and hatred. Instead, the discussion will be about Mr. Morin, an untenured and untested teacher at a Prince Edward Island Junior High School. Mr. Morin's first year of teaching goes by smoothly and uneventfully and he is contracted to teach again. His second year, however, is much more controversial.

One evening, Mr. Morin watches a PBS documentary entitled "Thy Kingdom Come, Thy Will Be Done" and he is devastated. The raw documentary exposes the corrupt side of the fundamental Christian movement of the late 80s and its connection to American politics. Much of the documentary focuses on the scandal-ridden Jimmy Bakker, his wife Tammy Faye, and the PTL Church.

Mr. Morin sees a teaching opportunity in the documentary and decides to show the film to his grade 9 class in connection to a writing assignment on "What Religion Means To Different People." After the viewing of the documentary in class, the Principal receives complaints and directs Mr. Morin to stop the assignment. Mr. Morin will take his right to express himself in the classroom all the way to the highest Appeal Court in his province, and he will do it on his own and without the benefit of counsel.

The PEISCAD (PEI Appeal Court) agreed with Mr. Morin, although not unanimously. The majority of the Court, found expressive content in Morin's assignment, consistent with the Supreme Court of Canada's liberal interpretation of the freedom of expression under the Charter. Moreover, the right involves not only the teacher, who is expressing viewpoints in an effort to exchange and stimulate "opinions and ideas," but involves the students' right

in a democratic society to have access to free expression by their teachers - encouraging diversity, critical thinking, and vigorous debate ... students have a right to hear this expression and benefit from it...this right of students is fundamental to their being citizens in a truly democratic state and students of that states' educational system.

The right of a teacher, therefore, to express himself transcends the classroom and is elevated, thereby becoming a core concept of our society's fundamental values as reflected and protected by the Charter.

As we grow older and look back on our education, we recall those teachers who taught us without fear or prejudice. Thank you, Mr. Morin for reminding us.

The Pridgen Case and Freedom of Speech On the Canadian Campus

Tomorrow, the Alberta Court of Appeal will hear arguments on the Pridgen case. The issue involves the use of Facebook postings to criticize a University of Calgary professor, contrary to the student code of conduct. In the lower court case, Madam Justice Strekaf considered whether the subsequent finding of non-academic misconduct by the Pridgen brothers was a violation of freedom of expression under s.2(b) of the Charter. Ultimately she ruled there was a violation and the restriction could not be justified under s.1 of the Charter.

The issue of freedom of speech on campus is troubling. Universities are seen as the defender of academic independence and the protector of free thought. Through this freedom, critical thought is created, nourished, and encouraged. Innovation and excellence is the by-product of free thought. To restrict it, results in a withering effect and a loss of free debate on controversial issues. Thus, there is a societal interest in protecting free expression on campus. Our democratic tradition demands it.

On the other hand, as mentioned in previous posts, freedom of expression is not absolute under our Canadian Charter. Speech can be restricted but only if justified in a free and democratic society. There have been campus cases where Facebook postings were restricted justifiably. Those cases, however, involved threats of harm attracting Criminal Code sanctions. In contrast, the Pridgen case involved no threats and there was no evidence of resultant "injury" before the discipline council. Certainly, the comments were unkind, but were they the kind of expression we want to restrict on a University campus?

The answer will be left to the Court on Wednesday when the freedom to express oneself on campus will be tested. We will await the decision to see if the Pridgen brothers receive a pass or a fail.