D. Hate Speech

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The Criminal Code prohibits the communication of statements, other than in private conversation, that wilfully promote hatred against an identifiable group.56The purpose behind this prohibition is readily understood. In view of Canada’s multicultural and multiracial social

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fabric, Parliament considered it appropriate to take steps to ensure that the values of tolerance, equality, and non-discrimination are respected. But anti-hate speech laws are opposed by many advocates of free speech. While it is impossible to see any redeeming value in the utterances of the hatemonger, it is argued that such laws pose an unjustifiable risk to the competing value of freedom of expression. Race, religion, and cultural difference are important issues of public concern and often give rise to heated public debate. The issues are exceedingly sensitive, and some may take offence at what others regard as fair comment. Is it possible to identify with sufficient clarity and precision that which is truly unworthy and reprehensible without posing a significant risk to honest and vigorous debate?

In Keegstra,57a majority of the Supreme Court of Canada answered yes. All members of the Court agreed that, despite its message, hate speech does convey a meaning and therefore constitutes expression within the ambit of the Charter. Following the course it had laid out in Irwin Toy, the Court refused to exclude hate speech from the protection of the Charter on definitional grounds. It held that, if this form of expression was to be limited, the law had to satisfy the reasonable-limits test of section 1. All members of the Court also accepted the argument that the objective of the anti-hate speech law was sufficiently compelling to justify limiting a Charter right. Such a law is intended to avoid tangible harm in the form of feelings of humiliation and degradation felt by those targeted. Furthermore, it is designed to enhance a social climate of mutual respect and tolerance. Anti-hate laws, said the Court, were not only consistent with certain international obligations assumed by Canada but also enhanced other important and competing Charter values of equality and multiculturalism.

The judges of the Supreme Court divided, however, on the question of minimal impairment. A purposive analysis led the majority to conclude that the minimal-impairment test was to be applied less rigorously than in other contexts. While hate speech qualified as expression, in the majority’s view, it had to be recognized that hate speech was inimical to the values underlying freedom of expression. It was clearly false, thereby not attracting support from the rationale of the marketplace of ideas. And, while democracy depends upon free and open debate, hate speech denies equal dignity and respect, a precondition for genuine debate. Hate speech also attacks the autonomy rights of those who are its targets. From this perspective, the majority concluded that the anti-hate law could be justified as a minimal impairment of free-

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dom of expression. The law was, in the Court’s view, drawn with sufficient precision to avoid posing a threat to honest or worthy expression. It does not prohibit private communications, and the prosecution has to prove as an essential ingredient of the offence that the speech represents the wilful promotion of hatred on behalf of the accused. The accused is also afforded a number of defences, including truth; the good-faith expression of opinion on a religious subject; the reasonable belief in the truth of statements relevant to the public interest, the discussion of which is for the public benefit...

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