Underneath the Golden Boy - Robson Hall Faculty of Law

48 Underneath the Golden Boy
principles and values. They can cover or threaten “grass-roots backlash” in
reaction to statements, positions, and policies expressed by members of various
“protected” groups or adopted by governments in the perceived interests of such
groups. They can cover or threaten the perceptions of reality of many members
of the public, even if such perceptions are regrettably narrow or unfair. As
mentioned earlier, the peaceful expression of such dissent, “backlash,” and
perceptions must be allowed to be articulated for discussion on public issues to
be complete, meaningful, and open.
This is not to deny that some of the defences in s. 319(3) of the Criminal
Code 96 can be problematic in their own right. It has been recognized that there is
difficulty in adjudicating the truth or falsity of “complex social and historical
facts” that are not “patent to the senses.” 97 It has also been recognized that it is
difficult to adjudicate the defendant’s belief in the truth or falsity of these facts.
Furthermore, the issue whether or not there are “reasonable grounds” to believe
a statement to be true could largely be a difficult “value judgment’ in itself. If it is
judged on an “objective” or “mainstream” basis, it fails to meet one of the most
important purposes of freedom of expression, to protect dissidents from enforced
conformity by holders of “mainstream” opinions. If it is judged on a “subjective”
basis (or by giving undue weight to the opinion of an “extremist”) the legislation
could be rendered largely ineffective.
The existence of the defences could render the more “sophisticated” or
“professional” hate-mongers largely immune from the law. It is possible for such
racists or other bigots to draft their messages to appear as “legitimate” arguments
on political, social, scientific, religious, or moral matters so that they could come
within the apparent scope of the defences (or at least not to show sufficient
evidence of the mens rea component of s. 319(2)). (It is not inconceivable that
at trial, such a defendant could rely on negative statistics that do exist about a
group to convince a judge or jury that he at least had some “reasonable grounds”
to support an honest belief in his impugned views. An acquittal on such basis
could be of far greater propaganda value than the original communications on
96
Section 319(3) reads:
“No person shall be convicted of an offence under subsection (2) (a) if he establishes that
the statements communicated were true; (b) if, in good faith, the person expressed or
attempted to establish by an argument an opinion on a religious subject or an opinion
based on a belief in a religious text; (c) if the statements were relevant to any subject of
public interest, the discussion of which was for the public benefit, and if on reasonable
grounds he believed them to be true; or (d) if, in good faith, he intended to point out, for
the purpose of removal, matters producing or tending to produce feelings of hatred
toward an identifiable group in Canada.”
97
See McLachlin, J’s comments concerning s. 181 of the Criminal Code in R. v. Zundel, supra
note 59 at pp. 747-759.