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.