Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 53
the extent reasonably possible (although of course it would be compromised to
some extent by having the methods, circumstances or likely consequences of the
impugned expression “tied in” with their substantive content). Under this
scheme, the “defences” such as those found in s. 319(3) of the Criminal Code
would be unnecessary, as the truth or falsity, reasonableness or unreasonableness
of the communication, or belief or disbelief of the speaker concerning them
would be irrelevant. Such a scheme would remove from the law the reality or
perception of “thought control” on the one hand and of putting the protected
group “on trial” on the other hand.
Such a scheme would be based on Article 20, paragraph 2 of the
International Covenant on Civil and Political Rights to a large degree. 109 This
scheme would require the presence of the distinct ingredients of “advocacy of
hatred” and incitement to the unlawful actions 110 (or, in some cases, certain
methods, circumstances or likely consequences rather than “incitement”) for the
expression to be prohibited. This scheme would of course omit any reference to
paragraph 1 of Article 20 (“propaganda for war”). Additionally, the new scheme
would deliberately omit any reference to “ideas based on racial superiority or
hatred” as a literal reading of Article 4(a) of the International Convention on
the Elimination of All Forms of Racial Discrimination” would seem to require. 111
109
That paragraph reads: “Any advocacy of national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence shall be prohibited by law.”
110
I acknowledge that this interpretation of Article 20, paragraph 2 of the Covenant is narrower
than much (perhaps the mainstream) opinion in the international community. It is possible to
regard the “advocacy” of hatred as incitement per se, or to regard “hostility” as the negative
attitude rather than the prohibited actions (see “Report of the United Nations High
Commissioner for Human Rights on the incitement of racial and religious hatred and the
promotion of tolerance” A/HRC/2/6 20 September 2006 Human Rights Council Second
Session Agenda Item 2,
, paras. 36–41 at 11–12 where uncertainty concerning the meaning of the relevant
terminology is discussed.
Furthermore, this interpretation and scheme would give freedom of expression greater
protection and the duty to ban “hate speech” a narrower scope than much international
jurisprudence. Note that in cases where Canadian hate-mongers complained that the sanctions
against them violated Article 19 of the ICCPR (freedom of expression), their complaints were
rejected at least in part on the basis of Article 20 (see Taylor v. Canada (1983) 4 HRLJ
193(UN Human Rights Committee, April 6, 1983) and Ross v. Canada,
CCPR/C/70/D/736/1997 (UN Human Rights Committee, 10 October, 2000)
at para. 11.5.
111
Again I acknowledge that the new scheme, by this omission and by retreating from the ban on
impugned ideas that exist in some of our current legislation, would undoubtedly earn us
additional displeasure from the Committee on the Elimination of Racial Discrimination. (See
for example that Committee’s expression of concern over Canada’s refusal to ban racist
organizations “Concluding Observations of the Committee on the Elimination of Racial