By Douglas Christie

The story was recently reported in the media that Canadian creativity is in measurable decline and noticeably absent. I as a person familiar with some of Canada’s laws and legal judgments think I know why.

What regard a nation or group of people have for the truth in the long run determines creativity. What is truth is always controversial and never readily attainable largely due to the fact we are always seeking to attain it and never possessing the whole of it. This is what makes the blithe answer “I do” to the questions “Will you tell the truth, the whole truth and nothing but the truth?” a pathetic and thoughtless lie. But what determines creativity?

The answer is as simple as it is obvious: The mental pursuit of truth wherever new fields the evidence may take it. What destroys creativity? Again, a simple and obvious answer logically arises, the mindless and careless repetition of trite old lies, repeated out of a desire not to offend or to contradict old opinions and beliefs held out of a blind reverence for someone else’s opinion. Being authentic and genuine is to be true to yourself no matter what the cost. It places a high value on truth. But what has Canada and its highest judges said about truth?

It was in the Keegstra case in 1990 that the Supreme Court said the most remarkable and contemptuous generalizations about truth. What was said was contemptuous of the human intellect; it was contemptuous of the human pursuit of truth and it was contemptuous of God who put within man a desire for truth which makes man restless unless attaining truth. Just what did they say?

More accurately he, Chief Justice Brian Dickson CJC as he then was said the following amazing things on behalf of the majority. What makes it amazing is the fact these statements have never been overruled or challenged to my knowledge in any substantial way ever since. What makes it more amazing still is the difference approaching reverence with which the majority judgement in Keegstra’s case has been accorded ever after even to the point of denying leave to appeal the same case the second time around.
Here is part is what he or they said:

Para. 90: “… Nonetheless, expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values. Hate propaganda works in just such a way, arguing as it does for a society in which the democratic process is subverted and individuals are denied respect and dignity simply because of racial or religious characteristics. This brand of expressive activity is thus wholly inimical to the democratic aspirations of the free expression guarantee.”

“Hate propaganda” does not necessary argue for a society in which the democratic process is subverted. Racial or religious characteristics if they could be shown to exist on evidence persuasive to a majority people could result in systemic discrimination but it would only be so if a majority could be persuaded to adopt such discriminatory measures, if the majority approved. How would this be anti-democratic?

The author, the learned chief justice, seems to deny the majority the right to hear certain views for fear that the majority might adopt them. In this, he adopts an elitist and not a democratic view. The learned chief justice’s assertion contains an inherent leap of faith, i.e. that if individuals are exposed to hatred because of race or religion, therefore they will accept it, therefore the democratic process is subverted. This could never be achieved unless a majority adopted the views of the so-called “hate mongers” and to believe this could be achieved by irrational, unsupported or unfounded arguments devoid of truthful evidence is to deny the rational capacity of the majority to make the right decision on the matter and this is the very foundation and cornerstone of our faith in democracy. Lord Randolph Churchill said, “Properly informed, trust the people.” Chief Justice Dickson said in effect, only trust them with what the courts determine is not hateful. Who is the democrat?

What makes “hate speech wholly inimical to the democratic aspirations of the free expression guarantee”? Doesn’t Dickson CJC more accurately mean “wholly inimical to my syncretistic and egalitarian ideals” and even, that only if the majority are persuaded by some demagogue to be choosy? But really that is what they fear. Hitler, by democratic means. Justice Dickson and the court didn’t trust the people not to make that mistake.

This itself assumes that exposing to hatred without truth would ever be persuasive to anybody. This premise is highly debatable. The acceptance of it without evidence is an act of breathtaking arrogance by a court who should have required solid evidence on this point before accepting this premise. But of graver concern to any thinking person is the contemptuous attitude of the court to the intellectual character of ordinary people expressed in their attitude toward truth.

In paragraph 87, the majority states:

“There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world.”

Oh, really? Have Sikhs planted bombs? Do Satanists worship the Devil? Have homosexual practices spread disease? Have any religious groups ever done evil things in history? Should hatred be promoted against evil done by identifiable groups? To even ask the question is to demonstrate the need for harsh and condemnatory discourse of, say, “white racists” if one wants a suitable liberal example of necessary harsh truth productive of hate. How could one discuss the horrors of the crusades to poor innocent Muslims in Jerusalem without intending to promote hatred of at least the Christians of that day? Must the degree of care be subject to judicial scrutiny in a free and democratic society to prevent undue hatred or can we trust the people in a democracy to make the necessary distinctions and draw the necessary lines of their own credibility and probity. Apparently the courts are contemptuous of ordinary people’s abilities in this regard but can this be called a democracy when people are not so trusted and are not deemed trustworthy. A cynic might suspect that it is the persuasive power of truth which some advocates of these laws fear, and not the gullibility of the mindless masses.

The chief justice closed the whole topic with the following:

“To portray such statements (intended to promote hate) as crucial to truth and the betterment of the political and social milieu is therefore misguided.”

But who proved this? Isn’t the truth itself at times productive of hatred if truth demonstrates the existence of evil be it in groups or individuals. If the truth produces hatred or promotes it in society generally such as to constitute this offence would it be misguided to speak it? If a true statement promotes hatred, must it also be crucial to the “betterment of the political and social milieu” (whatever that means) before it can legally be spoken? Suddenly the statement must not only be true, but make the “political and social milieu” better by some judicial measure to pass constitutional muster.

