Reasonable

Saskatchewan (Human Rights Commission) v. Whatcott is a long decision which I have just skimmed the headnote and a few dozen paragraphs of the reasons as well as the conclusions. Lawyers on both sides are going to have great fun parsing the decision and noting how it limits certain restrictions on freedom of expression while affirming others.

My own sense is that, insofar as Whatcott rescues Taylor’s  general view that speech can and should be regulated by the state, this decision has simply proven that Canadians, and Canadian judges, are unwilling to let go of the idea that speech must, somehow, be controlled.

It is a very Canadian position.

Our discomfort with the idea that individuals are capable of governing themselves and that, ultimately, the state needs the means to intervene when some one “goes too far” (for whatever reason) is the animating spirit behind a cautious, communitarian, group driven society.

Obviously I would have preferred a decision which embraced individual rights and accepted that, from time to time, the exercise of those rights will be offensive to some. But as one CHRC official put it, and I paraphrase, “I don’t pay much attention to free speech, its an American concept”. And the decision in Whatcott suggests strongly that this view is going to determine the law in Canada for years to come.

Rothstein, J.’s reasons are very carefully considered and are, in their essence, a narrow but effective assertion that, in Canada, there are some things which you simply cannot say and, more importantly, that this position is deeply embedded in the Charter.

The Charter is a profoundly Canadian document. Its few ringing phrases are ring fenced  by the saving clause in s. 1 “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.

Canada is never far from her original values of “Peace, Order and Good Government” as Rothstein, J.’s masterly rescue of the dim reasoning in Taylor ably demonstrates.

Nice people will take heart in Whatcott‘s affirmation of real, reasonable Canadian values. And, if perchance, you don’t take heart well then you are not very nice are you…possibly un-Canadian.

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7 thoughts on “Reasonable

  1. Here’s the letter I wrote the Post today:

    “Now that the Supreme Court has eliminated free speech in Canada, I think
    it’s time we eliminated the Supreme Court. The whole idea of setting up
    a group of non-elected nobodies over us as some kind of holy conclave is
    repugnant in the extreme.

    I say sweep them off the Bench, burn the Charter, and be done with
    Trudeau’s poisoned legacy forever.

  2. Maikeru says:

    where it all began…

  3. Jack Archer says:

    Supreme clowns. The Charter sings whatever tune they want it to, since they can peer into its penumbra and pull literally anything out they desire. These are the same ermine-robed clowns who pulled gay marriage out of their bungholes, and then claimed they had found it lurking in the spaces between the words and letters that are, you know, actually written on the Charter. What a joke. The joke will be on them when appointees of a different political stripe invent fantasies less to their liking. I bet they rediscover the Notwithstanding clause in a hurry then.

  4. Derek says:

    I really really dislike how they rejected years of very hard fought religious rights jurisprudence. This is Canadian like Duplessis was Canadian. Religious prophets decrying social and moral decay in graphic terms predates Canada and definitely predates the Charter. Read Jeremiah describing the way women walked and dressed and saying that they would be eating their children soon enough because of their sins.

    • Truepeers says:

      I don’t see them so much breaking with the tradition of the prophets as revealing that while they would like to be in our prophetic tradition they, as good old liberals, no longer have anything really to add to it.

      Consider that in the same sex marriage decision the Chief Justice proclaimed we are no longer a Christian nation (hence we must redeem our victims of former Bible-encouraged inequality). Now where does such a spirit come from if not from the traditions of prophets challenging society, sometimes playing with heresy? The judge may be a non- believer but she is still culturally (post) Christian, the irony of which she may not see.

      We can see Christianity as a heresy of Judaism, and liberal democracy as a heresy of Christianity, and today’s victimary culture as a heresy of liberal democracy. Each iteration has prophets promising a greater, freer, fairer order. However, in the present situation do our prophets of victimhood really point to a way out, to a new and viable heresy, in which we can be redeemed, i.e. relocated and saved from our resentments of imperial authority? No, we seem to have reached the end of the line of anti-imperial prophesy. The idea that litigation of our resentments (from feeling marginalized) in centralized, elitist “human rights” tribunals, making arbitrary decisions about which of our many resentments are too un-PC, is somehow going to redeem our resentments for more than a day is fundamentally absurd, whether we get paid off by the tribunals or fined.

      The way out of our resentments of this or that putative hegemony of modern left or right is whatever will come to bear once the welfare state collapses, in an institutionally minimized world, and that is not something the SCC, as part of the establishment, could sign on to, let alone imagine and prophesy. The Supreme Court is on Jeremiah’s road but it has come to a dead end.

  5. […] Anyway, here’s Jay Currie: […]

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