Censorship in Canada

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In Canada, appeals by the judiciary to community standards and the public interest are the ultimate determinants of which forms of expression may legally be published, broadcast, or otherwise publicly disseminated.[1] Other public organisations with the authority to censor include some tribunals and courts under provincial human rights laws, and the Canadian Radio-television and Telecommunications Commission, along with self-policing associations of private corporations such as the Canadian Association of Broadcasters and the Canadian Broadcast Standards Council.

Over the 20th century, legal standards for censorship in Canada shifted from a "strong state-centred practice", intended to protect the community from perceived social degradation, to a more decentralised form of censorship often instigated by societal groups invoking state support to restrict the public expression of political and ideological opponents.[2]

Visual arts[]

Corridart[]

The demolition of the Corridart exhibit in Montreal by former mayor Jean Drapeau on the 13 June 1976, two days before the commencement of the Montreal Olympic Games, was considered an act of censorship by the artists involved and resulted in a lengthy court trial wherein the artistic and aesthetic merit of the project was questioned. The collaborative efforts of a significant portion of the Montreal arts community was ordered destroyed by the mayor and was done so by municipal workers with police escort. The 16 main installations and dozens of smaller installations were taken to a municipal impound lot, in some cases left outside to be destroyed by the elements. The actions of the mayor were condemned by the provincial cultural affairs minister, principally because the mayor lacked legal authority over the Olympics as a whole. Corridart was intended to showcase Canadian and Montreal arts to an international audience.

"Will and Representation"[]

Ryan McCourt, pictured with his sculpture "Destroyer of Obstacles," in front of the Shaw Conference Centre in Edmonton, August 2007, a month before the work was ordered removed by Mayor Stephen Mandel.

In 2006, Ryan McCourt was the first artist selected to display sculpture for one year outside Edmonton's Shaw Conference Centre.[3] McCourt's exhibition, Will and Representation, was an installation of four large sculptures based on Ganesha,[4] a deity from Hindu mythology. Ten months into the exhibition, then-Mayor of Edmonton Stephen Mandel ordered the works removed after reportedly receiving a 700-name petition complaining of the sculptures' "disrespectful" nudity.[5][6][7][8][9][10][11] When asked for comment, McCourt stated that "Nudity seems like a rather quaint thing to get one's knickers in a bunch over, in the 21st century. Besides, there's lots of art that I don't like, I don't go around gathering signatures of people who agree with me, and try to force the art to come down. That would be truly offensive, especially in a democracy like Canada."[12]

Broadly, the public reaction to Mandel's censorship decree was one of disapproval.[13][14][15][16][17] In an interview with the Edmonton Journal's Paula Simons, David Goa, religious scholar, cultural anthropologist, and director of the University of Alberta's Ronning Centre for Study of Religion and Public Life, states "In India, Lord Ganesha is on everything — playing cards, advertising signs, lotto tickets, even diapers, I suspect." Within the traditional Thirty-two forms of Ganesha in Hinduism, Ganesha is sometimes presented nude, in both infant (Bala Ganapati) and erotic (Uchchhishta Ganapati) forms. Simons concludes, "In his haste to appease a few protesters, the mayor, usually a champion of the arts, made a serious error in judgment. Instead of giving McCourt's divinely inspired statues the bum's rush, we should be celebrating this Canadian cross-pollination of cultures and aesthetic forms".[10] The Globe and Mail's columnist Margaret Wente agreed with Simons: "The mayor, of course, was quite wrong. Mr. McCourt's sculptures did not insult the Hindu community. They insulted a small but vocal conservative religious group that is about as representative of Hindus as Hassidic Jews are of Jews.... There's a big difference between respecting different cultures and caving in to illiberalism and superstition."[18]

