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A commitment to free speech means protecting speech for reasons that are independent of the truth or merit of its content. This commitment, though, depends on certain assumptions or conditions – most notably that individuals are capable of making reasoned and independent judgments and have access to different opinions and reliable factual information. These conditions, of course, never hold perfectly, but they now seem to be eroding at a rapid pace.The character of public speech has changed in the internet era: how we speak to one another and how we experience that speech. Audiences have become more fragmented. Disinformation and conspiracy theories seem to spread easily and widely, so that distortion and deceit rather than direct censorship may now be the most significant threat to public discourse. There is little common ground in the community on factual matters or the reliability of different sources of information, which has made it difficult, even impossible, to discuss issues and to agree or compromise on public policy. Those who hold competing positions seem rarely to engage with one another and, when they do, their engagement is often combative. A growing number of people feel they should not be expected to hear speech with which they disagree, or which is critical of their views. The spaces or platforms in which public speech occurs have become increasingly privatized and therefore outside the scope of the constitutional right to freedom of expression. What future does the right to free speech have in this changing communication environment?

According to the Canadian courts s. 2(a) of the Charter requires that the state remain neutral in religious matters. The state must not support the religious practices of one religious group over those of another and it must not restrict the practices of a religious group, unless this is necessary to protect a compelling public interest. Yet the neutrality requirement has not been consistently enforced by the courts. The fundamental difficulty with the neutrality requirement is that religious beliefs often have public implications. Despite the courts’ formal commitment to “neutrality” they have required the state to remain neutral only towards the “private” or spiritual dimensions of religious practice. The “public” elements of belief, which address civic concerns, remain subject to the give and take of ordinary politics. This distinction, although not expressly made by the courts, underlies the different treatment the courts have given to religious “practices”, which the state is precluded from favouring, and religious “values”, which the courts have said may play a role in political decision-making. This distinction between public and private religion, may also play a role in the courts’ accommodation decisions and account for its weak or selective protection of religious practices from state interference. Where the line is drawn between civic and spiritual spheres will reflect the courts’ assumptions about ordinary religious practice and appropriate state action. Because the line is not drawn explicitly but is instead framed as a distinction between practice and value in state support cases and is buried within the formal s. 1 balancing of interests in religious accommodation cases, the courts’ assumptions about the nature of religious practice and state action are concealed from scrutiny.

Freedom of expression protects the individual's freedom to communicate with others. The right of the individual is to participate in an activity that is deeply social in character. The value of freedom of expression rests on the social nature of individuals and the constitutive character of public discourse. This understanding of the freedom, however, has been inhibited by the individualism that dominates contemporary thinking about rights its assumptions about the pre-social individual and the instrumental value of community life. While the social character of human agency is seldom mentioned in the different accounts of the freedom value, it is the unstated premise of each. Once we recognize that individual agency and identity emerge in the social relationship of communication, the traditional split between intrinsic and instrumental accounts (and between speaker and listener -based accounts) of the value of freedom of expression dissolves.

During the last few years there has been a disinformation campaign against human rights commissions. While it is not surprising that Internet blogs post things about HRCs that are false and malicious, these claims have seeped into mainstream discourse. This paper sets out some of the claims made about the CHRC and describes how they are misleading or just plain false and it considers how these deceptive and invented claims have entered mainstream discourse. This will involve some general observations about the state of public discourse in Canada.

At the time of their civil divorce, Mr. Marcovitz and Ms. Bruker entered into an agreement concerning custody, access, division of property and support. Their agreement also included an undertaking by each to appear before the Beth Din (rabbinical court) for the purpose of obtaining a get, or divorce, under Jewish law. For their marriage to be dissolved under Jewish law, it was necessary for Mr. Marcovitz to provide, and Ms. Bruker to accept, a “bill of divorce”, or get. Without a get neither party could remarry in the faith, and any subsequent intimate relationship entered into by either of them would be considered adulterous and any children born of that relationship would be viewed a illegitimate.

The Charter at 25: The Complaint of Judicial Activism.

Freedom of conscience or religion is no longer protected as the most effective way for the individual to discover spiritual truth, or as necessary to his meaningful commitment to that truth, or because human conscience, the capacity to recognize truth and right, is a divine endowment. The public justification for religious freedom is now framed in more secular terms. In the contemporary context of spiritually diverse community, the protection of religious belief or commitment is most often said to be based on the value of individual judgment or autonomy. What the individual chooses, what she judges to be right or true, is deserving of respect because it has been chosen, because it is an expression of her autonomy or the outcome of her independent judgment.

