E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 6 Number 2 (June, 1999) Copyright E Law and/or authors File: banks62.txt ftp://cleo.murdoch.edu.au/pub/elaw/issues/v6n1/banks62.txt http://www.murdoch.edu.au/elaw/issues/v6n1/banks62.html ________________________________________________________________________ Could Mom be Wrong? The Hurt Of Names And Words: Hate Propaganda And Freedom Of Expression. N Kathleen Sam Banks Contents * Introduction * Rationales for the Protection of Freedom of Expression * Limitations on Freedom of Expression * Hate Propaganda in Canada * The Effects of Hate Speech * Hate Speech and Sexual Orientation * Would the Inclusion of Sexual Orientation in the Hate Propaganda Provisions of the Criminal Code Infringe S 2(b) of the Charter? * Is the Addition of Sexual Orientation to the Hate Propaganda Provisions of the Criminal Code a Justifiable Limitation? The Section 1 Analysis. 1. Pressing and Substantial Objective 2. Proportionality a. Rational connection b. Minimal impairment of the s. 2(b) freedom of expression c. Proportionality between the effect of the measure and the objective of the legislation * A Few Words on Remedies * Conclusion * Notes Introduction 1. When Mom said that sticks and stones will break your bones but names [or words] will never hurt you, it's unlikely she had hate propaganda[1] in mind. While damage done by sticks and stones may be more readily apparent, the harm of hate reaches deeper and profoundly injures not only those who are the targets of the hate propaganda, but society as well. Attempts to counter the harm of hate through the mechanism of criminal law in particular arouse passion and controversy on both sides of the issue: it pits those who seek to regulate speech that harms against those who defend freedom of expression[2] as one of democracy's greatest necessities, a cornerstone without which a democratic society would wither and social and individual development would stagnate. But "freedom of speech or expression has never been absolute. It must...necessarily have regard to the corresponding freedoms of other persons."[3] Legislation regarding hate propaganda attempts to find a balance in the tensions between the freedom to speak one's mind and the freedom to be free from speech that is injurious to individuals and society. Because the issues give rise to deeply felt passions on both sides of the argument, the balance, if it ever can be found, will be an imperfect one. 2. Hate propaganda, as an exercise of expression, seeks to incite and encourage hatred and tension between different social and cultural groups in society. A "disreputable passion",[4] its very purpose is to inflame, to intimidate and to marginalize the individuals and community at which it is directed. It goes beyond commentary and opinion to the deliberate verbal and emotional attack of others based solely on their difference, perpetuating prejudice and stereotyping. The message is all the more traumatic and damaging because it is identity-based and directed at people for who they are. Hate speech serves to vilify and to undermine the dignity and self-worth of members of the target group and erodes Canada's constitutional commitment to equality[5] and multiculturalism.[6] 3. Gay men and lesbians are all too familiar with the impact of hate propaganda's campaign of exclusion. As individuals and as members of a community,[7] we are painfully aware that we are despised by some who articulate their hatred through expression calculated to divide, isolate and denigrate. Hate speech directed at gay men and lesbians can reach especially disturbing levels of vitriol and repugnance and reinforces the idea that we are deserving of antipathy and unworthy of respect and concern. 4. Yet gays and lesbians who seek redress from the harm of hate can find no relief in the Criminal Code's proscriptions against hate propaganda. Presently, the Criminal Code prohibits advocating genocide or publicly inciting hatred against members of an identifiable group defined as "any section of the public distinguished by colour, race, religion or ethnic origin."[8] Given Canada's constitutional commitment to multiculturalism, this is as it should be. There are, however, compelling reasons for broadening the prohibition against hate propaganda found in the Criminal Code to include other members of traditionally disadvantaged groups, a point contemplated at least as early as 1985.[9] It is not unrealistic to expect that the underlying reasons for protecting members of an identifiable group as found in the Criminal Code would apply to other groups who find themselves the target of hate propaganda. This is particularly true of those included within the equality provisions of the Charter, which, more than any other section of the Charter, "recognizes and cherishes the innate human dignity of every individual"[10] and promises "equality in the sense of freedom from the burdens of stereotype and prejudice in all their subtle and ugly manifestations."[11] Surely there are few manifestations of stereotype and prejudice as ugly as hate propaganda. 5. Sexual orientation is accepted as an analogous ground to those set out in s. 15 of the Charter and thus is included within the ambit of the equality rights provisions of the Charter.[12] It is time to consider including it within the hate propaganda provisions of the Criminal Code as well. Without the inclusion of sexual orientation, expression that is hate speech is of two standards: that which is acceptable against groups and individuals, and that which is not. Hate speech against gays and lesbians is seen as less significant and less reprehensible as that directed at individuals on the basis of their colour, race, religion or ethnic origin. These are not hypothetical considerations: gays and lesbians are subjected to hate speech on an on-going basis and are in need of serious concern and remedy. 6. I want to explore this argument of amending the Code by examining the nature of hate speech against gay men and lesbians in light of the protections offered by the hate propaganda sections of the Code. Focusing on the wilful promotion of hatred found in s. 319(2), I consider the harms caused by hate propaganda and the damage to community caused by intolerance, balanced against the rationales for freedom of expression. Further, I explore the relationship between hate speech and the principle of individual and group dignity and worth that finds particular resonance in the jurisprudence of sexual orientation equality rights cases, as well as in examinations of group-based harm articulated in obscenity cases.[13] Because any extension of this particular legislation represents a controversial encroachment into freedom of expression and will undoubtedly be the subject of a constitutional challenge, I examine the interplay between hate propaganda as set out in s. 319 of the Code and freedom of expression and s. 1 of the Charter.[14] At the same time, I also explore two very different approaches taken to the dynamics of freedom of expression and hate speech found within the jurisprudence of the Supreme Court of Canada on this issue. On the one hand is a focus on a communitarian or group right approach to freedom of expression as it relates to hate propaganda, as exemplified by Chief Justice Dickson's reasons in Keegstra. On the other hand is an emphasis on individual rights, supportive of what I refer to as a libertarian view of freedom of expression, as demonstrated by Justice McLachlin's dissenting opinion in the same case. These differing approaches will be examined as I work through the interplay between freedom of expression, hate speech and sexual orientation. Rationales for the Protection of Freedom of Expression 7. One of the more striking characteristics of writing and jurisprudence regarding freedom of expression and its limitations is the tendency to proceed directly to a consideration of the limitations on expression. Only in later commentary is there a discussion of the importance of the freedom in broad terms.[15] Before beginning an assessment of whether, when and how speech may be limited, it is helpful to outline the reasons why speech should be protected. This serves to bring freedom of expression into clear focus at the initial stages of the discussion and sets a more stable platform for a later inquiry into its possible limitation. 8. Four rationales are offered as justification for the guarantee of freedom of expression. These can generally be broken into two broad categories: those that posit freedom of expression as a means to other ends, and those that seek to justify freedom of expression as an end in itself. In the first category, sometimes referred to as the instrumental or political process model, the guarantee of freedom of expression is seen as essential to parliamentary democracy and government, which demands "the condition of a virtually unobstructed access to and diffusion of ideas."[16] The basis of this rationale is that "since speech is a part of the legislative process itself, any restrictions upon it would alter the democratic process."[17] Within this rationale, "political" speech or expression directly addressing or concerning the maintenance and operation of the institutions of democratic government is protected because it not only allows the free exchange of political ideas but also ensures that participation in the political process is open to all. Viewed in this manner, the connection between freedom of expression and the political process is seen as "the linchpin of the 2(b) guarantee."[18] This rationale is perhaps the narrowest of the instrumental principles underlying freedom of expression in that its scope is limited to political expression alone. This raises the question of what, exactly, qualifies as "political expression". That which directly speaks to the governmental process would qualify, as would expression of any political viewpoint. It remains unclear, however, at what point speech fades from "political expression" to something else, and whether that "fade" is (or should be) accompanied by a concomitant lessening of constitutional protection.[19] To attempt to draw distinct boundaries between speech that affects the political process and that which does not have such an effect seems an exercise that is difficult in the extreme.[20] 9. A somewhat broader instrumental rationale for the protection of freedom of expression is its role as an instrument of truth. It is argued that the truth can best be tested by the open competition of ideas in the marketplace of the public.[21] This rationale finds its foundation in the notion that the market from which ideas are considered for acceptance or rejection must be free to allow all ideas, whether popular or not and no matter how unpopular, and that any restrictions upon it compromises the free exchange of ideas necessary for democratic society. This is a broader justification for the protection of expression in that it encompasses not only political expression but also social, scientific, and artistic endeavours[22] and all other aspects of human knowledge.[23] The marketplace of ideas justification for constitutionally protected freedom of expression has been criticised on several fronts. First, the marketplace theory is premised on the notion of an informed, involved audience that will be able to sift through the rhetoric, reject unsound reasoning and recognise the truth when it arises.[24] There is, of course, no guarantee that this exercise will occur. Further, assuming that the audience does sift, reject unsound reasoning and recognise the truth, there is no guarantee that the truth will prevail, a possibility contemplated by both Chief Justice Dickson and Justice McLachlin in their reasons in Keegstra.[25] Indeed, Justice McLachlin acknowledges that "dangerous, destructive and inherently untrue ideas may prevail, at least in the short run."[26] Nevertheless, she says, that the truth may not always prevail should not diminish the role played by freedom of expression in the quest for truth,[27] underscoring the importance of an unfettered freedom to seek and promote ideas in a free marketplace. Second, there is the very problematic issue of whether there exists any one particular truth or version of the truth. This is an area that has been the subject of considerable debate and commentary, particularly within the context of ideology.[28] The basis for the constitutional protection of freedom of expression here rests on the argument that despite the impossibility of proving or disproving the truth of a particular idea, there is undeniable value in the ability to freely express ideas in the marketplace and that doing so promotes "a more relevant, vibrant and progressive society."[29] Third, there is the issue of access to the market in the first place: Laurence Tribe asks if we can be "sure that 'free trade in ideas' is likely to generate truth" when "the wealthy have more access to the most potent media of communication than the poor".[30] Taken a step further, Catherine MacKinnon criticises the marketplace as one inherently unbalanced and unequal which rewards the powerful, whose ideas ultimately become established as truth. She views restrictions on speech less as governmental action than as that of market forces: These days, censorship occurs less through explicit state policy than through official and unofficial privileging of powerful groups and viewpoints. This is accomplished through silencing in many forms and enforced by the refusal of publishers and editors to publish, or publish well, uncompromised expressions of dissent that makes them uncomfortable by challenging the distribution of power, including sexual power. Such publication decisions, no matter how one-sided and cumulative and exclusionary, are regarded as the way the system of freedom of expression is supposed to work.[31] 10. Access to the market can be limited or denied in other ways, as well: for instance, some may decline to speak out and contribute to the market due to intimidation and fears of abuse and condemnation and thus feel their participation is "chilled". This aspect goes to the very heart of issues surrounding hate propaganda and freedom of expression and will be explored in greater detail later. 11. Broader yet is the rationale that freedom of expression is seen as worthy of protection as an end itself. That is, free speech protects the "inherently good activity"[32] of seeking and attaining truth. This rationale probably comes closest to the notion that freedom of expression is so evidently and obviously important there is little need for its discussion, given the relative lack of analytical development and commentary on this particular point.