The recent censorship of conservative activist, Ann Coulter, at the University of Ottawa while regrettable appears to be entirely consistent with the current interpretation of the scope of the right to freedom of expression in Canada.
The objective of this commentary is to attempt to identify the sources which led to the censorship of speech in Ms. Coulter's case and compare and contrast her case with the recent leave to appeal application to the Supreme Court of Canada which I filed in Jeremiah v. Toronto Police Services Board and P.C. Elliot. By doing this I hope to accomplish two goals. Firstly, I hope to demonstrate that the ultimate source of the censorship in both cases flows from the overly broad discretion afforded police officers in this country with respect to protecting individuals and the public peace. Secondly, I hope to demonstrate that this censorship of the right to freedom of expression is not only misguided but inconsistent with the letter and spirit of the Canadian Charter of Rights and Freedoms in that it is overly broad and effectively leaves police officers with a right they ought not to have in a free and Democratic society.
The First Censorship Source:
The initial source of potential censorship in the Coulter case stemmed from the Criminal Code of Canada offence which prohibits a speaker or writer from inciting hatred. The censorship at this stage occurred when the University of Ottawa spokesman actually wrote to Ms. Coulter warning her to curtail the content of her speech in order no to go afoul of this law. This form of censorship is not the objective of this commentary. I simply wanted to point it out as one of the sources.
Protecting the peace:
The second and crucial source of censorship in the Ann Coulter case flowed from the police action to "protect Ms Coulter and the public peace." Here in Canada the content of speech is lawfully censored by police officers under the Criminal Code of Canada and the common law duty on police officers to maintain the public peace. It is an offence under the Criminal Code of Canada to utter a threat to cause bodily harm or death to someone. While this law may appear on the surface to serve an important societal function, the recent Supreme Court of Canada's dismissal of a leave to appeal application which I filed in Jeremiah v. Toronto Police Services Board and P.C. Elliott clearly illustrates that this law and its application is overly broad and unequivocally censors free and innocent speech. It will be necessary for me to set out the basic facts in Jeremiah v. Toronto Police Services Board and P.C. Elliot in order to demonstrate this point.
Jeremiah v. Toronto Police Services Board et al:
Ms. Jeremiah was employed as a cook at the Hudson Bay Company (HBC)for roughly 17 years. She had a regular shift where she started at 6:30 a.m. and finished at 3 p.m. She worked this shift for years. One day HBC decided that they would unilaterally change her shift. She opposed this. She obtained a medical certificate from her family doctor explaining that changing her shift was not good for her health. Ms. Jeremiah was a cancer survivor. She was also anemic. Her employer called her into a meeting one day and gave her an ultimatum - you either work the new shifts or you are fired. HBC management alleged that Ms. Jeremiah stated words to the effect - "I have a family and I have told them all about you and if anything happens to me they will be waiting for you." The meeting was ended by management a short time after this statement after their unsuccessful attempts to get the meeting back on track. Ms. Jeremiah was ordered back to the kitchen to finish her shift(knives in the kitchen). She finished her shift and came in the next morning for her 6:30 a.m. shift. She worked until around 11 a.m. and then HBC management informed her that she was "suspended pending investigation." The Toronto Police Service charged Ms. Jeremiah with uttering a threat to cause bodily harm based on the words alleged by HBC.
The screening Crown Attorney - Ms. Reina Weinberg wrote the following note to the Officer in Charge of the police investigation: "Al, this could mean anything. It sounds like the employer may be riding her and she is saying that if she drops dead in the workplace that her family may be there to sue the Bay. How is this a threat to cause bodily harm. Should this not be peace-bonded at best ?" A notation on the Crown Brief which the OIC, Det. Al Brown, identified as his writing wrote - "I agree." Det. Herman, a member of the Toronto Police Service was asked to deal with the Jeremiah Occurrence. He reviewed the Occurrence and concluded that no offence was committed. He called the complainant and told her so. He closed the occurrence and noted his conclusion on the
database. P.C. Elliot the officer who reported to the HBC call and created the Occurrence did not check the police database to see that the matter was closed by Det. Herman. He proceeded to arrest and charge Ms. Jeremiah. This police officer testified under oath that he failed to consider the possible innocent meaning of the alleged speech. He acted solely on what the complainant told him that she thought the speech meant.
The Supreme Court of Canada:
I made a direct request for the Supreme Court of Canada to consider as a matter of national importance the question of whether or not the Criminal Code of Canada offence of uttering a threat to cause bodily harm violated Ms. Jeremiah's right to freedom of expression under the Canadian Charter of Rights and Freedom. It struck me that on the facts of her case it clearly did. The words attributed to Ms. Jeremiah by her former employer were in my view capable of an clearly innocent and legitimate meaning. It is significant that the reader appreciate the fact that these were words alleged to be spoken by Ms. Jeremiah. The Supreme Court of Canada dismissed Ms. Jeremiah's leave to appeal application.
Analysis and commentary:
The second source of censorship in the Anne Coulter case stems from the actions of the police to "protect the public peace." Her speech at the University of Ottawa was cancelled because police determined that they could not guarantee her safety nor the safety of others. It is interesting for the reader to appreciate that it does not appear that Ms. Coulter demanded any guarantee of safety from the police. In addition, there was in fact to the best of my knowledge no arrests made by police in connection with the event.
Both of these cases demonstrate that the Criminal Code of Canada's provisions dealing with threats and both the common law and statutory duty on police officers to keep the public peace are overly broad and violate the right to freedom of expression guaranteed under the Charter of Rights and Freedoms. In the Coulter case it appears that it is entirely within the laws of Canada for the police to step in and prevent her speech if they determine that she or the public may be in danger if it proceeds. In the Jeremiah case is would appear that it is within the law for an individual to be charged criminally for innocent and legitimate speech in the context of a work dispute if the receiving employer or their agent believes that they are threatened with bodily harm.
Law makers who are serious about the right to freedom of expression need to re-evaluate this unfortunate state of circumstances. Freedom of expression is one of the cornerstones of a free and democratic society. These two cases demonstrate that we may not have the moral ground to criticize other countries that out rightly curtail free speech on the ground that it keeps the peace and is in the national interest.
Ernest J. Guiste, Trial & Appeal Lawyer
Note: This piece is written for the sole purpose of encouraging public discourse on a matter of public importance.