"Canada is dull only to the unseeing eye."--Lansing Lamont
"You can learn a lot from a dummy. Buckle up your seat belt."--TV Public Service ad
The United States and Canada are far more alike than they are different Even the characteristics that distinguish the two countries seem as subtle and intangible as the fenceless border that separates them. Except, perhaps, for their different approaches to free speech. Over the past five years or so, Canada has shown itself to be far more willing than the United States to restrict forms of speech that in this country are taken for granted, or at least permitted. During this period, of course, the United States has undergone its own free-speech crisis, as forces from both the right and the left have attempted to restrict all manner of expression, from abortion counselling to pornography and racist speech. But these efforts have been largely unsuccessful. American courts, save in the area of sexually harassing speech that allegedly creates a "hostile environment," have vigorously defended the expansive boundaries of the First Amendment.
In Canada, on the other hand, recent efforts to restrict various kinds of expression have been comparatively successful, in large part because courts have determined that Canada's Charter of Rights and Freedoms (1982) sanctions them. Although the Charter protects freedom of thought, belief, opinion, and expression, it also states that these rights and freedoms are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (Part I, 1). In other words, freedom of expression can be "balanced" against other social ideals such as civility, order, and equality; in Canada, these other ideals frequently have been found to be more weighty. While recent efforts to restrict speech and press have not yet precipitated a constitutional crisis in Canada (no political party has even made censorship an issue), a growing number of Canadians are upset that the Charter of Rights and Freedoms does not protect free expression with the same generosity as does the First Amendment to the American constitution. When even the general counsel of the Canadian Civil Liberties Association can proudly characterize Canada as a "pleasantly authoritarian country," it is no wonder that an increasing number of Canadian citizens fear that Canada's paternalistic experiments with democracy's fundamental freedom might eventually lead to an authoritarian state that is decidedly unpleasant (in Jeffrey Toobin, The New Yorker, 3 October 1994, 71). Some think it already has.
Americans should be concerned with the current state of free speech in Canada because the same restrictions that have recently succeeded there have been attempted here, and still have their advocates. It might be prudent to review how and why Canada has restricted freedom of speech so we can determine if we really want to follow it down the same path.
Now that forty-six states allow television in the courtroom, now that Court TV is piped into 14 million American homes, and now that newspapers and networks--blithely snubbing pleas from the bench--pander to the public's appetite for sensationalism by revealing illegally obtained evidence and trading in rumors and downright errors, Americans may have trouble conceiving of a country in which courts can dictate what newspapers and television networks can and cannot say about trials, but that is what courts can do in Canada. Judges have determined that the Charter's guarantee of a fair trial trumps anybody's "right to know" (see Kirk Makin's extended analysis of these differences in the Toronto Globe and Mail [G&M], 24 September 1994, D1-D3). Section 11 (d) of the charter of Rights and Freedoms is not the only legal sanction for suspending freedom of the press in Canada. Section 486 (1) of the Criminal Code also provides for the most sweeping infringements of press freedom by allowing a judge to exclude the public from any trial in the interest of public morals, the maintenance of order or the proper administration of justice. It also provides for a mandatory publication ban on evidence that is taken at a bail hearing or a preliminary hearing upon the mere request of the accused or, with discretion, when the Crown requests it The Criminal Code also allows for a publication ban of a complainant's identity in cases of sexual assault, and of witnesses , identities if under 18. When judges want, silence and secrecy prevail. To strengthen these provisions, the federal government introduced a bill (which passed in the House of Commons in October, 1994) which would ban publication of courtroom proceedings that occur before a jury is chosen; in other words, under this bill, newspapers cannot report what occurs in preliminary, pre-trial hearings.
To see what courts must do to restrict information, let's look first at one of the most notorious murder cases in Canadian history--the Bernardo/Homolka case. Paul Bernardo and Karla Homolka (once married, now divorced) were arrested in 1993 for the sexual torture and murder of two twelve-year-old girls; Bernardo has also been charged with manslaughter in the death of Ms. Homolka's 15-year-old sister. Needless to say, the case generated frenzied interest To make sure that the defenses of both Homolka (who came to trial first) and Bernardo (to be tried in early 1995) could be heard by unbiased juries, the judge ordered a "temporary, partial" ban on publication or distribution of information about the "circumstances of the deaths of any person referred to during the trial of the defendant" (G&M, 30 December 1993, A2). It was not clear if the ban applied outside Ontario. The ban was announced to the news-media representatives who had been allowed by the judge to attend the trial: the public had been excluded, as had the American media. Since there was a lot one had to know to determine whether one was breaching the publication ban, newspapers and television stations not at the trial on the day the ban was explained played it safe and interpreted the judge's words as a complete ban on the publication of evidence. As a result, the media did not report either Ms. Homolka's plea to the charges or the details of the joint submission on the facts of the case made to the court by Crown and defense counsel. Under Canadian law, the media does not have the right to appeal a judicial order prohibiting publication of courtroom proceedings; only the Crown or the accused has aright to appeal a criminal order. (After a two-hour trial, Karla Homolka was convicted of manslaughter and sentenced to twelve years' imprisonment; her earliest release date is 1997.)
Many Canadians went to considerable lengths to get information about the case. Some drove across the border to buy American newspapers. But Canadian Customs agents (more about them in the next section) permitted only one copy for each returning Canadian, confiscating any additional copies. At one border crossing, Customs officials turned away 600 copies of the New York Times. At another, Canadian authorities massed one morning and searched every newspaper truck coming from the United States (Wall Street Journal [WSJ], 8 December 1993, AI5). According to the Christian Science Monitor (CSM), as of December 1993 sixty-one people had been detained in connection with violating the judicial ban, and 187 papers had been seized (28 December 1993, 12). At first it was unclear whether Canadian libraries could even display American papers carrying banned details. The Halifax City Regional Library, for instance, was advised to remove an article from the Boston Globe; a judge later permitted library-goers to read the controversial article, pointing out that it would be impossible for libraries to monitor the content of each and every periodical and newspaper they receive each day (G&M, 18 December 1993, A5; 30 December 1993, A2). But when computer bulletin boards at the University of Toronto were used to exchange details about the killings, they were shut down, and eighteen other Canadian universities followed suit (CSM, 28 December 1993, 12; Chronicle of Higher Education [CHE], 15 December 1993, A15). Some institutions have also removed messages about the case from other Canadian-oriented bulletin boards, such as <http://20c.culture.canada>. A more troubling development was the banning of the April issue of the American magazine Wired because it contained an essay explaining why the media ban was unenforceable and how information on the case was readily available to Canadians. The article did not contain forbidden details.
To protest the ban, Darren McKee, a Buffalo disk jockey, shouted forbidden details across the border over a megaphone (CSM, 28 December 1993, 12). Also as a protest, a radio station in Detroit (WXYT) called itself "Radio Free Windsor" and broadcast forbidden information to Canada. But some American news agencies actually honored the ban, thus making the ban international in scope. Some American television networks, seeking to avoid a confrontation with Canadian authorities, provided advance notice of news and entertainment shows referring to the case so that stations on either side of the border could blank the material out. Fox Network, for example, blocked from its border stations--including those in Montana--an episode of A Current Affair that contained information about the case. Because of the court ban on publishing details of the trial of Karla Homolka, a non-fiction book published in November 1994 by Penguin Canada entitled Karla's Web: A Cultural Investigation of the Mahaffy-French Murders had about 2 percent of the book blacked out--by the publisher (Penguin has assured those who buy the book that it will send them the pages of censored material after the Bernardo trial).
The Homolka case was certainly not the only one to provoke sweeping publication bans. The judge in a trial in Martensville, Saskatchewan involving charges of sexual assault of children at a daycare center ruled that no information about the trial of the first three of nine accused adults could be disseminated until all of the other cases were completed (G&M, 14 September 1993, A4). Furthermore, the media could not report, until further order, any testimony that would identity and implicate any person other than the nine adults who were charged. But testimony and factual information are not the only kinds of information that can be suppressed. Canadian judges also have the power to control fictional material as well, if that material has the potential for adversely affecting the fairness of a trial. In 1992, the Ontario Court prohibited the Canadian Broadcasting Company from televising its scheduled docudrama about sexual abuse of boys in a Catholic orphanage (The Boys of Saint Vincent) anywhere in Canada for the immediate future. In addition, it prohibited anyone from disclosing in any medium anything about the two-part series. (The Boys of Saint Vincent aired on American cable channel TNT in February 1995.) What is even more remarkable is that the judge also prohibited the media from reporting the fact of the ban itself, or from revealing that it had been requested by four (of eight) Christian Brothers facing trial on sexual assault charge in Ontario (G&M, 8 December 1992, editorial). At the time, a CBC executive said, "it's hard fathoming that all this is happening in a country like Canada." You are reading about this now only because a higher court overturned the ban, although it con firmed the ban on broadcasting the movie anywhere in Ontario and in western Quebec until after the trial. This ban did not prevent the National Film Board from releasing the video version throughout the country a few days after the court order (G&M, 8 December 1992).Two years later (December 1994), the Supreme Court of Canada ruled (6-3) that the ban was too broad; it also set guidelines for judges deciding whether to impose publicity bans on trials.
In 1991, in Newfoundland, a non-fiction, eye-witness account of child abuse in foster homes and the Mount Cashel Orphanage--Suffer the Children--was prevented from being published to protect the chances of 79-year-old Mary Dinn of getting a fair trial on charges of assaulting the author of the book and four other boys at a foster home nearly 30 years ago. The author said that the provincial government is guilty of censorship. My right to freedom of expression has been violated to the point where the government can pretty well do as it wants. It's pretty scary. How much right does the government have to control what is published?" (G&M, 24 April 1992). The right answer is, "all the right in Canada." This was amply demonstrated when a royal commission report into the allegations of abuse at Mount Cashel was not banned. "The irony here is beyond belief," said the publisher of the Dereck O'Brien's book. "This has gone to the point now where this is bizarre."
