By Josh Dehaas

American singer Sean Feucht has completed his 11-city tour of Canada. Well, sort of anyway. Public officials cancelled or denied him permits in nine cities, from Halifax to Abbotsford, B.C. Montreal went so far as to fine a church $2,500 for hosting his concert. As you know by now, these shows were cancelled because some people are offended by Feucht’s viewpoints, such as his claim that LGBT Pride is a “demonic agenda seeking to destroy our culture and pervert our children.”

How can a country that purports to protect freedom of speech tolerate this blatant censorship? The answer is that our free speech law is so difficult to decipher that some officials may have genuinely believed they can shut Feucht down to prevent hateful or discriminatory speech.

As I explain in a new essay for C2C Journal, the problem is that, since the advent of the Charter of Rights and Freedoms in 1982, the Supreme Court has failed to draw a principled line between when governments can and can’t limit expression. This is despite the fact that a principled rule – first articulated by John Stuart Mill in his still-famous 1864 essay On Liberty and established to varying degrees in Canada’s pre-Charter jurisprudence – was ripe for the taking.

Mill argued – persuasively, in my opinion – that governments can limit harmful forms of expression like nuisance noise or imminent physical consequences like inciting an angry mob to burn down a person’s house – but they must never seek to censor content or ideas. A clear, principled line, understandable to every citizen, government official and judge. Something like “golden rule” for understanding the domain, and legitimate boundaries, of free speech.

Canada’s high court failed, however, to recognize this golden rule in the first big post-Charter free speech case brought before it, 1989’s Irwin Toy. There, Chief Justice Brian Dickson stated correctly that “freedom of expression was entrenched in our Constitution so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream.”

But then Dickson lost the plot, stating that all expression except physical violence – even parking a car illegally in protest – is protected. While such an act is expressive, there’s no reason to suggest that it is protected expression. Enforcing a law against parking illegally is not targeting the content of speech; it’s targeting a harmful form. But Dickson insisted upon writing that any attempt to convey meaning is initially Charter-protected.

Instead of providing clarity, however, Dickson’s lack of a principled distinction triggered ever-more Charter-related litigation. All speech cases now end up being decided under something called the “Oakes test”. It allows governments to limit Charter rights if they can convince a judge that the benefits of their measure are somehow “proportional” to the harms caused to the individual.

That’s what happened in 1990, when Dickson for a 4-3 majority found that Alberta schoolteacher Jim Keegstra could be jailed for what he said about Jewish people. In her lengthy dissent, Justice Beverley McLachlin concluded that the Criminal Code’s hate speech provision was unconstitutional because the provision “strikes directly at…content and at the viewpoints of individuals.” The subjectivity of “hatred”, she also wrote, made it so difficult to define that any prohibition would deter some people from speaking at all. Dickson responded in a decision called Taylor, where he said the words “hatred and contempt” are limited to “unusually strong and deep felt emotions of detestation, calumny and vilification.”

But how can anyone know whether their words count as protected expression or might land them in jail? In 2013, the Supreme Court was forced to try to answer that in Whatcott. In a 6-0 decision, Justice Marshall Rothstein found that speech that betrays mere “dislike,” that “discredits”, “humiliates” or “offends”, is protected, and that people are even free to “debate or speak out against the rights or characteristics of vulnerable groups.” However, the court found that banning hatred remained constitutional.

Again, though, how can you differentiate between speech that “ridicules” and speech that “vilifies” or speech that is “detestation” rather than “dislike”? Rothstein said one must look for the “hallmarks of hatred” such as “blaming [a group’s] members for the current problems in society,” saying they’re “plotting to destroy western civilization,” or equating them with “groups traditionally reviled in society, such as child abusers [or] pedophiles.” In the end, Whatcott didn’t clarify much.

In 2021, the Supreme Court was forced to try again in Ward. A 5-4 majority found that limits on expression are justified in two situations: when the speech meets the definition of “hatred” set out in Whatcott or when it forces people “to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy.”

Now, picture yourself as a mayor whose constituents are demanding you cancel Feucht. While it seems clear to me that Feucht’s speech does not meet the definition of hatred from Whatcott, some will argue it does. Others will say, citing Ward, that it would “force certain persons to argue for their basic humanity or social standing….” We can’t know for sure what a judge will decide – and that’s the problem. Had the Dickson court recognized Mill’s principle, that ideas must never be censored but that preventing harmful forms or imminent physical consequences of speech can be justifiably limited, it would have been clear to all that the shows must go on.

The original, full-length version of this article was recently published in C2C Journal.

Josh Dehaas is Counsel with the Canadian Constitution Foundation and co-host of the Not Reserving Judgment podcast.

By Jim Mason

It is increasingly obvious that Canada’s federal institutions are failing Canadians. Recent events underline a growing institutional dysfunction that requires major reform.

