Underneath the Golden Boy - Robson Hall Faculty of Law
Underneath the Golden Boy - Robson Hall Faculty of Law Underneath the Golden Boy - Robson Hall Faculty of Law
46 Underneath the Golden Boy (1.1) in deciding whether to order the person to pay the penalty, the member or panel shall take into account the following factors: (a) the nature, circumstances, extent and gravity of the discriminatory practice; and (b) the willfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person’s ability to pay the penalty. Furthermore, s. 13(2) which originally read, “Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking” was replaced by s.88 of the Anti- Terrorism Act. 86 Section 13(2) now reads: For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking. In Manitoba, the Human Rights Commission is calling for an amendment to the Human Rights Code “to add a prohibition on the publication or display of messages which are likely to expose a person or group to hatred or contempt on the basis of a protected characteristic” based on “the model used in British Columbia.” 87 This is despite the fact that Manitoba did have a “hatred” provision in the previous Human Rights Act 88 which the Manitoba Legislative Assembly decided not to continue when enacting the current Human Rights Code 89 in 1987. It is understandable enough that a body given a mandate, and dedicated, to promoting equality and combating discrimination would seek to restrict expression it perceives as inimical to its vital goals. However, even the noblest “ends” do not justify every conceivable “means” to achieve them. Even our most important public bodies (and the very principles and ideologies on which they are based) are amenable to peaceful challenge and dissent. 86 S.C. 2001, c. 41. 87 “The Rights Connections” by Janet Baldwin – Chairperson; M.H.R. Connections Published by the Manitoba Human Rights Commission, volume 6, number 1, January 2006. . 88 Which I criticize in Lipsett, supra note 10. 89 Supra note 17.
Hate Communication Restriction and Freedom of Expression 47 Furthermore, a provision such as the one referred to above might not be all that necessary or beneficial towards the goal of promoting equality; 90 it may even prove to be counterproductive. I would respectfully suggest that the prohibition in question not be enacted. I respectfully acknowledge that I am not a supporter of attempts to prohibit “hate speech” per se. I am largely in agreement with the dissenting judgments of McLachlan J. (as she then was) in R. v. Keegstra 91 and Canadian Human Rights Commission v. Taylor 92 and with much of the reasoning in the American cases of R.A.V. v. St. Paul, Minnesota 93 and Virginia v. Black. 94 I agree that criminal prosecution is the harshest method of dealing with such expression. However, I believe that the “human rights” approach as it has been applied in both the terms and interpretation of various legislative provisions at both the federal and provincial levels pose a substantially greater threat to freedom of expression than the Criminal Code provision upheld in Keegstra. The human rights approach (in terms, and as interpreted) is substantially wider in scope than s. 319(2) of the Criminal Code. Furthermore, as effects rather than intention are emphasized, they lack a mens rea requirement. Additionally, the defences provided by s. 319(3) are not found in such provisions. These factors render human rights “hate–provisions” capable of covering substantially more communication than the clearly extremist materials targeted by the Criminal Code. 95 They can cover or threaten vigorous (albeit offensively-expressed) dissent from “mainstream” or “officially endorsed” 90 The coercive powers of the human rights legislation and its enforcement agencies should be restricted to combating discriminatory actions. However, there are persuasive methods available to human rights commissions (as well as other public bodies, private organizations, and citizens) which are more suitable to the goals of influencing attitudes and opinions. For example, s. 4 of the Human Rights Code expressly mandates the Commission to “promote the principle” of equality and to undertake “educational programs.” Indeed the Manitoba Human Rights Commission has an ambitious and successful educational and outreach strategy. For the limited circumstances where prohibiting “hate” related expression might be needed or appropriate, I am respectfully suggesting new legislation in Part II of this article. 91 Supra note 2 at pp. 796-868. 92 Supra note 4 at pp. 944-976. 93 112 S. Ct. 2538 (1992). 94 123 S. Ct. 1536 (2003). 95 This is not to deny that many (perhaps most) of the cases dealt with under s. 13(1) of the Canadian Human Rights Act and some of the material targeted under provincial legislation (e.g. Kane v. Church of Jesus Christ Christian Aryan Nations (No.3), 18 C.H.R.R. D/268 (Alta. Board of Inquiry, February 28, 1992) are indeed “extremist”—however one may wish to define that term. Some of that material may well be appropriate for prohibition under the new legislation which I am proposing. That does not detract from the substantially more farreaching potential scope of the “human rights” approach.