In a similar case, the Alberta Supreme Court upheld (1985) an injunction preventing a theater company from staging a play entitled Ilsa, Queen of the Nazi Love Camp, about a high-school teacher named Jim Keegstra who promotes anti-Semitism in the classroom; the court feared it would taint the trial of James Keegstra for spreading hate-propaganda. Not content with this restriction, Keegstra submitted a motion to prevent production of the play permanently, contending that the play was evil and promoted hatred (G&M, 24 February 1992; 30 April 1992).
Court-ordered publication bans have become so commonplace and sweeping that sometimes the circumstances that occasion them are made obscure by the ban itself. In August, 1993, all that newspapers could report was that a British Columbia court banned publication of any details about a case before it Whether the case is criminal or civil could not be made public, nor could the explanation for the ban be reported (G&M, 15 September 1994, A7). In another case (?) newspapers could only report that an unnamed B.C. Supreme Court judge authorized the release of information that an injunction was granted by the B.C. Supreme Court and that proceedings were to be held in camera and the file sealed (G&M, 20 September 1993, A3). Nothing could be revealed about the location, the people, or the organizations involved, nor the issues in the dispute nor the reasons for the court-ordered silence. In still another case (??), a reporter tried to confirm whether a publication ban existed, but found it impossible to do so thanks to the ban. A Crown attorney advised that since he thought the ban did not have a termination date, the paper should not publish anything. According to the Campbell River Courier-Islander, "court registry officials felt constrained by the ban not even to explain it" (G&M, 25 September 1993, A4). In other words, in some cases the media are not allowed to report which case in which place on which subject they are not allowed to report. Columnist Rick Salutin referred to the "mini-epidemic" of publication bans as "banomania" (G&M, 10 December 1993, A13).
But protecting the right to a fair trial is not the only reason courts in Canada ban publication of trial information. When two fabulously wealthy brothers sued each other in 1993, the court banned the publication of the contents of any statements filed in court on the grounds that the disclosure of financial information would help competitors and irreparably harm the litigants. More cynical observers suggested, however, that the wealthy family simply did not want its dirty secrets laundered in public (G&M, 25 August 1993, A4). Avoiding embarrassment or public scrutiny is grounds enough for curtailing the press in Canada. When several suicides occurred on the Sandy Bay Indian Reserve, the chief and tribal council banned all media, including Native-Canadian journalists. "There is no freedom of the press in Indian country as long as the Indian Act exists," one native journalist observed (G&M, 25 June 1993, A3).
Some publication bans have nothing to do with trials and are imposed without urgent justification. In Quebec, a preliminary ten-day court injunction prevented any media organization from broadcasting or publishing a certain "report about the constitutional accord." Since the injunction applied only in Quebec, Canadians from New Brunswick to British Columbia knew the mysterious contents of the report (G&M, 17 September 1992). In 1991 Hydro Quebec and thirteen large industrial fInns obtained injunctions to stop publication of certain secret power contracts. One of these contracts, leaked to the press, showed that Norsk Hydro Canada Inc. was buying electricity from Hydro at a price considerably below the cost of production. While Quebec media outlets were prevented from disseminating this information, American TV stations near the border provided Quebeckers with all the details. As an editorial in the Globe and Mail put it, "it's no surprise that Hydro Quebec wanted to keep its doings secret, but why in the world were the courts willing to help them?" (17 September 1992). In an Ontario court privacy considerations trumped other social interests and principles enshrined in the Charter of Rights and Freedoms when a judge ordered the CBC to stop distributing or televising anywhere in the country the documentary The Trouble with Evan until it was edited to conceal the identity of the unhappy family it portrays. The film was made by means of video cameras installed in Evan's home; they recorded Evan's parents verbally abusing him. The injunction was obtained by the Children's Aid Society, which argued that Ontario's Child and Family Services Act prohibits identifying those involved in proceedings under the act.
In the United States, any attempt by a judge to gag the press is almost surely doomed to failure. In 1976 (appropriately), the U. S. Supreme Court decided that criminal defendants trying to stop the publication of potentially prejudicial pretrial publicity will face an extremely high burden of proof to succeed. The Court held that prior restraint on the freedom of the press could only be justified in limited circumstances and only if the prohibited publicity contributed a clear and present danger to the right to a fair trial. Because of these difficult requirements, it is now assumed that almost all "gag orders" are effectively unconstitutional. In 1980 the U. S. Supreme Court once again firmly entrenched freedom of the press when it held that open judicial proceedings were implicit in the guarantee of the freedom of the press and were ultimately designed to ensure open communication about government Recently, when the defense lawyer for Erik and Lyle Menendez complained to a judge that the airing of a TV movie entitled Honor Thy Father and Mother: The True Story of the Menendez Murders would taint the trial, the judge would not even order Fox Network to add a disclaimer or take out the words "true" and "murder" from the title. In Canada, of course, any defendant who imagines that a work of fiction or non-fiction--a book, a magazine, a play, a film, a television program--may hurt his or her chances for a fair trial could probably get an injunction to suppress it.
Many Canadians much prefer court-ordered bans on newspapers, broadcast media, and writers to the appalling media spectacles surrounding sensational "trials" in America. They do not see such bans as serious threats to free speech since most bans are limited in time. Some believe that such bans do not even raise freedom-of-speech or freedom-of-the-press issues. "Prior restraint can and should be used by the courts to keep secret information whose publication could...undermine an accused's right to a fair trial" (editorial, G&M, 17 September 1992). "If there is an argument," writes Robert Sheppard, a celebrated Canadian journalist, "it is whether the ban is justified to ensure a fair trial, a decision I would rather leave to a judge than a city editor. The media, by nature of being in the publicity business, are not equipped to gauge the effect of their own handiwork on 12 prospective jurors" (G&M, 16 December 1993, A19). There is little question that as information technologies proliferate and improve, courts will be driven to impose ever more sweeping and draconian publication bans in an effort to ensure a pool of impartial jurors.
Some Canadians are not at all pleased with this prospect. A number of newspapers have legally opposed and editorialized against court-ordered restrictions. One editor for the Globe and Mail argued that "no serious evidence" has ever been produced to back up the claim that publicizing information even about sensational murder cases "threatened anyone's right to a fair trial" (1 December 1993, A22). Another editor for the same paper argued that
today's jurors are intelligent people, able to decide upon the evidence. All that publication bans succeed in doing is evincing a low regard...for our ability to comprehend, for our desire to be informed, for the very legitimacy of our involvement in the administration of justice. If people are such crude stooges of the media as the judge implies, why on earth do we let them vote, let alone assume such awful responsibilities as to weigh a man's guilt or innocence? (8 July 1993, A16)
Jim Coyle of the Ottawa Citizen put it even more bluntly when he said that court-ordered bans are based on the assumption that the public "is a pack of morons who would be irretrievably tainted should they know certain facts" (Time, 13 December 1993, 59). Citizens are very aware of the slight implied in all publication bans. Blacking out television signals from the United States and confiscating newspapers with "offending" stories have infuriated a number of them, generating, as an American writer put it, "disdain for a system that forces such odious, anti-democratic procedures" (WSJ, 8 December 1993, A15). These arguments may have influenced the thinking of the Supreme Court of Canada. In its recent ruling against the banning of The Boys of St. Vincent, the Court said that jurors are capable of following instructions from trial judges and ignoring information not presented to them in the course of the criminal proceedings" (in G&M, 10 December 1994, D6).
There are other dangers to courts operating without public scrutiny. Publication bans could enable legal authorities to escape being called to account for dubious decisions and outright miscarriages of justice (G&M, 4 February 1994). As media lawyer Patricia Jackson said in reference to the Homolka trial, "the public needs to know how the system has dealt with horrifying cases. To not do so is a serious constitutional breach, and undermines the integrity of the judicial system" (G&M, 2 February 1994, A3). It would be highly suspicious, for instance, if courts were to impose information bans in trials about public corruption, corporate shenanigans, tax scandals, government agencies, or the personal depravity of politicians or bureaucrats. Justice must not only be done, it must be seen to be done. Thus, many argue, it is a bad idea for judges anywhere to have the power to pick and choose which facts can be the subject of commentary and which cannot. Courts should be subject to the same public scrutiny and judgment legislatures are, and maybe more. "The power of incarceration held by the courts is probably the most awesome power granted anywhere in our society, and for that reason the courts should never be left to operate out of public view. It is a basic matter of democratic control" (Rick Salutin, G&M, 10 December 1993).
Although American free-speech absolutists seem to be always in a dither about "censorship," American courts--the Meese Commission notwithstanding--have essentially nullified anti-obscenity and anti-pornography legislation. Just about anything goes: Mapplethorpe's photographs of anal fisting, Hustler's "Beaver Hunt," Karen Finley's vegansexcapades, Ron Anthey's sado-masochistic "Four Scenes in a Harsh Life," and the Sisters of Charity of the Incarnate Word's exhibition entitled "Spiritual, Sensual, Sexual"--all are safe from governmental repression south of the Forty-ninth Parallel. In Canada, the situation is very, very different.
In Canada, questions of morality fall under the sole purview of the federal government and are dealt with by the obscenity provisions of the Criminal Code. Section 163 of the Code bans any "publication, distribution or circulation [of] any obscene written matter, picture, model, phonograph record or other thing whatever":
For purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and anyone or more of the following subjects, name crime, horror, cruelty and violence, shall be deemed obscene.
