Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 23
It is a discriminatory practice … to communicate telephonically or to cause to be so
communicated, repeatedly…any matter that 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.
Unlike s. 319(2) of the Criminal Code, this provision does not contain a
mens rea requirement. Being a human rights provision rather than a criminal
provision, the effect of the material was ruled sufficient to engender liability;
intention was deemed to be irrelevant. Furthermore, no “defences” akin to those
in s. 319(3) of the Criminal Code are found in this provision. However, the
restriction on freedom of expression was held to be proportional largely on the
basis of the limited remedy then available for a violation of the section. At that
time, the only sanction that a tribunal could impose was in effect a cease and
desist order. Payment of compensation, available for other breaches of this Act,
did not apply here. A respondent could not be liable to a fine or imprisonment
unless he disobeyed such order. Disobedience would be deemed contempt of the
Federal Court of Canada.
Other Criminal Code “hate speech” related provisions whose
constitutionality have not been ruled on by the Supreme Court of Canada are s.
318, prohibiting “advocating or promoting genocide”, s. 319(1) prohibiting
inciting hatred in a public place “where such incitement is likely to lead to a
breach of the peace”, s. 320 dealing with the seizure and forfeiture of “hate
propaganda”, and s. 320.1 dealing with the deletion of “hate propaganda” from
computer systems. 11 The Supreme Court, however, ruled the “false news”
provisions of the Criminal Code, s. 181 to be unconstitutional 12 in a case
involving a Holocaust denier. Other relevant provisions whose constitutionality
have not been ruled on by the Supreme Court are provisions of the Customs
Tariff 13 prohibiting importing “hate propaganda” into Canada 14 and the various
regulations concerning radio and television prohibiting “abusive
comment…likely to expose hatred or contempt… .” 15
11
Note also s. 718.2(a)(i) of the Criminal Code which makes “bias, prejudice or hate…” as a
motivation for a crime “aggravating circumstances” concerning sentence. This is a “hate crime”
rather than a “hate speech” provision, and the Supreme Court of Canada has not yet ruled on
its constitutionality. For an American case which upheld a scheme of “sentence enhancement”
for “hate crimes” see Wisconsin v. Mitchell 113 S. Ct 2194 (1993).
12
R. v. Zundel [1992] 2 S.C.R. 731.
13
S.C. 1997, c. 36.
14
Section 136(1) Tariff Item 9899.00.00(b).
15
Radio Regulations 1986, S.O.R./86-982, s. 3(b) and s. 3(i).; Television Broadcasting
Regulations 1987, S.O.R./87-49, s. 5(i)(b) and s. 5(1.1); Pay Television Regulations 1990,
S.O.R./90-105, s. 3(2)(b) and s. 3(3); Specialty Services Regulations 1990, S.O.R. 90-106, s. 3;
Broadcasting Distribution Regulations, S.O.R. 97/555, s. 8(1)(b) and s. 8(2).