[33] Justice McLachlin states that on its own, this justification is arguably too broad and too amorphous to found constitutional principle...Nevertheless, an emphasis on the intrinsic value of freedom of expression provides a useful supplement to the more utilitarian rationales, justifying, for example, forms of artistic expression which some might otherwise be tempted to exclude. [34] 12. The focus here is on the search for truth rather than its actual attainment. There can be little doubt that to seek truth is a good activity, given the personal and social consequences of not doing so. Freedom of expression is seen as worthy of protection as it provides the means by which the truth is sought, the essential precondition without which the search would be impossible. 13. Related to this last rationale and representing the broadest principle underlying the protection of freedom of expression is its role in the process of "personal growth and self-realization." [35] Unrestricted freedom of expression allows the greatest access to the ideas that contribute to human development and fulfilment in all aspects of personal and social life and the pursuit of knowledge, permitting us to communicate and reason with others. This principle is drawn widely enough to include not just speech but other aspects of communication such as art or dance.[36] Significant here is that communication is a process that engages and enriches both a speaker (or artist or dancer) and an audience. To restrict freedom of expression would diminish the development, fulfilment or advancement of knowledge and undercut "the diversity in forms of individual self-fulfillment and human flourishing [that] ought to be cultivated in a tolerant and welcoming environment".[37] Again, this rationale raises the question of how to differentiate between speech or communication that aids in human flourishing and that which does not. Much like the issue of whether one version of the truth exists, this is a difficult and likely unanswerable question. 14. Perhaps widest of all rationales for the protection of freedom of expression is what is often referred to in American jurisprudence as free speech absolutism. This holds speech sacrosanct on the basis that it is the foundation upon which all other democratic principles are built. Any intrusion into speech, then, represents an unacceptable erosion of fundamental values and interests, constraining political speech and participation, self-actualisation and personal development, the search for truth and so on. Thus, all speech must be protected and the good must be taken with the bad. The cure for so-called bad speech is more speech. Underlying this rationale are several assumptions that are open to question. The "free" in free speech may carry with it certain costs that are too great to bear for many. For instance, in the open market usually the person who can pay the greatest price wins the most speech. Further, the costs in terms of personal safety may limit in practice the speech you own in theory. Many people, when confronted with a racist group shouting racial abuse, would choose silence rather than attempt to engage in "debate" with the group. How much freedom is that? Finally, there is the very problematic assumption in free speech absolutism that all speech is on equal footing. MacKinnon offers this critique of the interplay between the free speech and equal protection guarantees in the United States Constitution: Both bodies of law [the First and Fourteenth Amendment] accordingly show virtually total insensitivity to the damage done to social equality by expressive means and a substantial lack of recognition that some people get a lot more speech than others. In the absence of these recognitions, the power of those who have speech has become more and more exclusive, coercive and violent as it has become more and more legally protected. Understanding that there is a relationship between these two issues - the less speech you have, the more the speech of those who have it keeps you unequal; the more the speech of the dominant is protected, the more dominant they become and the less the subordinated are heard from - is virtually nonexistent. Issues at the equality-speech interface are not framed as problems of balance between two cherished constitutional goals, or as problems of meaningful access to either right in the absence of the other, but as whether the right to free speech is infringed acceptably or unacceptably. Equality-promoting provisions on hate crimes, campus harassment, and pornography, for example, tend to be attacked and defended solely in terms of the damage they do, or do not do, to speech. At the same time, issues such as racial segregation in education, with its accompanying illiteracy and silence, are framed solely in equality terms, rather than also as official barriers to speech and therefore as violations of the First Amendment.[38] 15. Given the wide range of justifications offered in support of a guarantee of freedom of expression, it is unlikely that there is one definitive rationale that captures the diversity of speech or communication. Certain speech may naturally fall within the political process rationale, while artistic communication may lend itself to the human development principle or vice versa, while some speech may contain aspects of several differing principles. Other speech may defy easy categorisation and it is likely that theories of freedom of expression will continue to develop. Rather than adopt one overarching justification, it is preferable to maintain a flexible and fluid approach that is capable of accommodating a wide range of expression. In its summary of the reasons to protect freedom of expression, the Supreme Court in Irwin Toy contemplates a broad, expansive approach that subsumes the last two rationales into one larger justification that emphasises the diversity in ways in which self-realisation and flourishing may be achieved: 1. seeking and attaining the truth is an inherently good activity; 2. participation in social and political decision-making is to be fostered and encouraged; and 3. the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated....[39] 16. These, then, are the basic justifications underlying the need to guarantee freedom of expression. Having outlined the reasons for its protection, I now want to examine limitations on expression generally before moving to a more detailed discussion of the specific limitation of hate propaganda. Limitations on Freedom of Expression 17. It is acknowledged that freedom of expression is not absolute[40] and there is ample evidence of its limitation by legislative and judicial activity. For example, prior to the entrenchment of the Charter, a municipal by-law temporarily banning assemblies in Montreal streets was upheld,[41] the Supreme Court of Canada stating that the by-law was a proper exercise of the province's jurisdiction over local matters pursuant to s. 92(16) of the Constitution Act, 1867.[42] The Court declined to hold that the by-law was an infringement of freedom of expression, saying "demonstrations are not a form of speech but of collective action".[43] Similarly, the Supreme Court let stand Nova Scotia film censorship legislation by relying on provincial authority to legislate in relation to property and civil rights,[44] or, alternatively, as legislation in relation to local matters.[45] Post-Charter decisions upholding some limitations on expression cover a range of expressive activity. In the field of labour law, the Court in obiter recognised and protected the expressive element of picketing, but held that a limitation on secondary picketing would be a justifiable limit under s. 1 of the Charter as a means of confining the labour dispute to the principle parties.[46] Freedom of expression has been extended to the commercial expression of advertising, in this case aimed at children, but limitations upon it were upheld under s. 1 of the Charter on the basis that the protection of children, a particularly vulnerable group, was of sufficient importance to override freedom of expression.[47] Criminal legislation limiting expression is certainly no stranger on the Canadian legal landscape. The criminal law prohibition against communicating in a public place for the purpose of engaging in prostitution is prima facie an infringement of freedom of expression, but justified under s. 1 as a legitimate means of eradicating the social nuisance of street solicitation.[48] Obscenity,[49] while recognised as a form of expression, finds limitation on the basis that it is "perceived by public opinion to be harmful to society, particularly to women".[50] Further examples of Criminal Code prohibitions of forms of speech include proscriptions against sedition and seditious libel,[51] counselling a person to be a party to an offence,[52] counselling a person to commit suicide,[53] criminal harassment by repeatedly communicating with another person,[54] perjury[55] and criminal contempt of court.[56] Underlying this use of the criminal law to limit speech is the belief that the speech or expression at issue is, in some way, sufficiently harmful to individuals or society or both to warrant the use of the state's most powerful means of expressing disapprobation and controlling behaviour. It is to the particular harm of hate propaganda and the means used to address it that I now turn. Hate Propaganda in Canada 18. Prior to 1970, the Criminal Code did not contain any specific prohibitions against hate propaganda directed against racial, religious or ethnic groups, although there is a lengthy history in common law of attempts to legislate scurrilous and dangerous statements made about identifiable groups.[57] The need for specific legislative attention to hate propaganda in Canada arose in the early 1930s, when Nazi propaganda was distributed in various regions. The province of Manitoba responded to this with the enactment of the Libel Act[58] in 1933, which allowed members of a racial or religious group to apply for injunctive relief if libelled by a publication or speech that was "likely to expose persons belonging to the race, or professing the religious creed, to hatred, contempt or ridicule and tend[s] to raise unrest or disorder among the people".[59] In light of the revelations of Nazi atrocities and genocidal policies, the period after the Second World War saw considerable attention paid to the protection of human rights and the prevention of discrimination. Internationally, this led to the enactment of various legislative instruments including the Universal Declaration of Human Rights,[60] the Convention on the Prevention and Punishment of the Crime of Genocide,[61] and, with specific reference to hate propaganda, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination[62] and the International Convention on the Elimination of All Forms of Racial Discrimination.[63] Signatories of the Convention are required by Article 4 to enact criminal law prohibiting the dissemination of hate propaganda and organisations that incite racial discrimination.[64] Domestically, attempts were made by ethnic and religious groups to have prohibitions against hate propaganda included in the revisions to the Criminal Code in 1953, but Canada remained without a specific legislative agenda on the issue until the appointment in 1965 of a special committee to study problems associated with the spread of hate propaganda. The mandate of the Special Committee on hate propaganda in Canada (the Cohen Committee) was to study the general question submitted to it by the Minister [of Justice Guy Favreau]; to conduct its enquiries informally and briefly; and to submit a report to him surveying the nature and scope of the hate propaganda problem in Canada in all of its various aspects and to consider and prepare recommendations for its suppression and control, if such measures were deemed to be necessary.[65] 19. The Committee in its findings reported that although hate propaganda was not widespread[66] it nonetheless represented a serious problem in Canada[67] and that the existing criminal laws were inadequate to prevent and combat it.[68] The Committee recommended that legislation be enacted as the best means of preventing the dissemination of hate propaganda, while at the same time recognising the need to strike a balance between freedom of expression and the suppression of communication that is injurious to society or individuals: The prevailing view in Canada is that freedom of expression is a qualified right, representing the balance that must be struck between the social interest in the full and frank discussion necessary to a free and democratic society on the one hand, and the social interests in public order and individual and group reputation on the other hand.[69] 20. Thus, the Committee recommended[70] that Parliament enact legislation against the advocating of genocide (now s. 318 of the Criminal Code), the public incitement of hatred where it is likely to lead to a breach of the peace (now s. 319(1)), and the wilful promotion of hatred (now s. 319(2)) against members of an identifiable group distinguished by colour, race, religion or ethnic origin. Parliament's purpose in enacting s. 319(2) was to prevent the harm identified by the Committee caused by hate propaganda because of the message it imparts. 21. Hate propaganda is speech or other communication "intended or likely to create or circulate extreme feelings of opprobrium and enmity against a...group",[71] activities that are in direct conflict with the aims of an equality-seeking, multicultural society and indeed make the concept of equality and multiculturalism impossible to attain. The term "hate", obviously a major component of hate speech, describes an emotion at the extreme end of the spectrum, an intense, active detestation and malevolence "predicated on destruction".[72] To express hatred for another person or group "means in effect that one finds no redeeming qualities in the latter."[73] Hate speech can, it is suggested, "even lay the foundation for physical attacks upon persons or property."[74] Commenting on racial prejudice, social-psychologist Gordon Allport identifies five progressive stages of prejudice: antilocution, avoidance, discrimination, physical attack, and extermination.[75] Hate speech can be distinguished from ordinary opinion on the basis that hate propaganda seeks to incite and foment: opinion does not. Opinion is more closely related to legitimate good faith debate about public issues, rather than attempting to convince others to perpetuate inequality by engaging in discriminatory social practices. The Cohen Committee was of the view that hate propaganda could not be classified as sincere good faith debate concerning social issues because hate speech serves to subvert the truth rather than serving to attain truth - a primary goal of freedom of expression.