It is one of the jobs of Canada Customs--through its Prohibited Importations Directorate--to apprehend at the border any material that is" or may be, obscene. That duty was given to Customs in 1840" even before Confederation, when Customs was given the power to block entry of material it deemed immoral, indecent, seditious or treasonous. Customs has always performed this duty assiduously, apprehending, over many decades, a number of corrupting works, such as Zola's Nana, works by Guy de Maupassant and Balzac, novels by James Joyce, William Faulkner, D.H. Lawrence, and Dashiell Hammett, pulp magazines, books advocating birth control, socialism, or communism, and Playboy and nudist magazines.
The power of Customs has not changed much over the past 150 years. In 1962, the finance minister took briefly Customs out of the censorship business, telling officers to stop only those books that had already been judged obscene by the courts. But with the increase in heterosexual erotica that followed the sexual revolution of the 1960s, Customs was back barring the door by 1967. The only other major challenge to Customs' censorship power (until 1994) came in 1985, when the Supreme Court ruled that the wording in the Customs Tariff barring "obscene and immoral" material was too broad to constitute a reasonable limitation of freedom of expression as defined by the Charter. The government rushed through an amendment to plug the hole and Customs kept its powers. As one law professor put it, "the history of book censorship in this country is largely the history of Customs censorship. There have been a few hundred court cases, but Customs has banned thousands of titles. And we've never had a serious public debate about it" (G&M, 8 October 1994, C2).
To apprehend "obscenity" at the border, members of the Prohibited Importations Directorate (a name that has a nice Orwellian ring to it) must believe that it depicts one or more of the acts listed in departmental Memorandum D9-1-1. This memorandum (introduced when government-sponsored anti-pornography legislation failed) sets out in detail what sort of material may not enter Canada. Forbidden is material that depicts sex with violence, sex with children, incest, bestiality, necrophilia, hate propaganda, anal penetration, bondage, or degradation (unless presented in a "rational and unsensational manner"). (Neither bondage or anal sex is illegal in Canada.) It also asserts that representations of "pregnant and/or lactating women" in a sexual context is forbidden because it "debase[s] motherhood."
If the material, in the opinion of these "commodities specialists," falls into any of these categories, it can be arbitrarily impounded for an indefinite period while it is shipped to Ottawa where bureaucrats determine if the material is obscene or not. The person to whom the material was addressed is sent Canada Customs Form K27, a "Notice of Detention/Determination." Customs officials, who have no training or expertise in obscenity law or in issues of freedom of expression (they are the same ones who inspect fruit and vegetables), are witness, counsel, judge, and jury, all in one. No trial, no proof of "undue exploitation," and sometimes no notice to the addressee. On more than one occasion all the recipient received was a box of shredded paper. Should the bookseller, let's say, accept the obscenity ruling, the material is simply incinerated. The recipient can appeal, but this could take anywhere from two weeks to more than a year, rendering interdicted periodicals unsalable. There is also the problem of trying to establish the innocence of material one has not seen.
The wording of D9-1-1 has led to Customs officials interdicting a disproportionate amount of gay and lesbian material. An estimated 75 percent of shipments to gay bookstores in Canada have been opened, delayed, lost, forgotten, damaged, pillaged or sent back. Inland Books, a Connecticut company that is the leading exporter of gay and lesbian books to Canada, has had to revamp its shipping procedures because Customs had detained so many of its books (G&M, 21 October 1993, A22). In May and June of 1993, three complete shipments from Inland Books--over one ton of books and periodicals--were seized; out of 300 titles, only 20 were eventually found deserving of incineration (G&M, 12 February 1994, D5). The owner of Inland said that "Canada is the only country we deal with that will actually remove books from a shipment and take them away."
Customs seizures of gay/lesbian material has become so frequent that one U. S. book distributor refuses to send any more books to Canada. In a letter to Glad Day Bookshop, the sales manager for Golden-Lee Book Distributors Inc., of Avon, Massachusetts, wrote: "I wish we could be more supportive in your struggle against the Canadian laws banning erotic material.... [However] every shipment we send to you, whether containing questionable material or not, is detained for months at a time. When shipments are returned to us they are always missing books. Further, the books returned to us are so damaged that we have to write them off as unsalable" (G&M, 8 October 1994, C1).
Some of the gay/lesbian works Customs has recently nabbed include: Karen Barbers Afterglow, Pat Claifia's Melting Pot, Gael Baudino's Shroud of Silence, The Best Plays of Albert Innaurato, Oscar Wilde's Teleny and Collected Letters, Jean Genet's Querelle, Gelsey Kirkland's Dancing on My Grave, Anne Cameron's Dzelarhons, Kathy Ackers Empire of the Senseless, Dennis Cooper's Frisk and Wrong, Tee Corinne's Lovers, Black Men/White Men, Marquis de Sade's The 120 Days, John Rechy's City of Night, the American lesbian comic book Hothead Poison, Stephen Beachy's The Whistling Song, the dense scientific tome entitled Living with the AIDS Virus: A Manual for Long-Term Survival, a foreign-travel guide for gays, Annie Sprinkle's Sluts and Goddesses videotape, and any American edition of the novels of British Columbia author Jane Rule (customs intercepted the video of the widely shown theatrical film version of her Desert Hearts, which had a general and legal release in Canada). In once instance, every reference in Blueboy's safe-sex guide to "anal" and "fucking" had been meticulously blackened out by Customs (reported by Robert Atkins in Village Voice, 18 November 1993).
The glaring irony about all this is that these titles can be found in book stores and public libraries. In other words, they are legal inside the country but not at the border. And not even always at the border. Larger bookstores can import without hindrance the same material that gay/lesbian bookstores cannot. When Customs banned a book co-edited by a Canadian (Bizarre Dreams, an anthology of gay male erotica co-edited by Caro Soles), it said that the nationality of the editor was irrelevant--the publisher was American. Had the book been published domestically, it could have been sold and distributed without a problem. Indeed, it was being sold in larger bookstores, whose shipments of the book were unmolested. Alison Gordon, President of Canadian Centre/International PEN, wrote:
Customs officials are ignoring identical or similar books and periodicals imported into the country to larger outlets and targeting small or minority publishers and bookstores. The result has been outright harassment, especially for gay and lesbian booksellers, and the suppression of minority viewpoints, both of which are totally incongruous in a democratic society. (G&M, 20 October 1993, A24)
Although Customs denies targeting gay and lesbian bookstores, Linda Murphy, director of the Prohibited Importation Directorate, did say during a recent trial that bookstores that have attempted to import prohibited material are subject to "heightened scrutiny." When asked during atrial if she could name one bookstore other than a gay and lesbian bookstore that had been subject to heightened scrutiny, Murphy said she could not (G&M, 9 November 1994, A12).
The number and variety of works intercepted by Customs in just the last few years is staggering. In one week more than 130 books were detained for inspection. Within the last six years one bookstore owner received almost 500 seizure notices (G&M, 12 February 1994, D5). Not all the apprehended titles are gay/lesbian erotica. Salman Rushdie's The Satanic Verses was forbade importation in 1989 on the grounds that the book could be "hate literature," a forbidden commodity in Canada. And sometimes the fruit-and-vegetable inspectors at the border simply misconstrue the material they are apprehending, as with: Carol Adams's The Sexual Politics of Meat, Charles Baudelaire's Les Fleurs du Mal, Charles Bukowski's The Most Beautiful Woman in Town, Dorothy Allison's Trash (it was confused with a collection of gay male fantasies), Margueritte Duras's The Man in the Corridor, The Devil's Advocate: An Ambrose Bierce Reader, and works by Kathy Archer, Arthur Rimbaud, Andrea Lorde, and bell hooks (her Black Looks: Race and Representation was apparently apprehended as possible "hate literature"). Customs has also tampered with shipments to university bookstores (McMaster, U. of Manitoba, U. of Victoria, U. of Waterloo, U. of Guelph, Trent University, York University, U. of Alberta, Simon Fraser University, St. Mary's University, the U. of Windsor, etc.).
No nit is too small to pick for the border bureaucrats. Customs grabbed a shipment of Italian zombie flicks sent to a Ph.D. student in Ottawa writing a doctoral dissertation on horror films; it also shredded an unpublished novel in manuscript about the mind of the pedophile which was being returned to the author, a retired psychologist, by his U.S. literary agent (the author was told that while it was legal for him to publish the book in Canada, he could not take it out of the country and bring it back [G&M, 21 July 1994, A12]); and it detained Changing Men, a magazine for men interested in the feminist movement (G&M, 21 July 1993, A8). American author David Leavitt's A Place I've Never Been was also seized, although the book was readily available in larger bookstores in Canada (because it has not been found obscene by any court of law) and the author himself was permitted to read aloud from his subversive work at Toronto's International Festival of Authors. "Why was not Mr. Leavitt himself confiscated at the border," asked one outraged writer (G&M, 21 October 1993, A22). As Canadian columnist Robert Hough has put it, "Canada Customs has nurtured a whole new literary esthetic in this country. Compliant and within guidelines are the descriptors now attached to Canada's finest literature. Phrases like extreme and undue preoccupation with...are criticisms of the highest order" (G&M, 12 February 1994, D5).
Although Customs is an extraordinary labyrinth of quiddities and double standards, one fact breaks through the Kafkaesque obscurity of its operations: Customs sometimes uses its censoring power to intimidate its critics. When the owner of a bookstore in Montreal sold transcripts of a media-gagged judicial inquiry, books sent to the store from the States began to be seized. When Toronto police removed the "obscene" paintings of a local artist from a restaurant, nearby Pages Bookstore constructed a window display denouncing the ban. One month later, Pages suffered its first book seizure ever. Material seized included a magazine called Piercing Fans International Quarterly, an academic text entitled Erotic Power, and several packages of Betty-Page trading cards (G&M, 12 February 1994, D5).
