Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 57
Exclusivity
2 (1) This Act shall be the only law in Canada dealing with the subject of hate
communication.
2 (2) Sections 318, 319, 320 and 320.1 of the Criminal Code and Section 13 of
the Canadian Human Rights Act are hereby repealed. 113
2 (3) Any provincial or territorial legislation dealing with this subject shall be
deemed inoperative.
2 (4) For greater certainty, this section shall not affect:
(a) Any law prohibiting discriminatory actions on certain grounds,
advertisements or other communications directly facilitating such actions,
or harassment of any individual on prohibited grounds; 114 or
(b) Any law not directed at hate communication where the situations
covered by that law correspond with the situations covered in this Act. 115
113
The various regulations dealing with “abusive comment … likely to expose in hatred or
contempt …” in radio and television”, supra note 9, enacted pursuant to the Broadcasting Act,
should also be repealed, whether through legislation or regulation.
114
This clause is inserted out of an abundance of caution to prevent unintentionally ousting or
impairing human rights legislation or its remedies under certain circumstances. For example,
sometimes “hate speech” is used in communicating the discriminatory decision. Similarly,
human rights legislation must remain free to deal with advertisements stating that members of a
particular group need not apply, or signs at a business premises saying that members of a
particular group are prohibited from entering. Additionally, narrowly drafted and applied
prohibitions against harassment of an individual, even when verbal abuse is involved, must
remain operative. However the use of the phrase “of any individual” is deliberate. If this
“exclusivity” section renders an unduly wide interpretation of the concept of “harassment” or
“hostile environment” (such as that sought in Finley v. Mike’s Smoke and Gifts (#4), supra
note 24) impossible, then it would be within its intended purpose.
115
This clause is also inserted out of an abundance of caution. There might be legislation or
common law principles providing a remedy for an individual victim greater than that provided
for in this Act. For example, s. 11 makes it an “unlawful act to advocate, promote, or express
hatred against any identifiable group under circumstances which involve the invasion of
privacy of any individual.” Some of the circumstances envisaged in that section might also give
rise to a civil cause of action such as violation of privacy, nuisance, or trespass. As this Act does
not provide for an award of damages, care must be taken to avoid preventing the individual
victim from seeking that remedy in a civil action. Furthermore, some of the conduct prohibited
in this Act might legitimately give rise to administrative sanctions under educational or other
professional legislation. For example, s. 13 prohibits promoting hatred “with the specific
intention to instil such hatred in children or adolescents.” We wouldn’t want this Act to
prevent the application of provincial legislation to have a teacher behaving in such manner
fired or deprived of his teaching license. These are just some examples where this Act might
overlap with other more “general” law (be it provincial or federal, civil or criminal)—the
operation of which ought not to be precluded by this Act. In criminal matters, of course, the
rules against “double jeopardy” and “multiple punishment” would have to apply.