Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 49
which the charges were based.) It seems that such “sophisticated” hate-mongers
or extremists could pose a greater threat to egalitarian values or social harmony
than one who clearly articulates his repulsive views and motives, or whose
utterances come across to most observers as “ranting and raving”.
Yet to omit such defences (as the human rights provisions referred to have
done), or to give them an unduly narrow interpretation or application could
further exacerbate the interference with freedom of expression to a clearly
intolerable level. However, even with the absence of the defences and with the
unlikelihood of a defendant or respondent prevailing in judgment, these
provisions could still prove counterproductive to the goals they were designed to
promote. A well-publicized trial or hearing could bring the offending messages to
thousands (perhaps millions) of people who otherwise might not have heard
them. As pointed out earlier, many people prone to believing such “hate”
messages could see the proceedings as corroborating or reinforcing, rather than
negating, the messages - irrespective of outcome. Such proceedings could make
the defendants or respondents appear as martyrs, and make the offended groups,
complainants, prosecutors, commissions, courts, or tribunals appear as
persecutors. Furthermore, the divisiveness and polarization created by these
proceedings and by the legislative provisions in question could do more harm to
social harmony than the impugned communications.
As already pointed out, existing “special” legislative provisions attempting to
tackle the issue of “hate speech” contain their own specific problems as well as
the problems generally inherent in such legislation. The reference in the B.C.
Civil Rights Protection Act 98 to “the superiority or inferiority of a person or class
of persons…” targets a particular ideological perspective, so is especially inimical
to the “neutrality principle.” Although s. 19(1) of the Manitoba Defamation
Act’s 99 archaic qualifying factor “and tending to raise unrest or disorder among
the people” might limit this provision to circumstances where there is a
likelihood of imminent violence, this is by no means certain. More importantly,
as I elaborated earlier, I doubt that defamation is even the appropriate paradigm
or concept to deal with group hatred.
Whatever the problems that may be seen with attempts to prohibit or
control “hate speech,” it is unlikely that the Canadian legal system is going to
abandon them in the reasonably foreseeable future. Many of our legislators seem
genuinely convinced of the need for such provisions, and others would find it too
daunting a task politically to try to abolish them completely. Our courts seem to
share this conviction—or at least seem prepared to show considerable deference
98
Supra note 40.
99
Supra note 81.