Underneath the Golden Boy - Robson Hall Faculty of Law

58 Underneath the Golden Boy
Definitions
3 In this Act
3(1) “Identifiable group” means any section of the public distinguished by race,
nationality, national or ethnic origin, colour, religion, sex, age, mental or
physical disability, or sexual orientation. 116
3(2)(a) “Incites” means intentionally urges another to engage imminently in
clearly unlawful conduct in circumstances under which there is a substantial
likelihood of imminently causing such conduct. 117
(b) For greater certainty, “incites” does not include attempting to bring about
change in the law or discussion concerning public policy. 118
116
Though borrowing the terminology of, and based on, s. 318(4) of the Criminal Code, this
definition expands the included grounds. “Nationality” is being added to the list as an attempt
at greater compliance with Article 20, paragraph (2) of the International Covenant on Civil
and Political Rights which refers to “national, racial or religious hatred” (emphasis added). Of
course “race, national or ethnic origin, colour, religion, sex, age, mental or physical disability”
are expressly mentioned in s. 15 of the Canadian Charter of Rights and Freedoms and sexual
orientation has been ruled an analogous ground by the Supreme Court of Canada. Other
grounds ruled analogous by the Supreme Court, such as marital status and residence off of a
reserve, have not been included; neither have several other prohibited grounds of
discrimination mentioned in the Canadian Human Rights Act or provincial or territorial
human rights legislation. Although persons protected by those other grounds are entitled to
protection from discrimination, they perhaps do not appear to be as readily identifiable on a
group basis so as to be amenable to group-based hatred. A strong argument can perhaps be
made that this Act should only include grounds which we are required to include by the
International Covenant on Civil and Political Rights or the Convention on the Elimination of
All Forms of Racial Discrimination. However, as this legislation is intended to pre-empt all
other “hate” legislation in Canada, such a proposal would probably be a non-starter politically.
Furthermore, the more limited and clearly defined scope of this Act (as compared with many of
the provisions it is intended to replace) would reduce the interference with freedom of
expression to a more acceptable level.
117
Paragraph (a) with the exception of the words “intentionally” and “clearly unlawful” is
borrowed from U.S.C. § 1093 (3) enacted by the Genocide Convention Implementation Act of
1987 (the Proxmire Act), Pub. L 100–606, 102 Stat. 3045 (1988). The term “intentionally” is
added out of an abundance of caution to ensure that the concept of incitement only covers
expression that is used with the specific intention to bring about the proscribed conduct. It is
no the purpose of its use in this Act to cover a “rant” or “rhetorical flourish” without purpose
or thought of consequence, or even recklessness concerning consequences. See R v. Hamilton
[2005] 2 S.C.R. 432, dealing with the mental element of the related concept of counselling. A
majority held that a form of recklessness would be sufficient.
118
If incites in this Act were only to apply to incitement to genocide as is the case with the
Proxmire Act, perhaps the addition of the words “clearly unlawful” in clause (a) and the
proviso in clause (b) would be unnecessary. Indeed, it could be argued that the proviso in (b) is
inappropriate for incitement to genocide, given that genocide is criminal according to
international law (irrespective of the state of national law) and that genocide is often carried
out in pursuit of public policy.