[76] The last thing hate speech is intended to do is to foster a debate founded on good faith. Indeed, one of its primary purposes is to say to its targets, "Shut up": Hate speech is an integral part of white supremacists' campaigns. They use it to rally support, to cement solidarity, to threaten their victim - not to generate oppositional speech. Its purpose is to intimidate, humiliate, assault, and defame, but also, very importantly, to silence.[77] 22. The difference and focus of the speech, then, particularly in the context of s. 319(2) of the Code, which requires that the promotion of hatred be "wilful", is one of intent. The term "wilful", when used in relation to hate propaganda, is "satisfied only where an accused subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done in order to achieve some other purpose".[78] It is difficult to imagine the wilful incitement of hatred as being an act of good faith. The Effects of Hate Speech 23. The injury of hate propaganda is at least threefold: individuals exposed to hate speech suffer a loss of dignity and self-worth and belonging to the community; the targeted group suffers a loss of cultural identity and group reputation, and society as a whole is wounded by intolerance, divisiveness, the loss of the equal participation of all members of society and the erosion of Canada's social commitment to equality and multiculturalism. The effect of the wilful promotion of hatred against a person or group has been likened to the excommunication of that person or group from society,[79] a message to the affected party that they do not belong and that their presence in the community is intolerable. Hate speech persuades, nurtures and indoctrinates listeners to adopt prejudicial attitudes,[80] denying the target group equal status and the right to full participation in community life. It is calculated not only to harm those at which it is addressed, but to those it seeks to recruit as well: ...hate propagandists do not attempt to convince people of their views by rational argument. They are, instead, concerned first and foremost with action, with a concerted mass psychological reflexive response, and 'seek to short circuit all thought and decision. It [propaganda] must operate on the individual at the level of the unconscious. [The individual] must not know that he is being shaped by outside forces, [yet] some central core in him must be reached in order to achieve the cooperation and appropriate action the propaganda desires.' The purpose of this propaganda...is to prepare the person psychologically for action, 'to get him [or her] into condition for the time when he will effectively, and without delay or hesitation, participate in an action.'[81] [emphasis and annotations in original] 24. An effect of hearing such speech can cause the targeted individuals to take drastic measures in reaction, perhaps avoiding activities which bring them into contact with non-group members or adopting attitudes and postures directed towards blending in with the majority. Such consequences bear heavily in a nation that prides itself on tolerance and the fostering of human dignity, through, among other things, respect for the many racial, religious and cultural groups in our society. [82] 25. This pressure to renounce cultural differences that mark individuals and groups as distinct creates an environment that is scarcely conducive to human development and flourishing, self-fulfilment and the ability to make for oneself the life one desires. Exposure to the hatred, contempt and humiliation of hate propaganda leaves the target group members feeling like outsiders in their own country, inhibited from contributing to the extent of their desire and ability. The loss of this potential talent and ability threatens to deprive Canada of the skills and talents of those who feel excluded and unwelcome. Moreover, the animosity created by ignorance and hatred further exacerbates the divisions of a nation.[83] 26. There is the further danger that those to whom hate speech is directed will accept the prejudice, further damaging their self-esteem and dignity, or not speak out against the hatemonger and assert their own views due to fear of further attack, thus denying the target group members full participation in the democratic process. On the other hand, members of the group at which the hate speech is directed may respond aggressively to it with violence, further escalating social tension.[84] 27. Hate speech may be viewed as a type of violence, a position rejected by the Supreme Court in its majority reasons in Keegstra[85] but worthy of reconsideration. The rejection of hate propaganda as a form of violence stems from the Court's earlier decisions in R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd., where McIntrye J. held that freedom of expression does not extend to protect threats or acts of violence,[86] and Irwin Toy, where Dickson C.J., outlining a broad, inclusive approach to the question of whether expression falls within the protection of 2(b), stated: 'Expression' has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content...[I]f the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee". [87] 28. Dickson C.J. went on to formulate the exception that the Charter guarantee of freedom of expression protects all content of expression, but not all forms of expression: The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke freedom of expression in justification of the form of expression he has chosen [emphasis in original].[88] 29. Therefore, "[a]ctivity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct."[89] In Keegstra, the Chief Justice reasoned that the violence exception articulated in Irwin Toy only applied to "expression communicated directly through physical harm."[90] This, it may be argued, is too narrow an interpretation of violence and its impact on others. A broader definition of violence sees it as anything which prevents a person from developing his or her full potential,[91] thus encompassing more than direct physical harm and reaching verbal abuse and other forms of communication - including hate propaganda - that threaten individual or group security. Central to hate propaganda is communication made in a particular way at a particular time. That is, its content is significant not only for what is said, but the way it is said and the way in which it is intended to be received. While Dickson's approach in Irwin Toy and Keegstra ensures protection on the basis of content, the particular content of hate propaganda's message reaches the target group member or individual in a particular form. The message of hate propaganda can be received - as it is often intended as a coercive, deliberate attack upon those to whom it is directed: hate propaganda exhorting the killing of target group members will almost certainly be viewed by them as a violent or potentially violent act, and certainly something that threatens their security in a very real, intimidating and immediate way. Indeed, one of the very purposes of hate propaganda is to instil the type of fear this message conveys. If, as Justice McLachlin states in Keegstra, threats of violence are "coercive, taking away free choice and undermining freedom of action",[92] surely some forms of hate propaganda fall within this meaning when it urges murder and causes those it targets to fear for their safety and security, as it is intended.[93] Justice McLachlin considers violence and threats of violence to be beyond the scope of the protection offered by s. 2(b) because of the role violence - real or threatened - plays in "undercut[ting] one of the essential justifications of free expression - the role of expression in enhancing the freedom to choose between ideas (the argument based on truth) or between courses of conduct (the argument based on democracy)".[94] Hate speech threatening violence may be seen as a type of very real "symbolic violence" reminding target group members that their safety is ever in peril and reinforcing a "sense of being an outsider in society, a member of a disliked and devalued minority, and a socially acceptable target for violence."[95] In Keegstra, the Court was not presented with evidence of hateful speech advocating or promoting physical harm against others, and thus did not directly address this particular issue of hate propaganda as violence and its impact on target group members. When faced with hate speech advocating violent death, the Court may have cause to revisit the violent expression exception. Hate Speech and Sexual Orientation 30. The messages borne by hate propaganda are not unknown to gay men and lesbians. The idea communicated by such speech is that we are deserving of contempt and unworthy of respect, and that we have no rightful place in society. The purpose of hate speech is to foster ill will and hostility in society. It also serves to create, reinforce and perpetuate odious stereotypes of gays and lesbians as persons to be feared and loathed who are somehow responsible for many of the world's woes and thus legitimate targets of animosity. Those who are the targets of such speech suffer a deep sense of exclusion and loss of dignity on both an individual and group level because of the message that they are social outcasts or inferior citizens. 31. Canada does not lack for examples of hate propaganda regarding sexual orientation. Material promoting such enmity against gay men and lesbians is readily available in a number of formats, including telephone messages, printed material and videotaped messages, to name a few. A common theme among the material is the expressed desire for or depiction of the "elimination" of people on the basis of their sexual orientation. Typical of this is an illustration portraying a paramilitary team bursting through the doors of a clearly-identified gay men's health clinic and murdering those within, titled: "Introducing AIDS Raids...Doing What Must be Done!"[96] A telephone message recorded by the Canadian Liberty Net continues this theme: Hell, the ancient Celts used to take their queers and trample them into the peat bogs. That's not such a bad idea, maybe. Perhaps we have finally stumbled across the argument which will save the Burns bog in Delta from development because it is the only bog big enough to service the needs of the progressive city of Vancouver.[97] 32. A videotape of a Jerry Falwell television show available in Canada states, referring to the gay and lesbian March on Washington in 1993, "I mean, it would have been hard not to use napalm. You [referring to gay men and lesbians] send for my children. You want to sodomize and rape them and destroy them."[98] Roseanne Skoke, then-Canadian Member of Parliament stated in Parliament that "homosexuality is based on an inhuman act, defiles humanity, destroys families...and is annihilating mankind."[99] Gay men and lesbians are often portrayed as living "an incomplete and sordid lifestyle, totally absorbed by illicit sex".[100] Acquired Immune Deficiency Syndrome is frequently cited as a form of deserved retribution for the "sin against nature" of "the destructive lifestyle"[101] of homosexuality. The link between homosexuality and crime is a common one: Homosexuals are so depraved, so out of the will of God, that no act of lawlessness is beyond them!...The constant , willful [sic] practising of degrading, Godless acts of perversion has got to have an anesthetizing effect on the homosexual - until no laws mean anything.[102] 33. Canadian Member of Parliament and Reform Party Justice Critic Myron Thompson stated that "I don't hate thieves; I hate stealing. I do not hate murderers; I hate murdering. I do not hate homosexuals; I hate homosexuality."[103] The Nobel laureate who discovered DNA, the human genetic code, suggests that women be allowed to abort a foetus if the unborn child is found to be carrying the gene responsible for homosexuality. James Watson is quoted as saying that "parents have a moral responsibility to make sure their babies are born as healthy as possible". He further stated: Some day a child is going to sue its parents for being born. They will say: 'My life is so awful with these terrible genetic defects and you just callously didn't find out. Or, you knew and didn't do anything about it. Or, this disease was in the family and again you didn't do anything about it.'[104] 34. Implicit in these comments is the message that gay men and lesbians are genetically inferior, unhealthy, unworthy as human beings and certainly undeserving of any respect or dignity. Indeed, Ms. Skoke's statements that homosexuality is not only "inhuman" but "defiles humanity" are certain to ensure enmity and vilification in the eyes of the public and feelings of degradation, marginalisation and exclusion on the part of Canada's gay and lesbian population. The use of such terms as "inhuman" and "defile humanity" is explicitly dehumanising, calculated to degrade. Hate speech such as that outlined above reinforces stereotypes of gays and lesbians as socially undesirable, sexually aggressive child predators (among other things) deserving of society's fear and loathing and discrimination. In some cases, the discrimination encouraged is discrimination in the extreme, as evidenced by the quotations from Falwell, the Canadian Liberty Net and the depiction of the mass murder of men in the health clinic. There can be little doubt that these statements of hate speech are intended to elicit support from other like-minded thinkers, to encourage contempt for and discrimination against gay men and lesbians, and to remind gays and lesbians of their precarious safety in the community. These statements further serve to deny the gay and lesbian population as individuals and as a group the right to their dignity, equal status and full participation in society. 35. The Supreme Court of Canada early recognised that inherent human dignity is at the heart of individual rights in a free and democratic society.[105] A concern for individual and group dignity is found within the jurisprudence of equality rights cases and finds particular relevance in sexual orientation equality rights. In Andrews v. Law Society of British Columbia,[106] for instance, Justice McIntrye said It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.[107] 36. In striking down a British Columbia law excluding non-citizens from admission to the bar, Wilson J. added that non-citizens are "a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated."[108] Commenting on the grounds set out in s. 15 of the Charter, Rowles J. (as she then was) stated that "the purpose of s. 15(1) is to ensure that individuals falling within its ambit may participate fully in society"[109] and that the rights enumerated in [s.15] signify rights according human dignity. The respect for the individual person means respect for the unique and diverse character of every human person. This implies a large degree of tolerance within a pluralistic society.