Underneath the Golden Boy - Robson Hall Faculty of Law

26 Underneath the Golden Boy
which the Code applies; unless bona fide and reasonable cause exists for the
discrimination.
Even s. 18(b), as worded, could raise “freedom of expression” problems
unless it is interpreted very narrowly. It should apply only to the intentional
incitement of imminent and clearly unlawful actions by private bodies. 24
Obviously, it must not be used to prohibit advocacy of amendment or even
repeal of human rights legislation or the discussion of public policy, even when
the discussion suggests policies that could prove to be discriminatory. Even in
discussing acts concerning private bodies, not all “incitement”, “advocacy” or
“counselling” can legitimately be prohibited, as in many cases it would not be
clear whether the proposed course of action would even be discriminatory, and if
so whether “bona fide and reasonable cause exists for the discrimination” until
after a final and definitive legal ruling about the specific conduct at issue has
been given. 25 Human rights legislation deals with some of the most controversial
issues in society, and discussion concerning them must not be prohibited by too
wide an interpretation of the concepts of advocacy, counselling, or even
incitement. 26
24
See Brandenburg v. Ohio (1969), 89 S.Ct. 1827, at p. 1829, where the United States Supreme
Court held that only “advocacy of the use of force or law violation…directed to the inciting or
producing imminent lawless action and…likely to produce such action” can be constitutionally
proscribed. In R. v. Sharpe [2001] 1 S.C.R. 45, the Supreme Court of Canada emphasized that
the reference to “advocates” or “counsels” in the legislation concerning child pornography can
only refer to attempting to bring about or “actively inducing or encouraging” the illegal actions
in question; it does not refer to an attempt to bring about a change in the law or a description
or discussion of such activity (pp. 83-84).
25
This issue was raised in several presentations to the legislative committee considering the Code.
For example, “Second Session, Thirty-Third Legislature of the Legislative Assembly of
Manitoba—Standing Committee on Privileges and Elections”, Volume XXXV, No. 2–7:00
p.m., Thursday, 9 July 1987, Mr. Nick Ternette, on behalf of the Urban Resource Centre at p.
32, and Mr. Harry Peters, on behalf of the Manitoba Association for Rights and Liberties, at p.
35.
I regret I did not recognize this issue in my articles (supra note 10) when I endorsed prohibition
of “incitement” (1983) at pp. 330-331 and (1985) at pp. 485-486.
26
The danger of too-wide an interpretation of the concept of “incitement” and related
terminology is illustrated by the case of Pankiw v. Canada (Human Rights Commission),
[2007] 4 F.C.R. (Federal Court of Canada, Lemieux, J.) [Pankiw], which upheld the
“preliminary jurisdictional ruling of the Canadian Human Rights Tribunal in Dreaver v. Pankiw
(2005) 55 C.H.R.R. 165. That case involved a complaint alleging that Dr. Pankiw (then a
Member of Parliament) in October, 2003 “distributed a householder containing discriminatory
comments about Aboriginal peoples contravening sections 5, 12, and 14 of the Canadian
Human Rights Act.” Pankiw at para. 3, p. 2. A “householder” is an “informational brochure”
that an MP is entitled to distribute to his constituents up to four times a year and is “printed
and paid for under the auspices of the House of Commons” para. 2 at p. 2.