Underneath the Golden Boy - Robson Hall Faculty of Law

78 Underneath the Golden Boy
CONCLUSION
I have attempted to set out, in a very rough and tentative form, a framework for
the substantive and remedial provisions of a new, comprehensive, and exclusive
law that would replace all existing “hate speech” laws in Canada. I have not
attempted to draft the procedural provisions, although, as I mentioned,
proceedings would be brought by the federal Attorney General 148 and would be
tried in the provincial or territorial superior courts. Of course, a complete appeal
would have to be available from a conviction or a finding that an unlawful act
was committed, and an appeal “on a question of law alone” would have to be
available from an acquittal or finding that an unlawful act was not committed. It
would seem that, in order to prevent interference with freedom of expression in
unclear or uncertain cases, the Crown should have to prove the allegations,
(including all the ingredients) beyond reasonable doubt in proceedings to find
“an unlawful act” as well as in criminal proceedings.
recorded, and publicized. Worthwhile though the purpose of the boycott was, ends do not
always justify the means. Furthermore, I doubt whether coercive speech ought to receive the
same degree of protection as purely persuasive, ideological, or political speech.
There may be cases other than those envisaged either in NAACP v. Clairborne Hardware or
this proposed section where boycotts are so unfairly discriminatory or interfere with freedom of
expression to such a degree that legal restrictions against their organizers or enforcers may be
appropriate. A boycott against academics or other individuals (or even institutions) because of
disagreement with their country’s policies does not seem just. Boycotting a business because of
its owner’s political beliefs or actions, or boycotting a bookstore because it carries the works of a
particular author, seem to be cases where certain forms of private acts can be almost as
detrimental to freedom of expression as certain forms of government action. Such cases are not
covered by this proposed section, and are beyond the scope of this article.
Boycotts have a long history in the persecution of, and discrimination against, minority groups
and their members. It is such scenarios that this section is intended to protect against.
Although it would be an inappropriate interference with individual liberty (as well as largely
unworkable) for the law to dictate to a private consumer whom to deal with or to question
him/her in this matter—organizers, public instigators and enforcers are another matter. I would
ordinarily be reluctant to call for limitations on the right to encourage otherwise lawful actions.
As previously argued, banning hate speech per se seems to be unduly restrictive. However, I
suggest that a prohibition against hate speech in conjunction with a call for identifiable groupbased
boycotts seems like a reasonable aspect of a broader compromise solution.
It must be emphasized that the advocacy, promotion, or expression of hatred against the
identifiable group is the sine qua non for this section to be applicable. Other forms of boycotts,
including politically motivated boycotts, are not intended to be covered by this section. As a
precaution, subsection (4) is included to guard against inappropriate application of this section,
although better drafting of that subsection and indeed of the entire section may be needed for
effective protection of freedom of expression.
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A provision similar to s. 318(3) of the Criminal Code should be included and state “no
proceedings under this Act shall be instituted without the consent of the Attorney General of
Canada.”