Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 41
sanctions over alleged falsehood if the “truth” or “falsity” of the material may not
be determined in a suitable time frame for litigation, in the course of the parties’
lifetime or perhaps ever.
Furthermore (as mentioned earlier), some of the material perceived as
exposing the targeted group to hatred is based on (raw) facts or statistics that
actually do exist. The injustice of “hate” materials based on these facts lies not in
the exposition of the facts per se, but in the attribution of negative acts or
attributes of several members of the group to the whole group, failing to
appreciate the historical or social factors leading to these facts, or the unfounded
interpretation of, inference from, or “spin,” on these facts. If an action under s.
19(1) was brought on the basis of materials containing these facts, and the
exposition of the facts was the gist of the claim, the defendant might prevail on
the defence of “truth.” If the interpretation, inference or “spin” were the gist of
the claim, and if the defendant could prove the bare facts true, he might prevail
on the defence of “fair comment” if the opinions (however far-fetched) could be
honestly held. Either way, the victory would corroborate the impugned views
among those capable of believing them. Even should the defendant lose, the trial
itself would further publicize his views, and the proceedings themselves might
reinforce the views in those capable of believing them. Under either scenario,
the bringing of a suit under this section could prove to be a “no-win situation”
for the offended group and for the pursuit of equality.
Not only has human rights legislation been applied to restrict freedom of
expression in the name of equality, it has been applied to require expression and
even to penalize its refusal in certain circumstances. In Hudler v. London
(City), 65 the mayor and City of London were held to have “discriminated … with
respect to services on the basis of sexual orientation …” in refusing to proclaim
Pride Week at the request of an organization dedicated to supporting
homosexuals. The remedy included an order that the City make the requested
proclamation and a statement in recognition of “the lesbian and gay and bisexual
communities” as well as $10 000 damages against the mayor and city, jointly and
severally.
The Board questioned the applicability of s. 2(b) of the Charter to this
interpretation of “services” in the Human Rights Code but held at any rate it
Tribunal at Nuremberg in 1945-1946.” Faurisson v. France, 18 H.R.L.J. 40 (U.N. Human
Rights Committee, 8 November 1996) at para. 2.3 p. 40.
That led to the demand, and introduction, into the French legislature a bill that would prohibit
the denial of the Turkish genocide against the Armenians during World War I. This has led to
diplomatic protests from Turkey, which has always denied that the deaths of the Armenians
amounted to genocide (http://www.cbc.ca/world/story/2006/10/12/french-bill.html).
65
31 C.H.R.R. D/500 (Ontario Board of Inquiry, Mary Anne McKellar, October 7, 1997).