By Caitlin Smith
Alan Borovoy battled for freedom of expression many times in the 41 years that he was at the helm of the Canadian Civil Liberties Association (CCLA), but he will always remember one of the earliest cases. It goes back to the 1960s, when a group protesting the Vietnam War applied for a permit to march down Yonge Street in Toronto on a Saturday afternoon, a day that coincided with an international day of protest. The group was denied the permit, but instead was given a permit to march down Bay Street and University Avenue on that same Saturday afternoon.
“If you have ever been on Bay Street on a Saturday afternoon, there is a good chance you were the only one there,” says Borovoy.
You couldn’t get a busy street parade permit unless you’d been doing so for at least 10 years prior to October 1, 1964. So preferred status was granted to the Santa Claus parade and the Orange parade. Under another exemption, the police commissioner and chief of police could issue a busy street permit to any group deemed to be of municipal, provincial or federal importance. A group that qualified was a visiting convention of the Fraternal Order of Eagles. They were able to tie up Yonge Street for five hours on a busy Friday afternoon, with 5,000 marchers and 35 marching bands.
Borovoy says these examples show how things have often been done in Canada — we render protest impotent. “In Canada, we don’t ban demonstrations, we reroute them. You can say anything you like in your backyard or bathtub. If a larger audience is required (and for protests it invariably is), there are legal fetters.”
Denying the Holocaust
Defending free speech has always been an important part of Borovoy’s work at the CCLA, but no issue has touched him as personally as the cases of Holocaust denial.
There are many notorious cases but none as repugnant as that of Holocaust denier Ernst Zundel. What is so important to remember when arguing for the restriction of his free speech, says Borovoy, is that the attempt to target what is illegitimate creates a significant risk of restricting what is legitimate.
Zundel was prosecuted under the spreading of false news law, which prohibited the dissemination of false news that was likely to cause injury to a public interest. Borovoy describes Zundel’s actions as “political obscenity. It wasn’t enough that the Nazis extinguished 6 million Jewish lives. He wanted to extinguish 6 million Jewish deaths.”
Borovoy feels badly that many in the Jewish community, including Holocaust survivors, found his defence of free speech in the Zundel case to be hurtful. “It was a painful thing to know that I was hurting people who had already suffered too much. I don’t relish inflicting such pain.”
In another infamous case, Alberta high school teacher and mayor Jim Keegstra, who taught his students that there was a worldwide Jewish conspiracy, was prosecuted under the anti-hate law. Even before the charge was laid, he was removed from the classroom and ousted from the teaching profession, and the voters of his town had removed him from office. What, asks Borovoy, was the point of prosecuting him after all that?
“He should have been allowed to wallow in the obscurity he so richly deserved.”
There are many examples of legitimate speech being attacked under the anti-hate law. In the mid-1970s, some young people were arrested for distributing literature with the words “Yankee Go Home” at a Shriners parade in Toronto. The charges were eventually withdrawn, but not before protesters spent a few days in jail.
In another example, in the late 1970s, French-Canadian nationalists near Windsor distributed anti-French pamphlets in the hopes of stirring up a backlash in support of their cause. In yet another case, an anti-apartheid film from South Africa was held up at the Canadian border, pending an investigation into whether the film would promote hatred against white South Africans.
In all these examples, there was no enduring conviction but, says Borovoy, only lawyers would be consoled by that. The arrests created a chilling effect, and it isn’t right that people should be constantly looking over their shoulders, fearing arrest and prosecution, while engaged in legitimate activities.
Sometimes journalists can find themselves in trouble “just for doing their jobs.” Borovoy cites the case of Juliet O’Neill, the Ottawa Citizen reporter whose home and office were raided by the RCMP on the suspicion that she had contravened the Official Secrets Act by writing about the Maher Arar case in 2003. She could have been jailed for up to 14 years.
“This was a draconian law,” says Borovoy. “Not only is secret never defined but writers could be found guilty for receiving information, even if they didn’t want it.”