[110] 37. Justice L'Heureux-Dubé echoes this stance in her observation in Egan that "at the heart of s.15 is the promotion of a society in which all are secure in the knowledge that they are recognized at law as equal human beings, equally capable, and equally deserving."[111] 38. The strong condemnation of discrimination based on sexual orientation that formed the basis of the Supreme Court of Canada judgment in Vriend v. Alberta[112] furthers and strengthens this view. Writing for the majority,[113] Justice Cory said that the absence of sexual orientation from the list of proscribed grounds of discrimination in Alberta human rights legislation meant that gays and lesbians were demeaned as individuals and less worthy of protection.[114] While Vriend deals with an equality rights challenge to the lack of sexual orientation in human rights legislation, much of its analysis and commentary is helpful to the examination of sexual orientation and hate propaganda. Specifically, two themes emerge from this judgment that are central to the argument for adding sexual orientation to the hate propaganda provisions of the Criminal Code. First, there is clear affirmation here of the inextricable link between sexual orientation, lack of legislative protection, and damage to individual and group dignity and self-worth:[115] Perhaps the most important is the psychological harm which may ensue from this state of affairs. Fear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self-esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetuates the view that gays and lesbians are less worthy of protection as individuals in Canada's society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination.[116] 39. Secondly, there is unequivocal recognition that lack of legislative protection can be equivalent to tacit permission or approval to discriminate. Cory J. states that [t]he very fact that sexual orientation is excluded from the [legislation]...certainly suggests that discrimination on the ground of sexual orientation is not as serious or as deserving of condemnation as other forms of discrimination. It could well be said that it is tantamount to condoning or even encouraging discrimination against lesbians and gay men.... 40. The exclusion sends a message to all Albertans that it is permissible, and perhaps even acceptable, to discriminate against individuals on the basis of their sexual orientation. The effect of that message on gays and lesbians is one whose significance cannot be underestimated.[117] 41. These comments have particular resonance for individuals and groups at which hate propaganda is directed. Since a person's "sense of human dignity and belonging to the community at large is closely linked to the concern and respect accorded to the groups to which he or she belongs",[118] lack of protection leaves him or her vulnerable not only to the inference that this type of speech is acceptable, but to inadequate remedies for it as well. 42. Further support for the notion of protection against group-based harm may be drawn from the jurisprudence articulated in obscenity cases.[119] In R. v. Butler,[120] the obscenity provisions of the Criminal Code were challenged on the basis that they infringed freedom of expression. The Court found that obscene materials that had as a dominant characteristic the undue exploitation of sex served to degrade or dehumanise the people portrayed in it, usually women and children. In holding that restrictions on obscene materials were constitutional if used to promote sexual equality, the Supreme Court of Canada observed that the objective of the legislation...is aimed at avoiding harm... to individuals, groups such as women and children, and consequently to society as a whole... It thus seeks to enhance respect for all members of society...and equality in their relations with one another.[121] 43. Quoting the House of Commons Standing Committee on Justice and Legal Affairs, the Court identified the harm of pornography as specifically anti-equality: The effect of this type of material is to reinforce male-female stereotypes to the of detriment of both sexes. It attempts to make degradation, humiliation, victimization, and violence in human relationships appear normal and acceptable. A society which holds that egalitarianism, non-violence, consensualism, and mutuality are basis to any human interaction, whether sexual or not, is clearly justified in controlling and prohibiting any medium of depiction, description or advocacy which violates these principles.[122] 44. Thus the harm contemplated by the material in question is the production, conveyance, perpetuation and normalisation of harmful messages to society about individual and group worth, equality and respect. Harm in this context means that it predisposes persons to act n an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning.[123] 45. Moving from a morality-based analysis of obscenity to an equality-based one, the Court reinterpreted the harm of obscenity and the purpose of the legislation in terms of the Charter, and held that the avoidance of this type of harm justifies some restriction on freedom of expression. From this, some similarities may be drawn between provisions to promote sexual equality through proscriptions on obscene materials and those designed to limit the harm of hate propaganda. Indeed, this point is explicitly made by the Court: the message of obscenity which degrades and dehumanizes is analogous to that of hate propaganda. As the Attorney General of Ontario has argued in its factum, obscenity wields the power to wreak social damage in that a significant proportion of the population is humiliated by its gross misrepresentations.[124] 46. This notion of inequality as community harm was further discussed in Little Sisters Book and Art Emporium et al. v. Minister of Justice (B.C.)[125] as it moved its way up through the courts in British Columbia.[126] At issue was Canada Custom's seizure of lesbian and gay male pornography and the book store's assertions that the seizures infringed both freedom of expression and equality rights. The book store argued that the test for obscenity set out in Butler applied only to heterosexual pornography and thus had no application in this instance when measuring harm to the community. This argument was rejected at trial on the basis that the material seized by Canada Customs was seized because it was obscene, not because it was homosexual, and that the community standards test articulated in Butler obliged the Court to measure the harm to the community generally rather than the gay community specifically.[127] On appeal, however, there was disagreement on this point. While the majority agreed with the trial judge on this issue,[128] Finch J.A., in a dissenting opinion, expressed some doubt: it does not appear from the reasons that any of the seized material in Butler was directed at a homosexual market. All of the social science evidence referred to appears to have been comment upon heterosexual or child pornography. There is, in my view, therefore an open question as to whether homosexual pornography would meet the 'reasoned apprehension of harm' test discussed by Mr. Justice Sopinka.[129] 47. With respect to the idea of group-based harm as expressed in Butler, the trial judge in Little Sisters found that the legislation in question was concerned with protecting individuals and groups who may suffer harm as a result of its production and utilization. The protection is extended not only to those whom might suffer attitudinal and behavioural changes from exposure to obscenity, but to those persons and groups who might be harmed because of those changes and to vulnerable individuals and groups involved in its production.[130] 48. On appeal, the majority found little to add to this. Indeed, the majority deems the harm of obscenity to be settled by Butler, with what discussion there is of harm confined to the narrow issue of whether "pornography produced for a gay and lesbian audience is within the ambit of the Butler decision."[131] As mentioned above, the majority and dissent split on this point.[132] To the extent that the Court of Appeal does agree, the harm of obscene material is identified as the stereotyping and objectification of those portrayed in pornography and the anti-social behaviour engendered as a result of these stereotypes and objectifications, thus endorsing the equality-based foundation of the Butler reasoning. Drawing parallels between obscenity and hate propaganda jurisprudence, underlying both is the principle that speech that subordinates one group of people to another is harmful. Further, since people ought to be able to live free from discrimination, subordination, fear and harm, speech that harms in this way ought not to enjoy constitutional protection. 49. The degradation, dehumanisation and affront to dignity that undermine equality interests in obscene materials have common resonance in the harm of hate propaganda against gays and lesbians. Hate propaganda, like obscenity, severs the victim from the greater community and reinforces the notion of subjugation and social excommunication. This message is repeated over and over with every new instance of hate speech: ...[E]ach anti-gay episode sends a message of hatred and terror intended to silence and render invisible not only the particular victim, but all who are like him or her. The effect, then...is to deny gay people their full measure of equality, including the right to speak out, associate and assemble.[133] 50. Hate propaganda is not only an affront to individual dignity, it shatters communities and rends the social fabric with views that are antithetical to a constitutional commitment to equality and multiculturalism and their values of mutual respect and social harmony. 51. To a population already marginalised and subject to considerable enmity, the effects of hate propaganda can be devastating. Its purpose and message is to demean, debase and debilitate:[134] 52. It says to the recipient, "You are different," You don't belong here," "You are not as good as I am," You belong back...in the closet...silent...second class, or dead - as you were before."[135] 53. If one of the primary goals of anti-hate speech legislation is to "prohibit communications that are intended to promote hatred against identifiable groups",[136] that are injurious to society and individuals and that incite discrimination because of the messages they impart, then expression such as that outlined above which clearly targets gay men and lesbians ought to be included within the protection offered by s. 319(2) of the Code. Would the Inclusion of Sexual Orientation in the Hate Propaganda Provisions of the Criminal Code Infringe S 2(b) of the Charter? 54. Given the jurisprudence concerning the existing legislation and the significance and controversy of any encroachment on freedom of expression, it is expected that any addition to the groups set out in the anti-hate propaganda provisions of the Code would be met with a challenge to its constitutional validity. To submit a proposed limitation of a fundamental freedom to constitutional scrutiny is an especially necessary and proper process wherever the power of the State in the form of the criminal justice system may be levied against those who act contrary to its laws. In the particular case of hate propaganda and freedom of expression, the question of whether legislation trespasses upon s. 2(b) must be considered from the perspective of those who speak words of hate and thus imperil their liberty. 55. In Keegstra, the Supreme Court demonstrated it has strayed some distance from its initial rulings on its approach to constitutional interpretation. The language of Hunter v. Southam[137] and Big M Drug Mart[138] builds on early exhortations that a constitution should be given a generous, "large and liberal"[139] interpretation. Hunter v. Southam directs that the courts undertake a "purposive" approach to the interpretation of a Charter right, involving an attempt to determine the purpose of the right in question and an interpretation of that right which will include activity coming within the purpose and excluding that which does not.[140] This approach finds fuller expression in Big M Drug Mart, which directs that interpretation is to be guided by reference to the character and larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be...a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, [and therefore the Charter must] be placed in its proper linguistic, philosophic and historical contexts.[141] 56. This method would seem to require a thorough analysis of the nature of the guarantee in question in an attempt to define its scope. However, in Keegstra, Chief Justice Dickson, writing for the majority, abandons this purposive approach and offers only the most rudimentary examination of the scope of freedom of expression. He makes some broad, sweeping statements about the necessity of freedom of expression generally, noting that expression is crucial to a free and democratic society and its essential value in Canadian parliamentary democracy.[142] Then, attempting to articulate more precisely the values underlying freedom of expression, he recalls the Court's earlier judgement of Irwin Toy[143] where these values are summarised.[144] These values are rather perfunctorily stated, with little scrutiny or attempt to relate them directly to the issue of hate propaganda or to the values of democracy, truth or self-realisation identified in Irwin Toy. Instead, Dickson C.J. proceeds in a formulaic fashion through the two-step analysis developed in Irwin Toy to determine whether s. 2(b) has been infringed. First asking if the expression at issue is included within the scope of s. 2(b), he notes that the term "expression" as used in s. 2(b) embraces all content of expression regardless of its meaning or message (with the notable exception of violent expression, discussed earlier[145]). This allows the Chief Justice to easily reach the conclusion that hate propaganda is expression protected by s. 2(b) without reference to the stated values of freedom of expression.[146] The second part of the Irwin Toy test - examining the impugned government action to determine whether its purpose is to restrict freedom of expression - also presents few difficulties: indeed, there can be little doubt that Parliament's very purpose in enacting anti-hate propaganda legislation is to prohibit those communications which convey hatred against identifiable groups, and thus satisfies the second part of the test.[147] While the approach taken by Chief Justice Dickson may be large and liberal, it is far from the purposive approach to the interpretation of a Charter right developed in earlier cases. 