Do Canadians Care About Free Speech?
A brief history of the erosion of freedom of expression in Canada and a warning about new threats on the horizon.
I recently gave a lecture on the limits of freedom of expression in Canada at York University in suburban Toronto. York is known for rowdy protesters shutting down guest speakers. It crossed my mind that I might attract a heated crowd who would confront me for my political opinions.
I’m pro-Israel, anti-DEI, and lean conservative, which could make me a target of the radical leftists on campus who like to pull firearms and shut down guest speakers. If they tried to interrupt, I’d let them say their piece and then give them a lesson on the heckler’s veto. I had no reason to worry. Only five students showed up. Five. Does anybody care about free speech in Canada anymore?
Canada has always been a liberal democracy with protections for free speech. But the global free speech recession has hit us hard, and most Canadians don’t seem to have realized it yet. Many Canadians don’t understand that so much of the progress we’ve made – from dropping race as a factor in immigration in 1962 to legalizing same-sex marriage in 2005 – happened because we were free to debate controversial ideas. That freedom is increasingly threatened.
Bill C-9 is the latest threat. Bill C-9 passed in the House of Commons on March 25 and is now working its way through Canada’s mostly rubber-stamp Senate. Senators can suggest changes, but by convention, can’t block them, so some version will likely become law.
Bill C-9 threatens free expression for two main reasons. First, it would remove an exemption to criminal hate speech convictions for good-faith religious arguments, meaning that reading Bible verses or Hadiths viewed as transphobic or homophobic could lead to prison. Street preachers are terrified. They should be. A non-criminal human rights tribunal recently ordered a former British Columbia school trustee to pay CAD-$750,000 to teachers because of his supposedly hateful and discriminatory speech on Facebook and in interviews.
C-9 also bans so-called hate symbols, including Nazi insignias and any flag or symbols of designated terror groups, which include everyone from the Taliban to the Proud Boys. It’s not yet clear whether wearing black-and-gold Fred Perry polos (a symbol associated with the Proud Boys) will now be considered a real crime in Canada rather than just a fashion crime. I joke, but in all seriousness, banning symbols is a content-based restriction that undermines a core principle of free speech.
C-9 is just the latest in a series of laws restricting free expression that Canada’s Liberal government has passed or proposed. A worse one may be on the way. This post aims to take stock of how Canada got here and where things might be headed if more Canadians don’t educate themselves about the value of freedom of speech.
Canada Led on Free Expression in The 20th Century
Canada was born in 1867, when a handful of fledgling provinces united into one nation with common defense and a common market to reduce the risk of being swallowed up by Uncle Sam. The United Kingdom granted us a constitution, to use the text of the Constitution Act, 1867, “similar in principle” to theirs. There was no flashy bill of rights.
Still, in the 20th Century, the Supreme Court of Canada repeatedly found that censorship was incompatible with Britain’s unwritten constitution and therefore our own.
In the 1938 Alberta Press Case, the Supreme Court recognized that “the right of public discussion” was so essential to democracy that it trumped an Alberta law that purported to allow the government to prohibit publication of newspaper articles.
In the 1950 Boucher decision, the Court overturned the seditious libel conviction of a Jehovah’s Witness who had distributed pamphlets entitled “Quebec’s Burning Hate for God and Christ and Freedom is the Shame of Canada.” There, Justice Ivan Rand channeled John Stuart Mill, writing that “our compact of free society absorbs the subjective incidents of controversy within the framework of freedom and order, because a process of free exchange … ultimately serves us in stimulation, in the clarification of thought and … the search for the constitution and the truth of things generally.”
In 1953, the Court again sided with free speech, deciding in Saumur to strike down a Quebec City bylaw forbidding distributing literature on city streets without the permission of the Chief of Police because it aimed to regulate “the minds of the users of the streets.”
And, in 1957, the Court protected speech again, in Switzman, striking down Quebec’s Act to Protect the Province Against Communistic Propaganda, which had allowed the attorney general to padlock any property accused of hosting “communistic” meetings.
Hate Speech Bans Upheld
Free speech faced a new threat in the 1960s. Canada’s academic left successfully lobbied Parliament to join the Soviet Union and Europe in criminalizing hate speech. In 1966, a group of law professors, including future Prime Minister Pierre Elliott Trudeau (who had written a glowing review of his trip to Maoist China a few years earlier and who later became close friends with Fidel Castro), released the Report of the Special Committee on Hate Propaganda in Canada. This report to Parliament, cited later on in the 1990 Keegstra case, said that words have the “power … to maim,” and concluded that “the privilege of speech” must “stop this side of injury to the community itself and to individual members or identifiable groups innocently caught in verbal cross-fire that goes beyond legitimate debate.”