Despite such negative responses in the media to visual art censorship in Canada, in 2014 the Edmonton Arts Council subsequently refused a donation of one of McCourt's sculptures, Destroyer of Obstacles, evidently because the sculpture had genitalia "beneath its clothes".[19] After meeting with seven Hindu community group representative to seek out their opinion of the donation, the Edmonton Arts Council received a response that McCourt's sculpture was "an offense to their religion" and that the ban enacted by Mayor Mandel should remain in place.[20] As a result of this consultation, "the Public Art Committee unanimously voted to decline acceptance of the gift, as the artwork did not meet "community or civic suitability" criteria." In McCourt's view, "It is not the purpose of a city’s public art collection to placate special interests," he says. "I want Edmonton to build the best civic art collection that we can get, never mind the politics, the religion, etc. of the artists making the work."[21]

Broadcasting[]

The main body monitoring and regulating broadcast content in Canada is the Canadian Broadcast Standards Council, a self-governing association of radio and television broadcasters. The Canadian Radio-television and Telecommunications Commission (CRTC), while also having the power to regulate broadcast content, intervenes only in the most serious and controversial cases.

Many Canadian broadcast stations broadcast explicit programming under certain circumstances, albeit with viewer discretion advisories and at adult-oriented times on the schedule. CTV, for example, has aired controversial series such as The Sopranos, Nip/Tuck and The Osbournes in prime time without editing, and some Canadian television broadcasters, such as Citytv, in the 1970s, aired softcore pornography after 12 midnight EST, which can therefore be viewed as early as 9:00 p.m. in other parts of Canada (i.e., anywhere in the Pacific Time Zone).

The Code of Ethics of the Canadian Association of Broadcasters[22] defines the "late viewing period" as the hours from 9:00 p.m. to 6:00 a.m. Outside this period, the Code of Ethics prohibits programming containing sexually explicit material or coarse or offensive language. This association also publishes a "Voluntary Code Regarding Violence in Television Programming".[23]

In enforcing these two Codes, the Canadian Broadcast Standards Council permits nudity to be broadcast during the day as long as it is considered non-sexual. For example, the CBSC permitted a 4:00 p.m. broadcast of the movie Wildcats containing male frontal nudity in a locker-room scene and female nudity in a bathtub.[24] The CBSC has also permitted the film Striptease, which contains scenes of bare female breasts, to be shown at 8:00 p.m.[25]

The CBSC summarizes its policy on sexual activity as follows:

Before the Watershed (9:00 pm - 6:00 am), the CBSC considers that it is inappropriate to show sexual activity that is intended for adult eyes and minds. There is, in the pre-Watershed period, a run of 15 hours (a strong majority of the broadcast day and about 90% of our customary waking hours), during which broadcasters offer their audiences a "safe haven", namely, a period in which their television viewing can be free of adult-oriented material, whether sexual or otherwise. There may still, in that time frame, be programming that some parents will not wish their families to see (all adults should make the effort to weigh the appropriateness of all kinds of programming for themselves and their children) but it will not be due to its exclusively adult orientation. And even in the pre-Watershed period, broadcasters advise their audiences of the nature of what is to come.[26]

Film[]

In the early 1910s, motion pictures were rising in popularity. It was decided nationally that censorship of them was necessary in order to be suitable for a wide, general audience of varying ages, mental, and educational levels. However, since national censorship for such a large and diverse country was unworkable, each province would censor according to their own provincial community standards. However, Ontario would be the "main" censor in that theatrical prints would be censored/edited by the Ontario censors then distributed throughout Ontario and the other provinces. The other provinces would provide additional censorship/editing if it was necessary for their own province. The Ontario board was formed in 1911; other provinces followed shortly thereafter. Prince Edward Island and Newfoundland never formed any boards but instead took their advice from the New Brunswick and Nova Scotia boards.[27]

The censors had no strict rules however; they often took advice from the British Board of Film Censors in the early years. In the 1920s, the Ontario censor board objected to content such as:[27][28]

  • actors pointing guns directly at the camera, or at other actors due to the possible negative effects on children and mentally weaker individuals
  • machine guns
  • scenes with women smoking
  • profanity, vulgarity, and obscenity
  • disrespect for officers of the law
  • depiction and patriotic waving of the American flag, this was so the boards could promote a sense of Canadian nationalism
  • illicit sexual relations
  • nudity
  • cruelty to animals
  • drinking
  • drug use

In the 1920s, the Canadian film boards removed American patriotism from imported films, citing their damage to a pro-British sentiment.[2]