In June of this year I was asked by the Canadian Human Rights Commission (CHRC) to consider, and to make recommendations concerning, “the most appropriate mechanisms to address hate messages and more particularly those on the Internet, with specific emphasis on the role of section 13 of the CHRA [Canadian Human Rights Act] and the role of the Commission.”I was asked to “take into consideration: existing statutory/regulatory mechanisms; whether they are appropriate and/or in any manner, require further precision; the mandates of human rights commissions and tribunals, as well as other government institutions presently engaged in addressing hate messages on the Internet; whether other governmental or non-governmental organizations might have a role to play and if so, what that role might be; Canadian human rights principles, including but not limited to, those contained in the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms; Canada’s international human rights obligations; and comparable international mechanisms.” I was asked to provide a final report to the Commission on or before October 17, 2008.

A number of doctors in Ontario have challenged the policy of the provincial College of Physicians and Surgeons that requires its members to provide a patient with an “effective referral” to another doctor if they were unwilling or unable on moral grounds to offer a particular medical service, such as an abortion or medical assistance in dying. The doctors argue that if they were to give an effective referral, they would be complicit in acts that in their view were immoral. I will argue that the significant issue in this case and other conscientious objection cases, is not, as the courts have said, the reasonable balance between the individual’s religious interests or commitments and the interests or rights of others in the community, but is instead whether the individual’s religiously-based objection should be viewed as an expression of personal religious conscience that should be accommodated, provided this can be done without noticeable harm to others, or as a religiously-grounded civic position or action that falls outside the scope of religious freedom and may be subject to legal regulation. The commitment to religious freedom requires that a distinction be made — a line drawn — between civic and spiritual beliefs or actions. An individual’s spiritual practices are both excluded and insulated from political decision-making. However, their beliefs concerning civic issues, such as the rights and interests of others and the just arrangement of social relations, even if grounded in a religious system, must be subject to the give-and-take of ordinary politics. In determining whether a particular (conscientious) objection should be viewed as a personal or spiritual matter or instead as a civic or political position, two factors may be relevant. The first is whether the individual is being required to perform the particular act to which they object only because they hold a special position not held by others, notably some form of public appointment. The other factor is the relative remoteness-proximity of the act that the objector is required to perform from the act that they consider to be inherently immoral. The more remote the legally required action, the more likely we are to regard the refusal to perform it as a position about how others should behave or about the correctness of the law, rather than as an expression of personal conscience.

The most frequently made criticism of the Supreme Court of Canada’s decision in Ktuxana v. BC echoes a familiar and more general criticism of the Anglo-American understanding of religious freedom. The Court’s narrow or ‘protestant’ conception of religious freedom, which is focused on the individual – on his/her belief or commitment and his/her personal relationship with a transcendent God – is said to have the effect of denying meaningful protection to Indigenous and other spiritual systems that emphasize ritual and community life, and that recognize a spiritual presence in the natural world. I will argue that in a religiously/culturally diverse society such as Canada, the protection granted by s. 2(a) (the Charter’s religious freedom right) must be limited to those practices that can be viewed, at least substantially, as personal to the individual or internal to the religious group. The failure of the courts to give religious freedom protection to important Indigenous practices may stem not from a narrow conception of religion but rather from a recognition of the limits of religious freedom in a democratic political community. However, I will argue that the majority of the Court in Ktunaxa went further than this and introduced a limit on the scope of religious freedom that unnecessarily and artificially limits the freedom’s protection based on a Christian understanding of religion, as concerned centrally with the worship of a divine power. In earlier cases, the Court has limited the protection of s.2(a) by defining the concept of religion narrowly or interpreting the practices of a particular religion narrowly so that they did not include communal connections and practices.

There is a strong case to be made that racist, and other forms of bigoted, speech, even when it is not so extreme that it breaches general hate speech laws, should be prohibited on campus. A commitment to academic freedom supports the free and open exchange of ideas and information but also certain standards of communicative engagement – most notably the treatment of others in the academic community as interlocutors, as conversation partners who should be addressed and heard. Racial (and other) stereotypes and insults are inconsistent with the educational mission of the school and the idea of membership in an educational community. More generally, the injury of racist speech may be more acute in the closer environment and tighter community of the campus. However, the regulation of a broad category of racist speech raises a variety of challenges. In addressing the question of the fair and appropriate limits (or forms of regulation) of speech on campus, I will consider the case of Israel Apartheid Week [IAW], an event that takes place each year on several Canadian campuses, and more particularly whether IAW (and its claim that Israel is an apartheid state) is anti-Semitic and appropriately banned from campuses. The recent report of the Canadian Parliamentary Coalition to Combat Anti-Semitism [CPCCA] argues that IAW is anti-Semitic. However, the CPCCA claim appears to rest on the politically contestable view that the existence of Israel is vital to the continued existence of the Jewish people and that any criticism of actions taken by Israel to ensure its viability or any questioning of Israel’s religious ethnic identity constitutes an attack on the Jewish people. But these are politically contestable claims – about the link between nation and state, the treatment of religious-ethnic minorities, and the actions necessary ensure the viability of the state … The challenge to these claims must be treated as a legitimate part of political debate and cannot be excluded from campus.