Fuzzy criteria also characterized the situation, in 2005, with the Danish cartoons about Islam which caused worldwide protests and led to numerous deaths, and the anti-Muslim article by Mark Steyn which appeared in Maclean’s magazine in 2006. Some human rights laws target statements that are “likely to expose” people to “hatred or contempt” on grounds such as race, creed or colour.
These laws could produce state action against many groups. Borovoy mentions one such example, a book entitled Hitler’s Willing Executioners, which states that many Germans supported what the Nazis were doing to Jews. “Would this not be ‘likely to expose’ a whole generation of Germans ‘to hatred and contempt’?”
It’s not enough, says Borovoy, that one human rights commission panel dismissed the charge against Maclean’s. “The law is so broad that you never know who or what might get nailed under it,” he says. “There is no defence for truth, or reasonable belief in truth.”
Back in 1962, Borovoy was involved in the creation of the first human rights commission, in Ontario, when he worked for the Labour Committee for Human Rights. At that time, human rights laws were enforced part-time by the Ministry of Labour.
Today, he still believes the commissions have an important role to play. “CCLA has opposed provisions that would censor freedom of speech, but that’s no argument for dumping all the important anti-discrimination work that the commissions have done.”
Undue Exploitation of Sex
Borovoy provoked the ire of many feminists over Canada’s obscenity laws in the 1980s, and he and the CCLA took a lot of heat over the issue. The problem arose over the interpretation of pornography.
“The feminists sold their interpretation to the Supreme Court of Canada in the Butler case. Pornography was defined in the Criminal Code as ‘material characterized by an undue exploitation of sex and an undue exploitation of sex in combination with crime, horror or violence.’ What is undue exploitation of sex? What is a due exploitation of sex?
“The Supreme Court said the portrayal of sex coupled with violence is almost always an undue exploitation of sex. What about the painting of the rape of the Sabine women or, from Greek mythology, the rape of the beautiful Leda by Zeus in the form of a swan?”
Knowing where the courts will draw the line between art and pornography is tricky, says Borovoy. He recalls the case of Eli Langer, who was charged with disseminating child pornography for “drawing sketches of children being abused.” In the end the court said the work had artistic merit.
“But how does the artist know in advance that the court will find there is artistic merit? Should art be confined to the depiction of virtue? Lots of important art depicts the dark side of the human condition.”
Even educational materials might be vulnerable. A book designed to teach children about sex, Show Me!, was called veiled pornography in a western provincial court after it had been cleared 25 years earlier in Ontario. This incident occurred even after the Supreme Court of Canada had called for a more liberal interpretation of art.
After the Charter
Have things changed for the better with the enactment of the Charter of Rights and Freedoms? Additional powers have been granted to the courts, and the false news section of the Criminal Code and a contentious provision of the Security of Information Act have been struck down. But the obscenity and child pornography provisions of the Criminal Code and the anti-hate speech measures of the Criminal Code and the federal Human Rights Act have been upheld, says Borovoy, “so, the record has been spotty.”
Freedom of Expression
When all is said and done, Borovoy says he must acknowledge that freedom of speech cannot be absolute, “but it is the lifeblood of our democratic system. It is the vehicle by which any of us can appeal to public support for the redress of our various grievances.
“A wise old trade unionist once said that freedom of expression is the grievance procedure of a democratic system. Freedom of speech is the freedom on which all the other freedoms depend.”
Borovoy feels that injustice is less likely to endure or even emerge in an atmosphere of free public debate. “We have a better chance to attack the injustice with free speech than without it.” In the arts and literature, says Borovoy, freedom of expression provides a vehicle for creative fulfillment, both for those who produce it and for those who consume it.
So where does it go from here? There will be challenges in every generation, says Borovoy, “because short-term self-interests will always seem more important.” But Borovoy and the CCLA will continue to face those challenges and keep up the fight.
“Eternal vigilance is the price of freedom.”*
On June 30, 2009, Alan Borovoy retired after 41 years at the CCLA. He continues to defend civil liberties through his teaching and public appearances. He is writing his memoirs.
Caitlin Smith is the co-ordinator of funding and membership at the Canadian Civil Liberties Association.