Underneath the Golden Boy - Robson Hall Faculty of Law

38 Underneath the Golden Boy
Much of the expression that could be caught or threatened by such
legislation could be in reaction or opposition to, or “grassroots backlash” against
statements, policies, positions, and demands expressed by members of (or
organizations perceived as representative of) various protected groups, or policies
or actions adopted by governments in the perceived interest of or deference to
such groups. Whether wise or unwise, justified or unjustified, such demands,
policies, and actions are themselves often highly controversial, divisive and
indeed polarizing. Although some of the opposition may be well-reasoned or
measured in tone, other reaction or “backlash” may be distasteful, misguided, or
even “extremist.” Yet “backlash,” though often unpleasant, is an unavoidable
aspect of a “free and democratic society” and as long as it is expressed peacefully,
its expression must not be prohibited. We have to remember that if a subject or
issue is important enough to be on the “public agenda,” all perspectives on that
subject must be allowed to be articulated for “open debate” to be free and
meaningful.
Another provincial legislative provision intended to restrain “hate” material
is s. 19 of the Manitoba Defamation Act. 54 Section 19(1) reads:
The publication of a libel against a race, religious creed or sexual orientation likely to
expose persons belonging to the race, professing the religious creed or having the sexual
orientation to hatred, contempt or ridicule, and tending to raise unrest or disorder among
the people, entitles a person belonging to the race, professing the religious creed, or
having the sexual orientation to sue for an injunction to prevent the continuation and
circulation of the libel, and the Court of Queen’s Bench may entertain the action.
When it was originally passed in 1934, it only referred to “race” and
“religious creed.” However, it was expanded by the Charter Compliance Act. 55
That Act, however, was an “omnibus” bill amending 56 statutes, which were
seen as discriminating against homosexuals, or as failing to provide them with
sufficient protection. Many of them dealt with family law and related issues, and
these were the matters that received almost all of the public scrutiny 56 I was the
only person who opposed that amendment to the Defamation Act at committee
stage. 57
My reasons for opposition included the arguments that it could be a seen as
an attempt to silence a particular viewpoint on a contentious social issue, given
its inclusion among family related matters pertaining to sexual orientation.
54
R.S.M. 1987, c. D20, C.C.S.M., c. D20.
55
S.M. 2002, c. 24, s. 17.
56
See Christine McLeod, “The Charter Compliance Act” (2004) 3 Underneath the Golden Boy
at 39.
57
Legislative Assembly of Manitoba, Standing Committee on Law Amendments. Wednesday,
July 24, 2002. < http://www.gov.mb.ca/legislature/hansard/3rd-37th/la_09/la_09.html >.