Underneath the Golden Boy - Robson Hall Faculty of Law

A Proposed Hate Communication Restriction
and Freedom of Expression Protection Act:
A Possible Compromise to a Continuing
Controversy
EDWARD H. LIPSETT, B.A., LL.B.
A
s has been widely observed, the “hate speech” provisions in various federal
and provincial laws unduly fetter freedom of expression on matters of public
interest and may well be counter-productive to the legitimate goals which they
pursue. The Criminal Code 1 provisions, as they entail criminal convictions and
possible imprisonment, are obviously the harshest. However, s. 319(2) dealing
with “wilfully promoting hatred” has a strict mens rea (intention) requirement,
and s. 319(3) provides several defences. The “kinder and gentler” human rights
provisions, contained in s. 13 of the Canadian Human Rights Act 2 and various
provincial (and territorial) human rights laws, do not require intention as a
prerequisite to liability, and lack the defences referred to in s. 319(3) of the
Criminal Code. Therefore, their “censorial sweep” is far wider and can cover or
threaten materials far less extreme or dangerous than that covered by the
Criminal Code, and pose an arguably greater threat to freedom of expression.
Yet international law requires Canada to prohibit certain forms of “hate
speech,” and there may be some materials that are so harmful or dangerous that
they need to be restrained. Most of these materials would not involve the
impugned ideas alone: rather, the ideas in conjunction with other factors (such
as incitement to unlawful actions or the methods, circumstances or likely
consequences of their expression). This paper, after conducting a brief overview
and general critique of the current legislative and jurisprudential scheme, offers
some ideas for reform in this area of the law. I am respectfully suggesting the
abolition of all current laws in this area at the federal and provincial levels and
their replacement with a single, comprehensive federal statute. Hopefully, this
new statute would prohibit the most harmful or dangerous “hate” materials,
while respecting freedom of expression to the greatest extent possible.
1
R.S.C. 1985, c. C-46.
2
R.S., 1985, c. H-6