Free speech free-for-all?

Ricardo Smalling, Guest Columnist

How absolute is the right to freedom of speech? This is the question that has been pushed to the forefront of public discussions as a result of the utterances of Queen Ifrica at the Grand Gala event at the National Stadium.

Her statements at that event, coupled with those previously and subsequently made, led to pressure from a Canada-based group that culminated in her removal from the line-up of a music festival in Toronto recently.

Queen Ifrica has since been asserting that her free-speech rights are being violated, while those who have taken an issue with her statements have taken the opposing view: that her statements constitute hate speech and are therefore not protected.

As with the Jamaican Charter of Fundamental Rights and Freedoms, the Canadian Charter of Rights and Freedoms does not provide an explicit right to freedom of speech. However, freedom of speech is covered under Section 2(b) of the Canadian Charter (Section 13(3)(c) of the Jamaican Charter) under freedom of expression, since speech is a form of expression. Both countries limit the exercise of this freedom.

The Jamaican Charter provides that protection of the rights and freedoms contained in the document is only enjoyed if it does not violate the rights and freedoms of others. The Canadian Charter allows the government to limit the rights in the Charter to the extent that it can be shown that is justified in a free and democratic society. The Canadian Charter also provides for equality before the law and freedom from discrimination of all its citizens, regardless of their sexual orientation.

In addition, the Canadian Criminal Code makes it an offence to communicate statements in public which incite hatred against an identifiable group, including homosexuals. This already makes clear that freedom of speech isn't quite as absolute as many, including the artiste Queen Ifrica, appear to believe.

So when does speech become 'hatred'? The legislation has not defined 'hatred', and this task has been left to the courts. The Supreme Court of Canada handed down a judgment on February 27 this year which dealt, in part, with the question of whether certain published anti-gay flyers constituted hate speech. A unanimous court concluded that the anti-hate speech legislation in question was seeking to prevent detestation and vilification of gays.

The following is the court's statement on hate speech:

"Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimise them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims."

Not Inconceivable

In an earlier case, the Supreme Court of Canada noted that it is "not inconceivable that the active dissemination of hate propaganda can attract individuals to its cause, and in the process create serious discord between various cultural groups in society". Accordingly, anti-gay speech is hate speech if it denigrates homosexuals, renders them unacceptable in the eyes of the audience, and where it is likely that such speech could attract individuals who may seek to hurt homosexuals.

Queen Ifrica has blasted "faggotism"; she has said she "doan waan nuh fish inna mi ital dish". She also advocated the continued criminalisation of sexual relations between males in Jamaica and she was reported as declaring on stage at the Grand Gala celebration that she did not want gays around here.

Queen Ifrica has indicated that she is simply expressing her views and exercising her right to freedom of expression. The problem for her is that she does not have this right in Canada and in many other countries. The use of derogatory epithets such as 'fish' and 'faggotism' to refer to homosexual individuals or homosexual relationships would, in the words of the Supreme Court of Canada, constitute a "failure to find any redeeming qualities in the target of the expression". Such language, given the Jamaican context, would denigrate and delegitimise homo-sexuals.

Also, given that in the Jamaican context, anti-gay attacks are quite common, it is foreseeable that Queen Ifrica's statements are likely to attract those who would do harm to homosexuals. In addition, there continue to be anti-gay segments in the Canadian society, and to allow an artiste who professes these views in her music would also be subjecting the Canadian gay population to similar risks as those to which the Jamaican gay community is subjected.

From a Canadian legal perspective, it was justifiable to restrict Queen Ifrica's ability to express her anti-homosexual views in the country.

Ricardo Smalling is a Jamaican lawyer practising in Ontario, Canada, and a PhD candidate at Queen's University. Email feedback to columns@gleanerjm.com and Ricardo.Smalling@queensu.ca.