ARGUMENT

GLEN HOW warns: minorities who want anti-hate laws are a threat to everybody’s freedom

January 2 1965

ARGUMENT

GLEN HOW warns: minorities who want anti-hate laws are a threat to everybody’s freedom

January 2 1965

ARGUMENT

GLEN HOW warns: minorities who want anti-hate laws are a threat to everybody’s freedom

OVER THE LAST YEAR a lot has been said

in the press and in Parliament about so-called “hate literature” which attacks the Jews and to some extent the Negroes. There has even been a campaign spearheaded by the Canadian Jewish Congress to pressure the government into passing special legislation to stop the spread of this material. To the same end, two Jewish members of Parliament, Milton Klein and David Orlikow. have introduced private members’ bills in the House which, if enacted, could constitute a serious invasión oí freedom of the press.

The attorney - general of Ontario. Arthur Wishart, has stated that he too “would like to see the Criminal Code strengthened to permit prosecutions.” Up to the present the minister of justice, Guy Favreau, to his credit, has refused to write any new sections on the ground that they might interfere with liberty of expression. However he is under a lot of pressure.

Freedom of speech and press are so important to a free state that new limitations on them can be legal and constitutional dynamite. Are any new limitations needed? How serious is the problem?

Few Canadians have seen any of this “hate literature.” The rest haven't missed much. Most of it is in leaflet form, badly written, badly printed, real trash. It is invective not argument. The Nazi line is recognizable: offer nothing constructive, find a scapegoat (the Jews and Negroes) and blame all the world’s ills on them. These leaflets would have no appeal to the average Canadian reader; only to a lunatic fringe.

The distribution of these publications has not been widespread. It has usually been done anonymously through the mails. Insignificant people with a quirk are the distributors. The group is a hand-

ful. The best known is a twenty-ycar-old chiefly noted for having been arrested one time in connection with a Southern race riot. On the facts it is hard to see anything very formidable in this sporadic distribution.

Some of the Jewish people however, especially those who have themselves come from Europe, are quite disturbed about this literature. Most Canadians can both understand and sympathize with their feelings. They are haunted by the ghost of Hitler. Canadian-born Jews are less fearful, but they are under great emotional pressure from their associates to extirpate anything that even might resemble Nazism.

If one points out the minimal and lunatic nature of the distribution of this “hate literature” in Canada, they are quick to respond: “Hitler started with a lunatic fringe too, and look what happened!” Since, regrettably, we cannot change what happened, let us consider why it happened. Why was Hitler able to get so strong? Why could anti-Semitism in Germany and Poland plumb the horrible depths it did? Mrs. Vladka Meed, a Jewish eyewitness of the Polish terror gave the key when speaking in Toronto: “Poland had no democracy and they (the Jews) could do little to defend themselves from the growing hatred before 1939.”

Neither Germany nor Poland had the tradition of a free press. What little there was Hitler destroyed at the beginning of his vicious rule. The press and the courts were not open to the Jews. Nazi propaganda went unanswered and the excesses could not be exposed. With only one side being heard, anti-Semitism could be whipped to a murderous pitch. Additionally, the government and the head of the state were both bent on a fanatical course of destroying the Jewish people.

Compare that situation with Canada, the land which has provided a refuge. We have a free press open to all. Instead of organized political or governmental opposition as in Germany, the Jews in Canada face nothing more serious than opposition whose foremost member is a twenty-year-old and whose most dangerous weapon is a few trashy leaflets. This is a far cry from the situation in Nazi Germany.

Much of that evil can be traced to lack of freedom of speech and press. Yet in Canada we have the paradox of the Jewish representatives demanding new restrictions on the press. But the very loss of this liberty is the seedbed of dictatorship. The shade of Hitler must smile sardonically upon observing who is responsible for preparing the stage for his re-entry.

Does it follow that nothing can or should be done about these malicious attacks? Not at all. Normal democratic remedies are open at the law stands now. A Jewish judge in the United States Supreme Court. Justice Brandeis, has given good advice: “If there be time to expose

through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

If these leaflets are worth answering, answer them: if not, ignore them. But if those attacked do not even deem them worthy of an answer, then how ridiculous it is to ask the lawmakers of the nation to get disturbed and start writing new laws on the subject!

If it is thought these leaflets ought to be suppressed, why not use the laws which already apply to speech and press? The Criminal Code makes it an offence to mail indecent or scurrilous literature (Sec. 153); to publish false news or tale (Sec. 166); to incite persons to commit offenses (Sec. 407); to conspire to effect an unlawful purpose (Sec. 408 [2]).

