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opinion B A C K PA GE BY EZRA LEVANT SCC shores up a 'strategic' freedom T hank God for Canadian uni- lateralism. While the rest of the world is slouching towards tyranny, the Supreme Court of Canada has been quietly shoring up our most important freedom: freedom of speech. It's what Alan Borovoy calls a "strategic" freedom, because it's the one on which all the others are built. According to the think-tank Freedom House Inc., press freedom around the world has declined for six years in a row. Of 195 countries measured, the news media in only 37 per cent were rated as free. But that statistic leaves an overly optimistic impression; when measured by population, only 18 per cent of the world, or barely a billion people, live in a country with a free press. Institutions that ought to be promoting freedom have been hijacked. In 1948, the UN passed the Universal Declaration of Human Rights, guaranteeing freedom of speech. But these days the UN's largest voting bloc is the Organisation of the Islamic Conference, which has managed to ram through a resolution criminalizing "defamation of religion" — Islam being the only religion mentioned in the text. Even the United States, home of the gold-standard First Amendment, now has a "chief diversity officer" at the Federal Communications Commission. If the government appoints a regulator to even out opinions, your constitution might just be in trouble. It's against this depressing backdrop that our Supreme Court has issued a pair of unanimous decisions tipping the balance towards defendants in defamation law. In the Quan v. Cusson and Grant v. Torstar Corp. rulings just before Christmas, the SCC unanimously recognized the defence of responsible journalism, which it has called "responsible communication." Now, even when reporters get their facts wrong, if they can show they exercised due diligence on a matter of public interest, they have a defence. Importantly, Chief Justice Beverley McLachlin specifically mentioned blog- gers and other non-professional journalists — covering everything from Twitter to Facebook. It's not just recognition of the reality that the mainstream media is being supplemented by amateurs, it's a moral acknowledgement of the democratic value of citizen journalism. McLachlin sided with the little guy, noting the importance of protecting him from nuisance suits: "defamation lawsuits, real or threatened, should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society." Cusson and Grant create a new defence, but WIC Radio Ltd. v. Simpson, a unanimous 2008 ruling, greatly expanded the existing defence of fair comment. "We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones," wrote Justice Ian Binnie. Of course, defamation law is just one dimension of freedom of speech. Canada's human rights commissions continue to prosecute politically incorrect ideas, especially Christian pastors and conservative columnists. And although an FCC diversity czar may sound like an innovation, Canada has had that Orwellian office in place for years in the form of the Canadian Radio-television and Telecommunications Commission, 46 FEBRU AR Y 2010 www. C ANADIAN Law ye rmag.com and an even less accountable agency, the Canadian Broadcast Standards Council. A handful of political complaints caused the CRTC to yank the licence of CHOI- FM, the largest radio station in Quebec City, causing 50,000 people to march in the streets in protest. And then there are campus speech codes, including the short-lived scheme at Queen's University to have student "facilitators" monitor private conversations of their peers, jumping in to correct any incorrect ideas. It's a constant battle to keep would-be censors at bay. It makes matters worse that so many tin-pot bureaucrats now attend international junkets where they compare notes with the 82 per cent of their counterparts who come from unfree nations. Being in synch with international fashions — often enshrined in UN conventions — is a dangerous way to erode Canada's freedoms. In any compromise, we're sure to lower our standards, not pull up anyone else's. That said, there is cause for optimism. Not 20 years ago, McLachlin was one of two judges dissenting in the conviction of James Keegstra for hate propaganda, and one of only three dissenting in the human rights conviction of John Ross Taylor for having a racist telephone answering machine message. She has gone from being a libertarian curiosity on the court to helping shape its majority. McLachlin's cause has had some help from technology, of course. When she dissented in Keegstra and Taylor, the Internet was an obscure tool. Today, its ubiquity and anarchy is a taunt to any censor or regulator. As China and Iran have found out, even a tyrannical state can't kill ideas in the age of the Internet. May this court's march to freedom continue for a long time to come. Ezra Levant is a Calgary lawyer and author. He can be reached at ezra@ezralevant.com SCOTT PAGE