December 12, 1999

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In Canada, Free Speech Has Its Restrictions

Government Limits Discourse That Some May Find Offensive

By Steven Pearlstein
Washington Post Foreign Service

TORONTO--New Yorker Harold Mollin thought it was a pretty clever way to market his new "weather insurance" to Canadians planning weddings or vacations: a 30-second TV spot featuring a huckster dressed in an Indian headdress leading a bunch of senior citizens in a rain dance.

But to the Canadian Broadcasting Corp. (CBC), the ad was an affront to Native Americans and the elderly. The government-owned broadcaster refused to run it.

"This is political correctness run amok," said an incredulous Mollin, noting that the seniors in the spot included his 89-year-old father, his aunt and his best friend's parents.

Or take the case of Stephani the cow. This fall, after a visitor to the government's experimental farm complained that she didn't like sharing the same name with the animal, the farm's director declared that, henceforth, government cows would get only names like Rhubarb and Dynamite.

Whether you call it over-sensitive political correctness or an abiding sense of fairness and decency, Canada has embraced it like a . . . well, never mind. Through its human rights laws and hate speech codes, broadcast standards and myriad "voluntary" industry guidelines, Canada makes no bones about its determination to impose liberal-minded limits on public discourse.

Although the 1982 Charter of Rights and Freedoms put free speech and a free press into the bedrock of Canadian law, neither the public nor Canada's courts views these rights as absolutely as Americans have come to view the First Amendment. The Canadian Supreme Court has ruled in a series of cases that the government may limit free speech in the name of other worthwhile goals, such as ending discrimination, ensuring social harmony or promoting equality of the sexes.

"In Canada," said Ron Cohen, chairman of the Canadian Broadcast Standards Council, "we respect free speech but we don't worship it. It is one thing we value, but not the only thing."

Cohen said that Canada seems to have survived reasonably well without Don Imus or Rush Limbaugh on any of its radio stations. (Howard Stern is heard only in Montreal --and then only censored on tape delay.) Last month, the Global Television network pulled the "Jerry Springer" show from its lineup after the standards council found that it had violated the restrictions on sex and violence.

Canada's most powerful tool against politically incorrect speech is its hate speech code, which prohibits any statement that is "likely to expose a person or group of persons to hatred or contempt" because of "race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age." Prosecutors are not required to show proof of malicious intent or actual harm to win convictions in hate speech cases, and courts in some jurisdictions have ruled that it does not matter whether the statements are truthful.

One person who has run afoul of the code is Hugh Owens, a Christian fundamentalist who took out a small display ad in the Saskatoon newspaper featuring a stick figure drawing of two men holding hands inside a circle with a slash through it--a statement of his disapproval of homosexuality.

What made it worse, said the Saskatchewan Human Rights Commission, was that the graphic was accompanied by citations from the Biblical books of Leviticus, Romans and First Corinthians that, in some translations, call for sodomy to be punished by death by stoning. If a hearing officer agrees that this display violates the code, Owens could become the first modern-day Canadian punished by the government for citing the Bible.

"Our position is that you can't rely simply on the free exchange of ideas to cleanse the environment of hate and intolerance," said John Hucker, secretary general of the Canadian Human Rights Commission.

For the Canadian press, however, a more serious challenge to free speech is posed by a case brought by the Human Rights Commission of British Columbia against Douglas Collins, a former columnist for the North Shore News in Vancouver.

In 1994, Collins wrote four columns that questioned whether as many as 6 million Jews were killed in the Holocaust and criticized Hollywood for contributing to the "Holocaust propaganda" with movies such as "Swindler's List," as he called Steven Spielberg's "Schindler's List." Acting on a complaint by the Canadian Jewish Congress, a commission tribunal ruled that the columns had expressed his "hatred and contempt . . . subtly and indirectly" by "reinforcing negative stereotypes" about Jews.

The tribunal imposed $2,000 fines each on Collins and the newspaper and ordered the paper to publish a summary of its decision--the first time that any Canadian government agency or court had dictated editorial content to a newspaper and ordered that it be published. The case has been appealed to the British Columbia Supreme Court.

The electronic media operate under even tighter content restrictions. Last month, in the midst of violent protests in New Brunswick over Indian fishing rights, CBC reporters on orders from network officials, began referring to participants as "native fishers" and "non-native fishers."

"Why can't we call them what they call themselves?" complained CBC producer Dan Leger in an internal e-mail leaked to the National Post. "Mik'maqs call each other Indians. Fishermen call themselves, well, fishermen." Leger called the new designations "urban, technocratic, precious, racist and, above all, imprecise."

Failing to follow such guidelines, however, can have consequences. In Winnipeg last year, radio talk show host John Collison lost his job after the Canadian Radio and Television Commission (CRTC) complained to station owners about his repeated and sometimes salty diatribes against Glen Murray, who eventually became the first openly gay mayor in Canada. Collison also used his show to stir up opposition to a program proposed by some school board members to eliminate homophobia in the city's schools.

Collison concedes he was playing the role of "shock jock." In response to threats from the CRTC, Collison said, the station not only fired him, but also gave up its all-talk format in favor of easy-listening music.

"This is the way things run in Canada," Collison said. "There is no way of escaping the mandarins of political correctness."

Andrea Wylie, a member of the CRTC, disagrees. "We are not the thought police," she said. "We use our power lightly."

Wylie cited figures showing that the commission and its broadcast standards council took action in only about a dozen of the 14,000 viewer complaints lodged last year. While acknowledging that the very existence of the codes might have a chilling effect on public discourse, she called it "a reasonable chill," reflecting what Canadians are willing to hear.

"We don't have the hang-up you Americans have with free speech," Wylie said.

Advertisers in Canada also must adhere to a strict set of guidelines adopted voluntarily by the industry, but no less effective than the government regulations. Under their dicta, a national restaurant chain was recently forced to pull a television spot showing a helpless dad trying to prepare dinner for the kids (he eventually gives up and takes them out for burgers and fries). A hearing officer ruled that the commercial "reinforced negative stereotypes" about men that "cannot be excused by an attempt to engage in humor."

There are a few Canadians who worry about these limits, but, as Alan Borovoy, general counsel of the Canadian Civil Liberties Association has discovered, it's a very few. Despite 30 years of crisscrossing the country warning of the dangers of speech codes and laws, Borovoy's organization has a mere 6,000 members and a budget of less than $300,000. Typically, he can take on fewer than 10 cases a year.

Sitting in his cramped office in a rundown office building in downtown Toronto, Borovoy is philosophical in describing American and Canadian attitudes toward civil liberties. While Americans are suspicious of government and rally to the cry of "life, liberty and the pursuit of happiness," Canadians, he said, tend to respect authority and set their sights on the more modest goals of "peace, order and good government."

"In this country, we give the government too much power and trust them not to abuse it," said Borovoy, noting that, for the most part, voters have not been disappointed. "I tell people that Canada is a pleasantly authoritarian country."

Related files: Canada's persecution of David Irving