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"Freedom of Speech Is an American Concept, So I Don't Give It Any Value":

I'd heard of this quote from a Canadian Human Rights Commission investigator, but I wanted to see the hearing transcript for myself just to confirm that it's not being misquoted or quoted out of context. I just got the surrounding pages (available here; see PDF page 43 for the quote), and here it is:

MS KULASZKA: Mr. Steacy, you were talking before about context and how important it is when you do your investigation. What value do you give freedom of speech when you investigate one of these complaints?

MR. STEACY: Freedom of speech is an American concept, so I don't give it any value.

MS KULASZKA: Okay. That was a clear answer.

MR. STEACY: It's not my job to give value to an American concept.

Later on, Steacy does get a bit less clear:

MS KULASZKA: So if someone claims freedom of speech for what they said, it is rejected out of hand?

MR. STEACY: If somebody is claiming freedom of expression, it is not rejected. As I said, freedom of speech is an American concept, it is not a Canadian concept. If somebody said, "I am doing this because of freedom of speech," I would equate that to somebody raising a freedom of expression concept.

So freedom of speech is equated to freedom of expression, which is not rejected, but freedom of speech isn't valued because it's an American concept — hard to tell what he means. But however one reconciles the logic here, and whatever the extent to which free expression is indeed "not rejected," Mr. Steacy's rhetoric is still striking: "Freedom of speech is an American concept, so I don't give it any value."

Mary Rosh (mail):
From the
Canadian Charter Rights:

Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.


My tentative conclusion based on available evidence is that Mr Steacy is just plain ignorant.
4.10.2008 4:53pm
Uh_Clem (mail):
Oops. Forgot to change my settings since I made a joke post in the John Lott thread. Sorry about that.
4.10.2008 4:56pm
Just Saying:
A quick note: You quote him as saying "freedom of exception" in the last sentence of the excerpt. In the original, it's "freedom of expression". Until I realized that, I found this quote a good deal more confusing. [EV: D'oh! Fixed it, thanks.]

With that out of the way: I think this is a case where Mr. Steacy should receive the benefit of the doubt. What I think he was saying is that a Freedom of Speech claim which tried to use American law would be invalid, just as Canadian law is invalid here. However, what somebody would be trying to say is "freedom of expression", which actually is in the Canadian constitution and presumably has Canadian case law around it. I think a stronger case could be made if this was written in a law review article, but the person appears to have just been speaking and did so inartfully. Happens to everybody.
4.10.2008 5:00pm
Thorley Winston (mail) (www):

My father is a trucker who frequently has to make runs to Canada. Anyone know where can I get a bumper sticker for his rig that reads “’Freedom of Speech is an American Concept’ – the Canadian Human Rights Commission”?
4.10.2008 5:00pm
George Weiss (mail) (www):
typo in the final Mr Steacy quote?

it says "freedom of exception" is that supposed to be freedom of expression?

[EV-Sorry, fixed it, thanks!]
4.10.2008 5:01pm
Thorley Winston (mail) (www):
Slightly OT but did anyone catch last week’s South Park?
4.10.2008 5:01pm
Robert S. Porter (mail) (www):
I appears as though he was attempting to make some semantic difference between expression and speech. Of course this is ridiculous on a definition basis. Can you be free to express yourself if you aren't free to speak?

Leaving that aside, it is ignorant of Canadian history and law. The Canadian Charter of Rights and Freedoms states that citizens have the "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication". Sure it doesn't say "speech" but that's exactly what it means. More importantly the Canadian Bill of Rights from 1960 (proposed by the significantly anti-American John Diefenbaker) states "free of speech" in section one.

Canada might not have the explict history of "free speech" like the United States but to say that it's "an American concept" is stupid, false and dangerous.
4.10.2008 5:06pm
The Restatement:
Thorley: Why, yes! I happen to work at the Colorado Department of Internet Money.
4.10.2008 5:06pm
Brooks Lyman (mail):
I must I find the fact that the Canadians felt that they needed to acknowledge "freedom of thought, belief..." rather chilling. How, pray tell, do they intend to enforce the alternative to freedom of though and belief?

Opinion and expression imply (to me at least) the dissemination of one's ideas and opinions to others via speech, press or other media. That's fine. But thought and belief are internal, private. Surely they didn't need to even mention them?

We sometimes need to remember, for all their English-speaking and their shared heritage of the English Common Law, that Canada (and some of the other English-speaking nations) is not the USA, and that they may not share our attitudes or laws regarding basic freedoms.
4.10.2008 5:09pm
CJColucci:
The short version: I don't know what this guy is saying, but whatever it is, I'm against it.
4.10.2008 5:13pm
MXE (mail):
Seems to me he's either being purposefully prickly about a valid distinction (that U.S. freedom of speech law doesn't bear on Canadian freedom of expression law), or is an anti-American, anti-freedom P.O.S., or both. Odds are probably 33-33-33.
4.10.2008 5:14pm
David Schwartz (mail):
This appears to just be a clumsy attempt to be hostile to his interrogator. What he's really trying to say is basically that in Canada, they call it "freedom of expression" and if you call it "freedom of speech", like they do in America, you're implying something about Canadian freedoms not being good enough and that only American ones will do.

He does clearly come across as hostile to freedom generally.
4.10.2008 5:16pm
Fub:
So freedom of speech is equated to freedom of expression, which is not rejected, but freedom of speech isn't valued because it's an American concept -- hard to tell what he means.
Actually it seems very simple.

Blowing up things and killing innocent people is expression by those oppressed and marginalized by the Racist American Hegemon and Root Cause of All Oppression in the World (tm). Expression also includes some speech, such as that speech necessary to articulate the demands or threats of those who are expressing themselves.

Writing, or drawing cartoons criticizing or opposing those who blow up things and kill innocent people is merely speech, and it is not in engaged in service of expression as defined above.

Therefore freedom of speech is acceptable if the speech is that necessary part of freedom of expression. But more general freedom of speech is just another dirty trick by the Racist American Hegemon above. So it shouldn't be given any value.