This year alone, then-Prime Minister Justin Trudeau asked the Governor General – a Trudeau appointee – to prorogue Parliament for no reason other than to more easily facilitate a Liberal leadership transition. Soon after, new Prime Minister Mark Carney’s government delayed the federal budget, the single most important piece of legislation any democratic government needs to produce – again out of pure political calculation. Then a non-confidence motion was decided on a voice vote, an egregious abuse of Parliamentary convention. These are just three examples that underscore deep systemic flaws.

Our political institutions were originally designed for a vastly different era. In 1867, Canada had just 3.4 million people in four provinces, travel was mainly by horse-and-buggy, and communication via handwritten letter. Yet today, over 40 million Canadians across ten provinces and three territories still rely on essentially the same governmental institutions Canada got at its founding. Doesn’t it seem likely that this structure is no longer optimized for a diverse, modern, technologically advanced nation?

The problems begin at the top. The Governor General, meant to be an impartial representative of the Crown – our head of state – has become little more than a figurehead, appointed by the Prime Minister and often used to send political messages. While retaining some constitutional authority, the Governor General’s role has been effectively neutered by convention and partisan politics.

The Senate, intended to provide “sober second thought” and, more importantly, regional representation, has become a hodgepodge of entrenched ideological actors appointed solely at the Prime Minister’s discretion.

The House of Commons, Canada’s primary legislative body, has so many caveats, exceptions and special provisions determining its makeup that a core feature – representation by population – has long since been lost. And its outdated quorum rules permit laws to pass with merely 20 MPs present, meaning just 3 percent of the current 343-member House can push a bill through.

More troubling is the unprecedented power wielded by the Prime Minister’s Office (PMO). The PMO rose to prominence under Pierre Trudeau in the late 1960s. It is staffed mainly by political appointees rather than career civil servants, and is accountable solely to the Prime Minister. This opaque institution virtually dictates policy, controls appointments, disciplines Cabinet and caucus members, and effectively operates as Canada’s de facto executive – without any democratic accountability. It has even been described as more powerful as a governing institution than the U.S. White House. Yet remarkably, the PMO lacks any constitutional legitimacy or statutory basis.

Canada’s judiciary is similarly compromised, with federal and Supreme Court judges appointed by the Prime Minister, risking ideological bias and intellectual stagnation. Rather than strictly interpreting the law, the judicial branch increasingly uses its decisions to shape, advance and even create policies that governments must follow, undermining democratic accountability and separation of powers.

To address these serious deficiencies, Canada should overhaul its federal institutions, drawing from the strengths of the original British North America Act to keep what is still working while redesigning what isn’t in order to adapt to contemporary realities. How could that be done?

Disentangle the current integration of the legislative and executive branches, thereby restoring the lapsed checks and balances built into Canada’s original Constitution, providing proper focus for each branch and enabling clear accountability of function.

Reconfigure the Senate to truly reflect Canada’s regional nature, with 10 Senators from each province and two from each territory, while ending the practice of partisan Senate appointments by selecting Senators randomly from qualified, mature citizens. If randomly chosen juries can determine a person’s fate in a criminal trial, then randomly selected Senators could provide fair oversight of legislation free from partisan agendas.

Adopt a modified proportional representation system for electing MPs, using existing census divisions to more fairly balance ideological, urban-rural and geographical representation. Coupled with modified criteria for recognizing official parties, the reformed House of Commons would accurately reflect the diverse perspectives of Canadian voters without the disruption that fringe parties often cause in proportional representation assemblies.

Depoliticize judicial appointments by establishing an objective, merit-based selection pool determined by peer consensus among legal professionals. This method would guarantee that judges were selected for impartiality, excellence and commitment to applying the law without ideological bias.

Impose strict term limits on key officials — including Senators, judges and executive officers — to prevent ideological entrenchment and stagnation, fostering regular renewal of ideas and personnel within the federal government.

Raise the qualifications for voters and candidates, emphasizing maturity – raising rather than lowering the voting age as some are advocating – residency, and sole citizenship to ensure informed democratic participation.

Significantly constrain the PMO by restoring transparency and accountability, limiting its role to advisory functions rather than allowing its unchecked executive authority to continue. Essential powers and responsibilities must return to Parliament and constitutionally legitimate institutions.

A more detailed explanation of these reforms can be found in C2C Journal. They are not, in fact, radical; they seek only to preserve what has historically worked, fix what’s clearly broken, and rebuild our political institutions to meet contemporary needs. The purpose is not revolution, but restoration – of purpose, clarity, order and fairness.

Canada’s current dysfunction is neither inevitable nor irreversible. It arises from outdated structures combined with modern abuses of power. With a clear vision and political courage, we can restore fairness, accountability and genuine democratic representation for all Canadians, revitalizing the
integrity and effectiveness of our federal institutions for generations to come.

The original, full-length version of this article was recently published in C2C Journal.

Jim Mason holds a BSc in engineering physics and a PhD in experimental nuclear physics. His doctoral
research and much of his career involved extensive analysis of “noisy” data to extract useful information,
which was then further analyzed to identify meaningful relationships indicative of underlying causes. He
is retired and living near Lakefield, Ontario.