These and other seizures seem designed to communicate to outspoken critics of Customs one simple message: "We're watching you. We see what you're doing." The message is being heard. In 1992, Oxford University Press dropped from its Canadian list a book entitled Gay Ideas, a scholarly work written by a professor at the University of Illinois. Oxford feared that the work, which contained some of Robert Mapplethorpe's sado-masochistic photographs, would anger Customs. As Robert Hough wrote, "Customs flexed its muscles without ever having to knife open a cardboard shipping crate" (G&M, 12 February 1994, D5). An editorial in the same newspaper commented: "Indeed, just the threat of trouble with Customs is probably enough to stop importers from even trying to bring in certain sorts of material. We have no way of knowing" (21 October 1993, A22).
Despite these punitive campaigns of intimidation, some Canadians are doing what they can to resist the power of Customs to seize whatever it deems "obscene." The resistance began in earnest in 1985, when Customs refused to allow a shipment of The Joys of Gay Sex into the country because it discussed and depicted anal sex. The Joys of Gay Sex had been available in Canada for years. The owner of Glad Day Book Store sued Canada Customs for the right to sell the book, and won. But although the court cleared the book for importation into Canada, it refused to rule on the constitutionality of Memorandum D9-1-1 and on using Customs as a censor. Bureaucrats simply rewrote the memo to skirt the court's ruling. After the decision, Customs started to open and detain every title shipped to Glad Day from other countries. Books merely detained for examination were often held for months, with no notice. In the Spring of 1989, after receiving a box filled with shredded paper, the owner again sued the Canadian government, this time for harassment and destruction of property. He won, but only received $2,200 for damages.
The first serious opposition to Canada Custom's censorship powers began in 1990, when the Little Sisters Bookstore filed a lawsuit in the British Columbia Supreme Court challenging as unconstitutional the provisions of the Customs act that allow Canada Customs to detain and ban books, to act, in other words, as a censor (see Chris Dafoe's "Little Sister v. Big Brother," G&M, 8 October 1994, C1-2). The case snaked its way through three government-requested postponements over the past four and a half years, a tactic to drive up costs and force Little Sister to drop the suit. The case finally came to trial in mid-October 1994, and is nearing its end as this is being written.
Writers and editors have also added their voices to the growing protest against Customs' censorship. An editorial in The Globe and Mail in 1992 observed that
the continuing farce played out each week at our borders, in which various Customs officials solemnly review, classify, detain, and sometimes destroy material that is legally available in bookstores, convenience stores and video outlets across Canada is a strong argument that we should not give Canada Customs the job of enforcing an obscenity law, should we wish to have one. (30 June 1992)
Another editorial in the same paper sharply declared: "It is an offense to a free people that it should be held prisoner within its borders, allowed only such reading materials as its government jailers will permit to enter; an offense, and an international embarrassment" (G&M, 21 October 1993). Indeed, Human Rights Watch, the largest human-rights organization in the United States, has officially condemned the Canadian government for its censorship, which has resulted--according to Robert Hough in a piece entitled "Degrading Customs"--in Canada being lumped with other such "free-speech enthusiasts as North Korea, Burma, Turkey, Iran and China" (G&M, 12 February 1994, D1).
The Book and Periodical Council's Freedom of Expression Committee, the International Association of Poets, Playwrights, Editors, Essayists, and Novelists (PEN), the Canadian Committee Against Customs Censorship, Human Rights Watch, and other national and international organizations have called on the government of Canada to dismantle the prohibited importations unit of Canada Customs, which since 1986 has seized 5,000 book and periodical titles (G&M, 15 September 1993, A14). As an editor for the Toronto Globe and Mail put it, "let the shadowy clutch of bureaucrats that now presumes to make [obscenity] judgments for [the Canadian people] find more useful work" (30 June 1992).
The restriction of objectionable sexual material is not limited to what Canada Customs apprehends at the border. Indeed, within Canada there is a powerful movement to criminalize and suppress all kinds of "obscene" and "pornographic" material. The groups behind this movement are often as assiduous as Customs officials in ferreting out and moving against offensive books, films, and videos. Not surprisingly, they are abetted in this effort by a paternalistic government and court system only too willing to seize or suppress any objectionable material that Customs misses. The players and justifications have changed, perhaps, but the repressive results are often the same.
The Charter of Rights and Freedoms sanctions discriminatory laws, programs and activities that have as their object "the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." The Canadian Constitution effectively established what we might call an Equal Rights Amendment, and certainly legitimized what might be called the feminist agenda. As a result, Canada has a cabinet ministry on the Status of Women, a separate, thirty-member National Advisory Council on the Status of Women, with an annual budget of $2.4 million, and every province has a Women's Directorate, a government agency devoted to implementing the feminist agenda. In Ontario, the Women's Directorate has a staff of 51 and a budget of $8 million (Chronicles, November 1990, 37). Moreover, special government funds at both the federal and provincial levels have been established to subsidize women bringing affirmative action and comparable-worth suits so they can win their cases. Not a penny is offered by government to help people defend themselves in these cases. Such developments have provoked one concerned Canadian, Betty Steele author of The Feminist Takeover (1990), to complain that Canadian feminists have now progressed far beyond their American counterparts and are in the process of instituting a full-fledged "matriarchy" in Canada.
Encouraged by these developments, feminists groups moved against sexual material they believed interfered with the guaranteed "equality" of women. These groups were motivated by the anti-pornography theory of Catharine MacKinnon and Andrea Dworkin. MacKinnon and Dworkin believe that pornography is a major source and cause of women's oppression; it's inherently coercive and degrading. They argue that boys and men are molded by, and act upon, the ideas they see in pornography. As a result, pornography can be said to be a form of "group libel" or "hate propaganda" that incites and sanctions all kinds of oppressive and hostile acts and attitudes baneful to women, from sexual harassment to violence and rape. In short, pornography is not just an insult to women but actually discriminates against them.
Although this approach to restricting pornography has not (yet) prevailed in the United States, it has in Canada, thanks in large part to Catharine MacKinnon ("after whom the Butler decision ought to be named"--Margaret Wente). In Regina v. Butler (1992), the Supreme Court of Canada overhauled obscenity law to reflect MacKinnon approach to restricting pornography (see MacKinnon's Only Words for her observations on the decision, 99-100). The Court tossed out the old test of obscenity, which invoked the impossibly vague and arbitrary notion of "community standards" of morality, and replaced it with a "harm-based" test. From now on, material would be judged obscene if it portrayed sexual violence, if it depicted sex with children or with adults who posed as children (under eighteen), or if it depicted degrading, humiliating, or subordinating acts that might be harmful to women. Harm was defined as "predispos[ing] persons to act in an anti-social manner, as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse." The Court wrote: "If true equality between male and female persons is to be achieved, we cannot ignore the threat to equality resulting from exposure to evidence of certain types of violent and degrading material.... Materials portraying women as a class of objects for sexual exploitation and abuse have a negative impact on the individual's sense of self-worth and acceptance."
It should come as no surprise that, thanks Butler, the restriction of "pornography" has become more pronounced, pervasive, and successful. Encouraged by the decision, two women argued before the Ontario Human Rights Commission that the presence of "girlie" magazines such as Hustler, Playboy and Penthouse at a corner convenience made them "uncomfortable" when they shopped, and that they were thus "sexually harassed" by a "hostile environment" (G&M, 18 February 1993, A10). The Commission agreed, even though the magazines in questions are not illegal under the Criminal Code. Although a subsequent Board of Inquiry dismissed the complaint (26 October 1993), an editor at the Globe and Mail pointed out that "the Ontario Human Rights Code does not mention shutting down to the local Mac's Milk for stocking Playboy." "For the Commission even to hear such a case is a remarkable interpretation of its mandate" (13 July 1993, A9).
In another case, the Ontario Ministry of Revenue pulled down a 22-foot wire sculpture of a woman pregnant with a male fetus on display in an Ontario government office after a woman demanded that she be able to walk through "a workplace free of harassment" (G&M, 21 September 1993, A12). In another instance, a Vancouver Sun staff writer was accused of creating a "hostile environment" by another employee when he displayed in his work area an advertisement for a film called Basic Instinct which showed Sharon Stone about to run her fingernails over the back of Michael Douglas (G&M, 30 September 1992). (Such looniness neither stops nor starts at the Forty-ninth Parallel. The United States, where free speech, by and large, is more vigorously contested but more jealously guarded, seems ahead of Canada in using the concept of "sexual harassment" to suppress sexual imagery and other forms of protected speech and expression [see my "Second Thoughts on Sexual Harassment," The Montana Professor 4.3 (Spring 1994): 5-18, and Mark Schapiro's "The Fine Art of Sexual Harassment," Harper's Magazine, July 1994, 62-63].)
A recent report published by the Canadian Department of Justice entitled "Gender Equality in the Canadian Justice System" reflects how much the MacKinnonite mindset, endorsed in the Butler decision, has permeated feminist thinking in Canada. The report asserted that "all women are subjected, daily, to non-specific modes of aggression in almost every form of commercial and other popular forms of expression. The message that beer and automobile ads send out, according to the report, "is that it is attractive, desireable, sexy and right to possess women, who are almost invariably portrayed in conjunction with other glittery objects, or in some subordinate or diminished pose." As far as this report is concerned, looking at a Pepsi ad featuring Paula Abdul and butchering a woman are just two instances of the same phenomenon. "The state of mind of the aggressor," the report stated, "is only a question of degree" (in G&M, 6 July 1993, A4; 13 July 1993, A9). Contending that the use of sexuality to sell things is a "profound injustice," the report, not surprisingly, asked for tougher anti-pornography laws, stronger human-rights laws, consumer protection legislation that criminalizes exploitative ads or anything else that sexually "objectifies" women, and for more censorship by Canadian Customs at the border (ibid.; for the background to this way of thinking, see "A presumption of [collective male] guilt" by Ray Conlogue in the Globe and Mail, 16 October 1993, D5).
