Underneath the Golden Boy - Robson Hall Faculty of Law

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.