Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 37
worded in s. 1(b), as well as the more familiar formulation “hatred or contempt”
found in s. 1(a), or similar terminology in other legislation and cases referred to
could be used in an attempt to stifle or silence many viewpoints or arguments
concerning such debates, issues, or situations.
In many cases, expression or commentary that could lead to liability (or at
least to proceedings or threats thereof) under such provisions reflect the
communicator’s perspective on reality. He observes or hears about members of a
group behaving in a manner perceived as inappropriate and imputes that
behaviour to the entire group. Similarly, a commentator can learn about high
profile terrorist acts committed by members of (and purportedly in the name of)
a group and blame the entire group, while ignoring the fact that the
overwhelming majority of that group’s members were not involved or even
sympathetic with such acts. Statistics sometimes show disproportionately high
rates of imprisonment or crime, or disproportionately low rates of occupational
or academic success among various groups. Some commentators use such
statistics to draw negative inferences on the entire group, while failing to
appreciate historic or current factors largely beyond the control of members of
the group which contribute to such situations. On the other hand, some
commentators find fault with a high rate of achievement and success among
members of a group or its perceived political, social, or economic influence,
sometimes attributing this to a “conspiracy” or alleging the group to be “too
powerful”.
Of course, such “perspectives on reality” are regrettably narrow in scope,
overly simplistic, and divisive. They are often reflective of long standing
individual and social prejudice, and indeed are sometimes bordering on the
“paranoid.” Yet they are usually sincerely believed in by their proponents, and
often constitute their inferences from, interpretations of, or “spin,” on facts that
(at least in some cases) actually do exist. Furthermore, freedom of expression is
not merely a “privilege” reserved for an elite of the most “enlightened” or
broadminded individuals in society. It is a “fundamental freedom” available for
everyone.
Penalizing a segment of society for expressing views that have fallen into
official (and much social) disfavour not only is unfair; it is itself divisive and
probably counterproductive. In many cases, such proceedings exacerbate, rather
than alleviate, inter-group tension and resentment. Such proceedings may even
reinforce, rather than refute, negative stereotypes and ideas in the minds of
many members of the public. If someone viewed a group as so weak or helpless as
to need the state or justice system to bolster its reputation on one hand, or so
vindictive and powerful as to be able to get the state or justice system to wreak
vengeance on and silence its opponents, on the other hand, such proceeding
may well corroborate those opinions in his or her mind.