As the meanings of "discrimination" and "harassment" expand, so does the questionable quasi-judicial power of multiplying commissions expected to police these "crimes." If someone can press a human-rights complaint on the basis of a rack in a corner store, practically any public display is fair game. Art galleries, museums, bookstores, theaters--they all traffic in material that could make somebody feel unequal. Groups that cannot win their cases in courts, where some old judges "still don't get it," resort to commissions and other bureaucratic tribunals where looser rules of evidence and argument and fewer avenues of appeal enable them to suppress magazines, books, videos, and even ads that most men and women dismiss as harmless.
When the Butler decision was handed down, many feminists cheered; after all, it was the first time anywhere in the world that a Supreme Court accepted the argument that pornography can be regulated because of the harm it poses to women. But today, many early supporters are reconsidering. Karen Busby, a law professor in Manitoba who worked on the LEAF brief with Catharine MacKinnon, recently told a writer for The New Yorker that "I was very happy when Butler came out. I thought that it was a significant advance in the law. But I'm disappointed in the failure of the police and state agents to understand what Butler really means" (in Toobin, October 1994, 71). Even Andrea Dworkin has doubts: "I don't think Butler is going to be useful in dealing with the pornography industry. It will be used to create a formula for a kind of pornography that the police will accept. I don't think it's going to help deal with the rights of women" (in Toobin, 78). The reason for this about-face is that in the real world the new law has produced all sorts of unintended consequences, including providing Customs with a new rationale for censoring material it deems "degrading," "humiliating," or "subordinating," terms which have proved as operationally vague and subjective as "immoral" or "community standard" were.
The Ontario Film Review Board, which has to approve every film or video that is for commercial display, sale, or rent in the province (there is no longer an equivalent in the United States), has interpreted these words to mean that certain sexual acts--for instance, "double penetration" or "ejaculation on the face of the woman"--cannot be shown. Apparently it is acceptable to show a man ejaculating on a woman's neck or hair. In another case a judge ruled that the spanking in a video went beyond playfulness when it reddened the buttocks, thus violating community standards under Butler (Toobin, 77). But this decision "smacks" of racism by implying that a dark-skinned woman, an African-Canadian perhaps, could be hit harder. Recently, the Saskatchewan Film Classification Board banned Exit to Eden, an R-rated mainstream Hollywood erotic comedy about bondage, dominance and sexual violence starring Dan Aykroyd and Rosie O'Donnell, because it violated Butler and was "sexually explicit and exploitative"; an appeal panel reversed the decision days later (G&M, 12 October 1994, A11; 14 October, A14).
It is still unclear whether it was despite Butler or because of it that a judge permitted the importation and sale of Madonna's compendium of explicit sado-masochistic photos entitled Sex. The book contained, for example, a photo showing Madonna's hands bound with rope, a bare-breasted woman holding Madonna's arms straight in the air while another woman presses a switchblade to Madonna's crotch. Sex was determined not to be obscene because under Butler the term "explicit sex" is interpreted to mean penetration. The attorney who represented the publisher of Sex simply argued that "since there was no penetration, we could say it was just violence, no sex. Violence alone is o.k. under Butler" (in Toobin, 76).
Nadine Strossen, Executive Director of the American Civil Liberties Union and author of Defending Pornography: Free Speech, Sex, and the Fight for Women's Rights (1994), believes that "censorship is no different after Butler from what it was before. It was anti-woman, anti-gay, anti-freedom before, and it's that way now" (in Toobin, 78). But others think that restrictions have gotten worse after Butler. A commentator at Village Voice says that "ever since the Canadian Supreme Court's MacKinnon-esque Butler decision last year outlawed depictions of violent and degrading sex (but left their definitions dangerously open to interpretation), the customs jackboot has stomped down hard on feminist and queer material." One case effectively illustrates how MacKinnon's "feminist" approach to restricting pornography can be "misinterpreted." In Ontario, Glad Day Book Shop was charged with selling obscene material after police removed a copy of Bad Attitude, a lesbian erotic magazine, which contained a story entitled "Wunna My Fantasies" about sado-masochistic sex involving, among other things, clamps being applied to nipples. The attorney for Glad Day explained to the judge that since the whole point of Butler was to protect women from men, and since only women were in the story, it couldn't be obscene. The defense even trundled in a Ph.D. on lesbian studies who contrasted the "patriarchal" and "oppressive" Hustler with the "liberating" and "empowering" Bad Attitude. The expert witness noted that while the Bad Attitude women had cropped nails and wore surgical gloves, those in Hustler had long fingernails which could cause "lacerations and damage leading to HIV infection" (G&M, 17 December 1992). "But that didn't work," the attorney complained, "nothing worked." The judge, in convicting the clerk and owner of having violated the obscenity law, quoted Butler:
This material flashes every light and blows every whistle of obscenity. Enjoyable sex after subordination by bondage and physical abuse at the hands of a total stranger. If I replaced the aggressor in Ibis article with man, there would be very few people in the community who would not recognize the potential for harm. The fact that the aggressor is a female is irrelevant because the potential for harm remains.... The consent in this case, far from redeeming the material, makes it degrading and dehumanizing. (in Toobin, 75)
In another case involving Glad Day, a court cited Butler to censor gay material depicting anal fisting and a man urinating into another man's mouth. MacKinnon has called the decision "outrageous," but not because it suppressed gay material. MacKinnon, it should be pointed out, does not contend that gay/lesbian publications should be exempt from her enveloping scheme for repressing pornography. As she put it with characteristic precision and clarity, "I am not necessarily at all clear that Glad Day should not be prosecuted" (in Toobin, 77).
Whether or not the Butler decision has resulted in greater censorship of feminist and lesbigay material, it has enabled Canada to become the only country in the Western world to have banned sexual material because it demeaned males! In a case that could set a precedent for the most sweeping suppression of erotic material ever known, Canada Customs seized a magazine entitled Hothead Paisan for being "degrading to men," and prevented the importation of videos entitled Weenie Toons and Total Restraint for being "degrading to the male penis" (one showed a woman sticking needles through a man's penis and driving nails through his scrotum). This innovative application of "phallocentrism" was not what MacKinnon had in mind, of course, but it could provide a more effective excuse for ridding the world of erotica/pornography than anything she has dreamed up.
Fortunately, a growing number of feminists in Canada argue that Butler is completely wrong-headed. They point out that chipping away at free speech is never a good idea since censorship is just as likely to be used to silence leftists, gays, lesbians and feminists as pornographers. They question the evidence that exposure to erotica leads to crimes against women and children. And they point out that censorship is no solution for sexism. What Butler really represents, they observe, is a shift from the politics of empowerment to the politics of protectionism. As Toronto feminist Thelma McCormack put it, "Far from helping us to achieve equality or reduce inequality, the prohibition of pornography infantilizes us" (G&M, 15 October 1994, A2). Perhaps Canada's fitful experiment in repressing "pornography" will encourage some Dworkin/MacKinnonites in the United States to also reconsider their support for such ill-conceived laws as the Pornography Victims' Compensation Act.
The United States, by extending First-Amendment protection to "hate speech" or "group libel," to ethnic, creedal, and racial slurs, has engaged in its own "experiment" with free speech. Most countries--including Canada--do not tolerate such forms of expression. Following the provisions of the International Covenant on Civil and Political Rights (1966), which asserts that Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law" (Walker, Hate Speech, 89), Section 319.2 of the Canadian Criminal Code prohibits the communication in any public place of any statement that "incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace," or any statement "other than in private conversation [that] wilfully promotes hatred against any identifiable group" (in G&M, 13 November 1993, D6). Until 1992, when the Supreme Court threw it out as an undue restriction on controversial opinions, another part of the Criminal Code (181) criminalized the publication of "false news" "that causes or is likely to cause injury or mischief to a public interest."
Most provinces have passed their own laws designed to protect minorities from group libel, hate speech, or even "false statements." In British Columbia, an amendment to the Human Rights Act prohibits publishing, issuing or displaying any statement, publication, notice, sign, symbol, emblem or other representation that indicates discrimination or an intention to discriminate against a person or group or class of persons, or that is likely to expose a person or a group or class of persons to hatred or contempt because of the race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons (G&M, 16 June 1993, A5). There is a similar provision in the Saskatchewan Human Rights Code.
When the bill was introduced, the minister of Human Rights said that it was intended to clamp down on racially motivated violence and the distribution of hate literature, and that it reflected a balance between the protections against discrimination and the guarantee of freedom of expression under the Canadian Charter of Rights and Freedoms. A Canadian editorialist also supported the amendment on the grounds that a multicultural, diverse society such as Canada's needs "to protect its minorities...from vicious attacks" (G&M, 2 September 1992). "The precious guarantee of freedom of speech does have limits when the information is demonstrably false and injurious to a particular group.... [T]he lowering of the esteem of a minority group by such slander hurts society as a whole by rendering accommodation and tolerance more problematic." In one case, the Supreme Court of Canada held that the federal provision against hate speech did in fact violate freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms but that the violation was constitutionally valid and justified in a free and democratic society (G&M, 31 July 1993, D7). And Catharine MacKinnon has written that in the anti-pornography brief she co-wrote in the Butler case, the argument hinged on comparing pornography to "group libel" and "group hate propaganda" (Only Words, 99-100).
Most laws sound beneficent in the abstract; it is only when they are applied in specific cases that flaws in them become apparent. An examination of some recent cases in which Canadians were prosecuted for saying the wrong thing might reveal the problems inherent in trying to criminalize "hate speech."
In 1985, James Keegstra, a high-school social studies teacher in Red Deer, Alberta, was convicted of "promoting hatred" by teaching that there is a Jewish conspiracy to dominate the world and obliterate the Christian religion. Keegstra denied that his intent was to incite hatred; he merely wanted to warn people about an alignment of power that frightened him. This first conviction was overturned on appeal, but in July, 1992 he was retried, convicted and fined $3,000 (he could have gotten two years).
