Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 63
Continuing or Repeating an Unlawful Act
6(1) Everyone who continues or repeats an unlawful act after
(a) The Court has found that he has committed the act in question, and
(b) The Court has declared the act to be an unlawful act and issued a cease
and desist order to him against continuing or repeating the act;
is guilty of an indictable offence and is liable to imprisonment for a term not
exceeding two years.
6.(2) In this section “unlawful act” means an act referred to in sections 7 to
15. 121
Advocacy of Hatred Coupled with Incitement to Unlawful Actions
7.(1) It is an unlawful act to publicly advocate, promote or express hatred
against any identifiable group while inciting violence, discrimination, or hostility
against that group or its members. 122
prevention of expression by disruption or by the threat of unlawful violence or retaliation). For
example, if a defendant receives threats from members of the identifiable group or others to kill
or injure him if he proceeds or continues with the expression, and he chooses to take the risk,
he will not be liable under the section. There may be rare emergency situations where it is
necessary to prevent hate speech likely to cause any violence, even against the speaker, but
that is to be dealt with in the unlawful act in s. 9 dealing with a “hate-related emergency
situation”.
The proposed maximum penalty is being raised from the two years in s. 319(1) to five years
imprisonment. I suggest that this is justified here because of the more blameworthy intention
requirement in (a) or the more clearly dangerous circumstances and knowledge thereof in (b).
The option of proceeding by summary conviction is being removed in order that proceedings
under the Act will be dealt with exclusively in a superior Court. This should not be unduly
harsh since there is no minimum penalty attached and the trial judge will retain the option of
granting an absolute or conditional discharge should the circumstances warrant.
121
As mentioned earlier, while this provision is inspired by s. 13 of the Canadian Human Rights
Act and its related remedial provisions (as originally enacted), it is substantially different. It is
central to the proposed compromise scheme in that it removes from immediate criminalization
all but the most clearly harmful or dangerous expression. It retains a kinder and gentler method
for dealing with other material that is arguably in need of prohibition. The lack of immediate
criminalization and the limited remedy could reduce (if not eliminate) any chilling effect on
material which may or may not come within the prohibition. Furthermore, the knowledge of its
prohibited nature caused by the declaration and cease and desist order could make punishment
justifiable even in cases where the unlawful act has a reduced mens rea requirement (or has
eliminated mens rea as an ingredient completely) See discussion of this issue in Canadian
Human Rights Commission v. Taylor, supra note 4.
122
This section is based on Article 20, para. 2 of the International Covenant on Civil and Political
Rights, but departs from it in certain matters. For ease of reference I repeat that paragraph
which reads:
“any advocacy of national, racial or religious hatred that constitutes incitement to