Eventually, six of the provincial censor boards adopted classification in 1953 though films were still censored for certain categories. The idea of classification was first proposed by Ottawa child welfare advocate, and future mayor, Charlotte Whitton in 1920; however, at the time it was criticized with one newspaper editor claiming "A film that's not suitable for a ten-year-old should not be seen at all."[28] It was in the 1950s that the censorship standards became more permissive. For example, A Farewell to Arms contained an intense birth scene, a character yells "Damn!" in Witness for the Prosecution, and Peyton Place contained "pungent language". All of which was passed, in Ontario at least.[27]

In the 1960s, Manitoba became the first province to fully adopt classification and abandon censorship.

Most Canadian provinces still have ratings boards that have the power to order cuts to movies and may even ban the showing of films if they violate Canada's Criminal Code sanctions against depicting sexualized violence and sex acts involving people under the age of 18. Movies formerly banned in some Canadian provinces include Deep Throat and Pretty Baby.

One particularly famous censorship controversy involved the award-winning German film The Tin Drum, which was banned as pornographic by Ontario's film review board in 1980.[29]

The romantic comedy Young People Fucking prompted the Government of Canada to introduce Bill C-10, to allow revoking government funds from films the government deemed offensive. Strong public backlash led to the bill dying on the order paper.[30]

Print[]

In 1937, under Maurice Duplessis, Quebec's Union Nationale government passed the Act to protect the Province Against Communistic Propaganda (commonly known as the "Padlock Law"), which banned the printing, publishing or distributing of "any newspaper, periodical, pamphlet, circular, document or writing, propagating Communism or Bolshevism". The law was struck down by the Supreme Court of Canada as an attempt to legislate criminal law ultra vires of the provincial legislature in the 1957 Switzman v Elbling decision.

In 1949, spearheaded by the campaigning of MP Davie Fulton, crime comics were banned in Canada in Bill 10 of the 21st Canadian Parliament's 1st session (informally known as the ).[31]

The silence of Canadian officials, their refusal to answer questions...reveals the attitude of Canadian officials on books...if they will ban my book without a hearing, if they will uphold officials who will ban Balzac, Trotsky, Joyce, Lawrence and others, they will be likely to ban still further books.

— James T. Farrell, whose 1946 book Bernard Clare was banned[32]

In 1955, the importation of American The Atom Spy Hoax was deemed seditious as it questioned the Canadian government's handling of the Igor Gouzenko affair.[2]

Little Sisters Book and Art Emporium v Canada[]

One of the most famous ongoing censorship controversies in Canada has been the dispute between Canada Customs and LGBT retail bookstores such as Little Sister's in Vancouver and Glad Day in Toronto. Through the 1980s and into the 1990s, Canada Customs frequently stopped material being shipped to the two stores on the grounds of "obscenity". Both stores frequently had to resort to the legal system to challenge the confiscation of their property.

In 2000, the Supreme Court of Canada ruled that Canada Customs did not have the authority to make its own judgments about the permissibility of material being shipped to the stores but was permitted to confiscate only material that had specifically been ruled by the courts to constitute an offence under the Criminal Code.

Main article: Little Sisters Book and Art Emporium v Canada

In addition a report from 2013, reports that over 100 books, magazine, and other written works were challenged for removal in schools and libraries. Some of these challenges were upheld; however, some were rejected.[33]

Internet[]

Internet content is not specifically regulated in Canada, however local laws apply to websites hosted in Canada as well as to residents who host sites on servers in other jurisdictions. A well-known example is the case of Ernst Zündel, who was investigated by the Canadian Human Rights Commission for promoting ethnic hatred via his website.