Clear now?
4.10.2008 5:16pm
Rodger Lodger (mail):
Not to defend this joker, but for years I have been appalled at the use of freedom of speech as a defense to criticism for uttering stupid, worthless, or otherwise better unsaid, words. Yes, freedom to say this, but freedom is not a justification for saying this. Latest example was Ms. Ferraro defending her remark on Sen. Obama's success owing to his skin color: "I was exercising my freedom of speech", or some such. That freedom is not a defense of anything said, it is just a legal right to say it without governmental interference.
4.10.2008 5:19pm
Bama 1L:
It seems like Steacy is just trying to distinguish American, First Amendment "freedom of speech" from Canadian, Charter of Rights "freedom of expression." Since the context of the discussion is online communication, it's important for him to point out that he's applying Canadian, not American, concepts.
4.10.2008 5:20pm
Uh_Clem (mail):
Ok. I've read it again and the most charitable interpretation (and I think the correct one) is that Mr Steacy is being a language nudge. The US bill of rights includes the phrase "freedom of speech" but the Canadian Charter rights uses the more expansive "freedom of expression". Raising a "freedom of speech" claim in a Canadian pleading would be using US terminology.

The subtext here is that he's upbraiding his interviewer for using the wrong term, and implying that she's ignorant of Canadian Civil Rights law - if she was familiar with the right in question she would be using the proper Canadian term, rather than an Americanism.

Where he goes off the rails is saying that it's an American "concept". Well, it is an American concept, but the Canadian Charter rights incorporates the very same concept. Using the wrong word doesn't change the concept.
4.10.2008 5:23pm
General Disarray:
All I know if that if Mr. Steacy weighs the same as a duck, he's made of wood. And therefore a witch.
4.10.2008 5:24pm
bkleinman (mail) (www):
Hypothetical Statement: "In the US we don't have lorries and aeroplanes"
Hypothetical Question: "There are no trucks in the United States?"
HS: "Of course there are trucks in the United States."
HQ: "There are no airplanes in the United States?"
HS: "Of course there are airplanes in the United States."

VC: He hates lorries. He hates aeroplanes. He hates the British.
4.10.2008 5:24pm
Patrick216 (mail):
I agree with Bama 1L. The phrase "freedom of expression" probably makes more sense than "freedom of speech" since our freedom of speech captures various kinds of expression apart from speech (e.g. artistic expression, photography). But here, he's trying to apply Canadian law of freedom of expression. My guess is that a Canadian's right to "free expression" is subject to MUCH more restriction than an American's right to free speech under the U.S. Constitution.
4.10.2008 5:25pm
David Mader (mail) (www):
I've seen a lot of folks suggesting Steacy gets the benefit of the doubt on the ground that he might simply be saying that he doesn't credit claims grounded in American law, where "freedom of speech" stands in for "arguments grounded in American First Amendment law".

But does that really make sense in the context of the transcript? In other words, when the interrogator asks "What value do you give freedom of speech," is it reasonable for Steacy to interpret "freedom of speech" to mean "American free speech law"? Wouldn't any reasonable respondent understand the question to refer broadly to the abstract principle of freedom of speech - a concept that is certainly not unique to the United States - rather than narrowly to claims in Canadian quasi-judicial proceedings grounded in American law?
4.10.2008 5:26pm
Rich B. (mail):
Actually, it is a perfectly reasonable distinction for anyone well-versed in First Amendment theory. There are two main "theories" of First Amendment law:

1. The "marketplace of ideas" theory, and
2. The "expressive right" theory.

The first focuses on the "idea" and the second on the "thinker."

So, under American "marketplace of ideas" jurisprudence, non-people (like corporations, for example) have first amendment rights. Also, the marketplace of ideas approach is used to argue against limits on campaign contributions.

The "Expressive rights" viewpoint takes into account a whole separate category of concerns. It makes no sense, for example, to say a corporation can "express itself."
4.10.2008 5:27pm
bkleinman (mail) (www):
And, as others have pointed out, it seems likely that canadian freedom of expression doctrine is somewhat different from american freedom of speech doctrine. Since when did this blog's readers dislike precision?
4.10.2008 5:28pm
martinned (mail) (www):
L.S.,

Apart from the fact that it looks like this guy was deliberately being an ass (or, what would be worse, an idiot), it seems useful to remind the American readership of this blog from time to time that the US Bill of Rights is not gospel. I just checked the ECHR definition, which also talks about freedom of expression, not free speech:


Article 10 – Freedom of expression1

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
4.10.2008 5:37pm
Archon (mail):
I've got to give the guy credit - he was absolutely correct. He is Canadian and sworn to enforce Canadian law. They apparently only believe in "freedom of expression" which seems to be some watered down version of our more absolute freedom of speech.

This just further demonstrates that we are the last bastion of free speech (and freedom in general) in this God foresaken world.
4.10.2008 5:37pm
ras (mail):
The conflict comes cuz this guy thinks rules are for "little people," not for him.

He's superior and above the rules and can therefore exercise his power as he sees fit ... except, damn, he has to justify it somehow ... except, damn, he's above that, too, or should be ... except, damn, the wording of the Canadian Constitution is so clear ... except, damn, why can't he be above that, too, cuz dammit again ... he's not a little person! Can't you see that?

And so on.
4.10.2008 5:44pm
martinned (mail) (www):
L.S.,

@Archon: Is that the US generally, or only those states where sex toys and homosexuality are legal? Oh, wait, we were talking about free speech. Any other kind of freedom is apparently irrelevant.
4.10.2008 5:45pm
Uh_Clem (mail):
They apparently only believe in "freedom of expression" which seems to be some watered down version of our more absolute freedom of speech.

And your basis for claiming that it's a "watered down version" is what, exactly?
4.10.2008 5:45pm
Just Saying:
typo in the final Mr Steacy quote?

it says "freedom of exception" is that supposed to be freedom of expression?


New rule: No asking things like that unless you've read the previous comments or taken the effort to check the transcript. :(.
4.10.2008 5:49pm
Archon (mail):
Last time I checked our Constitution didn't have the following riders after the First Amendment:

Article 10 – Freedom of expression1

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
4.10.2008 5:49pm
donaldk2 (mail):
Steacy is neither a lawyer nor a constitutional expert authority. Attempts to parse his statements by such criteria are fatuous. Or worse.

