Sunday, August 10, 2008

A final thought on Westboro Baptist - Was freedom of speech at stake?

The recent threat of protests by the Westboro Baptist Church at the funeral of Tim McLean in Winnipeg has added another dimension to the debate over freedom of expression in Canada. Some are suggesting that since the members of this church were not Canadians, they were not protected by the Canadian Charter of Rights and Freedoms and hence, had no right to protest or even enter the country. I might be swayed by this argument except that I believe that freedom of expression is a universal right that cannot be limited by the Charter.

It might be argued, however, that freedom of speech was not an issue in this case at all.  As a funeral may be considered a private or religious meeting and not a public one, I am not convinced that Westboro Baptist can claim to have a right to spread their message in such a forum. As you will see below, religious meetings are also protected from disruption in the Canadian Criminal Code.

It seems to me that freedom of expression was not really at stake here for the same reasons that we do not feel bound to post every comment that is sent to this weblog. We state under our “Comment Policy” that we reserve the right to moderate all comments and either approve them or not approve them for any reason without explanation. This is not censorship since we defend the right of anyone to fully express their opinion on their own website or blog. As a private website, we can determine what gets said and not said. This is the essence of free speech; the right to say (or not say) whatever one wants said. The same holds true for private meetings like church services and for what goes on in one’s home. People have the right to say what they want in public or in their own meetings but they cannot force others to provide the medium for their message, be that a website, magazine, or religious service. If they want to speak, let them speak on their time and on their dime (this was one of the issues in the recently dismissed human rights complaint brought against Maclean’s magazine by the Canadian Islamic Congress).

In addition, it is worth considering that there are also legal protections for Canadians against such behaviour under the Canadian Criminal Code Sections 63 (1), 176 (2) and (3) , and 264 (1) and (2) which read as follows:

Unlawful assembly

63. (1) An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner or so conduct themselves when they are assembled as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they

(a) will disturb the peace tumultuously; or

(b) will by that assembly needlessly and without reasonable cause provoke other persons to disturb the peace tumultuously.

Disturbing religious worship or certain meetings

176. (2) Every one who wilfully disturbs or interrupts an assemblage of persons met for religious worship or for a moral, social or benevolent purpose is guilty of an offence punishable on summary conviction.

(3) Every one who, at or near a meeting referred to in subsection (2), wilfully does anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on summary conviction.

Criminal harassment

264. (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of

(a) repeatedly following from place to place the other person or anyone known to them;

(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;

(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or

(d) engaging in threatening conduct directed at the other person or any member of their family.

These protections do not, in my opinion, impede on one's right to freedom of expression.

I am thankful that the planned protest by Westboro Baptist actually never took place. I am thankful for those who stood with the family during their time of grief. I am thankful for a country where, for now, we still have freedom of expression even though there are those who are seeking to suppress it in the name of not offending another’s religion or sexual orientation. I am also thankful for a country that protects the rights of its citizens to have private meetings without harassment. It is on this last basis that Westboro Baptist and groups like this should be addressed, not on the basis of whether we like what they are saying.


Tim said...

I think freedom of expression will at times conflict with other freedoms, such as privacy, or in this case a funeral.

I don't think we will always know what the right thing to do is and with respect to principles like of freedom of expression there will always be the challenge of balancing that right with competing ones.

I agree that the laws you quoted here do not restrict the freedom of expression. I think the problem people have with "defending" freedom of expression is that they define freedom of expression as the freedom to say anything, anwhere at anytime, which leads to all sorts of ridiculous extremes like the picketing of a funeral -- something any decent people would be disgusted with.

I think freedom of expression is satisfied if people have the freedom to communicate ideas or information with the entire community in some method. The ability to say anything, all the time, everywhere is something much more than the freedom of expression and is more like a caricature or gross distortion of the principle.

nachtwache said...

I agree with freedom of expression, but there's a time and place, making a nuisance of oneself isn't something that should be tolerated and as a country, Canada has the right to stop non citizens from entering. Let them be obnoxious from down south, they can stay there.

Glenn Penner said...

I must disagree. Who is going to determine the time and place for freedom of expression? The government? Human rights commissions? You? Me? You see, that is exactly the problem. Once basic rights become conditional on someone's approval or one someone not being a "nuisance" (and who is going to determine that!), they are no longer rights. Rights are not given or granted; they can only be acknowledged.