Underneath the Golden Boy - Robson Hall Faculty of Law

64 Underneath the Golden Boy
7.(2) In this section “discrimination” means discrimination which is clearly and
unequivocally prohibited throughout Canada, by the Canadian Human Rights
Act, or by corresponding provisions in provincial or territorial legislation in force
in all the provinces and territories. 123
discrimination, hostility or violence shall be prohibited by law.”
The term publicly is added to avoid the reach of this aspect of the law to private
communications.
The term “while inciting” is used rather than “that constitutes incitement” to make it clear that
for the advocacy, promotion, or expression of hatred to come within this provision it must be
coupled with incitement to the unlawful activity, and to avoid the interpretation that
advocating hatred per se constitutes incitement. It is to be recalled that “incites” is defined
fairly narrowly and precisely in proposed s. 3(2).
It is to be noted that I am not recommending a prohibition “on any propaganda for war” as is
required by a literal reading of article 20(1) of that Covenant. It is doubtful whether a
meaningful and workable ban of “propaganda for war” can be drafted that wouldn’t unduly
interfere with or chill discussion of public policy or international affairs. At any rate, such a
prohibition is unlikely to “fly” politically.
I am also not recommending a prohibition based on a literal reading of Article 4(a) of the
International Convention of the Elimination of All Forms of Racial Discrimination. This
provision (as well as others of the proposed Act) might partially fulfill our obligations under
that Article. Hate speech that also constitutes incitement to violence or discrimination, or that
poses an exceptional risk of violence, is covered. However, as discussed earlier, expressly
referring to “ideas based on racial superiority or hatred” could unduly interfere with or chill
discussion of scientific, social, or other matters of public importance, and would be in clear
violation of the “neutrality principle.”
Article 13, paragraph 5 of the American Convention on Human Rights contains a more
narrowly drafted prohibition, but covers somewhat more grounds than Article 20, of the
ICCPR. It reads:
“Any propaganda for war and any advocacy of national, racial or religious hatred that
constitutes incitement to lawless violence or to any other similar actions against any
person, or group of persons on any grounds including those of race, color, religion,
language or national origin shall be considered as offences punishable by law.”
123
“Discrimination” is deliberately defined in this manner for several reasons. The Canadian
Human Rights Act only covers entities or activities under federal jurisdiction, which is a
relatively small portion of regulated activities in Canada in which discrimination is prohibited.
However, it seems inappropriate for federal legislation to ban incitement to discrimination that
is only unlawful in parts of, but not all, of Canada.
It is to be noted that this terminology, in conjunction with s. 2(3), might render inoperative the
incitement and related provisions in some provincial human rights legislation. However, that
might not be such a terrible lacuna in the law. The prohibitions against discrimination itself
and clearly ancillary communications would remain operative. Perhaps a separate ban on
incitement is only appropriate concerning violent actions (or where it is coupled with hate
provisions as in this provision).
The term “clearly and unequivocally prohibited” in the definition of “discrimination” is to avoid
prohibiting or chilling the incitement or discussion of activities which may ultimately be judged
discriminatory, but where the issue is uncertain. This may be redundant in view of the