Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 71
Undermining The Critical Faculties Of Individuals
12.(1) It is an unlawful act to advocate, promote, or express hatred against any
identifiable group by intentionally or knowingly undermining the critical
faculties of individuals 132 through:
(a) The use of games involving videos, computers or similar devices, 133 or
unhampered.
It is to be noted that some of the behaviour prohibited in this section might overlap with that
referred to in s. 10 and may already be prohibited in other areas of the law. There may be other
forms of behaviour accompanying “hate speech” having as great an impact on privacy as those
mentioned in this section and also ought to be prohibited. On the other hand, perhaps greater
safeguards are needed in this section to protect freedom of expression. I emphasize again that
this does not purport to be a perfectly drafted statute. Further thought about what should or
should not be prohibited, the need to protect against legislative overreaching, and appropriate
mechanisms and terminology are obviously needed.
132
The term “the critical faculties of individuals” is borrowed from the Report of the Special
Committee on Hate Propaganda in Canada, Queen’s Printer, 1966, at p. 8. Of course, that
Report envisaged situations beyond those referred to in this section, and recommended the
legislation on which sections 318 and 319 of the Criminal Code are based. However, the
Report took special note of “the successes of modern advertising”, “radio, television, motion
pictures” along with “the pervasiveness of print” and “the impact of speech as associated with
colour, music and spectacle on the feelings of great multitudes of people” (p. 8) Its authors were
keenly aware of the impact of applying scientific knowledge to mass communication. Any
problems in that regard have been greatly exacerbated by the developments of communication
technology since then.
The idea for this section is largely inspired by three factors:
1) the attempt to zero in on a particular method of communication—as was originally done by
s.13 of the Canadian Human Rights Act;
2) the comments in the Tribunal’s original decision concerning the psychological and social
impact of certain communicative methods in Canadian Human Rights Commission et al v. The
Western Guard Party and Taylor (The Canadian Human Rights Act Human Rights Tribunal,
1979) ; and
3) the jurisprudence and literature suggesting that certain specialized media or methods of
communication can give rise to restrictions or regulation not appropriate to ordinary means of
expression.
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This is not to suggest that video games are beyond freedom of expression protection. Indeed,
there are several American cases clearly indicating that such means of communication are
protected under the First Amendment (see for example, Entertainment Software Association v.
Blagojevich, 469 F.2d 641 (U.S.C.A., Seventh Circuit, 2006)). Furthermore, I am certainly not
suggesting that all hate messages using computers or the internet should be banned, as
subsection 13(2) of the Canadian Human Rights Act—as amended by the Anti-Terrorism Act,
S.C. 2000, c. 41, s. 88—has done.
I would doubt (speaking as a person without any expertise in psychology or mass
communication whatsoever) that purely text on-line communications (especially lengthy
articles purporting to be historical, political, or ideological) would have any greater impact on
the critical faculties of an individual reader than the same material read from hard copy.