Why has no case been taken to court? How can anyone ask Parliament for new laws without even trying to use the ones we have? Can it be that going to court is hard work and not much glamour, while going to Ottawa and demanding new laws gains welcome publicity? The big losers are all the Canadian people whose rights are being jeopardized. In fairness it should be pointed out that some of the best Jewish lawyers, including members of the Congress, are opposed to the campaign to have the law altered.

Actually, the Canadian constitution and the law of freedom of the press as laid down by the Supreme Court of this country have done a lot for Canada. The nation has prospered and made exceptional strides in its relatively short history. Free institutions and a free press are necessary to this development.

Chief Justice Duff once said concerning freedom of the press: “Even within its legal limits it is liable to abuse and grave abuse, but it is axiomatic that the practices of this right of free public discussion are the breath of life for parliamentary institutions.” There will be some abuses, but like all other phases of life, you have to take the bitter with the sweet. If you so restrict freedom of the press that you eliminate all possible abuse, you equally eliminate all possible value.

In the famous case of Boucher v. The King, the Supreme Court laid down the principles of what is and is not permissible speech. The dictatorial Duplessis had contended it was sedition when Jehovah’s Witnesses denounced his scandalous administration. Duplessis’ counsel relied on an ancient dragnet definition which had been invented by the Court of Star Chamber in the days of the despotic Stuart kings. The old definition made it an offense to “tend to create discontent or disaffection ... or ill-will and hostility between groups”.

Mr. Justice Rand held: “Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality.”

This decision was so important that Dean W. F. Bowker of the University of Alberta Law School said: “A judgment like Boucher v. The King is worth a dozen declarations of the right of free speech.” But this important Boucher judgment, which is of real value to all the Canadian people, is objectionable to counsel. The draft bill introduced in the House of Commons by Milton Klein

would reverse that important decision and make it an offense for anyone to “publish statements likely to injure a racial or religious group by exposing it to hatred, contempt or ridicule” and punishable by imprisonment for five years.

This section is dangerous because of its uncertainty. At what point does human emotion pass from amusement to ridicule; from disapproval to contempt; from disagreement to opposition to hatred? Anyone who made a forthright statement respecting races or religions might face five years in the penitentiary. Any case brought under such an uncertain statute would be more of a popularity contest than a trial because no jury would ever know where to draw the line.

Last June, Gilles Grégoire. MP, wanted a new statute broad enough to enable the minister of justice to prosecute a Baptist minister who had said something derogatory about Catholics.

Mr. Klein’s bill to protect the Jews could boomerang. Mrs. Vladka Meed, discussing the slaughter of the Jews during her speech in Toronto, said: “The Polish people are ninety-six per cent Roman Catholic. I feel if Pope Piux XII had spoken out, many would have survived, but he was silent.” This statement though true could offend some Catholics. The well-known play, The Deputy, which deals with the failure of the Pope to protest the slaughter of the Jews, could not under Klein’s proposed law safely be played anywhere in Canada. Probably it would be an offense against the Jews to read or print those parts of the Bible that show the complicity of the Jewish priests in the prosecution and execution of Jesus.

I once defended a man charged with distributing literature offensive to the Roman Catholic population of a small Quebec town. Chief witness was the parish priest who testified that since the pamphlet in question contained quotations from the King James Version of the Bible, the one found in most Canadian homes, his parishioners would be offended because they were accustomed to the Catholic Douay version. Some people are easily offended.

Uncertain statutes which make offenses out of abstract human emotions are dangerous threats to a free press in a free country. They can turn the freedom of Canada into the deathly intellectual silence of Spain and Russia.

The minister of justice has decided to appoint a committee to study possible amendments. The first two appointments were Saul Hayes, Q.C. an executive of the Canadian Jewish Congress, and Maxwell Cohen of McGill University. There will be others. It is hoped they will not all represent groups already pressing for amendments.

And what is the basis of these moves? Why, a twenty-year-old youth mailed out some leaflets! Left alone, his attack on the Jews could well have died out. But now his opponents (not he) have succeeded in blowing up this insignificance into a national issue.

It is time to get emotion out of this and get down to some plain common sense. It is time for sensible Canadians who appreciate their liberty, whether they be parliamentarians, lawyers or anyone else, to speak up and object to this step-by-step erosion of our freedoms. Let us not lose by default. We do not want Canada to go down in history as the nation that thought so little of its liberties that it jettisoned them on account of a twenty-year-old boy!