You can chop all the logic you want, but it is very plain that what he meant to do is flaunt his defiance of (benighted) "American" values. He very likely realized he had gone too far, and in the reply to the second question he "crawfished" (to use an antique metaphor meaning to scuttle sideways.)

He is an employee of the Canadian Human Rights Commission, which has taken upon itself the project of silencing expressions (yeah) they disapprove of. Such as reservations about the virtues of Islamic extremism. If you want to know more about these fascists, go to Steyn on line.

In Canada, that last sentence could result in a summons to appear before a tribunal of the Commission, and the probablity of being assessed a heavy fine for the pain and suffering of the plaintiffs. Or plaintiff, since there is one man alone who brings all these complaints.

You have no idea of the kind of stuff that goes on in Canada, goings-on that would be laughed at in a proper republic.
4.10.2008 5:54pm
martinned (mail) (www):
L.S.,

@Archon: Yes, I can see how that would be strange. Somehow the drafters of the ECHR felt it better to write in the "riders" immediately, rather than having some court interpret them in.
4.10.2008 5:57pm
whit:
"My tentative conclusion based on available evidence is that Mr Steacy is just plain ignorant"

my not so tentative conclusion is that your hasty evaluation is wrong.

fwiw, i took a hate crimes investigator 'train the trainer' class that included a bunch of canucks (mounties, etc.) and they were AMAZED at all the expressions of speech that were legal in the US that were criminal there. first of all, canada criminalizes many examples of hate SPEECH (note: not hate crimes, but hate SPEECH) that are entirely legal in the US. in the US, it is no crime to denigrate an entire race. in canada it is.


there are a bunch of examples. specifically, look at 318 to 320 of the criminal code.

look also at section 13 of the canadian human rights act

"To communicate telephonically or to cause to be so communicated in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of parliament [i.e. the telephone system and all electronic media] any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination [race, national or ethnic origin, color, religion, age, sex, sexual orientation, marital status, disability, family status, and conviction for which a pardon has been granted]."

etc. etc. etc.

iirc, the "justification" when these laws were passed (and this was stated in argument by legislators) was that canadian society as contrasted with US society values "civility" more than it values the freedom to offend, especially when the offensive speech attacks people based on their race, etc.

canada also gives judges the power to ban and seize "hate propaganda"

"1) A judge who is satisfied by information on oath that there are reasonable grounds for believing that any publication, copies of which are kept for sale or distribution in premises within .the jurisdiction of the court, is hate propaganda, shall issue a warrant under his hand authorizing seizure of the copies. "

and then there was the keegstra case.

"Moles only come out in the dark when no one is watching. Jews only do their deeds when no one is watching. A mole when mad, will strike back and have no mercy when disturbed. Jews strike at any time and have NO mercy." That excerpt from an examination answer penned by an Eckville, Alta., high-school student in 1982 is just one example of the lessons taught by former social studies teacher James Keegstra - lessons that launched a long and convoluted series of trials and appeals that finally ended in Ottawa last week. In a unanimous decision, the Supreme Court of Canada upheld Keegstra's 1992 conviction in Alberta - his second - on charges of wilfully inciting hatred against an identifiable group. "It ends a very ugly chapter in Alberta's history," said Hal Joffe, spokesman for the Canadian Jewish Congress. "All groups in our multicultural society will rest easy tonight."

http://en.wikipedia.org/wiki/James_Keegstra

the issue is not even debatable. note also that the CCLA (the canadian "version" of the ACLU readily admits that canadians right to free speech is limited compared to citizens of the US. feel free to visit their site.)


fwiw, it's hardly a controversial conclusion that canadians don't have free speech to the extent americans have. also, this is not directed at you, but i frequently find "people of the left" woefully ignorant about how US citizens enjoy SUBSTANTIALLY more free speech than canadians do. since it's "progressive" on other issues like marijuana, health care, etc. they either conveninently ignore or don't look into the fact that canadians do not enjoy the kind of protections we do.
4.10.2008 5:58pm
Germanicus:
Archon - "This just further demonstrates that we are the last bastion of free speech (and freedom in general) in this God foresaken world."

If you happen to be Canadian (or European) it just further demonstrates Canadians have chosen to structure their rights in a way that provides slightly more order, and slightly less freedom, as compared to the American system. (Assuming the legal analysis of the rights involved that people have postulated here. I'm not an expert on Canadian human rights law.)

I don't watch my tongue any more in Vancouver than I do in Portland. "Expression" actually seems to me to be broader than "speech," and I don't see anything in that brief transcript that indicates this was anything other than a Canadian Inspector bristling a little when inadvertently asked whether he enforces an American legal principle. I'll reserve all judgment about his manners unless I see video to demonstrate his tone, and the interviewers. Even if he was a little oversensitive, I don't think this makes him into the head of Thinkpol.
4.10.2008 5:58pm
George Weiss (mail) (www):
Just Saying:

I looked for someone who had pointed out the typo and there was none until after i returned to the thread after posting.

you posted the typo at 400. I posted it at 401. I was almost certainly posting as your post appeared on the page.
4.10.2008 5:59pm
roy (mail) (www):
Thinking generously, this may be on par with American law types' treatment of the right to "a jury of one's peers". There's no such right, and authorities shouldn't act as if there is. There is a right to an impartial jury to protect us from the same basic problems, and we don't worry when the former is disregarded in favor of the latter.
4.10.2008 6:00pm
Paul Barnes (mail):
So Con or Bust
Five Feet of Fury

Two websites that sometimes talk about Steacy. Basically, he worked for the Human Rights Commission, where he went on websites, posted comments on them, then made complaints against them.

This is actually becoming a real problem because conservative commentators and bloggers are being targeted. Another former HRC employee, Richard Warman, has started to sue 5 fairly prominent bloggers because they called him a "censure of free speech". I would recommend going to the Five Feet of Fury website to find more information.
4.10.2008 6:02pm
Uh_Clem (mail):
Archon,

The Article 10 you posted is from the European Convention on Human Rights. Care to elaborate on what the European Convention on Human Rights has to do with the Canadian Charter Rights? Or were you responding to someone else?
4.10.2008 6:03pm
Paul Barnes (mail):
Ok, for some reason, the links did not go through...


