Underneath the Golden Boy - Robson Hall Faculty of Law

74 Underneath the Golden Boy
13.(2) In this section “children or adolescents” means people under the age of
eighteen years.
13.(3) For greater certainty, nothing in this section shall apply to:
(a) Private communication within a family home or setting or familyarranged
care not available to the public or a section of the public; 142
(b) Bona fide communication made by a member of the clergy, religious
official, or other participant during a bona fide religious activity; 143 or
(c) Bona fide communication of the viewpoint or policy of an association
that was not established for the purpose prohibited by subsection (1) or
clause 1(c). 144
facilities offering a service to the public (such as day care centres). Depending on the extent of
their regulation by government or public authorities, coaches or officials in private athletic
teams or leagues might also be covered—as might professional or volunteer youth leaders in
other circumstances.
Education and some of the other situations envisaged here are under provincial jurisdiction.
The double aspect doctrine might allow this proposed federal legislation to apply to such
situations—if it can come within a federal head of power. This provision, coupled with the
provisions in s. 2(3) rendering provincial hate laws inoperative, would not prevent appropriate
provincial employment or disciplinary sanctions against the abuser as well, as s. 2(4)(b)
specifically protects the application of more “general” laws where situations covered by them
correspond with situations covered by this Act.
142
Although family or home related indoctrination of children into hatred can be among the most
nefarious situations where such communication occurs, the law simply cannot reach that far
without creating an unduly authoritarian or even totalitarian society.
This exception includes not only communications made by family members themselves, or
communications made in a home, but also those made by persons outside the family (such as
when they are visiting with the family at home or in another location).
The “family-arranged care” mentioned here includes situations where care is provided by a
friend, neighbour, or babysitter, but does not include a commercial care-giving company that
makes its services available to the public.
143
Of course it could be argued that some of the most dangerous hate promotion, including that
directed at youth, can be carried out by extremist religious leaders. However, this exception
seems necessary to protect freedom of religion and to prevent undue interference by secular
authorities into religious affairs. Indeed, an argument can be made that the qualifications that
the communication or activity must be “bona fide” gives secular authorities undue power to
evaluate religious expression or activity.
144
This is meant to protect organizations that, though established or operated for legitimate
purposes may express messages that members of an identifiable group could find objectionable.
For example, the Boy Scouts of America teach that homosexual conduct is immoral. It might
be possible for religiously, ethnically, or culturally based organizations to be overzealous in
expounding their perspectives in controversial matters at the apparent expense of other groups.
Though such groups would probably not be caught by this section—given the “specific
intention” requirements in subsection (1) and the “specifically designed” requirement in clause
1(c)—this provision is added out of an abundance of caution. This should help to reduce the