In July 2005, in the middle of a labour dispute with the group, Telus briefly blocked a website being run by members of the Telecommunications Workers Union. It cited concerns over the publication of photos of employees who had crossed picket lines, and its advocating for readers to jam the company's phone lines.[34] The site was unblocked after an injunction was obtained to prohibit it from publishing the personal information of Telus employees.[35]

In November 2006, Canadian Internet service providers Bell, Bell Aliant, MTS Allstream, Rogers, Shaw, SaskTel, Telus, and Vidéotron announced Project Cleanfeed Canada, a voluntary effort to block websites hosting child pornography. The list of blocked sites is compiled from reports by Internet users and investigated by the independent organization Cybertip.ca. Project Cleanfeed was praised following its founding by Royal Canadian Mounted Police Supt. Earla-Kim McColl (then-head of the National Child Exploitation Coordination Centre).[36]

In October 2011, the Supreme Court of Canada unanimously ruled that online publications cannot be found liable for linking to defamatory material as long as the linking itself is not defamatory.[37]

Online gambling[]

In 2015, the province of Quebec proposed legislation which would require unlicensed online gambling websites, as defined by Loto-Québec, to be blocked by ISPs in defense of the Loto-Québec-operated Espacejeux. The proposal was criticized for the possible precedents that such legislation could set, as it would be the first internet censorship law passed by a Canadian government, as well as the law's intent to maintain a monopoly.[38][39] Bill 74 was passed by the provincial government in May 2016. It was challenged in the Quebec Superior Court by the Canadian Wireless Telecommunications Association, and by the Public Interest Advocacy Centre in a complaint to the CRTC. In December 2016, the Commission decided that it would await the outcome of the court case before making a final ruling, but iterated its opinion that under the Telecommunications Act, no ISP may censor websites without its consent, and that "compliance with other legal or juridical requirements – whether municipal, provincial, or foreign – does not in and of itself justify the blocking of specific websites by Canadian carriers, in the absence of commission approval".[40] In July 2018, the law was struck down by the Quebec Superior Court, citing these matters as being responsibility of the federal government, and the notion of net neutrality upheld by the CRTC.[41]

Copyright infringement[]

On January 28, 2018, FairPlay Canada, an industry coalition formed by major Canadian telecom and media conglomerates, proposed to the CRTC the formation of a mandatory system to block websites "blatantly" involved in copyright infringement. The system would utilize an independent organization to submit blocklists to the CRTC for approval; there would be no judicial oversight, and the Federal Court of Appeal could only intervene after the fact. The group argued that illegal streaming of copyrighted media was harming the businesses of themselves and content producers, and that streaming boxes had eased such access. The proposal has been widely criticized for the possibility of abuse; Michael Geist described the proposal as being "ill-advised and dangerous", citing criticisms surrounding other site-blocking systems, the lack of judicial oversight, concerns that accidental overblocking could violate the Charter of Rights and Freedoms, and statistics showing that Canada was below global averages for unauthorized music distribution, and had more Netflix subscribers per-capita than countries with site blocking rules in effect.[42][43][44] The proposal was struck down by the CRTC, as copyright law is outside of its jurisdiction.[45]

On November 18, 2019, in the first ruling of its kind, the Federal Court of Canada approved an interlocutory injunction requiring major Canadian ISPs to block a pirate IPTV service. The court ruled that this did not violate net neutrality or freedom of expression.[46][47]

Extremist content[]

In March 2019, following the Christchurch mosque shooting, Minister of Public Safety and Emergency Preparedness Ralph Goodale stated that the government was planning to carefully evaluate whether social media platforms should be required to censor hate speech and extremist content.[48]

Employers and employees[]

Canadians can be disciplined by their employers for writing letters to newspapers. Christine St-Pierre, a television reporter covering federal politics for Canadian Broadcasting Corporation, was suspended in September 2006 for writing a letter in support of Canadian troops in Afghanistan.[49]

Chris Kempling, a Canadian educator and counsellor, was suspended by the British Columbia College of Teachers and disciplined by the Quesnel School District for anti-gay comments in letters to the editor of the Quesnel Cariboo Observer.