4.10.2008 6:03pm
Paul Barnes (mail):
dang it again

http://www.socon.ca/or_bust/
http://www.fivefeetoffury.com/
4.10.2008 6:03pm
martinned (mail) (www):
L.S.,

@Uh_Clem: He reposted it from my comment. I put it up as an example of freedom of expression in the wider world, to emphasise my point that when it comes to free speech the US is very much the outlier, both in terminology and in the way it is weighed against other rights.
4.10.2008 6:04pm
Nathan_M (mail):
As a Canadian lawyer, I think the other commentators who suggest that Steacy is just rejecting the American terminology in favour of the Canadian one are probably right.

Another possible issue is that unlike the Charter, the Canadian Bill of Rights does specifically protect "freedom of speech". It's not clear from the transcript if Steacy is aware of this or not. But if he, it would be another reason to reject that terminology. An individual would never want to advance a claim under the Canadian Bill of Rights instead of the Charter. The Canadian Bill of Rights is so useless one usually wouldn't even argue it if it's clear the Charter applies.

I think this is just an example of different countries using different terms for a similar concept, I wouldn't read anything else into it.

As for all the comments about how Canadians somehow have "lesser" constitutional rights than Americans, I don't think that's true. The right to freedom of expression is a bit less protected by Canadian jurisprudence than American, but there are many other situations where the reverse is true. To pick just one example (and there are many), the American practice of sentencing criminal defendants based on charges they have been acquitted of would be unconstitutional in Canada.
4.10.2008 6:13pm
LarryA (mail) (www):
We sometimes need to remember, for all their English-speaking and their shared heritage of the English Common Law, that Canada (and some of the other English-speaking nations) is not the USA, and that they may not share our attitudes or laws regarding basic freedoms.
Please. I have enough trouble down here in Texas, with folks who get in trouble in Mexico and sputter, “But they violated my Constitutional Rights!”
4.10.2008 6:18pm
Bill Poser (mail) (www):
As both an American and a Canadian, I don't think that Mr. Steacy was making a technical distinction. Although the Charter uses the term "freedom of expression", it is not as if "freedom of speech" is an incomprehensible or unfamiliar expression interpretable only as a reference to a distinct American concept. Moreover, the concepts of freedom of speech/expression in the US and Canada are no different. In all societies some balance must be struck between freedom of expression and the various harms that can be done by expression. In the US, the balance is struck fairly far on the side of freedom of expression, as in my opinion it should be. In Canada, somewhat greater weight is given to social cohesiveness and the feelings of minorities. The difference is in the balancing, not in the concepts.

Steacey used the in fact trivial difference between "freedom of speech" and "freedom of expression" as a means of implicitly characterizing the questioner's position as extreme and un-Canadian. There is plenty of anti-American sentiment in Canada (some of which is well motivated - don't get me going on the softwood lumber dispute), so it is possible to give an idea a negative connotation by associating it with the American position. That's what Steacey was up to. I've seen it done before. Steacey was not making a technical legal distinction: he was taking a cheap shot.
4.10.2008 6:22pm
Ex-Fed (mail) (www):
I'm not a Canadian lawyer. But from the decisions pitting freedom of expression against other values (like "promotion of equality") that I've read, the action in the Canadian Charter of Rights and Freedoms is not in Section 2, which provides

2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.


...but in Section 1, which provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (emphasis added)


Vast loophole ahoy!

Now Canadians can very reasonably argue that our First Amendment has many exceptions as well, most of them encrusted through the process of the common law. But Section One of the CCRF seems to be a dinner bell for subjective exception-making.

Which is perhaps why Richard Warman gets away with as much as he does.

Note that Canada is a free* and sovereign nation and gets to enact any speech regime it pleases without a by-your-leave from us down here. We should afford their policies as much scrupulously nonjudgmental deference as they do to ours.
4.10.2008 6:29pm
Ak:
Wow. At first this seemed like much ado about nothing. I suggest people read up on the Canadian Human Rights Commission mess. The farce of a legal proceeding they are using to punish people saying unpopular things (complete with 100% conviction rate) is truly frightening. The "investigators" for the CHRC used an innocent woman's wireless router to log into neonazi sites and post hate speech to use as evidence that the sites violated speech codes. I'm almost speechless.

Given the push to institute similar "hate" modifiers into US law, I'm quite disturbed about where these things are heading in the future.
4.10.2008 6:30pm
alkali (mail):
This guy is obviously the worst kind of idiot if he thinks the Canadian concept of freedom of expression can't be informed by the American concept of freedom of speech.

Now that that's settled, can we go back to railing against U.S. Supreme Court Justices who take notice of the civil rights norms of other countries?
4.10.2008 6:30pm
whit:
btw, here's the case

keegstra
4.10.2008 6:30pm
martinned (mail) (www):
L.S.,

@alkali: Huh? Really? You think the Canadians should listen to the US, but not vice versa? Based on what, exactly? The fact that the US is God's gift to mankind?
4.10.2008 6:34pm
Cornellian (mail):
I guess he took too seriously all the venting one sees here about how one should ignore foreign law.
4.10.2008 6:38pm
frankcross (mail):
Substantively, the transcript says that if somebody raises a "freedom of speech" defense, he "equates" that to the Canadian "freedom of expression." So it seems semantic.

The anti-Americanism does sound striking, though.
4.10.2008 6:39pm
alkali (mail):
I kid! I'm a kidder! (I thought the inconsistency was amusing.)
4.10.2008 6:40pm
EKGlen (mail):
It is interesting that folks are getting all worked up about this just a day or two after ABC news revealed that the most senior official of the United States Government met in the White House and agreed to allow the torture of prisoners being held by the US.
4.10.2008 6:41pm
theobromophile (www):
I appears as though he was attempting to make some semantic difference between expression and speech. Of course this is ridiculous on a definition basis. Can you be free to express yourself if you aren't free to speak?