In June 2008, I was asked by the Canadian Human Rights Commission (CHRC) to write a report about the regulation of hate speech on the internet, focusing specifically on s. 13 of the Canadian Human Rights Act (CHRA). Section 13 prohibits the repeated communication on the phone system or the internet of any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination such as race, gender, or religion.

In recent years, the Canadian courts have been confronted with a number of cases in which freedom of religion and sexual orientation equality appeared to clash. Specifically, the courts have had to decide whether religiously motivated anti-gay expression violated a provincial human rights code restriction on hateful expression (Owens v. Saskatchewan 2006). They have also had to rule on whether a human rights code ban on discrimination in the provision of services to the public was breached when a business owner refused to provide services to a gay advocacy group (Ontario v. Brillinger 2002). And, in two judgements, Trinity Western University v. British Columbia College of Teachers (2001) and Chamberlain v. Surrey School district No. 36 (2002), the Supreme Court of Canada dealt with the competing claims of sexual orientation equality and religious freedom in the public schools.

This paper summarizes the recommendations made in the report I prepared for the Canadian Human Rights Commission concerning s.13 of the CHRA. In the report I recommended the repeal of the section so that the CHRC and the Canadian Human Rights Tribunal would no longer deal with hate speech, and in particular hate speech on the Internet. I took the position that state censorship of hate speech should be confined to narrow category of extreme expression – that which explicitly or implicitly threatens, advocates or justifies violence against the members of an identifiable group, even if the violence advocated in not imminent – and that the restriction of this narrow category of expression should be dealt with under the Criminal Code rather than the CHRA.

A recent request for religious accommodation at York University has generated controversy not just about the merits of the particular claim but also about the general practice of religious accommodation under human rights codes and the Canadian Charter of Rights and Freedoms. The issue in this case exposes some of the tensions in our understanding of religious freedom and religious equality – and more particularly the requirement of religious accommodation. “Religion” (religious belief and practice) does not fit comfortably within the model of equality rights or anti-discrimination laws and seeing why this is so might help us to better understand the conflict in this case – the university’s decision to accommodate and the public reaction to that decision. The first difficulty is that religious adherence may be viewed as both an individual commitment and a collective identity. The second, and related, difficulty is that religious belief systems or traditions may be seen as both a set of practices and a set of beliefs about truth and right, which sometimes have public implications.

The connections between law and religion are many. State laws support some religious values and practices and interfere with others. And, from the other side, religious beliefs often inform or shape state laws. Even if Canadian law does not directly compel citizens to engage in religious practices, to attend church or pray, for example, it sometimes favors or advances the religious practices or values of some members of the community over those of others. And even if it does not directly restrict religious practices on the ground that they are erroneous, Canadian law, when advancing otherwise legitimate public purposes, sometimes impedes minority religious practices.

In Andrews v. The Law Society of B.C., the Supreme Court of Canada makes its first significant statement concerning the right to equality in subsection 15(1) of the Canadian Charter of Rights. The Court holds, by a margin of 4 to 2, that the provision in the B.C. Barristers and Solicitors Act, which made citizenship a requirement for membership in the Law Society, violates subsection 15(1) of the Charter and cannot be justified under the terms of section 1. In reaching this conclusion, the Court adopts a broad approach to subsection 15(1), which focusses on the effect or impact of particular laws on disadvantaged groups within the community. In taking this view of the right to equality, the Court has set itself a difficult task - because while the focus of review is on a state act that disadvantages a particular group, the foundation of the wrong is the disadvantaged or unequal position of the group in the community. The court’s pursuit of systemic equality, though, is constrained by the adjudicative process and perhaps also by the court’s reluctance to recognize the full implications of the conception of equality underlying the prohibition of effects discrimination. The Court is caught between two views of equality and state obligation: one view emphasizes the correction of harmful state action through the adjudicative process; the other emphasizes distributive justice and places an obligation on the state to address or take account of socio-economic inequality in the community. The focus in future cases will be on the standards used for determining whether a group is "disadvantaged", whether a law's impact is "disparate" and whether the "limit" on the right under section 1 is "reasonable". The standards adopted by the Court will determine the depth of judicial intervention into the socio-economic organization of society. Future cases may give greater substance and clarity to these tests. However, inasmuch as they represent a compromise between two visions of equality and state obligation, these standards are likely to remain unstable. The scope of the right to equality will remain open, flexible and controversial, with no clear lines or easy tests for fixing the limits of judicial intervention into the social and economic order.