What is truly amazing is the fact that no serious academic has challenged these sweeping assertions at the core of the Keegstra judgment. Equally amazing is the fact they are uttered without authority in such pontifical tines. At least when the Pope pontificates, he claims divine sanction to believers. Truth has become incidental to social milieu. Does anyone still wonder why creativity disappears in such a society with such repressive and sanctimonious utterances from such high authority. Hate is automatically categorized a priori as contrary to truth and vice versa and no one has questioned such unsound logic. Nobody dares say the emperor has no clothes. Professors are paid by the state and judges are all inferior to the chief justice. Who therefore has the courage to speak the unpopular truth? In Canada the answer more and more is “no one.” Safety is found in silence. Creative impulses, like truth, are too dangerous, and are self-censored.

In paragraph 120, the chief justice asserted: “Only rarely will on who intends to promote hatred be acting in good faith or on honest belief.” What, one might ask, has happened to Nobel Laureate Eli Wiesel’s “healthy, virile hate” which he advocated for Germans and for what “persists in the German” (see “Legends of our Time”)? What about the Psalmist’s assurance of a time to hate as well as a time to love? What is the Bible, or a poet, or indeed an ordinary Canadian compared to the self-ordained authority of a Supreme Court Judge whose word is law, who can revoke the scriptures at will and be accorded lordly reverence by all below……and all are below.

The chief justice asserted in paragraph 121 that “if a situation arises where an individual uses statements of truth in order to promote hatred against identifiable groups the accused is acquitted…” Obviously this is so only if an accused can prove the truth.

Truth and creativity must inevitably confront the norms and challenge the establishment belief. In Canada, tolerance is the state-religion and enforced with intolerant rigor. Thus the greatest irony is expressed by my being banned from the precincts of parliament by Speaker Gilbert Parent when I dared to raise the dangers of denying truth as a defence to a Human Rights complaint in the parliamentary public press gallery and then he himself, demanding parliamentary privilege to protect himself personally from a complaint under the same act. He should know only truth can set him free.

In paragraph 125 we find this statement by the chief justice of Canada:

“That the legislative line is drawn so as to convict the accused who is negligent or even innocent regarding the accuracy of his or her statements is perfectly acceptable, for the mistake is not as to the use to which the information is put, namely the promotion of hatred against an identifiable group….”

This statement needs analysis of its premises. At first appearance it is shocking. Convicting the innocent for what they have said is acceptable! What about mens rea? Even a person who commits a manifestly unlawful act such as assault must be exonerated and acquitted if he or she held an honest but mistaken belief in a state of facts which would render their actions blameless, like the honest but mistaken belief that the person running from the bank as people yelled “stop thief” was the thief when in fact they were not. But for the mere utterance of honestly-held opinions which were intended to promote hatred based on facts believed to be true which if true would make the opinions a necessary part of public discourse in correcting evil would not suffice to acquit unless the accused could prove the truth of his factual basis in a court of law. This is impossible in a historical debate context like who is responsible for started the First World War, or were the English justified in the Boer War or were the Crusades a genuine religious response or any of a million other legitimate debates which could never be proven by admissible evidence in a court of law, except by opinions of court-approved experts. At this point it is clear the judgment in Keegstra creates a state-sanctioned history which can never be debated. What debate about history and historic conflict can occur without promoting hatred against one side or other unless we legislate compulsory nuances and middle of the road lack of commitment to either side? Thus the courts have sanctioned the imposition of a mediocre dictatorship of tolerance which neither encourages nor condones passionate commitment to truth or justice or certainly freedom itself. In such an atmosphere, is it any wonder creativity declines?

The promotion of hatred which is classified as intense dislike is what one might say is a by-product of a sincere commitment to justice in any area where conflict has occurred and an injustice has been done. In personal conflict the law condones condemnation and deterrence in sentencing an accused for misdeeds. But the Dickson judgment and consequently now the law itself condemns any opinions which produce the same results for the actions of groups alleged to do evil or have done evil. This is premised on the assumption that groups cannot do evil. Is there any historic justification or evidence for such a premise? Do groups do evil? When we went to war against Iraq, although the propaganda personalized the conflict, was it just Sadaam Hussein? Assuming some evil was done, who did it? Does anyone seriously contend the media have not promoted hatred against Arabs and fundamentalists of any religion? It appears when the state defines the limits of tolerance it tolerates some hatreds, but not others. This clearly demonstrates the dangerous effect when law allows judges to define “truth,” “reasonable grounds for finding truth,” or “public interest.”

The Dickson response at paragraph 125 was:

“Where the likelihood of truth or benefit from an idea diminishes to the point of vanishing, and the statement in question has harmful consequences inimical to the central values of a free and democratic society, it is not excessively problematic to make a judgment that involves limiting expression.”

Perhaps the conclusion is correct if the premises are true. But what of the premises. Is it true that truth diminishes to the vanishing point? How does a court establish this in a historical debate about the activities of a group be it white colonizers in Africa or Germans in the Nazi Party or Russians in the Bolshevik movement? By experts and who can get experts for a new and perhaps correct interpretation of a historical event? Once again the establishment and its body of high-priced help crushes dissent and eliminates possible truth. The result of any debate in which opinion evidence decides is always the same. Deep pockets win in the real world; money talks. But it doesn’t necessarily talk the truth. Often the truth is the enemy of the state, the establishment, the church, or the powerful group of media or other conglomerates of power.

If there is truth, there surely is benefit from an idea already, for it reattaches the public discourse to reality or correct information or perspective. If truth didn’t count for Galileo or Copernicus, could they have proved their theory by the opinion of the major experts of their day?

The court has created an unstated premise of dubious accuracy when it states “the statement in question has harmful consequences inimical to the most central values of a free and democratic society . . .” This is so because the most central values of a free and democratic society must be founded on, have the highest respect for and never stop the expression of truth itself. To do less or be less, creates the logical question which the court never states but which needs to be stated.