This led in 1970 to Criminal Code prohibitions against advocating genocide, wilful promotion of hatred, and inciting hatred against an identifiable group where it was likely to lead to a breach of the peace. To reduce fears of speech chill, the provisions require something no other criminal law does: consent from provincial attorneys general before charges can be laid.
Trudeau served as prime minister from 1968 to 1984 with a brief interregnum. While his reign started with banning hate speech, it ended with the passage of a bill of rights for Canada: 1982’s Canadian Charter of Rights and Freedoms. The Charter seemed promising for free speech. Section 2 states: “Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.” Section 1 says these freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Supreme Court could now strike down laws on the basis that they violate freedom of speech, without needing to justify its actions on the vague requirements of the U.K.’s unwritten constitution.
Naturally, this led to a showdown at the Supreme Court over whether the 1970 hate speech laws could truly be justified in a free and democratic society. Canada put people in prison for words, after all.
Edmonton-area high school teacher James Keegstra – a vile anti-Semite who described Jews to his students as treacherous, subversive, sadistic, money-loving, power-hungry child killers – was the test case. Mr. Keegstra had been found guilty by an Alberta jury of the crime of wilful promotion of hatred.
In the 4-3 decision released in 1990, Chief Justice Brian Dickson and three other judges found the criminal hate speech provision to be a reasonable limit on the right to free expression. The Holocaust proved to Dickson that hate speech could cause enough pain, tension, and violence to justify restricting some people’s free speech rights. In Taylor, a similar case decided at the same time based on a provincial human rights code provision against promoting hatred, Dickson said that he was not concerned about the subjectivity of what counts as “hatred,” claiming it would be limited to “unusually strong and deep-felt emotions of detestation, calumny and vilification.”
Beverley McLachlin, who succeeded Dickson as chief justice, and two others disagreed with Dickson that hate speech provisions can co-exist with free speech. McLachlin was concerned that the law did not require proof of any actual harm or incitement to violence before a person could be put behind bars, and thought that it was irrational to believe that criminalizing hateful speech would stop it, considering Weimar Germany’s failed hate speech laws.
McLachlin’s bigger concern was chill. “The combination of overbreadth and criminalization may well lead people desirous of avoiding even the slightest brush with the criminal law to protect themselves in the best way they can -- by confining their expression to non-controversial matters,” McLachlin wrote. “Novelists may steer clear of controversial characterizations of ethnic characteristics... Scientists may well think twice before researching and publishing results of research ... Given the serious consequences of criminal prosecution, it is not entirely speculative to suppose that even political debate on crucial issues such as immigration, educational language rights, foreign ownership and trade may be tempered,” she added. One needed to look no further than the confiscation of Rushdie’s Satanic Verses, which had been stopped by Canadian border officials applying a similarly-worded anti-hatred provision, she wrote.
Despite the 1982 Charter’s promise, Canada entered a more censorious era.
The Mark Steyn and Ezra Levant Affair
In early 2006, right-wing rabblerouser Ezra Levant of the populist Western Standard magazine published several of the famous Jyllands-Posten cartoons depicting the Islamic prophet Muhammad in an unflattering light.
Later that year, Maclean’s magazine (Canada’s version of Newsweek) published a cover story by journalist Mark Steyn entitled The Future Belongs to Islam. Steyn theorized that liberal democracies with low birthrates and weak national identities would quickly be overwhelmed by a fast-growing Muslim demographic that was more interested in theocratic rule than democracy. Needless to say, it was a controversial thesis.
Steyn, Levant, and the publications they worked for were soon hit with a barrage of complaints by Muslims in human rights tribunals across the country, alleging discrimination and hate speech. One complaint against Steyn was filed with the federal Human Rights Commission under section 13 of the Canadian Human Rights Act. Section 13 forbade repeated communications that would “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.”
All of the complaints were eventually dismissed, but the attack on freedom of expression caused enough Canadians to recoil that Conservative Prime Minister Stephen Harper, who was in power from 2006 to 2015, eventually repealed section 13 of the CHRA. Only the criminal hate speech provisions remained federally, and provincial human rights tribunals were chastened by the censorship backlash.
The Justin Trudeau Era
In 2015, Pierre Trudeau’s son Justin was elected prime minister. While controlling speech was not on the agenda for most of Justin Trudeau’s first term, he began to lean into concerns around online misinformation ahead of the October 2019 election.
In May 2019, Trudeau announced he was planning a new “Digital Charter” that would create “meaningful financial consequences” for social media platforms that failed to “step up in a major way” to counter disinformation and hate speech. He said that platforms would be required to remove illegal content within 24 hours. Trudeau was re-elected and soon introduced three new speech-regulation bills.
The Online Streaming Act, passed in 2023, was ostensibly designed to ensure Canadians can see “Canadian stories” in an era when more people had turned to streaming on Netflix, Spotify, and YouTube, by requiring that Canadian content be given preferred billing on those platforms (for example, by showcasing Canadian TV shows at the top of Netflix screens). It also gave the Canadian Radio and Telecommunications Commission the power to require platforms to choose programs based on race or language. That doesn’t sound like a freedom of speech issue until you realize it means platforms must, by law, push more CBC and less Joe Rogan.
