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Part I : Freedom of Expression and Freedom from Hate
Without freedom of expression, democracy and individual autonomy would be imperilled, and the media, literature and the arts would wither. This instrumental right makes other rights possible.
Freedom of expression is enshrined in section 2(b) of the Canadian Charter of Rights and Freedoms:
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication…
The Commission recognizes the vital importance of freedom of expression and its obligation to protect it. Parliament, the courts, and human rights commissions and tribunals have been scrupulous in ensuring that freedom of expression is protected and preserved.
As important as it is, freedom of expression is not absolute. Indeed, no right is absolute. The 1993 United Nations Vienna Declaration put it this way:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.3
Freedom, equality and dignity for all citizens of the world are the underlying goals of all human rights. That is why the Universal Declaration of Human Rights, the foundational document of human rights in the modern era, states at the outset that:
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
The modern conception of rights is that of a matrix with different rights and freedoms mutually reinforcing each other to build a strong and durable human rights system.
There is no hierarchy4 of rights with some rights of more importance than others. They work together toward a common purpose.
Human rights sometimes conflict. When they do it is up to legislators and courts to find the appropriate balance that best ensures the human rights and freedoms of all citizens. This principle is incorporated in section 1 of the Canadian Charter of Rights and Freedoms:
Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.The
Words and ideas have power. That power, while overwhelmingly positive, can also be used to undermine democracy and freedom. One classic argument in favour of unrestricted freedom of expression posits that in the battle of ideas, good ideas will inevitably win out over bad ideas. While good ideas gain sway over bad ideas most of the time, history tells us that this is not always the case.
Hateful words have the power to harm. They can isolate and marginalize our fellow citizens, not because of what people have said or done, but solely because of their personal characteristics, such as ethnicity, religion, race or sexual orientation. The targets of hateful words are seldom the powerful and secure. More often than not, hate is directed at people who, because of a history of discrimination, intolerance and prejudice, are already vulnerable. Hate messages compound the insecurities that many already feel, undermining feelings of self-worth and community.
Hate on the Internet The wonder of the Internet has been tarnished by hundreds of Web sites that spew hate. Using the Net, hatemongers can now reach into the room of any child who has a home computer. Their sites are often deceptive. Many attempt to disguise their message under a veneer of respectability. They use manipulation and lies to make their ideas sound almost reasonable. From the website of Teaching Tolerance, a project of the Southern Poverty Law Centre: www.tolerance.org |
In the debate about freedom of expression and freedom from hate, Canada’s commitment to equality lies at the centre. Just as section 2(b) of the Charter is central to our understanding of who we are as Canadians, so too is section 15, which guarantees equality before and under the law, and section 27, which requires that the Charter be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
In the Supreme Court decision in Taylor,5 Chief Justice Brian Dickson concluded:
Hate propaganda presents a serious threat to society. It undermines the dignity and self-worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality.6
By demeaning the "dignity and self-worth of target groups," extreme hateful expression denies the members of these groups equality before their fellow citizens and the law. In the Keegstra decision, the Supreme Court accepted the proposition "…that the public and wilful promotion of group hatred is properly understood as a practice of inequality…"7
When the Supreme Court upheld the constitutionality of section 13 in 1990, it did so, in part, because it concluded that extreme hateful expression added little to fundamental Canadian values that are essential to democracy.
That the values of equality and multiculturalism are enshrined in ss. 15 and 27 of the Charter further magnify the weightiness of Parliament’s objective in enacting s. 13(1). These Charter provisions indicate that the guiding principles in undertaking the s. 1 inquiry include respect and concern for the dignity and equality of the individual and a recognition that one’s concept of self may in large part be a function of membership in a particular cultural group. As the harm flowing from hate propaganda works in opposition to these linchpin Charter principles, the importance of taking steps to limit its pernicious effects becomes manifest.8
I am of the opinion that hate propaganda contributes little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged.9
International human rights instruments carefully protect freedom of expression but also provide limits on the most extreme forms of speech. Article 19 of the Universal Declaration of Human Rights states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
The Declaration also affirms, however, that the exercise of any right must be done in a manner consistent with the protection of other rights. This is specified in article 29(2) of the Declaration:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
Article 19, paragraph 2, of the International Covenant on Civil and Political Rights (ICCPR)10 builds on the principles of the Declaration by stating:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
And paragraph 3 of the same article also provides that:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Finally, article 20 the Covenant makes it mandatory for all state parties to enact legal provisions to protect citizens from the incitement to hatred and discrimination:
20(2) Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.11
Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) also specifically requires states to take active measures to combat racial hatred and discrimination.
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination . . .
In furthering these international obligations, most western democracies place some legal limits on hate speech.
3. Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights on June, 25 1993.
4. In the 1993 Dagenais case the Supreme Court acknowledged this principle in relation to the Charter: "A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, ... Charter principles require a balance to be achieved that fully respects the importance of both sets of rights." Dagenais v. CBC, 1994 CanLII 39 (S.C.C.).
5. Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, December 13, 1990.
6. Taylor.
7. R. v. Keegstra, [1990] 3 S.C.R. 697.
8. Taylor.
9. Taylor.
10. Canada ratified the ICCPR in 1976 and the International Convention on the Elimination of All Forms of Racial Discrimination in 1981. In both cases Canada did not enter any reservations with regard to the provisions noted above.
11. In 1983 John Ross Taylor brought a complaint to the United Nations Human Rights Committee, the body that monitors the implementation of ICCPR, alleging that section 13 was contrary to the article 19 guarantee of freedom of expression. The Committee concluded that section 13, consistent with article 19, prohibits the type of expression targeted by Article 20(2): ``…the opinions which Mr. Taylor seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit.” Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983).