A more complicated case is that of Malcolm Ross, a Moncton, New Brunswick, teacher who did not mention Jews in his class but did question in speeches and publications certain statements of fact about the Holocaust. For some, this meant that he "denied" the Holocaust and spread "anti-Semitic falsehoods" that violated Canadian law against "hate-propaganda."
This raised the question--long answered in the United States--as to whether or not Ross should be prevented from teachIng because of what he said outside the classroom. The New Brunswick Human Rights Commission thought he should be. According to Hal Joffe, National Chairman of Community Relations for the Canadian Jewish Congress, that was the right decision: "Given that teachers are entrusted to teach material of academic credibility, Mr. Ross's hobby of spreading lies in the public domain provides ample reason to doubt his professional integrity." Others agreed. For a writer who published a letter in the Toronto Globe and Mail, the fact that Ross's remarks "scandalized" a minority group was reason enough to abridge his right to free speech under the Charter of Rights and Freedoms; his views, the writer suggested, were made more scandalous by the fact that they came from a teacher who was in a position of trust over children (John Weingist, 6 January 1994, A14). Teachers, in short, must be held to a higher standard of "decency and professionalism" (Hal Joffe). According to this logic, then, under the Canadian Charter of Rights and Freedoms teachers have less freedom of speech than others have. To put it another way: "If Mr. Ross wants to be known for his views, which greatly offend others, then he should give up his teaching position" (Weingist).
The New Brunswick Court of Appeals, however, disagreed, and let Ross back in the classroom, pointing out that he never propagated his odious theories in class and that his writings, so far, had not been found to contravene any of Canada's laws (G&M, 22 December 1993, A20). Allowing the ban to stand, the Court explained, would "have the effect of condoning the suppression of views that are not politically popular at any given time." As an editor for the Toronto Globe and Mail pointed out, if what a teacher says or does in his private life may be brought against him on the grounds that he is a poor role model for the kids, then people of liberal mind can hardly protest if a school board decides to bar homosexuals or Marxists from teaching. Many Canadians think the court was wrong: "Forgotten in his judicial nonsense are the rights of the thousands of Canadian Jews who have a real right--a right to cherish their religious and social heritage, free of obscene nay-sayers" (Bruce Cameron, letter, G&M, 6 January 1994, A14).
In another case, a man named Ernst Zundel was convicted under the Criminal Code for "knowingly spreading false news" about the Holocaust. The jury found beyond a reasonable doubt that Zundel did not himself believe what he propagated about the Holocaust and so was engaged in a fraud (G&M, 22 January 1992). His conviction, however, was overturned by the Supreme Court of Canada in 1992. In a 4-3 vote, the Court ruled that the Criminal Code provision against spreading false news injured the "public interest," was too broad, and unduly infringed the constitutional right of free speech. It pointed out that the "false news" law could someday be used against other points of view less reprehensible than Zundel's. And it obviously thought that the state has no business determining historical truth and falsehood.
But many Canadians still want to criminalize false statements of fact that give grievous offense to minorities. James Thorpe, a writer for the Toronto Globe and Mail, argued that a multicultural society such as Canada must protect minorities from "vicious attacks." "The precious guarantee of freedom of speech does have limits when the information is demonstrably false and injurious to a particular group." The Supreme Court's "narrow and...legalistic interpretation," he urges, "should not be used to prevent society from protecting [minorities] from the indignities of Mr. Zundel's slander" (G&M, 2 September 1992).
Those bent on silencing "hate speech" have even invoked the laws of other countries in their cause. The Simon Wisenthal Center asked the Canadian government to bar British author David Irving from entering the country on a speaking tour in the fall of 1992 on the grounds that he was convicted in Germany for denying the Holocaust and "insulting the memory of the dead." Irving had said that the number of Jews killed in camps had been exaggerated and that he had not found one piece of persuasive evidence that there were gas chambers in Auschwitz. The Center argued that being convicted in Germany for "slander and defamation of Holocaust victims" is equivalent to being convicted in Canada for "public incitement of hatred" under Canada's Criminal Code. The Immigration Act says no visitor shall be granted admission to Canada if he or she has been convicted of an offense in a foreign country that would constitute an indictable offense in Canada. The national director of community relations for the Canadian Jewish Congress said, "our goal was to ensure that David Irving was not given a platform to spew forth his Holocaust-denial garbage" (G&M, 31 October 1992). Irving was given two days to leave the country.
Perhaps most troubling of all is the case of Joseph Fletcher, a University of Toronto professor who conducted his own experiment in free speech when he invited members of Heritage Front, a white-supremacist group, to address a class studying racism. Fletcher was attacked for not adequately preparing students to counter the group's polished public-relations techniques and for making students uncomfortable by saying that students who felt "threatened" by the group's presence could leave. Fletcher was not prosecuted for what he did, but he was roundly condemned by both students and colleagues for flouting the "values and norms of Canadian society, which explicitly prohibit the promotion of hate"; for creating an "unsafe learning environment"; for facilitating the encroachment of racist ideas into the mainstream; and, for silencing his critics by invoking his academic freedom (G&M, 23 April 1993, A17; 28 April 1993, A21).
Several critics of Fletcher were particularly provoked by the invocation of "academic freedom" to defend what they regarded as pernicious behavior. As far as the editor of the student newspaper was concerned, this exercise in public debate and free speech contravened the university's stated commitment to racial tolerance and was thus intolerable. Another student wrote:
The university's "tolerance" of views which threaten the safety and lives of many of its population, in the name of academic freedom, is disturbing. We know that this "tolerance" exists at all levels, allowing even professors espousing overtly racist or anti-Semitic views to retain their positions. "Independent inquiry," "academic freedom," and "liberal education" become empty words if they are used to promote, rather than protest against, intolerance. (G&M, 28 April 1993, A21)
In other words, "academic freedom" and "tolerance" are dangerous terms, permitting apparently "liberal" and "objective" professors to slyly promote evil ideas without being fired. The paranoid assumption behind this passage is that professors must be endorsing the views held by speakers they invite to class. According to this logic, a criminal-justice professor must be promoting crime when he or she invites a pathological or career criminal to talk to students. That Professor Fletcher was attacked by people inside the university with such shoddy logic bodes ill for free speech on Canadian campuses.
Since "hate speech" is so loathsome, the campaign to extirpate it has immense moral justification and appeal. But we should never forget that the road to Hell is paved with noble ideals and good intentions. Hating "hate speech" is now seen to sanction depredations of other civic ideals, including free speech. In 1993 the Canadian Human Rights Commission held hearings on a complaint that messages recorded on a telephone answering machine by the white-supremacist Heritage Front were a violation of somebody's rights and the tribunal ordered the messages, and others like them, suppressed. In another case, the federal minister responsible for the post office attacked a magazine for containing "vile and disgusting expression of hatred toward the Jewish people." The minister said that the post office should not deliver the magazine: "I will not tolerate the circulation of such materials." The organization that put out the magazine said, "we are not anti-Jewish, we are anti the banking system...and perhaps a handful of Jewish people are major bankers." Indeed, this magazine never used the word "Jew." When material can be summarily banned from the mail because a minister deems it hate propaganda by implication, everyone's freedom to speak is seriously jeopardized.
No case better illustrates this truth than that of Cherene Naugler of the Riverport District Elementary School (in Nova Scotia). She was summarily suspended for teaching a lesson about the Holocaust in which her five-year-old pupils portrayed Nazis and Jews. During a Remembrance Day project on the Holocaust, the students with dark hair and eyes were classed as Jews, while fair-haired pupils with blue eyes portrayed Nazis. The dark-haired kids were lined up and told that in Hitler's Germany they would have been sent to gas chambers and their bodies burned afterward. After one dark-haired child reported that the experiment had provoked a nightmare, the teacher--who was trying to do the "right" thing--was suspended.
Free speech is further endangered when the concept of "hate speech" is inflated and meretriciously used to suppress repugnant or upsetting expressions that otherwise could not be curtailed. When a politician said "Gone are the days of catering to radical women's groups, minority groups, etc.; gone are the days of protecting these and other parasites of society," the executive director of the Nova Scotia Human Rights Commission urged the police to lay criminal charges against the man for inciting hatred. Although no charges were laid, lawyers and police did consult with Crown prosecutors on the nature of the phrase "parasites of society" (G&M, 13 November 1993, D6). Stunned by this display of state power, William Thorsell remarked that the concept of "human rights" has become so "convoluted in this country" that human-rights commissions no longer defend free speech from police attacks but request the attacks.
The City of Montreal had a law (which was ruled unconstitutional) that described as "hate propaganda against women" any signs a woman felt were demeaning or degrading (G&M, 2 September 1992). Canada Customs temporarily seized Birth of a Nation, The Merchant of Venice, Black Looks: Race and Representation by bell hooks, and two anti-pornography works by Andrea Dworkin as hate propaganda, and in 1989 it briefly forbade importation of Salman Rushdie's The Satanic Verses on the grounds that it was "hate literature" against Muslims. Repressive laws will always be turned against those whom they first benefit (demonstrated in the U.S. by men suing women for "sexual harassment"). When a women-only magazine named Pandora published an article that asserted that divorced men should never be allowed to have custody of children, a man, who was refused access to the periodical, accused the magazine of disseminating "hate literature." Illustrating once again how convoluted "human rights" have become in Canada, a Nova Scotia human-rights commissioner ruled that Pandora had the right to refuse all rebuttal letters from men in order "to promote women" (G&M, 18 March 1992).
