Underneath the Golden Boy - Robson Hall Faculty of Law

70 Underneath the Golden Boy
(a) Publicly naming or displaying the image of any individual except when
necessary for the discussion of any matter of public interest;
(b) Publicly revealing the personal information of any individual;
(c) Harassing any individual by persistently contacting or communicating
with such individual when such contact or communication is unwelcome
and unjustified in the circumstances;
(d) Demonstrating, picketing, displaying any material, shouting, or
otherwise visibly or audibly communicating at or in the immediate vicinity
of a private residence without the invitation or consent of the occupier of
the residence;
11.(3) In this section, “personal information” includes the address, telephone
number, facsimile number, e-mail address, social security number, credit card
information, or other personal and confidential information which facilitates the
contact with or compromising the identity or security of such individual. 131
131
Clause 2(a) and (b) are necessary because hate communications are not always restricted to
generalities about the identifiable group but often target individuals who are members of (or
seen as sympathetic to) that group.
Clause 2(a) is drafted primarily to protect private citizens who play no significant role in public
affairs from being mentioned in hate material. It might be impractical and unduly restrictive of
freedom of expression to prevent the mention or discussion of public figures, even when tied in
with the expression of hatred.
Clause 2(b), as clarified by subsection (3), is not limited to the protection of private citizens,
but includes any individuals whom the hate-mongers may wish to harm by publishing such
information. The wording is deliberately used to avoid restricting information which could be
relevant, however tenuously, to matters of public interest.
Clause 2(c) is designed to cover harassing situations outside of the regulated activities usually
covered by harassment provisions of human rights legislation. It is also designed to avoid
including single or isolated instances of racial or similar slurs or insults, regrettable though they
may be. The qualification “and is unjustified in the circumstances” is added to avoid censoring
unpalatable materials directed to persons who have a duty or need to receive communications
from members of the public, such as public officials.
Clause 2(d) is designed to offer potential targets of hate speech protection from being subject to
it in the privacy of their own home. Unlike the ordnance upheld by the U.S. Supreme Court in
Frisby v. Schultz, 108 S. Ct. 2495 (1988), which prohibited “picketing before or about the
residence or dwelling of any individual”, this provision is not content neutral and is certainly
not viewpoint neutral. However, as with other provisions in this proposed statute, the
departure from a pure or absolute standard of content neutrality and viewpoint neutrality seems
a legitimate compromise. The traumatic effect of hate speech on identifiable groups and their
members have often been recognized. Canadian courts are more prepared than their American
counterparts to protect these groups and their members from this effect. My main criticism of
some of the Canadian jurisprudence and legislation in this area has been with their interference
with the intellectual and political freedom inherent in stifling certain ideas, however repulsive
or dangerous they may be. A restriction such as the one envisaged here still leaves individual
and collective means of thinking, developing, exploring, and communicating ideas relatively