I would say that expression is actually broader than speech (not narrower, as suggested by Mr Steacy). One can be "expressive" with symbolic "speech" (that which is not technically speech, such as black armbands, flag-burning, etc.); various artistic endeavours may not be considered speech (see the thread re: Elane Photography), but are expressive; and "expression" probably encompasses more media than does speech.

As for the European Constitution:
Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In some ways, that is preferable to the American Constitution. Yes, it does say, "Congress shall make no law" (emphasis my own); however, Supreme Court jurisprudence has not followed the wording of the Constitution. We have strict scrutiny for various limitations on freedom of speech and of the press, and intermediate scrutiny for commercial speech; what we do not have is a blanket protection for free speech that is free of exceptions. The European exceptions are at least enumerated (so the state's restriction must fall under one of those reasons in order to be effectuated) and there is an explicit standard of review. The latter definitely does what the U.S. S. Ct. has invented over the past 200 years. The former, in some ways, provides more protection than we are given - again, if the state restriction does not fall under an enumerated exception, the European country is prohibited from enacting a restriction upon expression.

In short: they at least tell us what their standards are; we've left it to the Supreme Court.
4.10.2008 6:41pm
mascodagama:
If I may chime in...

Uh_Clem:
"They apparently only believe in "freedom of expression" which seems to be some watered down version of our more absolute freedom of speech.

And your basis for claiming that it's a "watered down version" is what, exactly?"

The existence of the CHRC
4.10.2008 6:49pm
jim47:
roy:

Thinking generously, this may be on par with American law types' treatment of the right to "a jury of one's peers". There's no such right, and authorities shouldn't act as if there is. There is a right to an impartial jury to protect us from the same basic problems, and we don't worry when the former is disregarded in favor of the latter.


Considering that the constitution forbids titles of nobility, how exactly can the trial of an American citizen not be a jury of one's peers? We are all commoners.
4.10.2008 6:49pm
Bama 1L:
You have no idea of the kind of stuff that goes on in Canada, goings-on that would be laughed at in a proper republic.

Canada's not a republic, proper or improper.
4.10.2008 6:51pm
donaldk2 (mail):
What Canada has done, on the basis of Section 13, is to create an entity (Human Rights Commission) which has run out of control and gone way beyond what the Parliament must have intended. The thing it reminds me most of is Joe McCarthy's Investigations Subcomittee 50+ years ago.

Read some of the literature (blogs) and you will understand.
4.10.2008 6:51pm
martinned (mail) (www):
L.S.,

@theobromophile: I agree. Since you brought up the European Constitution, this is what it says/said:


Article II-71
Freedom of expression and information
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The freedom and pluralism of the media shall be respected.

Article II-112
Scope and interpretation of rights and principles
1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.
2. Rights recognised by this Charter for which provision is made in other Parts of the Constitution shall be exercised under the conditions and within the limits defined by these relevant Parts.
3. Insofar as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.
4. Insofar as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.
5. The provisions of this Charter which contain principles may be implemented by legislative and executive acts taken by institutions, bodies, offices and agencies of the Union, and by acts of Member States when they are implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable only in the interpretation of such acts and in the ruling on their legality.
6. Full account shall be taken of national laws and practices as specified in this Charter.
7. The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States.

Article II-114
Prohibition of abuse of rights
Nothing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein.


Since this is taken word for word from art. 11, 52 and 54 of the EU Charter of Human Rights, it will still become law once the Reform Treaty has been ratified.
4.10.2008 6:51pm
Matthew Friendly (mail):
Who cares?...They're Canadians!!
4.10.2008 6:52pm
donaldk2 (mail):
Bama 1L - Strike "republic", replace with "polity."

If you want to talk fancy, that is.
4.10.2008 7:00pm
c.gray (mail):

It is interesting that folks are getting all worked up about this just a day or two after ABC news revealed that the most senior official of the United States Government met in the White House and agreed to allow the torture of prisoners being held by the US.


Whats almost as interesting is your failure to grasp that, absent robust protection of freedom of the press, ABC news never would have made such a report.
4.10.2008 7:01pm
LM (mail):
whit,

i frequently find "people of the left" woefully ignorant about how US citizens enjoy SUBSTANTIALLY more free speech than canadians do.

What makes you think ignorance of how our speech rights compare is particularly an affliction of the left? Several comments here suggest otherwise.
4.10.2008 7:03pm
martinned (mail) (www):
L.S.,

c.gray: Is that the US approach to civil liberties? By and large, y'all don't have any, except the right to talk about the fact that you don't have any? Or, to add my personal pet hate to Nathan M's example of the unique US approach to sentencing: State Secrets Doctrine, really?
4.10.2008 7:06pm
EKGlen (mail):
martinned - well put.

Some people apparently don't realize the contradiction of prattling on about freedom of the press and so forth in a country that actively condones torture.

But, I guess after 8 years of cheerleading under the Bush Administration, one gets pretty skilled at "accentuating the positive."
4.10.2008 7:12pm
wb (mail):
Just another example of why American judges should not pay attention to foreign legal concepts and rulings.
4.10.2008 7:22pm
anym_avey (mail):
Canada: the wacky uncle at whom everyone just smiles and nods whenever he pipes up with some crazy new scheme at the family dinner parties, because his schemes will fail in the end and attempting to alter his view of things would be a fruitless exercise involving many wasted words.
4.10.2008 7:27pm
martinned (mail) (www):
L.S.,

@wb: I don't know. Every free country is asking itself the same question: how do you figure out what the right balance is between various rights and interests? If the US find that their answer is somewhat out of sinc with everyone else's, I guess the next question should be: "are we wrong or is everybody else wrong?" So I suppose it's a modesty thing, in the end.
4.10.2008 7:27pm
whit:
"What makes you think ignorance of how our speech rights compare is particularly an affliction of the left? Several comments here suggest otherwise."

my experience is this. people on the left have this idea that canada and europe are more "enlightened" and "progressive" than we are. thus, the (false) conclusion that they enjoy similar liberties that we do (most leftists i talk to seem to think the average citizen of the EU enjoys MORE civil rights than we do) naturally follows.

i've seen the same thing when they complain about "gestapo" etc. US police and i point out that in england there is infinitely more surveillance of citizens, no exclusionary rule, and that police generally have much broader powers... denial.

but you are right. this website leans libertarian right (as do i) and many on the libertarian side hold many of the same misconceptions about the US that those on the left do.

i am happy to report the folks at reason (another brand of libertarian entirely) don't hold that pov i have noticed.
4.10.2008 7:27pm
fishbane (mail):
I wonder why some politician in Canada should be taken to task for not taking into account foreign law, when these very pages seem to have recently been very fond of defending against foreign law influencing ours? "Expression" v. "speech" could very well mean different things in different legal traditions, and I'm certainly not versed enough to think I have any idea what that means in Canada.