A Quebec politician asked the government to seize Mordecai Richler's O Canada! O Quebec! Requiem for a Divided Country as "hate literature" because it was "completely insulting towards the former premier René Lévesque" and insinuated that the Quebec people were a "nasty, racist tribe." In another case, the Catholic Civil Rights League requested that a CBC award-winning documentary about North-American Indians from a non-Western perspective be prevented from showing on any TV network; the group charged that the film "made inflammatory and false statements" about early Jesuit missionaries in Canada (G&M, 1 January 1993). When local black political activists failed to cancel the Toronto revival of Show Boat (1992) after months of pressure, they asked the police to determine if this "racist play" made by Jews promoted hate. The police said it did not, though this did not stop demonstrators branding the play as "hate propaganda." Putting a plug in for prior restraint and the heckler's veto, a Canadian cultural critic thought the play should never have been scheduled for Toronto, which has a "large and volatile" black population: "That is rubbing people's noses in things," he said (G&M, 19 October 1992, A2). "The impresario did not have to choose Show Boat." "History is going to remember the insensitivity of the [Performing Arts] centre's opening." When the play opened on Broadway, there were no protesters, signs, or graffiti.
The "hate-propaganda" law and the Canadian Human Rights Act were both invoked to prevent Andrew Dice Clay from entertaining wrong-thinking people with his politically incorrect humor. Feminist groups such as Media Watch, the Legal Education and Action Fund, and Feminists for Healthy Humour contended that "his routines tend to promote hate against women" and that it was perfectly justifiable under Canadian laws to keep Clay from using "tax-funded theatres" to spread such "hate propaganda" (G&M, 18 November 1992). Among the things cited to support allegations of "hate propaganda" were Clay's use of a "diminutive" voice to imitate women, making them sound "vague and stupid," and telling a Rodney King joke. Although Clay was allowed to perform, the City Council voted to establish guidelines limiting the type of act that could be booked into civic theaters.
"Hate propaganda" has even been used to sanction the monitoring of media advertisements and fictional representations. Back in 1991 Ontario Premier Bob Rae said that his government was going to fund a study on stereotyping with the intent of letting citizens know what images would be approved for advertising--and by extension, books, plays and television. "Think of it," one writer warned, "the government will tell you what the correct depiction of a woman, an Indian, or a handicapped person may be" (Maclean's, 27 May 1991). "Negative stereotyping" is frequently invoked in Canada to suppress objectionable material. An anti-racism alliance in Orillia, Ontario persuaded the library system to remove the works of W.P. Kinsella because of the way the author depicted natives; another group in British Columbia demanded the removal of Lynn Banks Reid's The Indian in the Cupboard; the Toronto Board of Education asked the schools to remove Noble Laureate William Golding's The Lord of the Flies because it used the word "nigger"; and a black group with the disarming acronym of PRUDE called for the schools in Saint John, New Brunswick, to remove both Mark Twain's Huckleberry Finn and Harper Lee's To Kill a Mockingbird for the same reason (G&M, 14 March 1994, A11).
When CBC aired Valour and the Horror--a film documentary suggesting that a World War II Royal Canadian Air Force bomber command was guilty of war crimes--veterans were so outraged at what they considered its slanderous distortions that they demanded that two of the show's three parts be permanently withdrawn from distribution and broadcast and that the book based on the series be removed from libraries. The furor provoked Parliament to hold hearings on the program's "authenticity." Eventually, a veterans' organization, under the Class Proceeding Act of 1992, sued everyone involved with the production for defamation and group libel, a legal notion championed by Catharine MacKinnon, though for purposes other than to assist patriotic and aging white men to preserve their memories. Under the same act the mayor of Pembroke, Ontario, sued the Ottawa Sun for making a facetious reference to the city that its mayor deemed demeaning and insulting. These are just the beginning. What prevents the KKK or even a political party from suing if someone should describe it as "racist" or "sexist"? Anyone can walk down the road of Good Intentions.
What is particularly troubling about these events is that so many human-rights activists and civic-minded citizens embrace coercive and repressive legislation to protect people not only from imagined dangers but from "discomfort" and emotional "pain." Someone says something that offends a group and suddenly the police, Crown prosecutors and human-rights commissions are involved, indeed--even parliaments! An editorial bluntly described the situation by saying, "The Supreme Court has been mostly unwilling to allow the Criminal code to be used to stifle free speech, so now Canadian human rights law is being twisted, distorted and stood on its head in a bid to accomplish the same thing" (G&M, 19 June 1993, D6).
More dangerous, of course, is the perverse notion that things that might give offense should be suppressed before they do so. One would think that this frightening idea of prior restraint would no longer have appeal in a democracy, but this is not the case in Canada. The chairwoman of the Metropolitan Toronto Police Services Board has suggested that any perfectly legitimate activity, such as a theatrical performance, should not be allowed to take place if it might upset someone to the point where police are required to maintain order. In Canada, growing sensitivity to every affront and the desire to avoid giving offense have breathed new life into the discredited concept of the "heckler's veto."
"Freedom of speech is not the issue," proclaims one advocate for punishing people who say the wrong thing. But it is very much the issue. As Samuel Walker argues in Hate Speech: The History of an American Controversy (University of Nebraska Press, 1994), the historical record of the United States at any rate demonstrates that minorities are more endangered by laws that limit speech than by people who use speech to defame them. The long-term political and social interests of historical victims of discrimination are best advanced, Walker contends, not by criminalizing but by protecting it, no matter how offensive or defamatory (126; speech that immediately causes illegal acts is a different matter). William Thorsell, a noted Canadian journalist, has come to the same conclusion, warning his countrymen about the dangerous effects of good intentions:
"Promoting hatred" is too elastic a concept to regulate by law in a free society. The regulation of such offenses must be rooted in free speech itself--the right and duty of independent people to openly challenge toxic ideas; organize against them and defeat them in the court of public opinion.
Instead, we complacently depend on Human Rights' Commissions to call the police in the battle of ideas. In this arena, the police will never be decent soldiers. (G&M, 13 November 1993, D6)
Apparently impressed by the enormous success of America's campaign against drugs, the Ontario government, in an attempt to create an inoffensive, decorous, and respectful campus environment, promulgated in early 1994 a policy of "zero tolerance" for harassment and discrimination in Ontario universities. The Framework Regarding Prevention of Harassment and Discrimination, concocted by the Ministry of Education and Training and the Ontario Human Rights Commission, prohibits harassment, sexual harassment, discrimination, and systemic harassment/discrimination on the basis of race, creed, sex, sexual orientation, disability, age, dialect, accent, the "receipt of public assistance," or "for having a record of provincial offenses or pardoned federal offenses." The policy explains that "harassment" means anything that is known or "might reasonably be known" to be offensive, hostile, inappropriate, etc.
Things that could give offensive include "gestures, remarks, jokes, taunting, innuendo, display of offensive materials, academic penalty, hazing, stalking, shunning," graffiti, signs, cartoons, or any "adverse treatment related to one or more of the prohibited grounds" (G&M, 15 February 1994, A22). The Framework also contended that "policies that appear neutral" could be seen as aspects of systemic harassment/discrimination.
The memo also outlined another offense: creating a "negative environment." A negative environment can be created by "one" or a series of comments or conduct that is "unwelcome/unwanted or offensive." It pointed out that "a complainant does not have to be a direct target to be adversely affected by a negative environment" nor has to have a witness to the offense. In short, anyone who feels uncomfortable about anything has grounds for complaint. And any complaint lodged must be formally and fully investigated by a panel on which no white males will be allowed to serve. And, according to Pernita Persad of the Ministry of Education and Training, "the offending individual is guilty until proven innocent" (quoted in Campus Reports, 9 , October 1994, 1).
A report by Patrick Cashem in the Toronto newspaper The Interim notes that students or professors suspected of violating the "zero tolerance" policy will be suspended during the panel review process, and expelled or fired if they are found guilty. The "zero-tolerance" policy applies to all visiting speakers and boards of governors as well as to faculty, campus workers, university administrators, and students in and out of class. In other words, it covers not just classrooms and labs but all places where teachers and students meet, including off-campus bars and restaurants. The student association of Carleton University has already moved to abridge out-of-classroom interactions--social gatherings--between students and teachers for being "a haven for harassment and coercion" (G&M, 15 February 1994, A22). Nowhere does the memo address the disastrous impact this policy would likely have on academic freedom or on the relationship between students and professors.
The consequences could be momentous. Honest discussions of many issues will become impossible or criminal. How is a professor to discuss controversial novels, poems, articles, songs, paintings, films, ideas without now risking offending the tender sensibilities of someone in class? How is a professor to discuss history, literature, art, and almost any others endeavor, without fearing that a casual reference to gender, age, marital status, ethnic background, profession, religion, physical appearance, personality trait or criminal background might be construed as "inappropriate" by someone in class? Under this policy, the occasions for complaint are limitless. Jews could object to reading The Merchant of Venice, blacks to reading Othello, and women to Ulysses. Outside the classroom, a white male who either "ignores" or "leers at" a female student could be guilty of actionable harassment. Anyone who refuses to study with a minority student could be hauled up for discrimination. Anyone teaching, promoting, or defending a traditional Christian view of human sexuality or the family could be charged by minorities of a different religion, or by homosexuals or lesbians for offending their views.
These are not rhetorical speculations, especially in light of recent events on Canadian campuses. Canadian academics have not forgotten the persecution of Jeanne Cannizzo, whose anthropology class at the University of Toronto was invaded and disrupted by black activists who disapproved of her exhibit at the Royal Ontario Museum called "Out of Africa," which they called "racist" (1989). Her house was scrawled with racist graffiti, and she was shouted down and threatened with physical violence. Not surprisingly, the University administration failed to defend her academic freedom by prosecuting the so-called "anti-racist" activists, and Cannizzo, after suffering a nervous breakdown, withdrew from academia and eventually from Canada. The specter of Cannizzo, considered the first major victim of the new form of censorship that has blighted campuses in the 1990s, still haunts the Canadian academic world (G&M, 11 May 1994).