57. Justice McLachlin follows a somewhat more elaborate path in her dissenting reasons, examining philosophical, historical and comparative rationales in developing her understanding of the values underlying s. 2(b), yet without really undertaking a comprehensive examination of the relationship between the values of freedom of expression and hate propaganda. Her reasons here focus more on affirming Irwin Toy's position that all expression, irrespective of content, is prima facie protected and that legislation aimed at curtailing expression will offend s. 2(b). She raises and readily deals with three arguments that hate propaganda should be excluded from the protection of freedom of expression: that hate propaganda is beyond the ambit of freedom of expression because it is the equivalent of violence and thus falls within the violent expression exception; that other Charter and international considerations militate against the inclusion of hate propaganda within the scope of s. 2(b), and that hate propaganda ought not be a part of freedom of expression because of its absence of redeeming value. Her reasons here are brief and largely unexamined: hate propaganda does not constitute threats "in the usual sense of that word",[148] nor actual or threatened physical violence, and thus cannot come within the violent expression exception;[149] other Charter and international law provisions cannot be used to cut back or deny expression on the basis of its content,[150] and to restrict or protect speech according to its perceived value or lack thereof requires an unsatisfactory and likely unanswerable determination of when and what speech has value. To restrict the guarantee of freedom of expression to speech "which is judged to possess redeeming value or to accord with the accepted values strike at the very essence of the value of the freedom, reducing the realm of protected discussion to that which is comfortable and compatible with current conceptions."[151] Having determined that hate propaganda is expressive activity that does not convey its meaning through a violent form, there is little left for Justice McLachlin than to declare that the purpose of the anti-hate propaganda legislation is to curtail what people may say, and thus the infringement of freedom of expression is established.[152] 58. What we are left with after both the majority and dissent analysis of the scope of the guarantee of s. 2(b) is a large and liberal discourse that leaves largely unexamined the underlying values of freedom of expression and how it relates to hate propaganda, preferring to leave such an assessment for closer scrutiny under s. 1. Strikingly absent in both judgements is any attempt to articulate why hate propaganda in particular should be protected. Rather than relying on broad statements that all expression regardless of content falls within the ambit of s. 2(b), it was open to the Court to follow a purposive approach and set out the reasons why, given the freedom of expression values of truth, democracy and self-realisation identified in Irwin Toy, the hate propagandist ought to be allowed to speak or write his or her views. In the case of hate propaganda against gay men and lesbians, as with the case of hate propaganda against any identifiable group, a purposive examination should begin with a consideration of how the values of freedom of expression are served by the expression in question. In other words, what is it about freedom of expression and its values that makes this speech important? 59. Hate propaganda should be protected within the ambit of s. 2(b) because, as expression, it has value both as an instrumental good in its exploration of truth and democracy and as an intrinsic good as an element of self-realisation. Communication is crucial to all these endeavours, and thus expression which conveys or attempts to convey a meaning, as HP does, ought to be within it. Those who engage in such speech seek to express the truth as it appears to them, to comment on and contribute to the political process, and to further knowledge and seek personal growth and development. As an instrument of parliamentary democracy, hate propaganda allows its adherents to participate in the democratic process by expressing their views in the open forum of political debate and persuasion and provides an opportunity for the free exchange of political ideas. Only in the "virtually unobstructed assess to and diffusion of ideas"[153] can free public opinion and open government flourish. Even if the speech at issue has no ultimate effect on the maintenance and operation of the institutions of government, its importance lies in being a voice added to the sum of voices heard. Thus, hate speech adds a view to the diversity of views expressed in the political arena. As an expression of a particular viewpoint, it is open to others to accept all of it, some of it or none of it, and its very nature encourages debate and discussion, enhancing the democratic process. To deny hate propagandists an opportunity to participate in open debate is to chill this expression in its natural environment. 60. Hate propaganda serves the interests of truth by offering its views in open competition in the marketplace of ideas. Here all ideas, regardless of popularity or probity, are set out for scrutiny, and to limit participation in this arena only to popular views serves to sanitise, subvert and suppress the truth rather than support it. Only when all ideas are exposed to the light of reason can judgements be made of their worth. Moreover, those to whom hate propaganda represents the truth as they see it ought not be denied the opportunity to promote it any more than those who seek it ought not be prevented from finding it. Hiding hate propaganda from scrutiny hardly serves the interests of truth. But beyond being an instrument of truth, hate speech also enhances the quest for the truth as an end itself. There is an intrinsic value in truth-seeking, quite apart from its attainment, that should be lauded, and if hate propaganda serves this end it ought to be viewed as important. Hate propaganda is thus seen as worthy of protection as it provides the means by which the truth is sought. 61. Related to this last point is the role hate propaganda plays, for the propagandist, in self-realisation and personal growth. This form of expression is integral in the search for development and fulfilment, the pursuit of knowledge and communication with others. The communication process here enriches not only the speaker but the listener: the expression of ideas and views central to the speaker's life or experience furthers his or her growth and development, while for the listener the information received aids in education, awareness and human flourishing. This advancement of ideas for consideration is the genesis of reasoned debate, discussion and personal growth. To deny both speaker and listener the opportunity to enrich themselves through this communication strikes at the core of freedom of expression. Restricting hate propaganda would diminish the diversity of human experience in the community and hinder individual self-realisation and potential. As such, hate propaganda deserves its place within the sphere of protected expression in s. 2(b). 62. Given that the Criminal Code proscriptions against hate propaganda necessarily seek to restrict freedom of expression, there is little doubt that the addition of sexual orientation to the hate propaganda provisions of the Code would infringe s. 2(b) of the Charter. It remains to be seen if this addition can withstand the scrutiny of a s. 1 analysis as applied to hate propaganda and freedom of expression. Is the Addition of Sexual Orientation to the Hate Propaganda Provisions of the Criminal Code a Justifiable Limitation? The Section 1 Analysis. 63. Two themes emerge from an examination of the s. 1 analysis as articulated in hate propaganda and freedom of expression cases. One is the tension between individual and group rights approaches to the rights and freedoms in question. A second theme is that rights protection affirms individual and group dignity and equality. The tensions here are hardly academic or hypothetical: this matters to those whose speech is limited as much as it matters to those at whom hate propaganda is directed; therefore any attempted resolution of the issue of hate propaganda and freedom of expression is likely to be unsatisfactory, a fact pointedly made by the divisions between the majority and dissenting judgments in Keegstra itself. Moreover, it will remain controversial. The challenge to legislation widening the proscription against hate propaganda directed at gays and lesbians cannot be expected to be any less so. 64. The s. 1 analysis requires application of the test first articulated in R. v. Oakes[154] that gives expression to the Charter's limitation clause.[155] This is an exercise of balancing the objectives and means of the legislation in question against the fundamental values and aspirations of Canadian society[156] that should be undertaken with some delicacy: While the rights guaranteed by the Charter must be given priority in the equation, the underlying values must be sensitively weighed in a particular context against other values of a free and democratic society sought to be promoted by the legislature.[157] 65. Further, commenting generally on the ideals that inform his understanding of a free and democratic society, Chief Justice Dickson in Oakes said that [t]he court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified.[158] 66. Depending on the factual context of each situation, these underlying values and principles will take on differing emphases and indeed differing degrees of importance. Thus, the s. 1 analysis will be a flexible and contextual application of the Oakes test to the particular facts of the legislation in issue. Pressing and Substatial Objective 67. The first of the Oakes criteria to be considered is whether the objective of the impugned legislation is of "sufficient importance to warrant overriding a constitutionally-protected right or freedom".[159] This is perhaps the most easily satisfied criterion of the Oakes test. In the context of hate propaganda, the objective of the legislation is to prevent the substantial harm that flows from hate propaganda and to reduce "racial, ethnic and religious tension"[160] in Canada. For reasons developed above,[161] the intent to reduce racial, ethnic and religious tension should now be considered too narrow in that it does not offer deserved protection against hate propaganda to gays and lesbians and the existing Criminal Code proscription should be appropriately amended. In the specific context of hate propaganda directed at gays and lesbians, such expression operates to deprive its intended targets of individual, group and community dignity and identity and further serves to harm society by creating and promoting serious discord between various social groups. Hate propaganda not only causes individuals significant psychological distress, but also pressure to renounce cultural and group identity and loss of self-esteem. Gays and lesbians are told we are not welcome in society, our worth and dignity is derided and others are encouraged in their prejudice against us. This latter point is particularly worrisome given the influence of hate propaganda on society at large. The Cohen Committee, observing the power of persuasion and communication, noted that o [w]hile holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstration of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. We know that under the strain and pressure in times of irritation and frustration, the individual is swayed and even swept away in hysterical, emotional appeals. We act irresponsibly if we ignore the way in which emotion can drive reason from the field.[162] 68. This is all the more significant given that "it is easier to arouse than to overcome distrust"[163] of other groups. The discriminatory message of the hate speech gains a level of credibility, rendering society a hostile, toxic environment for those who find themselves the target of the hate-propagandist's enmity. At the same time, the message also facilitates support for those who might want to act on the propagandists' exhortations and actively discriminate or level violence against gays and lesbians. This is a practice of inequality and a denial of dignity and self-worth that is antithetical to any free and democratic society and deeply offensive and injurious to any groups' sense of connection and belonging to the larger society. The intended message borne by anti-gay and lesbian hate propaganda is that we should not be given equal standing in society, that we are undeserving of equal concern and respect, and that we are unworthy of consideration, factors that in their positive expression stand as the hallmark of the equality guarantee[164] and underscore Canada's dedication to promoting equality.[165] For gays and lesbians, equality of concern, respect and consideration has long been elusive and through legislation prohibiting hate propaganda Parliament is "seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons".[166] As well as operating on the individual, the anti-equality message of hate resonates through society at large: "[h]ate propaganda seriously threatens both the enthusiasm with which the value of equality is accepted and acted upon by society and the connection of target group members with their community."[167] Viewed in this light, legislation prohibiting hate propaganda against gays and lesbians serves a pressing and substantial objective and thus passes the first hurdle of the s. 1 challenge. Proportionality 69. The themes of individual and group rights and dignity again emerge at this juncture and continue throughout the remainder of the s. 1 analysis. The proportionality aspect of the Oakes test requires an examination and consideration of the specific means employed to achieve the legislative objective at issue in an attempt to "balance the interests of society with those of individuals and groups".[168] Here, particularly, group and individual rights hang together and conflict, representing the deeply divergent approaches to the values and interests of freedom of expression and how they are served by hate speech. It is also at this point that Justice Dickson distinguished between speech that serves the core values of freedom of expression and that which is tenuously connected to the values underlying s. 2(b). Stating that it is "destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b)",[169] he returns to the values articulated in Irwin Toy of truth, self-fulfilment and participation in the political process and suggests that speech that strays some distance from this will be accorded less weight in the s. 1 analysis and that restrictions on speech of this nature might be easier to justify according to the s. 1 criteria.