Tuesday, 30 October 2012

Confusing Compulsion for Freedom

The Toronto Sun reported yesterday that one of the reasons the Quebec student protests were so well-organized last spring is because the protesters were receiving financial help from unions across the country.

Canadian unions are well-known to give financial support to political causes—almost exclusively to those on the left side of the political spectrum. Many provinces in Canada, including Ontario, Manitoba, Saskatchewan, and British Columbia, have enacted legislation that forces even non-union members to pay union dues. And regardless of the wishes of the individuals forced to financially support them, unions are permitted to spend the money they collect to advance political causes that those same unwilling supporters oppose.

This issue was before the Supreme Court of Canada in the 1991 Lavigne v. Ontario Public Service Employees Union case. This case examined whether the Charter right to freedom of association prohibits the government from compelling individuals into associations against their will.

Lavigne was a teacher at a community college. His employment contract incorporated the so-called Rand Formula, which forced him to pay union fees regardless of whether he was a union member. The union then used Lavigne’s money to support the NDP and other political causes that he deeply opposed.

Once he became aware of this, Lavigne applied to get his money back so that it could not be used to further causes he considered unjust. His application was unsuccessful so he appealed all the way to the Supreme Court of Canada. The court’s decision was truly baffling.

Of the seven judges who heard the appeal, only three correctly held that freedom of association includes both a right to associate and a right to not associate. These three judges recognized that it’s just a matter of plain logic. If you are free to associate, you must also be free not to associate. That’s precisely what “free” means.

The remaining judges held that compulsory associations do not violate the Charter and that freedom of association “should not be expanded to protect the right not to associate.” Expanded? This implies that freedom from association is something other than a corollary of freedom of association. This view is incorrect. And it’s illogical.

In the end, the court had to bend the rules of good-reasoning to protect the Rand Formula. The word “freedom” necessarily implies choice. At a bare minimum, it must mean that individuals are free to choose to associate and free to choose not to associate. Yet the Lavigne decision protects the government’s constitutional authority to force individuals into involuntary associations. This is to confuse freedom with compulsion.

The real injustice in Quebec is not that tuition rates have been raised by a fraction. It’s that unions are supporting the protesting students using money involuntarily collected from unwilling Canadians.

Monday, 1 October 2012

Canada Should Repeal Its Blasphemy Law

It's time for Canada to repeal its prohibition on blasphemous libel.

Section 296 of the Criminal Code of Canada makes it an indictable offence to publish blasphemous libel.  Upon conviction, an accused is liable for up to two years of imprisonment.  Section 296 permits an accused the defence of “good faith” provided that “decent language” is used. 

296. (1) Every one who publishes a blasphemous libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) It is a question of fact whether or not any matter that is published is a blasphemous libel.

(3) No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.

It’s probably a safe bet that most Canadians do not know what the term “blasphemy” means, let alone that blasphemous libel is a criminal offence.  According to the Merriam-Webster online dictionary, to blaspheme means to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute—presumably excluding other religions.  The courts held the prohibition to include any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if it was done with the intent to shock or insult believers, or mislead the ignorant and unwary.

Arguably, the most recent decision on section 296 generalized the prohibition so that it may now be possible to blaspheme other religions as well.  But this has not been tested in court because the prohibition has fallen into disuse.

The first time I read this prohibition in the Criminal Code during law school, I found it surprising that Canada has any sort of law prohibiting blasphemy.  First, blasphemy is everywhere.  It is not difficult to find all sorts of published material that break this law—movies, music, books, magazines, video games, visual art, etc.  And second, any sort of prohibition on blasphemy strikes me as an unacceptable restriction on freedom of expression and one more potential foothold for tyranny.  Notice that the way that the prohibition is worded inevitably makes it function as a proxy for the personal and political views of the judiciary.  Perhaps "foothold for tyranny" is an understatement?

Fortunately, there have not been any blasphemous libel prosecutions in Canada since the 1930’s.  It is likely that section 296 is effectively dead even though it remains in the Criminal Code.

But being effectively dead is not truly dead.  The UK has had a similar prohibition with much the same story as Canada’s—it languished unused for a significant period of time.  Yet in the 1979 case of Whitehouse v. Lemon, Mary Whitehouse resurrected the UK’s blasphemous libel prohibition in a successful private prosecution.  The accused was convicted but did not have to serve the prison term.  By the way, the UK repealed its blasphemy law in 2008.

Aside from the important point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296. 

First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance.  Remember the famous admonition to take the mote out of your own eye first?

And second, there is no certainty that the Charter’s guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel.  That’s an unanswered question that has never been tested in court.  Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression.  Also, there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech.  Trials are inherently uncertain and court decisions can often yield surprising results.

It’s probably best to repeal section 296 rather than assume that it will never be used in the future.