Underneath the Golden Boy - Robson Hall Faculty of Law

Hate Communication Restriction and Freedom of Expression 79
I have not used the word “publishes” or “broadcasts” in any of these
provisions, nor have I generally dealt with the issue of when (or if) a person
should be prohibited from publishing or broadcasting or otherwise facilitating the
communication of material other than his her own. More thought on this matter
may be desirable. However, care must be taken to avoid penalizing publishers or
broadcasters or other persons who do not share the intention of the original
communicator or knowledge of the content of the material. Furthermore, it is
necessary to avoid penalizing or restricting the publishing, broadcasting, or
reporting of the “hate” materials of others when this is done for legitimate
purposes, such as to expose hate-mongers to the public or to discuss the
problem. 149
Neither have I dealt with the issue of whether any in rem proceedings are
necessary to replace s. 320 of the Criminal Code, or if any materials of the nature
referred to would still have to be excluded from Canada under the Customs
Tariff. However, if still needed, in rem proceedings would have to be quite rare,
as the evil targeted in this proposed Act is (at least in most cases) not the
material per se, but the material in conjunction with the additional
circumstances referred to. Even the most virulent “hate” materials might be
needed for bona fide research, educational, and journalistic purposes, and indeed
have become part of “general knowledge.” 150 Not having any expertise in
computer science or technology whatsoever, I am not even attempting to offer
an opinion as to what, if any, provisions are needed to replace s.320.1 of the
Criminal Code concerning deletion of material from computer systems.
It might be worth considering whether an accused who is acquitted, or a
respondent who has been found not to have committed an “unlawful act”,
should be entitled to recover costs from the Crown. It seems unfair that a person
should suffer an onerous financial burden simply for doing what is found to have
been within a person’s constitutional rights. Furthermore, the prospect of facing
this burden could pose an additional “chilling” factor on those whose
contemplated expression could well prove legitimate. It could even be argued
that an accused or respondent in all cases brought under this Act should be
entitled to have counsel provided at public expense. This would not only avoid
preventing or deterring such a person from presenting a complete and effective
defence, it would help reduce the risk of setting an unduly repressive precedent
and would assist in the clarification of the law and the development of the
jurisprudence in this area. If society believes that it needs legislation that limits a
149
See Jersild v. Demnark (1994) 19 E.H.R.R. 1 (European Court of Human Rights).
150
See Braun, supra note 46 at p. 111 concerning the dilemma of whether or not a bookstore
should carry Mein Kampf.