There are other examples of "good intentions" running amok on campuses. In 1991 the University of Toronto established a 41-person watchdog committee to determine if anything in the curriculum could offend minority or "disadvantaged" groups, such as a sociology textbook that compares black with white households (an actual example provided by a member of the committee!; Gravitas: A Quarterly Journal of Current Affairs [Canada], 1 , Autumn 1994, 20). At York University a professor has had "observers" stationed in his class when he discussed the evolution of behavioral differences between men and women. In 1993, a talk by a guest-Iecturer on "false memory syndrome," sponsored by the Department of Psychiatry at McGill University, was disrupted by feminist activists. The administration made no attempt to reschedule the lecture or to ensure that the scholar's views were given a hearing (from a typewritten document entitled "Academic Freedom, Opinions and Acts" supplied to me by a Canadian academic). At the University of British Columbia--my alma mater--the administration is conducting an inquiry into charges that the political science department is racist and sexist after a student complained that a male professor said during a discussion that under apartheid blacks "were at the bottom of the totem pole" (G&M, 30 July 1994, A7). As Professor Doreen Kimura told an audience at Simon Fraser University, "these are not isolated events, but are commonplace now, at least in eastern Canada."
The "zero-harassment" policy has already produced its own brand of victims. The president of the Pro Life Law Students Association at the University of Ottawa has been brought up on charges of discrimination against female students because of his pro-life position (the charges were brought by two male professors, either because they sincerely felt aggrieved or because they wanted to protect themselves by proclaiming their ideological solidarity with pro-choice feminists). And then there is the case of Matin Yaqzan, at the University of New Brunswick. In 1993, he published an opinion piece on date rape in the student newspaper. The piece, which essentially espoused a conservative Muslim position on the subject, offended a host of people who momentarily set aside their frenetic commitment to "multiculturalism" to have-at Professor Yaqzan. In this case, the UNB administration, again not surprisingly, failed even to passively defend Yaqzan's academic freedom, but actively attacked it by immediately suspending him and preventing him from discussing the matter, and then undertaking an inquiry into Professor Yaqzan's "total" employment record and performance; it eventually "retired" him. There was no protest from the Canadian Association of University Teachers or the Ontario Confederation of Faculty Associations although this case raised the central issue of whether an academic has the right to express a controversial opinion in a journal that is part of an institution of higher learning, and in a country that often looks condescendingly on other countries where citizens are denied freedom.
Given that more and more students no longer see the university as a place to indulge the free interplay of ideas but as a sanctuary where they can avoid any ideas that might conflict with their own, the "zero-harassment" policy nurtures, inevitably, a Madame-Defarge mindset. At the University of Toronto, students brought copies of a flyer that read "Homosexuality is wrong because there are no healthy children produced from it. Abortions are wrong because children are killed" to the affirmative-action officer and told her to stop them. As she describes it, "people challenge me and say 'you've got to do this for me because there is zero tolerance,' even if it's something they don't like in a textbook. If you have a conflict about the differing views of Michel Foucault's notion of the origin of the idea of sexual identity, I don't think sexual harassment should be the broker" (G&M, 6 January 1994). "The framers of the zero-tolerance policy seem not to understand," Robert Fulford explains, "that university education has always been offensive and always will be.... Being offended is part of learning how to think."
Promulgated by a party that promised an honest, open, and caring government, the policy of "zero tolerance" is couched in the language of repression and absolutism and not in the language of reasonableness and justice. Robert Fulford believes it deserves a place in any future anthology of significant documents of the 1990s for perfectly embodying "the relentlessly grim priggishness that now afflicts public discussion of race and sex" (G&M, 2 February 1994, A12). It should be included for another reason as well: because it represents "the most severe limitation on academic freedom in Canada in this century" (Robert Fulford).
A policy as sweeping and authoritarian as that propounded in the Framework is bound to backfire against the illiberal liberals who promoted it What prevents a Christian student from complaining about the atheistic beliefs of a philosophy or biology teacher? Of a pro-life student from indicting a pro-choice teacher? Or a male student from claiming that the views of feminist professor create a hostile classroom for men? Instances of such turn-abouts have already occurred in the United States and surely will in Canada.
To their credit, almost all academic organizations in Canada have condemned the Framework (with the exception of York University's Faculty Association and the Ontario Confederation of University Faculty Associations, both of which approved it). The council of the Canadian Association of University Teachers asked--lamely--that universities refrain from implementing the zero-tolerance code until faculty associations could examine its implications more closely. At Trent University, forty percent of the faculty signed a petition that repudiated the prevailing belief that a university should provide a friction-free environment and that defended their right to be offensive (G&M, 2 February 1994, A12). And John J. Furedy, Professor of Psychology at the University of Toronto and President of the Society for Academic Freedom and Scholarship, has spoken incisively and eloquently against the "velvet totalitarianism in Canadian academe." His academic organization (founded in 1991 by Professor Doreen Kimura, Professor of Psychology, University of Western Ontario) has been the only one to attack the "comfort-at-any-cost" principle underlying the Framework. On the individual level, however, few academics have spoken out in opposition to the Framework. What voices have been raised in defense of free speech, observes Professor Geoffrey Durrant, "seem to be disproportionately those of U.S. and other immigrant academics" (letter to me, 6 September 1994).
Policies first hatched on campuses or experimented with there often work their way into the larger society. Nova Scotia is the first province to implement a "zero-toleration" policy for all its citizens. Under its sexual-harassment guidelines the mere display of "graphic" photographs is grounds for dismissal. There needs to be no victim, nor any evidence that someone was actually harmed by the words or actions of another. An anonymous call to the Nova Scotia Women's Directorate is grounds enough for starting an investigation (Naomi Klein, G&M, 6 January 1994). In Ontario (naturally), a feminist group wants to haul the Film and Video Review Board before the Human Rights Commission on the grounds that the Board has violated their rights and discriminated against them by failing to censor flasher films. If "zero tolerance" continues to spread throughout Canadian society, poor, nerve-racked Professor Cannizzo may find herself joined in exile by a number of her freedom-loving compatriots.
No one knows for sure how many Canadians feel that their right to free speech is being jeopardized by judges, Canada Customs officials, anti-pornography zealots, human-rights activists, or provincial governments. Certainly some do. "The exercise of free speech," according to newspaper editor William Thorsell, "is narrowing in Canada on a number of grounds." The reason, for Robert Hough, is "an entire nation's discomfort with freedom of expression" (G&M, 12 February 1994, D5). For others, the blame is to be placed on the Charter of Rights and Freedoms itself. More and more Canadians now view this document as a cruel political ruse, a "fraudulent" promise that not only fails to effectively protect freedom of speech and expression but that actually legitimizes censorship and racial discrimination "by making an intent to make social improvements a sufficient justification of either" (Geoffrey Durrant, retired professor, University of British Columbia, in a letter to the G&M, 6 September 1994). A University of Toronto professor of law observes, "One would have expected more, not less freedom of speech since 1982. But my perception is that exactly the opposite has happened" (CSM, 28 December 1993, 12). Even radicals feel betrayed by the Charter, which one calls "the biggest setback for progressive forces and the working class that we've ever had, and whoever persuaded Ed Broadbent to go along with it should be taken out and shot" (G&M, 9 November 1993, A5; let's hope this is a figure of speech).
Whether it is despite or because of the Charter, official censorship in Canada has become so alarming that the International Association of Poets, Playwrights, Editors, Essayists, and Novelists (PEN) called upon the Canadian government to respect the expressive freedom of its citizens (G&M, 20 October 1993, A24). Louis Rossetto, the editor and publisher of Wired, has pointed to some of the events catalogued in this essay as "an ominous indication that the violation of human rights is becoming Canadian policy." According to Rossetto, Canada has now become a leading violator of free-speech rights, setting a scary and ignoble precedent for other nations that would like to control what their citizens read and think (G&M, 28 March 1994).
Others, of course, would disagree with this bleak characterization. They would view most of the events I've catalogued here as enlightened efforts on the part of duly elected or appointed officials and concerned citizens to preserve and promote such noble ideals as fairness, diversity, civility, and equality. Let me quote from one Canadian who feels just this way:
"Political correctness" should be the norm enforced primarily, as all social norms are, informally, by personal and group censure, by social ostracism, by embarrassed silence, by open rebuke, and by any other means at our individual and collective disposal to communicate disapproval and distaste. It has, however, and will continue to be necessary to support the informal sanctions by legislative, regulatory and contractual means. Attitudes change when behaviour changes, and behaviour changes when the cost and benefits change. (Thomas Storm, letter to the G&M, 25 February 1994, A18)
This sounds very reasonable until one thinks about what might have to be done to make "wrong attitudes" costly to those who espouse them. Behind the sinister silkiness of "legislative and regulatory means" is the mailed fist of authoritarianism:
How solicitous the government of Canada is in our behalf! How tenderly it blocks our ears and stops our eyes, that we might be spared the horrors of free expression. As if it were not busy enough already, what with banning hateful speech, impounding pornography, and ordering every minute of our broadcast day for us, it also forbids advertisements, depending on the medium, for cigarettes, liquor, or sex; as for the efforts of its course--stopping broadcasters, suppressing books, and censoring newspapers--well, words fail us. (editorial, G&M, 21 September 1993, A18)
As a growing number of Canadians are beginning to suspect, the easiest way to Hell is on a road paved with good intentions. No wonder; there are always so many eager and well-meaning volunteers to build it. And, of course, the destination is always misnamed.
Most Canadians, I suspect, go about their daily lives still thankful they live in Canada--tolerant, secure, and free--and not in the United States--intolerant, violent, and fascistic. Whether they are right--whether their confidence, if not complacency, is well founded--will only be made clear, of course, in the future. Let's hope that in that future, American disk jockeys never again feel compelled to shout across the Peace Bridge:
Hear ye! Hear ye! Let Freedom ring out for all our brothers and sisters to the north!