Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 69
Invasion of Privacy
11.(1) It is an unlawful act to advocate, promote, or express hatred against any
identifiable group under circumstances which involve the invasion of privacy of
any individual.
11.(2) Circumstances which involve the invasion of privacy of any individual
include:
be completely banned. Additionally, there may be certain actions or forms of expression that
shouldn’t normally be banned. However, I suggest that under certain circumstances, particular
kinds of messages in conjunction with particular activity or methods of communication can
legitimately be prohibited or restricted. The circumstances envisaged in this section are, in my
opinion, such a situation.
It is suggested that the need for declaration, an order, and disobedience as prerequisites to
punishment adequately compensates for the absence of specific intention to intimidate or any
vagueness or uncertainty that might be found in some of the terminology in this section.
At any rate, clause 2(a) is clear enough. In clause 2(b), “real or simulated weapons” is clear
enough, and “simulated methods of execution” refers to the repulsive practice of erecting actual
or miniature nooses in the presence of members of the Black community (which is sometimes
done by racists) and similar practices.
Clause 2(c) might seem somewhat more problematic. Paramilitary uniforms aren’t always used
for hate-related purposes, and, as pointed out, their use even for that purpose has received First
Amendment protection. However, their use during the expression of hatred can have the
potential to cause especially frightening or traumatic effects on members of an identifiable
group or to raise community tensions to an especially high level. It therefore seems appropriate
to prohibit such a combination.
Clause 2(d) recalls a Canadian case involving the use of a burning cross, inter alia, which took
a different approach from R.A.V. v. St. Paul, Minnesota, and Virginia v. Black. In Kane v.
Church of Jesus Christ Christian Aryan Nations (No. 3), 18 C.H.R.R. D/268 (Alta. Board of
Inquiry, Feb. 28, 1992) the Board held that the display of “KKK White Power” signs, a
Swastika, and a burning cross at an “Aryan Fest” held on private property violated the
provisions of the Individual’s Rights Protection Act, R.S.A. 1980, c. 1-2, s. 2. The section
prohibited the public display of “any notice, sign, symbol, emblem, or other representation
indicating discrimination or an intention to discriminate…” The judgment relied on the history
and the intimidating effects of such materials, among other reasons. Although I have criticized
the breadth of the wording and some of the wide-ranging interpretations of such legislation, I
find it more difficult to criticize the results of this decision. Narrower legislation focusing on the
intimidating methods of expressing hatred such as those involved in this case are appropriate.
Clause 2(e) is intended to cover methods similar to those referred to in the Kane case, such as
the use of Swastikas or similarly recognized hate symbols or regalia similar to those referred to
in clause 2(c) under certain circumstances. One cannot foresee all the potential circumstances
where a section such as this might be needed so the omnibus clause in 2(e) is provided. The
wording is deliberately chosen to restrict its use to the most serious cases, and to avoid
prohibiting methods or substance of communications merely because they are politically
incorrect, offensive, unpopular, or controversial. Again, any problem with potential uncertainty
or vagueness of this clause is ameliorated by the scheme requiring declaration, order, and
disobedience as prerequisite to any penalty being imposed.