Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 65
7.(3) In this section “hostility” means any hostile conduct which is clearly and
unequivocally unlawful throughout Canada. 124
Calling for Violence
8.(1) It is an unlawful act to publicly advocate, promote, or express hatred
against any identifiable group
(a) While using language or rhetoric which calls for, or strongly appears to
call for, violence against that group or its members, and
(b) Such advocacy, promotion, or expression is substantially likely to cause
such violence. 125
8.(2) For greater certainty, no one shall be deemed to come within clause
(1)(a) solely for
(a) Quoting, citing, referring to or discussing any religious text; 126 or
reference to “clearly unlawful conduct” in the definition of “incites” in s. 3(2)(a), but is added
out of an abundance of caution.
124
There are several reasons for this definition of hostility. It is intended that only the incitement
of hostile actions are prohibited, and to avoid interpreting hostility as the negative attitude.
The term “clearly and unequivocally unlawful throughout Canada” includes criminal activity
other than that covered by violence (which is defined in relatively clear terms in s. 3(3)), as
well as conduct that is clearly recognized as unlawful in civil and regulatory law in all
jurisdictions in Canada. Although there might be some danger of overbreadth and vagueness in
this aspect of the prohibition, this is somewhat ameliorated by the term “clearly and
unequivocally” here as well as the term “clearly unlawful conduct” in the definition of “incites”
in s. 3(2)(a). Furthermore, no penalty would result from such incitement unless it is continued
or repeated after it has been declared unlawful and a cease and desist order issued. This
inclusion of these additional matters is necessary to give meaning to the concept of hostility
beyond that involved in discrimination and violence while restricting it to hostile actions rather
than merely hostile attitudes.
125
The purpose of this section is to cover cases where the material “calls for violence” against the
group (see for example, Richard Warman v. Peter Kouba, 2006 CHRT 50, Canadian Human
Rights Tribunal, Karen A Jensen, November 22, 2006, unreported, at paras. 76–81 at pp. 19–
21, ), or appears to do so.
The material must also pose a substantial danger of causing such violence. This section would
apply even if the communication stops short of incitement, lacks the specific intention to cause
violence or knowledge of its likelihood, and the feared violence may not be perceived to be
imminent. Under these circumstances, though freedom of expression concerns militate against
immediate criminalization of the perpetrator, the declaration of the unlawfulness of the
material and the cease and desist order would justify criminal penalties against the person who
continues or repeats this practice. Besides compensating for the lack of mens rea requirement,
the need for a declaration and cease and desist order as a prerequisite to punishment would
ameliorate any vagueness or uncertainty problems that might exist in the terminology used
here.
126
The caveat in clause 2(a) is motivated largely by Owens v. Saskatchewan (Human Rights
Commission) (2006) 267 D.L.R. (4 th ) 733 (Sask. CA, 2006); reversing 45 C.H.R.R. D/272