Bill C-18, the Online News Act, also became law in 2023. The ONA absurdly requires digital platforms over a certain size to pay Canadian news outlets whenever people post links to news websites. While Google complied, Meta opted instead to block links to news, vastly reducing Canadians’ access to traditional news. It’s common to open Instagram or Facebook and see the ominous message: “People in Canada can’t see this content. In response to Canadian government legislation, news content can’t be viewed in Canada.” Ironically, it’s not illegal to post AI-generated slop that looks like real news but isn’t!
Worst of the trio, by far, was the Online Harms Bill. The first version, tabled in 2021, jolted free expression advocates. Bill C-36 would have brought back a version of section 13 that Prime Minister Harper had removed, with much higher potential penalties. Anyone could have brought another person before the Canadian Human Rights Tribunal as a result of seeing discriminatory speech online, with up to $20,000 in damages available to accusers and fines of up to $50,000. In some cases, the accusers could remain anonymous.
Unlike with criminal hate speech provisions, the tribunal would only need to find that the speech is discriminatory on a balance of probabilities. C-36 would also have created a pre-crime provision that would allow judges presented with “reasonable grounds” that a person might commit “an offence motivated by bias, prejudice or hate” in the future to jail them for up to 12 months. C-36 died when Parliament was dissolved for a surprise election in autumn 2021, which Trudeau won.
In 2024, Trudeau brought the Online Harms Bill back; this time, it was even worse. Bill C-63 would have included the $50,000 fines for online speech and the pre-crime provision. It would have also allowed up to life in prison for hate-motivated crimes. Plus, it would have created a new Digital Safety Commissioner watchdog. And it would have created new obligations on social media platforms to police speech through a new “duty to act responsibly” by taking down “harmful content,” including “content that foments hatred,” with fines in the millions. The same platforms that opted to block all news links rather than pay newspapers could not be expected to err on the side of protecting free speech if millions of dollars were on the line.
C-63 was opposed vociferously by Conservative opposition Leader Pierre Poilievre and civil society groups like the Canadian Constitution Foundation, where I work. The Conservatives managed to slow the bill down and prevent its passage. For most of 2024, it looked like Poilievre would take power in the 2025 election. But, last April, Canadians chose the new Liberal leader, former Bank of England governor Mark Carney, as prime minister instead.
Will Mark Carney Resist The Urge to Censor?
Carney’s Liberal platform promised to bring back the Online Harms Act. The platform stated that the Liberals would “introduce legislation within its first 100 days to combat serious forms of harmful online content, specifically hate speech, terrorist content, content that incites violence, child sexual abuse material and the non-consensual distribution of intimate images.” They also promised to “make sure that social media platforms and other online services are held accountable for the content that they host,” and to “strengthen the Canada Human Rights Act and the Criminal Code to more effectively combat online hate.” The first 100 days came and went.
Last September, Carney’s minister tabled Bill C-9, which would ban certain symbols such as terrorist flags. This was mostly in response to police frustrations that they could not criminally charge people waving terrorist flags at pro-Palestinian marches after October 7.
But there was a problem: Carney was a few seats shy of a majority in Parliament, so he needed a single vote from a Bloc Québécois member to get his bill through the Parliamentary committee. The Bloc – a highly secularist, anti-immigrant, Quebec separatist party – named its price: removal of the good-faith religious defense that Muslim preachers sometimes used to avoid criminal hate speech. The Liberals agreed. (Thankfully, as a result of advocacy by the CCF and the Conservatives, C-9 no longer lowers the definition of hatred, and no longer removes the protective requirement for attorney general consent to charges, as the Liberals had originally proposed.)
We simply don’t know what’s coming next. The minister in charge has repeatedly said some version of the Online Harms Act will return, as promised. In March, Prime Minister Carney said so too, suggesting the bill will include a ban on social media for children. Does this mean Carney has abandoned the proposal for a hate speech tribunal, the Digital Safety Commissioner, the pre-crime provision, and the huge fines for platforms that allow “harmful” speech on their platforms in favor of age limits for kids to access social media? Or is the plan to use the popular proposal to put age limits on social media to ram through the whole thing?
What we do know is that Carney may have a majority in the House of Commons after three byelections on April 13. That would give him the votes to regulate speech without needing any opposition support. We can only hope Canadians see the risks of C-9 and tell him that enough is enough.
Josh Dehaas is Interim Litigation Director with the Canadian Constitution Foundation, a legal charity dedicated to defending Canadians’ rights and freedoms. He is co-author of Free Speech in Canada: A beginner’s guide from ancient roots to current controversies.