It is certainly fashionable to make fun of Canadians currently, but they happen to be a sovereign nation. And one that nobody seems to be clamoring to build a wall against, for that matter.

I hope someone asks Scalia if he thinks Canada should respect U.S. American freedom of speech precedent.
4.10.2008 7:28pm
eddiehaskel (mail):
Is this a legal blog? Has Professor V. made a mountain out of a molehill? Does the typical knee jerk "Canada is a joke" attitude of most "exceptional" citizens of the US (and well illustrated by the comments here) not explain the "attitude" of this man? Words do matter in this profession.
4.10.2008 7:30pm
martinned (mail) (www):
L.S.,

@Whit: "no exclusionary rule" in England? Really? What gave you that idea?
4.10.2008 7:31pm
Tony Tutins (mail):
Part of the problem is that English-speaking Canadians largely derive their identity from being not-Americans. In Europe they look, act, and speak northern-American, except of course for their out and about diphthongs.

But there are some key differences between US rights and American rights. Growing up in Ontario, my mother went to tax-funded Catholic schools; Canadians don't (or at least didn't) have that pesky Establishment clause.
4.10.2008 7:38pm
Nathan_M (mail):
Martinned, is there an exclusionary rule in England? My understanding was that judges have digression to exclude improperly obtained evidence, but there is no general exclusionary rule like there is in the United States.

I could be wrong, I'm basing this on what the pre-Charter situation was in Canada, which is usually, although not always, very similar to England.
4.10.2008 7:38pm
Tony Tutins (mail):
Martinned: there was no exclusionary rule in the US until 1914, when the Supreme Court created it in Weeks v. United States, to deter police misconduct. If there is one in the UK, when was it created?
4.10.2008 7:43pm
Nathan_M (mail):
Umm, I meant "discretion", not "digression".
4.10.2008 7:45pm
PersonFromPorlock:
martinned:

So I suppose it's a modesty thing, in the end.

To paraphrase Churchill....
4.10.2008 7:46pm
martinned (mail) (www):
L.S.,

Since I posed the question, I looked around a bit, and the rule seems to imply at least some discretion. That said, it can't be much, since that would run afoul of ECHR requirements.

For example, this seems to be the UK equivalent to a 4th amendment case, where a conviction is quashed because the evidence was obtained in an unlawful search: OSMAN v. SOUTHWARK CROWN COURT [1999].

I'll just go and check now what the Strasbourg court says.
4.10.2008 7:48pm
holdfast:
I went to school in Canada, though I practice in the US now - and I am by no means an expert on Constitutional law, but I do recall a few things from law school. The first is that although ss. 318-320 of the Criminal Code are on their face pretty scary to fans of free speech [and/or expression], in practice the Canadian judiciary has (properly) made it quite difficult to get a conviction under those sections. I recall one case from law school where the Crown Prosecutor was required to prove the existence of the holocaust as a starting point for his case against a holocaust-denier.

The Human Rights Acts and the Human Rights Commissions/Tribunals are another matter altogether. Not are they not properly constituted courts, but everything I have read about the Steyn, Levant and Lemire cases demonstrates that they don't even follow the most basic requirements of admin law and procedural fairness. Warman is probably the worst offender in that he brings 100% of the cases under Section 13.1 of the CHRA, whereby he profits to the tune of tens of thousands of tax free dollars, and appears, based on the evidence availible, to be in collusion with his former colleauges at the CHRA in doing so. I look forward to seeing what turns up as part of the discovery process - I strongly suspect that no judge in a real court will permit Warman to make the sorts of evasions present in the CHRT transcripts.
4.10.2008 7:49pm
martinned (mail) (www):
L.S.,

Re exclusionary rule in the UK:

It turns out I was wrong, in that the Strasbourg court has generally declined to read the exclusionary rule into the convention, cf. Schenk v Switzerland:


"While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law. The Court therefore cannot exclude as a matter of principle and in the abstract that unlawfully obtained evidence of the present kind may be admissible. It has only to ascertain whether Mr Schenke's trial as a whole was fair."


The UK rule is found in s. 78 of the Police and Criminal Evidence Act of 1984:


"78. Exclusion of unfair evidence.—
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence."


This section was discussed by the Strasbourg court in Khan v United Kingdom (2000), where the majority declined to find a violation of art. 6 (the right to fair trial), even though it found a violation of art. 8 (the right to privacy), referring to Schenk.
4.10.2008 8:12pm
LM (mail):
whit,

Awareness and attitudes are no more homogeneous on the left than on the right. Most of my fellow travelers actually appreciate our freedoms. Those who would use "Gestapo" (and I do know a few) are a small, vocal minority many of us would gladly do without. And I've been amused more than once by a fascinated BBC commentator finding out we don't criminalize hate speech, as if he'd just discovered cannibals living under Windsor Castle. In fact I'd find the whole BBC amusing if it weren't depressing how biased it's become. I may be on the right side of the left spectrum in that regard, but the point is that none of us are as one-dimensional as our opposites would make us out to be.
4.10.2008 8:51pm
A.C.:
The thing about freedom of speech, as opposed to some of the other values that may be in tension with it at times, is that it's one of those rights that exist to safeguard other rights. The point of it isn't just that people feel good when they get to blather on and on. The point is that if you don't have it, all kinds of other problems tend to follow.