[170] This then set the context for his ensuing assessment of the proportionality aspect of the justification discussion. Rational connection 70. At issue here is "how well the legislative garment has been tailored to suit its purpose."[171] In order to be rationally connected to its objectives, the legislation must be "carefully designed to achieve the objective in question. [I]t should not be arbitrary, unfair, or based on irrational considerations."[172] In other words, is the legislative objective furthered by legislation in question?[173] In the context of the addition of sexual orientation to the hate propaganda provisions of the Criminal Code, the question to be addressed is whether this addition would serve to reduce the harm to individuals and society that flows from hate propaganda and that deprives its intended targets of individual, group and community dignity and identity. The danger here is that such a measure would not be carefully constructed to achieve its objective, that it is not an effective way of curbing hate propaganda against gays and lesbians, that it would impede its stated objective and thus would represent an unwarranted intrusion into the freedom of expression guarantee in s. 2(b). 71. Criminalizing anti-gay and lesbian hate propaganda is an effective and rational means of combating this form of speech in several respects. If one of the aims of anti-hate propaganda legislation is the protection of groups vulnerable to hate speech and to affirm and foster equality, dignity and social harmony among all in society, then protecting gays and lesbians from the particular harms of hate propaganda is a laudable goal. The use of criminal law brings the full force of the state's most powerful means of expressing disapprobation and controlling behaviour by "restricting activities antithetical to the promotion of equality and tolerance in society."[174] Moreover, inclusion within the Criminal Code prohibitions ensures gays and lesbians that Parliament considers crimes against us to be a serious matter and as significant and reprehensible as those directed against persons on the basis of their colour, race, religion or ethnic origin. While the prosecution of hate-mongers may well bring those persons short-term publicity and thereby promote their views via extensive media coverage, at the same time publicity and media coverage also serves to reinforce society's commitment to equality, dignity and multiculturalism and our collective disapprobation of hate propaganda. Justice McLachlin, in her dissenting reasons in Keegstra that illustrate her emphasis on individual rather than group rights, feared that prosecution of the hate-propagandist would bolster beliefs that the propagandist's views are valued and respected and that suppression of these views represented a martyring conflict between the individual and the state.[175] But it is argued that prosecution would no more engender sympathy for the hate-propagandist than it would for the murderer or pornographer. Further, fear that expression may be "chilled" by threat of prosecution cuts both ways: the hate-mongers may be chilled from spreading their views, but target group members may be chilled from fully participating in society due to the propagandists' views. This points to the difference in emphasis on group and individual rights. 72. Perhaps more problematic is the concern that amending s. 319(2) of the Criminal Code to include gays and lesbians will be ineffective in preventing anti-gay hate propaganda and thus fail to closely fit the purported legislative purpose. The continued presence of hate propaganda indicates that legislative proscription is not always successful in suppressing it. Does this mean that criminal legislation is ineffective and not rationally connected to its purpose? Many crimes continue to be committed despite their specific criminal law prohibition, yet remain in the Criminal Code as expressions of social disapproval and reprehension. The criminal law is but one method by which hate propaganda can be attacked, and it must be viewed within the overall context of our social commitment to equality and multiculturalism. Only after initial attempts at education and understanding have failed should the state's power of disapprobation and punishment be invoked. Parliament cannot make someone love their neighbour, but it can provide a remedy should the neighbour be injured by the other's actions. For society's gay and lesbian neighbours, shelter from the harm of hate propaganda has long been needed; amending the Criminal Code hate propaganda provisions to include this group serves the legislative purposes of protecting groups vulnerable to hate speech and affirming and fostering equality, dignity and social harmony among all in society. Minimal impairment of the s. 2(b) freedom of expression 73. Here the balancing of the interests between freedom of expression and anti-hate propaganda legislation and collective and individual rights is brought sharply into focus in the consideration of whether Parliament has infringed the Charter right "as little as is reasonably possible."[176] 74. Hate propaganda is protected within the guarantee of s. 2(b) because as expression it has value both as an instrumental good in its exploration of truth and democracy and as an intrinsic good as an element of self-fulfilment. Several arguments are offered in support of the contention that amending the Criminal Code to include anti-gay and lesbian hate propaganda within the proscriptions of s. 319(2) goes too far in trenching on these values and thus does not impair freedom of expression as little as reasonably possible. First is the argument that the phrase "wilfully promotes hatred" is vague and overbroad and thus capable of catching more expression than the legislation intends. Each word of this phrase contains elements that may prove problematic in interpretation. Where does speech that is intended to contribute to political and social debate end and promotion of hatred begin? Certainly this is problematic when freedom of expression serves to promote the unfettered and often heated debate that form the foundation upon which our democratic and political processes rest. Can it be certain that this distinction between debate and hate promotion can ever be found, particularly in the absence of evidence that speech has in fact engendered hatred towards gays and lesbians? Moreover, how can "hatred", a subjective emotive term, be proven, again in the absence of clear evidence? Perhaps the speakers are, with honest intent, attempting to foster public debate on a topic of social and political importance to them. This is, after all, an activity at the very centre of the values protected by freedom of expression. If among the central purposes of freedom of expression is the seeking of truth and the promotion of self-fulfilment, then legislation that has the potential to restrict these activities should be carefully drawn to capture only that speech that is intended upon the clearest of evidence to cause harm to gays and lesbians. 75. The second area of concern with respect to the minimal impairment aspect of the proposed legislative amendment is that the use of the criminal law is excessive and repressive given the availability of other, less oppressive means of achieving the legislative objective of reducing the harmful effects of anti-gay and lesbian hate propaganda and foster equality, dignity and social harmony. Given the prejudice of prosecution, a public trial and peril of imprisonment, criminal legislation should be reserved for those most egregious of acts against society where we wish to express our "collective disapprobation of certain acts and omissions".[177] Depriving a person of their liberty for what they say seems a harsh response in light of other less drastic means, and in particular the (potentially) less confrontational remedies found in human rights legislation that allow for a "conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim."[178] The role of human rights legislation is to affirm the fundamental underlying ideal that all members of the community are equally worthy and deserving of respect and dignity and to discourage and eliminate discrimination in a broad range of accommodation, facilities and services. The focus here is on the victim of the discrimination rather than on the perpetrator as it is in criminal law. This form of legislation seems more appropriate in addressing the issues and concerns raised by hate propaganda than does the heavy hand of the state in applying the "all or nothing approach"[179] of criminal law. Further, the use of a vaguely-worded and overbroad criminal law in this particular area of expression could have a chilling effect on "right-minded citizens [who] may curtail the range of their expression against the possibility that they may run afoul of the law."[180] Thus, too much speech could be caught in a net too poorly designed to be limited to specific expression. 76. Against this background is set the promotion of individual rights and liberties. Freedom of expression exists to allow individuals to pursue the truth as they see it, to participate in the democratic and political processes and to promote personal growth and self-fulfilment. There can be no greater intrusion in an individual's life than state intervention in the form of criminal law proscribing certain activities. Individual human creativity, flourishing and achievement would suffer in the harsh light of exposure to criminal prosecution for the quest for truth and the free flow of ideas essential to democracy. Indeed, even the less intrusive provisions of human rights legislation may have a chilling effect that may deter more conduct than can legitimately be targeted.[181] Further, this chill affects not only the speaker, but any potential audience as well: not only is the speaker prevented from speaking, but members of the audience are deprived of hearing views that may assist in their own self-realisation and search for the truth. Restricting speech demeans and devalues the individual and lowers that person's worth in the eyes of the community, with no evidence of how such a draconian restriction actually fosters or enhances social harmony. Indeed, it may instead foster community ill-will, distrust and suspicion, the very qualities hate propaganda legislation is intended to oppose: intolerance of the expression of the minority that does not conform to the views of the majority[182] seems a curious way to encourage community tolerance. Moreover, it is difficult to see how society can be deemed to be free if individual liberty is not. 77. Restricting the search for truth by prohibiting anti-gay and lesbian hate speech raises particular problems considering the difficulty of proving the veracity of certain ideas and statements. Given this difficulty, it seems dangerous indeed to prohibit expression that can neither be proven to be false[183] nor socially disharmonious.[184] The value of freedom of expression here lies not in proving or disproving the truth of a particular statement but in the ability to freely express and promote it and allow others to accept or reject it as they see fit. Moreover, how can it be proven that that statement has moved others to hatred? It may be difficult enough to ascertain the truth of a statement, let alone prove its impact upon listeners. Given these concerns and reservations, can it be said with certainty that seeking to prevent the promotion of hatred towards gays and lesbians by criminalizing anti-gay and lesbian hate propaganda impairs freedom of expression "to the minimum extent possible"?[185] For some, the legislation goes too far. 78. Or does it? Arguments supporting the constitutionality of including prohibitions of hate propaganda against gays and lesbians within the Criminal Code suggest that the use of the criminal law does not outweigh its legislative objective given the gravity of the interests at stake. Here a communitarian or group rights approach to freedom of expression and its values and rights protection as affirmation of individual and group dignity and equality in the face of hate speech may be found. 79. With respect to the legislation, there are several measures contained within the wording of s. 319(2) that are designed to catch only that expression that represents a serious attack on the community by wilfully promoting hatred. The legislation does not apply to private conversations; hence that speech which is not intended for public airing is not caught and thus the privacy of the individual is preserved. This distinction between public and private speech becomes more problematic when hate speech is expressed in public places. The mens rea requirement of the legislation requires that expression "wilfully promote hatred" against gays and lesbians. "Wilfully" in this context has been interpreted to mean "where an accused subjectively desires the promotion of hatred or foresees such a consequence as certain or substantially certain to result from an act done".[186] Thus the mens rea element requires that the speech at issue go some distance from mere negligent or reckless expression. Someone who does not foresee that their speech will promote hatred has not wilfully promoted hatred and thus escapes liability. Further, the element of "promotion" is necessary: this was found in Keegstra to mean "active support or instigation"[187] or "more than simple encouragement or advancement"[188] of hatred against an identifiable group. The limitation of hatred against an identifiable group ensures that hatred "against particular members of our society, as opposed to any individual"[189] is targeted. The element of "hatred", of concern to Justice McLachlin as a vague and subjective emotive term, must be understood "according to the context in which it is found"[190] and is restricted to include "only the most intense form of dislike",[191] an emotion of extreme "ill-will and [one] which allows no redeeming qualities in the person [or group] at which it is directed.[192] According to Chief Justice Dickson, there should be no conflict between the interpretation of the word "hatred" in the context of freedom of expression "so long as the interpretation...is fully informed by an awareness that Parliament's objective is to protect the equality and dignity of all individuals by reducing the incidence of harm-causing expression."