Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 33
freedoms. 41 These constitutional provisions are “entrenched” to the extent that
federal and provincial legislative action is needed to amend them. Furthermore,
as has been seen, our courts have used s.1 of the Charter to limit certain of our
“fundamental freedoms” to protect “equality rights.” Yet nothing in the
Constitution is immune from amendment or repeal. It could be argued that our
entire constitutional system presumes that any change to, or within it, is at least
theoretically possible and within the realm of legitimate contemplation and
debate. Indeed, according to the Supreme Court (as articulated in the Secession
Reference) 42 and to Parliament (as acknowledged in the Clarity Act) 43 the
continued existence of Canada in its current composition (or its “territorial
integrity” to use international legal terminology) is subject to legitimate
challenge and debate (provided that proper procedures are followed).
Important as the egalitarian values are in our social, moral, legal, and
constitutional “scheme of things” (and to international law and politics), they
must not be allowed to “trump” the legitimate rights of their peaceful challengers
or evade the ongoing dynamics of human and social development.
In Quebec, in cases such as Quebec (Commission des droits de la personne
et droits de la jeunesse) c. Filion, 44 racist, verbal abuse was held to violate s. 4
and s. 10 of the Quebec Charter of Human Rights and Freedoms 45 —even in
disputes between neighbours or other circumstances where the defendant was
not an employer or person responsible for the provision of “regulated” services or
facilities. Regrettable though such incidents may be, it is doubtful whether
isolated or sporadic incidents of such personal abuse warrant legal intervention. 46
41
However, s. 33 of the Charter—the ‘notwithstanding clause’—allows Parliament and provincial
legislatures to avoid some of the restrictions on their power.
42
Reference re Secession of Quebec [1998] 2 S.C.R. 217.
43
S.C. 2000, c. 26.
44
2004 CanLII 468 (QC.T.D.P.) 2004-02-04 (from www.canlii.org)..
45
R.S.Q. c. C-12. Section 4 reads “Every person has a right to the safeguard of his dignity, honour
and reputation.” Section 10 reads:
“Every person has a right to full and equal recognition and exercise of his human rights
and freedoms without distinction, exclusion, or preference based on race, colour, sex,
pregnancy, sexual orientation, civil status, age, except as provide by law, religion, political
conviction, language, ethnic or national origin, social condition, a handicap or the use of
any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of
nullifying or impairing such right.”
46
Notwithstanding the eloquent call for rendering such conduct tortious in articles such as
Richard Delgado’s Words that Wound: A Tort Action for Racial Insults, Epithets and Name-
Calling 17 Harv. C.R.-C.L.L. Rev. 133 (1982). Although not believing that isolated or sporadic
conduct of that nature should be recognized as a legally cognizable wrong, as mentioned earlier,