To tie it in to the points above, the point of running a news story about torture isn't just to run the news story. It's to inform people so they can CHANGE what is going on. Anyone remember the human radiation experiments? I think they were worse than anything going on now, and they were hidden for years. General secrecy over nuclear matters during the Cold War no doubt had something to do with that. What if we had some sort of "national security" rule on free speech that made it impossible to tell that story? The abuses might still be going on.

That's why I think there should be a very, very strong presumption against letting other values weigh in against free speech. You may think you're doing something beneficial when you set up a system like that, but the road to hell is paved with good intentions. A rule set up to protect the helpless may get twisted to shield predators from criticism. And human nature being what it is, it almost certainly will be.
4.10.2008 9:27pm
Sam Draper (mail):
Canadians should tread carefully when making anti-American comments. It is unlawful for them to communicate any matter that is likely to expose a person or persons to contempt by reason of their national origin. See Sections 3 and 13.1, Canadian Human Rights Act.

It seems Canadians will have to come to the United States to continue bashing Americans. Please bring some of you good beer with you, but keep your weather. :)
4.10.2008 9:35pm
Bill Woods (mail):
donaldk: in the reply to the second question he "crawfished" (to use an antique metaphor meaning to scuttle sideways.)

I believe it's crabs that scuttle sideways; crawfish go backwards.
4.10.2008 11:17pm
John Thompson (mail):
The Canadians are a nation of slaves. Take that, Human Rights Commission!
4.11.2008 12:02am
holdfast (mail):
Sam - don't worry, gatekeepers like Dean Steacy would make sure that such a complaint would never be heard. They summarily reject complaints if they don't like the complainant.
4.11.2008 12:12am
BJR:
Not that I expect anyone in this comment thread to tear themselves away from petty nationalistic bickering and consider, you know, "the law," but here's a summary of Canadian courts' jurisprudence on section 2(b) of the Charter. It's mostly a cut-and-paste job from various 2(b) decisions.

If you start to get a headache reading it, you'll know what it's like to be a student of Canadian constitutional law. The SCC has a hard time saying anything in less than 80 pages of sometimes cloudy logic. Whenever I read an American constitutional case I am pleasantly surprised by the brevity of the reasons.

Keegstra is probably the most interesting decision. Note that it was a 4-3 decision that the court may some day reconsider. Zundel and Ross are also worth a look if you have the time.
4.11.2008 12:16am
q:
Hm, when did we all turn into textualists? Go read any First Amendment case; more likely than not, you'll see the term "freedom of expression." So "freedom of speech" in the American understanding is "freedom of expression."

I don't know which direction this cuts for Steacy. It could be true that the identifier of "freedom of speech" is uniquely American. Yet it is quite jarring (and somewhat inconsistent with his later comments) to hear him say that he "doesn't give [the concept] any value." This sounds like to me something substantive and not simply terminology. Can he really say he doesn't give the American understanding of "freedom of expression" any value at all, even though it largely overlaps with the Canadian concept?
4.11.2008 12:17am
holdfast (mail):
BJR - 80 pages - I seem to remember it being worse, especially if Honureux-Dube or Wilson were involved in writing. I think Dickson was the last really clear writer.
4.11.2008 12:43am
one of many:
what i find most amusing is that no one has pointed out that freedom of speech, although interpreted differently in the us and canadian, is not a us concept but an english one. milton is doubtless rolling over in his grave at being so forgotten. even taken in the best light to m. steacy, he misattributes the current us view of freedom of speech to the us instead of the shared british heritage of both canada and the us. (note i am ignoring the french who also had a concept of freedom of speech comparable to the us one and english is changed to british to encompass various scotts who advocated a us compatible freedom of speech prior to the existence of the us.) the phrase 'freedom of speech' in itself is not a us invention either - it comes from the english bill of rights.
4.11.2008 12:54am
EIDE_Interface (mail):
This guy is truly Asshat of the day.
4.11.2008 2:16am
Nathan_M (mail):
Really BJR? It is nice not to read L'Heureux-Dubé's dissent, but I can never get over the judges bickering at each other in American decisions.

Now, the House of Lords is another matter.... Can you imagine how long Lord Atkin's speech in Donoghue v. Stevenson would have been if Madam Justice McLaughlin had written it? The lack of women is a bit odd, but if I had to go through law school again I think I'd lobby for the return of the Privy Council.
4.11.2008 4:30am
plum grenville (mail):
As apparently the only genuine Canadian reading these comments, I think I am more qualified to interpret of Mr. Steacy's remark than any of you foreigners.

It is obvious to me that Mr. Steacy was, as an earlier commenter suggested, snarkily informing his questioner that he or she (i.e., the questioner) was woefully ignorant of a basic Canadian legal term. It may be nationalistic to insist on the correct term, but it isn't anti-American. I freely concede that Mr. Steacy was being petty in that I'm certain he knew what the questioner meant.

Yes, the territory covered by the Canadian concept is very similar to that covered by the American "freedom of speech." Yes, the Canadian right is in general interpreted more narrowly than the American right. Yes, civil liberties in Canada are generally, BUT NOT ALWAYS, less expansive than corresponding American rights. Canadians have different priorities than Americans. I believe that's allowed.

As a matter of fact, in some areas, our different priorities have lead to more extensive rights than Americans have. Our equality clause (Sec. 15), for instance, is much broader than yours. It not includes grounds which the 14th Amendment doesn't; it can also be extended to cover other grounds deemed analogous to the enumerated ones. Sexual orientation was "read into" Sec. 15, and that's why gays in Canada have the the right to marry. We have also entrenched sexual equality in its own clause as well as in Sec. 15. Remember the failed E.R.A.? Freedom of association is explicitly recognized in our Charter. We have minority language rights. We have recognized an "inherent right to self-government" for Canadian native people. And of course torture really is prohibited in Canada (and probably also by Canadian officials outside Canada - we don't have an offshore constitution-free zone.

To get back to the question of why the Human Rights Commission investigator was snarky: he was probably tired of explaining that Canadians' civil rights are not those depicted on American TV shows. Canadians watch a lot of American TV and it is not uncommon for people to think that what they see on TV automatically applies in Canada. To Mr. Steacy, who deals with Charter rights on a daily basis, the distinction between Canadian and American law is simple, obvious, and fundamental. I'm sure Mr. Steacy has heard this error and similar ones so often it has become irritating through sheer repetition.

