Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 55
matters. As pointed out, expanding the concept of discrimination to include
expression of ideas, rather than only actions or decisions is a phenomenon which
is a significant part of the problem. Furthermore, I suggest that the new law
should be enforced by the federal Attorney General (as this is a federal statute
outside the Criminal Code) and the superior courts of the various provinces and
territories, rather than by the Canadian Human Rights Commission and the
Canadian Human Rights Tribunal. There is no doubt that the Commission and
Tribunal are composed of people of the highest integrity, competence, and
dedication who make excellent contributions to the promotion of equality and
the development of human rights jurisprudence in Canada. However, given the
specific mandate of the Canadian Human Rights Act institutions to promote
equality and combat discrimination, there might be a danger (at least a
perception) of “ideological bias” in dealing with communications which are seen
as posing a challenge to that mandate. Perhaps the Attorney General, who is
responsible for all aspects of the legal system (within his jurisdiction) and the
regular superior courts, which are accustomed to balancing all conflicting rights
and obligations, might be (perceived) as more “objective” in balancing the
factors motivating these proceedings and the need to protect freedom of
expression to the extent reasonably possible.
In Part II of this paper, it is my intention to set out (in very rough, tentative,
and sometimes incomplete form) some of the provisions of the proposed law
which I would recommend for consideration. Any discussion or explanation of
these proposed provisions will be contained in the footnotes. I wish to emphasize
that I am certainly not suggesting that the proposed legislation is suitable for
enactment in the form appearing below. For one thing, legislative drafting is not
within my expertise (as may become apparent). More importantly, nothing in
this article should be seen as a firm or final conviction on my part (or necessarily
my final work on this subject). The purpose of this study is to note some of the
perceived problems with the current state of the law in this area, acknowledge
the profound controversy and debate concerning these matters, and to offer for
consideration some ideas which might form the basis for a “compromise” solution
to this problem. Even should these proposals not prove to be appropriate or
feasible, it is to be hoped that they would lead to further study and thought
which might eventually lead to a more suitable alternative to the current
legislative and jurisprudential scheme.
be better than the paradigm based on the ideas alone subject to the defences. Although this
article therefore supersedes my suggestions concerning “hate messages” in that submission, I
relied largely on that submission as a basis or outline on which to develop some of the ideas
expressed in this article, and borrowed some of the terminology from that submission.