Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 25
ostensible “hate” provision, use the phrase “indicates discrimination or an
intention to discriminate”. The term “indicates discrimination” has been
interpreted as applying beyond communications intended to announce or
facilitate discrimination at a particular location (which are covered by the term
“an intention to discriminate”). The term “indicates discrimination” has been
held to cover communications 1) because of the negative ideas about the group
in question the material was judged to convey and 2) the risks and harms such
material was believed to cause. 20
These provincial human rights provisions are substantially wider in scope
than s. 319(2) of the Criminal Code, and wider as to the methods and media of
communication than s. 13 of the Canadian Human Rights Act and the
regulations concerning radio and television. Furthermore, intention was held not
to be necessary to create liability; being human rights legislation, emphasis was
on the effects of the communication. Additionally, defences such as those found
in s. 319(3) of the Criminal Code are not found in these provisions. 21
Of course, some human rights provisions dealing with notices and signs have
been more narrowly and precisely drafted to avoid wide interference with
freedom of expression. These provisions attempt to only target communication
which directly facilitates or attempts to bring about discriminatory actions
otherwise prohibited by human rights legislation. For example, Manitoba, 22
besides prohibiting discriminatory advertising in s. 14(3) of the Human Rights
Code, 23 prohibits in s. 18 of that Code:
[A]ny sign, symbol, notice or statement that (a) discriminates or indicates intention to
discriminate in respect of an activity or undertaking to which the Code applies, or (b)
incites, advocates or counsels discrimination in respect of an activity or undertaking to
20
For summaries and analyses of cases dealing with these provisions see Lipsett, McNamara, and
Tarnopolsky and Pentney, supra note 10.
21
The effect of the absence of such defences might be somewhat ameliorated by interpretation
and application of these provisions in a manner that is alive to freedom of expression concerns.
For example, the Tribunal in Elmasry (supra note 11) specifically stated, “Although, on its face,
s.7(1)(b) does not include any specific defences, factors such as whether the statement or
publication is true or is part of a larger political debate are also contextual considerations that
are relevant to determining whether, objectively, a publication is more likely to expose a person
or group to hatred or contempt. These issues are most appropriately considered in assessing the
relevant context and circumstances in which a publication is made.” (para. 85)
Some, but not all of these provisions contain a caveat purporting to protect freedom of
expression. However, it is doubtful whether they add any additional protection other than that
provided by constitutional law (either the Charter or division of powers). Indeed, Tarnopolsky
and Pentney, supra note 10 at pp. 10-33, refer to them as “probably superfluous.”
22
Which used to have an “indicating discrimination” and “hatred” provisions in its Human
Rights Act, see discussion in Lipsett, Freedom of Expression, supra note 10.
23
S.M. 1987-88, c. 45, C.C.S.M. c. H175.