Canadian courts have upheld professional sanctions against teachers and school counsellors for writing letters to newspapers that are found to be discriminatory, limiting their freedom of expression and religion on the basis of maintaining "a school system that is free from bias, prejudice and intolerance."[50]

Public servants[]

Canadian public sector employees may be dismissed for criticizing the government, if the criticism reaches the point of impairing the public employee's ability to perform their functions. The requirement of the non-partisan federal public service is an important factor to take into account. For example, in Fraser v. Public Sector Staff Relations Board, the Supreme Court of Canada stated:

When one examines the substance of the criticisms (two major government policies and the character and integrity of the Prime Minister and Government), the context of those criticisms (prolonged, virtually full time, in public meetings, on radio, on television, in newspapers, local, national, international), and the form of the criticisms (initially restrained, but increasingly vitriolic and vituperative) the Adjudicator's conclusion that Mr. Fraser's ability to perform his own job and his suitability to remain in the public service were both impaired was a fair conclusion. Though no direct evidence of the fact of impairment of capacity is required, here the evidence clearly established circumstances from which the inference of impairment is clearly irresistible. Put simply, although there is not an absolute prohibition against public servants criticizing government policies, Mr. Fraser in this case went much too far.[51]

Employees who are disciplined have the right to have the discipline reviewed through workplace arbitration, which in fact was offered to Fraser, but he declined:

There was a disagreement there. The employee wanted to speak out. The employer said that he could not. The employee persisted. The employer suspended him. But that is not all the employer did. The employer recognized that the employee was taking a principled stand. Accordingly, the employer offered to expedite the grievance procedure, provided the employee would cease his criticism. The employee refused. He decided to continue, and in fact greatly expanded, his criticism of the Government. In doing this, it seems to me, he voluntarily assumed the risk that his conduct might be adjudged to be sufficient cause for the initial suspension or for subsequent disciplinary action.[52]

Human rights laws[]

Main article: Section 13 of the Canadian Human Rights Act
Further information: Canadian Islamic Congress human rights complaint against Maclean's Magazine

The Canadian Human Rights Act formerly prohibited hate messages in telecommunications under federal jurisdiction, such as broadcasting and the internet. Section 13 of the Act prohibited making a statement by telecommunication which "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." Those prohibited grounds of discrimination are on the basis of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted.[53] Provinces such as British Columbia and Alberta have extended this prohibition to all publications.[54][55] In 1990, the Supreme Court of Canada upheld the constitutionality of s. 13 of the Canadian Human Rights Act.[56]

In the mid-2000s, there was a series of high-profile cases involving s. 13, and the related provincial provisions. For example, Marc Lemire and Paul Fromm challenged the constitutionality of s. 13. In September 2009 the Canadian Human Rights Tribunal ruled that s. 13 violated Canadians' charter rights to freedom of expression.[57] However, that ruling was overturned on appeal by the Federal Court of Appeal, which found that s. 13 continued to be constitutionally valid.[58]

In 2008 the Alberta Human Rights Commission held hearings on a complaint against former publisher Ezra Levant after the Western Standard published the Jyllands-Posten Muhammad cartoons depicting Muhammad. The complaint was ultimately withdrawn,[59] and a complaint filed with Calgary police came to naught. An identical complaint by the Edmonton Muslim Council was dismissed by the Alberta Commission in August 2008.

In 2008, three complaints were filed in three different jurisdictions against Mark Steyn and Maclean's magazine for publishing excerpts from Steyn's book, America Alone, which the complainants said were offensive to Muslims. All three complaints were dismissed: the Ontario Human Rights Commission declared it lacked jurisdiction;[60] the British Columbia Human Rights Tribunal dismissed the complaint;[61] and the Canadian Human Rights Commission dismissed the complaint without referring the matter to the Canadian Human Rights Tribunal.[62]

The Steyn / Maclean's case has been cited as a motivating factor in the June 2013 repeal of s. 13 of the Canadian Human Rights Act.[63] In 2011, Keith Martin, a Liberal Member of Parliament from British Columbia, introduced a motion that called for the repeal of s. 13, arguing that it violated freedom of expression, guaranteed by s. 2 of the Canadian Charter of Rights and Freedoms. Martin said that hate crimes, slander and libel would still be outlawed under the Criminal Code, while his motion would stop the federal human rights tribunal from imposing restrictions on freedom of speech using taxpayers' money. "We have laws against hate crimes, but nobody has a right not to be offended," he said. "[This provision] is being used in a way that the authors of the Act never envisioned."[64] Following the 2011 election, Brian Storseth, a Conservative Member of Parliament from Alberta, introduced a private member's bill to amend the Canadian Human Rights Act, including the repeal of s. 13. The bill passed both Houses of Parliament and received royal assent on June 26, 2013. It came into force a year later, June 26, 2014.[65]