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46 <strong>Underneath</strong> <strong>the</strong> <strong>Golden</strong> <strong>Boy</strong><br />
(1.1) in deciding whe<strong>the</strong>r to order <strong>the</strong> person to pay <strong>the</strong><br />
penalty, <strong>the</strong> member or panel shall take into account <strong>the</strong><br />
following factors:<br />
(a) <strong>the</strong> nature, circumstances, extent and gravity <strong>of</strong><br />
<strong>the</strong> discriminatory practice; and<br />
(b) <strong>the</strong> willfulness or intent <strong>of</strong> <strong>the</strong> person who engaged<br />
in <strong>the</strong> discriminatory practice, any prior discriminatory<br />
practices that <strong>the</strong> person has engaged in and <strong>the</strong><br />
person’s ability to pay <strong>the</strong> penalty.<br />
Fur<strong>the</strong>rmore, s. 13(2) which originally read, “Subsection (1) does not apply<br />
in respect <strong>of</strong> any matter that is communicated in whole or in part by means <strong>of</strong><br />
<strong>the</strong> facilities <strong>of</strong> a broadcasting undertaking” was replaced by s.88 <strong>of</strong> <strong>the</strong> Anti-<br />
Terrorism Act. 86 Section 13(2) now reads:<br />
For greater certainty, subsection (1) applies in respect <strong>of</strong> a matter that is communicated<br />
by means <strong>of</strong> a computer or a group <strong>of</strong> interconnected or related computers, including <strong>the</strong><br />
Internet, or any similar means <strong>of</strong> communication, but does not apply in respect <strong>of</strong> a<br />
matter that is communicated in whole or in part by means <strong>of</strong> <strong>the</strong> facilities <strong>of</strong> a<br />
broadcasting undertaking.<br />
In Manitoba, <strong>the</strong> Human Rights Commission is calling for an amendment to<br />
<strong>the</strong> Human Rights Code “to add a prohibition on <strong>the</strong> publication or display <strong>of</strong><br />
messages which are likely to expose a person or group to hatred or contempt on<br />
<strong>the</strong> basis <strong>of</strong> a protected characteristic” based on “<strong>the</strong> model used in British<br />
Columbia.” 87 This is despite <strong>the</strong> fact that Manitoba did have a “hatred” provision<br />
in <strong>the</strong> previous Human Rights Act 88 which <strong>the</strong> Manitoba Legislative Assembly<br />
decided not to continue when enacting <strong>the</strong> current Human Rights Code 89 in<br />
1987.<br />
It is understandable enough that a body given a mandate, and dedicated, to<br />
promoting equality and combating discrimination would seek to restrict<br />
expression it perceives as inimical to its vital goals. However, even <strong>the</strong> noblest<br />
“ends” do not justify every conceivable “means” to achieve <strong>the</strong>m. Even our most<br />
important public bodies (and <strong>the</strong> very principles and ideologies on which <strong>the</strong>y<br />
are based) are amenable to peaceful challenge and dissent.<br />
86<br />
S.C. 2001, c. 41.<br />
87<br />
“The Rights Connections” by Janet Baldwin – Chairperson; M.H.R. Connections Published by<br />
<strong>the</strong> Manitoba Human Rights Commission, volume 6, number 1, January 2006.<br />
.<br />
88<br />
Which I criticize in Lipsett, supra note 10.<br />
89<br />
Supra note 17.
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