[193] 80. This latter point raises the emphasis of group rights and dignity and equality that informs the values of freedom of expression and anti-hate propaganda legislation. For gays and lesbians who suffer the harm of hate that is articulated through hate speech, criminal legislation represents an important practical and symbolic affirmation that we are deserving of respect, dignity and protection and that messages antithetical to these values will not be tolerated. freedom of expression cannot promote the equality of all if it is intentionally used to denigrate the equality and worth of some. While there is a clear and undeniable benefit in truth-seeking and human flourishing through freedom of expression, where these are used to deliberately devalue members of society and so directly undermine our constitutional commitment to equality and multiculturalism, it is appropriate for Parliament to respond with serious measures. Individual human flourishing is thus set in tension with community flourishing: while the hate-monger is at least partially frustrated[194] in his or her self-realisation through anti-hate propaganda legislation, groups who have been the targets of hate speech are freed to develop unhindered by hate propaganda's campaign of exclusion. Again, this highlights the struggle between free speech, meaningful commitments to equality and the recognition that some speech is the very source of inequality:[195] 81. Participation and membership in critical institutions are essential to the development of both social values and the autonomous self. This participation must be free of domination and subjugation for the norms and values a society produces to be legitimate: the slave and master can apparently participate in dialogue, but they cannot together generate valid collective norms.[196] 82. That hate propaganda may be defended as true[197] or as contributing to a good faith debate on an opinion[198] or a matter of public interest or benefit[199] again points to the importance of context, perspective and balance. First, there is the very problematic issue, discussed above,[200] of whether it is possible to prove or disprove the truth of a particular statement. We would like to believe that hate propaganda statements are so obviously untrue as to warrant no further thought, but that does not end the matter. Assuming the truth of a statement can be proven, then the defence of truth provided in s. 319(3)(a) would allow the statement to escape liability irrespective of the harm it may cause, a Parliamentary acknowledgement of the crucial role of truth in freedom of expression values. Secondly, and equally troublesome, is the question of how to assess whether a statement made is "in the public benefit or interest". On the one hand, the public interest or benefit may be said to be the activity of engaging in free expression, and again there is undeniable benefit in free speech. If, however, the public benefit or interest is cast as a community free from the harm of hate propaganda, the issue becomes cloudier. Again, it is a matter of context and perspective. The statements must be viewed in the manner in which they are made: wilfully promoting hatred of a group seem some distance from a good faith attempt to engage in debate on an issue. Hate propaganda seeks to foment and incite public opinion against gays and lesbians and convince others to perpetuate inequality by encouraging and engaging in discriminatory social practices. This activity seems contrary to the values of equality the Charter seeks to promote. 83. Allied with these concerns is the potential for chilling expression that criminal prosecution represents. Yet hate propaganda represents a chilling danger for those at whom it is directed. This chill operates on several levels: it deprives gays and lesbians from open and fearless participation in community and society by its message that our presence in society is intolerable; it hinders personal growth and achievement by its message that we are abnormal, inhuman and loathsome and in encouraging others to believe this as well, and it causes us to renounce those differences that mark us as distinct in a manner that is scarcely conducive to any kind of human flourishing. Subjected to persistent hate propaganda, some will accept the prejudice, further deepening their sense of exclusion and denigrating their dignity. Hate propaganda is fundamentally anti-democratic in its calculated message of inherent inequality, intolerance, worthlessness and exclusion that "erod[es] the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality."[201] Hate propaganda chills target group members from any meaningful participation in society, thus requiring serious intervention if the commitment to group rights and dignity is to have any significance: To be hated, despised and alone is the ultimate fear of all human beings. However irrational [hate] speech may be, it hits right at the emotional place where we feel the most pain. The aloneness comes not only from the hate message itself, but also from the government response of tolerance. When...the courts refuse redress for [hate messages], and when...attacks are officially dismissed as pranks, the victim becomes a stateless person.[202] 84. As gays and lesbians vilified for who we are, we look to the legislatures to address the serious harms of hate propaganda by serious methods. 85. Some of those methods may include human rights legislation, which has much to offer in the efforts to fight hate propaganda. The federal government and all provinces have enacted legislation which prohibits certain forms of discrimination against a person or group by reason of their identification on the basis of a prohibited ground of discrimination.[203] Among these is s. 13(1) of the Canadian Human Rights Act, federal legislation prohibiting, as a discriminatory practice, repeated telephone communications tending to expose a person or group to hatred or contempt, the subject of the constitutional challenge in Taylor. Several characteristics distinguish human rights laws from criminal legislation. Human rights legislation is remedial in nature in its attempt to rectify current practices of discrimination and prevent future discriminatory practice. Commissions or boards established under the legislation provide for the investigation and conciliation of complaints between private parties and for adjudication if conciliation is not possible. These procedures are intended to be informal, inexpensive and less confrontational than criminal law and do not carry criminal law's burdens of mens rea and proof beyond a reasonable doubt. The focus here is on the victim of the discrimination rather than the discriminator, and where a finding of discriminatory practice has been found the remedy is geared towards compensating the victim rather than stigmatising the discriminator. 86. Human rights legislation has been used to combat hate propaganda in several instances. Where a finding of discriminatory practice has been made, the propagandist has been made to stop the discrimination,[204] pay a fine,[205] remove discriminatory signs and notices[206] and end recorded messages of hate.[207] Human rights laws proscribing hate propaganda as a discriminatory practice have been subjected to similar challenges for constitutional validity, as noted, and have been upheld on reasons that derive from the underlying principles articulated in the Criminal Code freedom of expression cases. A human rights-based approach to hate propaganda against gays and lesbians is in many cases appropriate because it focuses attention on the victim of the hate speech rather than the speaker, and thus examines the impact of the speech from the perspective of individual harm. This focus on the victim also casts the speaker of the hate propaganda as a violator of rights, rather than someone whose rights have been violated by criminal sanctions against his or her freedom of expression, thus depriving the hate propagandist of the role of martyr against the state.[208] Moreover, the civil standard of proof in the human rights process avoids potential pitfalls in interpreting the expressions "wilful" "promotion" of "hatred"[209] against gays and lesbians. 87. The focus of human rights legislation on remedial, conciliatory or compensatory redress between private parties presents victims of anti-gay and lesbian hate propaganda with both benefits and disadvantages. There is no doubt that in some instances the human rights remedy will provide appropriate relief and will be the avenue of choice for those who wish to avoid the more confrontational and onerous criminal law process. But in some instances there will be no possibility of conciliation between the parties and compensation will be an inadequate remedy for the damage done to the individual and community by the harm of hate. Hate propaganda arises in various forms and exists in various contexts, so it is important and appropriate that society have differing means of combating its menace that have a differing impact on freedom of expression: "s. 1 should not operate in every instance so as to force the government to rely upon only the mode of intervention least intrusive of a Charter right or freedom".[210] Where hate propaganda is part of a co-ordinated campaign to isolate, frighten and denigrate members of the community so as to deny them meaningful participation in society, it is right that Parliament respond with serious measures to ensure those who suffer the harm of hate that they are valued and respected and worthy of consideration. Thus, criminal prohibition remains a powerful and appropriate response to hate propaganda organised as a deliberate and calculated assault on group equality, dignity and worth. The sanction of criminal law should be reserved for the most serious offences against society where it is necessary to send a clear message that certain behaviour is repellent to the community good that cannot and will not be tolerated. Given the serious intentional damage inflicted upon society by hate propaganda, the use of criminal law to prohibit such speech against gays and lesbians to prevent its harm is not an unreasonable response and does not unduly impair freedom of expression. Proportionality between the effect of the measure and the objective of the legislation 88. Amending the Criminal Code to prohibit hate propaganda based on sexual orientation infringes freedom of expression. However, the effect of this infringement is outweighed by the importance of the legislative objective of combating hate speech against those who have suffered because of membership in an identifiable group. Here again individual and communitarian approaches to rights and freedoms conflict with one another in an assessment of the impact of the legislative measure. From an individual rights perspective, this infringement of freedom of expression represents a serious attack on the fundamental principles sustaining the democratic process, depriving the individual of the right to participate in political and social discourse, the ability to search for and promote the truth as it appears to them, and to further personal growth and development. Restricting freedom of expression damages a free and democratic society by chilling and diminishing the diversity of human experience and inhibiting a vibrant, creative society. Moreover, the anti-hate propaganda provisions of the Criminal Code have been criticised as being overbroad, vague and imprecisely drafted and thus catch more speech than is intended, absent cogent evidence that the legislation is in fact effective in preventing hate propaganda. These concerns, together with the availability of human rights legislation as a less intrusive means of achieving the objective, suggest that the weight of balance is tipped too far into an unjustifiable infringement of freedom of expression and thus cannot be sustained. 89. On the other side of the equation is the view that the suppression of hate propaganda and the affirmation of the equality and dignity of all members of the community are such serious legislative objectives in light of the danger of hate propaganda that the balance between objectives and measures is maintained. It has been argued that s.319(2) of the Criminal Code does not impair freedom of expression to the extent suggested by its critics.[211] Hate propaganda represents a serious threat to a free and democratic society through its messages calculated to divide, demean and discriminate. Individuals who are the target of hate speech lose their dignity, self-worth and sense of belonging to the community, the targeted group suffers a loss of cultural identity and group reputation, and society as a whole is damaged by its messages encouraging division, prejudice and intolerance. Equality and inherent human dignity are not tentative concepts: without protection from the harms of hate propaganda, these ideas themselves are demeaned and marginalised. On balance, our commitments to equality, multiculturalism and social harmony are enhanced rather than diminished by expanding s. 319(2) of the Criminal Code to include anti-gay and lesbian hate propaganda within its prohibitions. A Few Words on Remedies 90. The intent of this paper has been to argue for the inclusion of sexual orientation within the hate propaganda provisions of the Criminal Code. It is beyond the scope of this work to suggest exactly how this might be done. Nevertheless, a few observations may be made. In light of growing recognition of sexual orientation-based equality rights, the government would do well to take the initiative and simply make the amendment of its own volition, or perhaps in response to lobby efforts to do so. There is, of course, a certain political peril in doing so (just as there is political peril in not doing so). However, support for extending human rights protections for gays and lesbians - and protection against the harms of hate propaganda is certainly a human right - suggests this move could be supported.[212] 91. Failing governmental leadership or will, it is possible that the hate propaganda provisions of the Criminal Code will be subject to challenge on the grounds that the failure to include sexual orientation infringes the right to equality. Such a challenge would raise some of the same arguments and issues as those in Vriend, which challenged Alberta human rights legislation denying gays and lesbians protection from discrimination. Should the courts agree that hate speech against gays and lesbians is as harmful as that against those already included within the legislation, the courts may decide to exercise their remedial powers under the Charter's supremacy clause s. 52(1)[213] and read sexual orientation into the legislation, as was done in Vriend.[214] As with Vriend, there may well be an argument for considering and applying the remedial principles articulated by the Supreme Court of Canada in Schachter v. Canada.