In 2016, the Human Rights Tribunal of Quebec ordered comedian Mike Ward to pay $42,000 to the family of Jérémy Gabriel, a disabled public figure whose physical appearance Ward had mocked. Ward's lawyer, Julius Grey, began the appeal process shortly after the ruling.[66][67]

Criticism of Canadian censorship[]

Canada's 22nd Prime Minister, Stephen Harper, prior to becoming Prime Minister, stated "Human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society … It is in fact totalitarianism. I find this is very scary stuff."[68]

PEN Canada, an organization which assists writers who are persecuted for peaceful expression, has called on "the federal and provincial governments to change human rights commission legislation to ensure commissions can no longer be used to attempt to restrict freedom of expression in Canada."[69]

According to Mary Agnes Welch, president of the Canadian Association of Journalists, "[h]uman rights commissions were never intended to act as a form of thought police, but now they're being used to chill freedom of expression on matters that are well beyond accepted Criminal Code restrictions on free speech."[70]

A group of several dozen professors from the 7,000-member American Political Science Association contend that recent free speech precedents in Canada put academics at risk of prosecution. The group includes Robert George and Harvey Mansfield, and they have protested holding the scheduled 2009 APSA annual meeting in Canada for this reason.[71] The leadership of APSA selected Toronto as the meeting location.

There have been multiple lawsuits claiming that censorship violates multiple basic human rights, such as Section 2 of the Canadian Charter of Rights and Freedoms which protects the fundamental freedoms of thought, belief, and opinion. These accusations have been of the violation of the rights and freedoms through certain types of censorship.[citation needed]

See also[]

References[]

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  2. ^ Jump up to: a b c Interpreting Censorship in Canada, Klaus Petersen and Allen C. Hutchinson, University of Toronto Press, 1999, 438 p., ISBN 080208026X.
  3. ^ "Edmonton Journal, "Artists Give Walls of Shaw Extension Lively Look," November 18, 2006". Archived from the original on 2016-06-23. Retrieved 2016-04-20.
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  6. ^ CTV News, September 19, 2007
  7. ^ Global News, September 19, 2007
  8. ^ "Art Scrap," CBC News, September 19, 2007
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  13. ^ Bruce Dunbar, "Mandel Oversteps Bounds," Edmonton Journal, September 23, 2007[permanent dead link]
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  15. ^ "Venting," compiled by Terry McConnell, Edmonton Journal, September 25, 2007[permanent dead link]
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  64. ^ "It's not just about Nazis". Nationalpost. Retrieved December 15, 2011.
  65. ^ An Act to amend the Canadian Human Rights Act (protecting freedom), SC 2013, c. 37
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  68. ^ BC Report Newsmagazine Archived October 19, 2012, at the Wayback Machine, January 11, 1999
  69. ^ "PEN Canada Calls for Changes to Human Rights Commission Legislation" Archived 2016-03-04 at the Wayback Machine, PEN Canada as posted by the Society for Academic Freedom and Scholarship, February 4, 2008
  70. ^ "Canadian Association of Journalists | CAJ urges changes to human rights laws". Newswire.ca. February 22, 2008. Retrieved December 15, 2011.
  71. ^ "Academics fear speaking freely in Canada", Kevin Libin, National Post, August 23, 2008, retrieved Sept 5, 2014

Further reading[]

External links[]

  • The Canadian Encyclopedia: Censorship
  • Freedom to Read Week, an annual event that encourages Canadians to think about and reaffirm their commitment to intellectual freedom, whose website provides English and French lists of books and magazines that have been censored in Canada since 1685.
  • PEN Canada, a nonpartisan organization that works to defend freedom of expression as a basic human right.
  • Gomorrahy.com, a non-profit, educational Website concerning censorship in Canada.
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