Underneath the Golden Boy - Robson Hall Faculty of Law

50 Underneath the Golden Boy
to the legislative decisions in this area. Furthermore, Canada has ratified two
international treaties which require us to have some prohibitions on “hate
speech.” 100
Article 20 of the International Covenant on Civil and Political Rights reads:
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement
to discrimination, hostility or violence shall be prohibited by law.
Article 4 of the International Convention on the Elimination of All Forms
of Racial Discrimination reads:
State Parties condemn all propaganda and all organizations which are based on ideas or
theories of superiority of one race or group of persons of one colour or ethnic origin, or
which attempt to justify or promote racial hatred and discrimination in any form, and
undertake to adopt immediate and positive measures designed to eradicate all incitement
to, or acts of, such discrimination and, to this end with due regard to the principles
embodied in the Universal Declaration of Human Rights and the rights expressly set forth
in Article 5 of this Convention, inter alia:
shall declare an offence punishable by law all dissemination of ideas based on racial
superiority or hatred, incitement to racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons of another colour or ethnic
origin, and also the provision of any assistance to racist activities, including the financing
thereof;
shall declare illegal organizations, and also organized and all other propaganda activities,
which promote and incite racial discrimination, and shall recognize participation in such
organizations or activities as an offence punishable by law;
shall not permit public authorities or publics institutions, national or local, to promote or
incite racial discrimination.
Therefore, I am respectfully proposing a compromise solution to this issue. I
would suggest the enactment of a new federal statute to replace (and repeal) all
current federal legislation and regulations in this area (in particular sections 318
to 320.1 of the Criminal Code, s.13 of the Canadian Human Rights Act 101 and
the relevant provisions in the various broadcasting regulations. 102 Furthermore, if
this is possible from a “division of powers” perspective, this new legislation would
100
In Canadian constitutional law, ratifying treaties is a prerogative of the Crown. Though a treaty
doesn’t have the direct force of law in Canadian domestic law unless it is incorporated by
legislation, Canadian courts interpret statutes consistently with our treaty obligations where
possible, and treaties are used in interpreting Charter provisions and in evaluating limits on
Charter rights under s. 1. Moreover, a treaty ratified by the Crown binds Canada in
international law to fulfill its terms, whether the treaty is incorporated by legislation or not.
Two recent works on the subject of the role of international human rights law in Canada are:
Mark Freeman and Gibran VanErt International Human Rights Law, Irwin Law Inc., 2004; and
William A. Schabas and Stephane Beaulac, International Human Rights and Canadian Law,
3rd ed., Thompson Carswell, 2007.
101
R.S.C. 1985, c. H-6.
102
Supra note 9.