Underneath the Golden Boy - Robson Hall Faculty of Law

72 Underneath the Golden Boy
(b) The use of audio, visual, or other sensual methods that create or
produce subliminal messages; 134 or
(c) Other deliberate abuse of physical or social scientific technology; 135
12.(2) In this section “subliminal” means taking place below the threshold of
sensory perception or outside the range of conscious awareness. 136
The type of material that would be included within clause 1(a) is the most virulent type of hate
material using the format of such games. Banning such materials would not interfere with the
serious exploration and analysis of ideas, which freedom of expression is largely meant to
protect. Such methods might indeed impair critical analysis and would be inimical to that basic
purpose of freedom of expression.
134
Of course, to avoid an unduly wide interference with communication, the term “subliminal”
has to be precisely and narrowly defined. The use of that term by the communications expert
witness in Canadian Human Rights Commission v. Taylor (1979), Supra note 122, and
referred to in the reasons for decision at pp. 21–24 seems to be somewhat expansive and
certainly beyond the definition which I recommend in subsection (2).
135
At this point, I regret that I cannot be more specific as to where this provision would apply and
I acknowledge that greater care in drafting this clause would be appropriate. Furthermore, great
caution would be necessary in interpreting and applying this provision.
Certain forms of technological communication have been held amenable to special regulation
(for example, F.C.C. v. Pacifica Foundation, 98 S. Ct. 3026 (1978), dealing with broadcasting).
It is possible that this clause could be used against hate communications that utilize the special
effects of media such as radio, television, or cinema to overwhelm or compromise one’s critical
faculties. Perhaps even recordings and music could come under this provision under certain
circumstances. Regrettably, there is a genre of racist and hate-based rock music, although I
concede that I am not aware whether or not its composers, performers, or producers have the
technological expertise or sophistication that is envisaged here.
I wish to emphasize that I am not suggesting that all materials that could be deemed hate
communications should be banned from radio and television and other technological forms of
mass communication. Again, speaking without social scientific expertise, I would doubt that a
simple lecture, speech, or discussion that is broadcast (without special effects) and could be
construed as hate-related would have significantly greater impact on the critical faculties of an
individual listener or viewer than if that same lecture, speech, or discussion were delivered and
observed in an ordinary hall or auditorium and not broadcast.
If this section (and the other sections of the proposed Act) could be used against
communications using radio and television under the circumstances referred to, it seems that
provisions dealing with hate communication in these media in the regulations referred to at
supra note 9, would no longer be needed.
Such provisions, which could lead to a loss of a broadcasting license or a fine (see Broadcasting
Act, S.C. 1991, c. 11, s. 9, s. 24, and s. 32), could present some of the problems concerning
vagueness, overbreadth, and interference with communicating ideas connected with other
“hate” legislation. For example, s. 5(1) of the Television Broadcasting Regulations 1987,
S.O.R./87-49 reads: “a licensee shall not broadcast… (b) any abusive comment or abusive
pictorial representation that, when taken in context, tends to or is likely to expose an
individual or a group or class of individuals to hatred or contempt on the basis of…” named
grounds. As mentioned earlier, it is probably better that the entire area of hate
communications be dealt with comprehensively in a single Act.