I know exactly where Mr. Steacy is coming from. I have on occasion tried to make a point by pretending not to understand when people use "girls" to refer to adult women. And, when I was government functionary, I remember being to scream at the 42nd person who confused the Goods and Services Tax Credit, which I dealt with, with the completely unrelated Goods and Service Tax Refund. An unreasonable reaction? Of course. But not, I think, an unnatural one.
4.11.2008 4:39am
Lonetown (mail):
Isn't speech a subset of expression?

If anything the Canadian concept is braoder.
4.11.2008 8:13am
EIDE_Interface (mail):
Nah speech is purely an American concept. In Canada we don't believe in "American freedoms". We have Canadian laws and we vil krush the dissenters! Zig Heil!!!!
4.11.2008 11:59am
ruralcounsel (mail) (www):

To get back to the question of why the Human Rights Commission investigator was snarky: he was probably tired of explaining that Canadians' civil rights are not those depicted on American TV shows.


Okay. And its the likes of these bureaucrats that we "Americans" are supposed to abandon "American" legal concepts in order to better absorb and appreciate "international" legal concepts? Guess Scalia was right.
4.11.2008 12:29pm
Uh_Clem (mail):
Zig Heil!!!!

Godwin. Thread over. You lose.
4.11.2008 12:36pm
KN:
It is I think a bit unfair to say that Canadian expression rights are generally more limited. They are more limited in some areas but broader in others. For example, certain types of pornography (including child pornography) would be protected as free speech in Canada. (See SCC in Sharpe)

There is also a much broader commercial speech exception in Canada. (See the Tobacco cases and the various decisions of the Chief Justice.)

However, political speech is probably more narrow. Although, I think that is also a matter of some controversy.
4.11.2008 1:19pm
KN:
By exception I meant protection.
4.11.2008 1:20pm
whit:
two things...

1) martinned. i am aghast. thanks for the admission that you were wrong about england and the exclusionary rule. in space, nobody can hear you scream. on the internet (it so often appears) that nobody can ever admit they are wrong. props to you

2) people can quibble all they want, but the case law is clear. canada simply has nowhere near the recognition of free speech that we do. keegstra is just one case example. the law is also clear. in layman's terms, canadians have plenty of free speech, as long as they don't want to make any offensive comments towards any # of protected groups. iow, you can have your car in any color you want, as long as it's black. they have a paternalistic attitude towards these protected classes wherein it is more important to protect "civility" and people's feelings, than it is to allow open debate of ideas. their "marketplace of ideas" is thus WAY more limited than ours. with the internet, it's somewhat irrelevant as far as ACCESS, since canadians can still access this stuff. but they can't (unlike the US) say it in public, let alone publish it.
4.11.2008 1:25pm
catullus (mail):
Canadian identity is wholly about NOT being American. Sad, but true. So, of course this clown would make a hair-splitting distinction bewtween speech and expression. Ironically, that distinction is irrelevant even in terms of American law, but it's useful to the Canadian psyche. The quality of "Canadianness" is purely negative -- framed entirely in opposition to the US. I'm so glad I no longer spend any time in Canada. The final straw for me was witnessing a crowd of Canadians in a movie theater (that's theatre north of the 49th parallel) cheer when the White House was blown up in the movie Independence Day.
4.11.2008 1:25pm
beandip:

This clip from youtube may provide some insight into how some Canadians think about Americans. A Canadian beer company (Molson) has fashioned a whole marketing campaign around the concept of "I am Canadian" that emphasized how being a Canadian is not being American (see this you tube clip http://pop.youtube.com/watch?v=JqUde5i4KbI).

As a Candadian citizen (not that this gives me some priveleged insight--Seymour Martin Lipset, the American political scientist, recognized the same thing), I would observe that Canadians have long struggled with their own sense of identity...it is not clear what it means to be Canadian, except that we are "not American." The irony is that over time, Canadians are becoming more and more like Americans.
4.11.2008 2:05pm
TMD:
To those arguing that Canadians have broader rights, it might be noted that all Canadian rights, even those explicitly described in the Charter, are more diluted than American rights, given the presence of the notwithstanding clause.
4.11.2008 11:54pm
KN:
A clause that has never been used outside Quebec and will likely never be used ever again. Yes. It makes a huge practical difference.
4.12.2008 12:32am
Steve2:
American concept? Nonsense, it's universal! According to the official English translation of the People's Republic's constitution, "freedom of speech" is a Chinese concept, seeing as how they use "speech" instead of "expression". (It's down in Article 35, after that monstrosity of a preamble) You know, if you take their word for it... And everybody knows the People's Republic of China is totally un-American.

I forget which it was, but the other night I saw some translated constitution use both "speech" and "expression".
4.12.2008 2:30pm
Litigator-London (mail):
Perhaps the response was "over clever", but there is a point emerging from the comments.

The US Bill of Rights was very largely taken from the earlier English Bill of Rights. In the "evolution" rather than "revolution" world of the Anglo-Norman common law, the evolution has continued. The ECHR was drafted largely by UK lawyers and the Canadian Charter drew largely on the ECHR experience.

But what has proved more significant than the UK government anticipated when it incorporated the ECHR into domestic law, would be that the "margin of appreciation" the European HR Court leaves to the states does not apply when it is a domestic court applying ECHR principles to a domestic case.
It is proving a very valuable remedy against an over-powerful executive.
4.13.2008 7:45am
martinned (mail) (www):
L.S.,

It is proving a very valuable remedy against an over-powerful executive.

Indeed, which is why I assumed that ECHR case law would have something to say about the exclusionary rule. In the legal practice of my country, the Netherlands, there is a similar problem to the one in the UK: a strong connection between executive and legislator combined with the impossibility of declaring statutes unconstitutional. (In the UK the constitution itself consists largely of statutes, meaning that they are of equal rank to any possibly offending statute, while the Dutch constitution explicitly forbids judges from judging the constitutionality of statutes.) In both cases, recourse to the ECHR helps reign in the executive.
4.14.2008 8:29am