Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 73
12.(3) In a proceeding under this section, an act shall not be held to contravene
clause 12(1)(b) or (c) unless the nature of the impugned method of
communication and its effect on the critical faculties of individuals is clearly and
unequivocally established by expert evidence. 137
Children or Adolescents
13.(1) It is an unlawful act to advocate, promote, or express hatred against any
identifiable group with the specific intention to instil such hatred in children or
adolescents by: 138
(a) Using materials or methods of communications which are specifically
designed to influence children or adolescents; 139 or
(b) Directly approaching children or adolescents; or
(c) Sponsoring, organizing, or participating in an event, series of events, or
association specifically designed to instil such hatred in children or
adolescents; 140 or
(d) Abusing a position of authority or trust over children or adolescents if
such position is of a public or publicly-regulated nature 141 .
136
This definition is taken from Mosley’s Medical Nursing, and Allied Health Dictionary, 6 th ed.,
at p. 1647. Perhaps a better definition than this one ought to be drafted. However, care is
needed lest too-loose a definition or application of this concept leads to unnecessary restriction
on expression.
137
Although the nature (if not necessarily the effect) of materials included under clause 12(1)(a)
would be self-evident, that would often not be the case with materials referred to in (b) or (c).
To avoid suppression of materials merely on the basis of subjective reactions or understandable
revulsion of viewers or listeners, or on a popular interpretation of technical concepts, expert
evidence should be required before an act could be found unlawful under these provisions.
As expert evidence in the social sciences is sometimes speculative and/or ideologically driven,
some degree of certainty or consensus in this type of evidence should be required before
expression is prohibited in these circumstances.
138
This section is drafted only to cover those hate-mongers who deliberately target children or
adolescents as the recipients of their messages, not material communicated “at large” but which
might incidentally reach people in that category. Even here, caution is necessary to avoid
overreaching, especially where family life and privacy, religion or legitimate youth activities,
and associational interests might be at risk. Greater care and precision might be needed in the
actual drafting of legislation based on this section.
139
Some of the methods, materials, or activities envisaged here might overlap with some of those
envisaged by s. 12.
140
See note 129 above.
141
The scenario that comes most readily to mind is that of a teacher such as Keegstra. The term
“public or publicly regulated nature” is used so that private as well as public schools are
covered, as they are also subject to a degree of public regulation. Positions other than teachers
could be covered, including law enforcement officers, licensed professionals, or regulated