[215] Conclusion 92. Hate propaganda represents expression at its worst. Yet as expression it merits protection under s. 2(b) of the Charter. Difficulties arise when we consider what, if any, limitations we can impose on expression that injures and is contrary to the common good. It might be argued that any limitation is contrary to the common good because free expression is essential to a society founded on principles of parliamentary democracy and government and that any fettering of expression chills democracy, the search for truth and self-fulfilment. Or it might be suggested that democracy cannot exist where one group of individuals is permitted to openly encourage discrimination against another and therefore some limitation is necessary. To gays and lesbians subjected to hate speech in all its vigour and vitriol, the debate is hardly abstract and the harm of hate is not diminished simply by gays and lesbians being outside the presently protected target groups. The harm visited upon those at whom it is directed is three-fold: harm to the individual, harm to the group and harm to the community as a whole. Individual and group members who are the targets of hate speech are chilled and deprived of their opportunity to fully participate in society. A balance must be struck between freedom to speak and freedom from the harm of the words spoken. Freedom to believe is absolute, but "freedom to act upon one's belief is conditional and relative"[216] and may be restricted in the interests of society. 93. Ultimately, where that balance most comfortably rests will depend on which underlying values and perspectives on freedom of expression are most compelling. For those who find the libertarian or individual rights focus most persuasive, any limitation of expression is unwarranted and dangerous. Exposure to hate propaganda is one of the costs of a free and democratic society and it is always open to those who object to oppose it with their own views. Only in the free exchange of ideas, no matter how odious, can democracy and human development flourish. But expression that is antithetical to the values of equality, human dignity and respect, concern and consideration make democracy for those who are targeted impossible to attain. Moreover, to suggest that hate speech may be countered with more speech denies the significant harms of the hate propaganda, the difficulty in defeating its irrational claims, and the serious equality issues underlying the ability to speak and the right to be heard in the first place.[217] 94. Hate propaganda against lesbians and gays based on sexual orientation reaches astonishing levels of repugnance and malevolence and represents a serious threat not only to our sense of dignity and self-worth but to our security and well-being as well. Hate speech is intended to make us fearful, excluded, unwelcome and unwanted and deprive us of the social validity and visibility that is central to any meaningful existence. It is calculated to encourage contempt for and discrimination against us and to depict us as legitimate targets of animosity. Hate propaganda is not a act of casual indulgence: it is a deliberate, calculated attack on target group members for who they are. Should we decide that hate propaganda against gays and lesbians is a serious matter, it is appropriate to address it by serious means. If one of the goals of anti-hate propaganda legislation is to prohibit messages that injure and incite discrimination, it is right to include sexual orientation within the protection offered by s. 319(2) of the Criminal Code. Denying gays and lesbians the benefit of recourse to the Criminal Code as a means of countering the harm of hate creates a distinction in hate propaganda against differing groups in society that suggests that gays and lesbians, unlike the other groups set out in the legislation, are not worthy of protection. This exclusion is tantamount to condoning discrimination and hate propaganda against this group and represents a betrayal of the commitment of equality and dignity on an especially painful level: 95. The government's denial of personhood by denying legal recourse may be even more painful than the initial act of hatred. One can dismiss the hate groups as an organization of marginal people, but the state is the official embodiment of the society we live in.[218] 96. So could it be that Mom was wrong and that words can hurt you? Any attempt to balance freedom of expression with freedom from expression that injures is ultimately irreconcilable in the face of competing underlying values. If the expression that injures is prohibited by anti-hate propaganda legislation, the hate propagandist is chilled. If hate propaganda is permitted to continue its campaign of exclusion, target group members are chilled from equal participation in society. Either way, Mom can't be wrong when she advises to "bundle up, it's cold outside." © N Kathleen Sam Banks Notes [1] I use the terms "hate propaganda" and "hate speech" interchangeably, though "propaganda" arguably extends across a broader range of expression. The term "hate propaganda" is found in the Criminal Code of Canada, R.S.C. 1985, c-46 [hereinafter "Criminal Code"] as an umbrella phrase introducing two specific types of offences against the person, advocating genocide (s. 318) and public incitement of hatred (s. 319). It is not statutorily defined. I acknowledge the difficulty in defining this term, as pointed out by the Cohen Committee in its examination of hate propaganda, which stated it involves at least the "irrational and malicious abuse of certain identifiable minority groups" (Report of the Special Committee on Hate Propaganda in Canada, Ottawa: Queen's Printer, 1969) at 11 [hereinafter Cohen Committee]. Chief Justice Dickson (as he then was) in R. v. Keegstra, [1990] 3 S.C.R. 697, 117 N.R. 1, (1990), 61 C.C.C. (3d) 1, 1 C.R. (4th) 129, 3 C.R.R. (2d) 193, [1991] 2 W.W.R. 1, 77 Alta. L.R. (2d) 193, 1114 A.R. 81, 11 W.C.B. (2d) 352 [hereinafter Keegstra cited to C.C.C. (3d)] defined hate propaganda as communications "intended or likely to create or circulate feelings of opprobrium and enmity against a racial or religious group" (at 18). For reason I will develop, I find this definition too narrow. In general terms, "hate propaganda" refers to material that promotes hatred against minority groups. I will examine this phrase in greater detail later. [2] Freedom of expression is one of the fundamental freedoms guaranteed in s. 2 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11[hereinafter the Charter]: Everyone has the following fundamental freedoms: a. freedom of conscience and religion; b. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c. freedom of peaceful assembly; d. freedom of association. [3] R. v. Andrews (1988), 28 O.A.C. 161 at 183, 65 O.R (2d) 161 (Ont. C.A.) (further appeal to the Supreme Court of Canada dismissed, [1990] 3 S.C.R. 870, 61 C.C.C. (3d) 490, 77 D.L.R. (4th) 128, 1 C.R. (4th) 266, 3 C.R.R. (2d) 176, 47 O.A.C. 293, 117 N.R. 284, 75 O.R. (2d) 481n, 11 W.C.B. (2d) 353). See also Re Alberta Legislation, [1938] S.C.R. 100 at 133, [1938] 2 D.L.R. 81, sub nom. Reference Re Alberta Statutes, aff'd [1938] 4 D.L.R. 433, [1938] 3 W.W.R. 337, [1939] A.C. 117, [1938] W.N. 349, where Duff C.J.C. stated: * The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v. Commonwealth of Australia [1936] A.C. at 627, "freedom governed by law." [4] A. Fish, "Hate Promotion and Freedom of Expression: Truth and Consequences" (1989) 2 Can. J. Law & Jur. 111 at 128. [5] Section 15 of the Charter states: * Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. * Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [6] Section 27 of the Charter provides that * This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. [7] I am aware of the difficulty in specifying a "gay and lesbian community" and of the important theoretical work being done in the area of identity politics and equality rights that shows identity to be a complex, fragmented social construction. Nonetheless, I think it is possible to address a gay and lesbian identity, given that sexual orientation has been the subject of considerable jurisprudence and attention at least with respect to equality rights. For commentary on identity with respect to sexual orientation, see C. Stychin, "Celebration and Consolidation: National Rituals and the Legal Construction of American Identities" (1998) 18 Oxford J. of Legal Studies 265, R. Mohr, "The Perils of Postmodernity for Gay Rights" (1995) 8 Can. J. Law & Jur. 5 and K. Lahey, "Legal 'Persons' and the Charter of Rights: Gender, Race, and Sexuality in Canada" [1998] 77 Can. Bar Rev. 402. For discussions on identity in general, see, for example, M. Rosenfeld, ed., Constitutionalism, Identity, Difference and Legitimacy (Durham: Duke University Press, 1994) J. Rutherford, ed., Identity, Culture, Difference (London: Lawrence & Wishart, 1990), I. M. Young, Justice and the Politics of Difference (Princeton, N.J.: Princeton University Press, 1990), S. Lash and J. Friedman, eds., Modernity and Identity (Cambridge, Mass.: Blackwell, 1992) and N. Iyer, "Lessons of Difference: Feminist Theory on Cultural Diversity" (1990) 38 Buffalo L.R. 325. [8] The hate propaganda provisions of the Criminal Code read as follows: 318 1. Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. 2. In this section "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely, a. killing members of the group; or b. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction. 3. No proceeding for an offence under this section shall be instituted without the consent of the Attorney General. 4. In this section "identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin. 319 1. Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of a. an indictable offence and is liable to imprisonment for a term not exceeding two years; or b. an offence punishable on summary conviction. 2. Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of a. an indictable offence and is liable to imprisonment for a term not exceeding two years; or b. an offence punishable on summary conviction. 3. No person shall be convicted of an offence under subsection (2) a. if he establishes that the statements communicated were true; b. if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject; c. if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or d. if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada. 4. Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct. 5. Subsection 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section. 6. No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General. 7. In this section, "communicating" includes communicating by telephone, broadcasting or other audible or visible means; "identifiable group" has the same meaning as in section 31; "public place" includes any place to which the public have access as of right or by invitation, express or implied; "statements" includes words spoken or written or recorded electronically or electromagnetically or otherwise, and gestures, signs or other visible representations. [9] Report of the Parliamentary Committee on Equality Rights, Equality for All (Ottawa: Supply and Services, 1985) at 29. See also House of Commons Special Committee on Participation of Visible Minorities in Canadian Society, Equality Now! (Ottawa: Supply and Services, 1984), House of Commons Special Committee on Pornography and Prostitution, Pornography and Prostitution in Canada, Vol. 1 (Ottawa: Supply and Services, 1985) at 317-322, Law Reform Commission of Canada, Hate Propaganda [Working Paper 50] (Ottawa: Supply and Services, 1986), Recommendation 1 and see commentary p. 32 regarding the addition of sexual orientation, and J. Jefferson, "Gay Rights and the Charter" (1985) 43:1 U.T. Fac. L. Rev. 70. I have no explanation as to why sexual orientation was not added to the prohibitions against hate propaganda at that time, but can speculate: sexual orientation has, until relatively recently, been viewed by many in government as a difficult political issue best left to judicial action, if at all. It seems plausible that adding sexual orientation to s. 319 of the Criminal Code would have been seen as politically disadvantageous and thus left to others or for another time. Since that time, however, things have changed. An Angus Reid poll published 27 April 1996 indicated that 59% of Canadians supported the federal government extending human rights protection to gay men and lesbians (Angus Reid Interactive, 27 April 1996). This rise in public support for protection from discrimination for lesbians and gays could mean that it is now easier for many politicians to support equality measures without fear of political consequences. [10] Egan v. Canada, [1995] 2 S.C.R. 513 at 584, 124 D.L.R. (4th) 609, 186 N.R. 161, 29 C.R.R. (2d) 79, 12 R.F.L. (4th) 201, 95 C..L..L.C. ¶210-025, 55 A.C.W.S. (3d) 514, 96 F.T.R. 80n,Cory J. [hereinafter Egan, cited to S.C.R.]. [11] McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 387, 76 D.L.R. (4th) 545, 45 O.A.C. 1, 2 O.R. (3d) 319n, 118 N.R. 1, (1990), 91 C.L.L.C. 17,004, 13 C.H.R.R. D/171, 2 C.R.R. (2d) 1. [12] Egan, supra note 10 at 528. The Court was unanimous on this aspect of the decision. [13] The obscenity provisions of the Criminal Code include subsection 168(3), which states For the purposes of this Act, any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene. [14] Section 1 of the Charter: The 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. [15] For example, in his reasons in Keegstra, supra note 1 at 46 to 52, Chief Justice Dickson does not engage in a meaningful analysis of the principles underlying freedom of expression until the s. 1 stage, well along in the analytical process. Similarly, in R. v. Zundel, [1992] 2 S.C.R. 731, 75 C.C.C. (3d) 449, 16 C.R. (4th) 1, 95 D.L.R. (4th) 202 at 239 to 242 [hereinafter Zundel, cited to D.L.R. (4th)], an examination of these principles appears towards the end of the dissenting opinion of Justices Cory and Iacobucci. Both these judgments examine the circumstances under which speech may be limited before they examine the justifications for its protection. For further commentary on this topic, see R. Moon, "Case Comments: Drawing lines in a Culture of Prejudice: R. v. Keegstra and the Restriction of Hate Propaganda" (1992) U.B.C.L.R 99 at 104-105. While an argument may be made that the importance of freedom of expression is so evident that it requires little preliminary justification, I think it is analytically preferable to discuss the rationales for the protection of speech prior to examining the circumstances under which it can be limited. See also L. Weinrib, "Hate Promotion in a Free and Democratic Society: R. v. Keegsta" (1991) 36 McGill L. J. 1416 at 1418-1421 for a critique that to leave to the s. 1 stage a comprehensive examination of the principles of freedom of expression is contrary to the Supreme Court of Canada's "purposive approach" articulated in R. v. Big M Drug Mart Ltd [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321, 18 C.C.C. (3d) 385, [1985] 3 W.W.R. 481, 13 C.R.R. 64, 37 Alta. L.R. (2d) 97 60 A.R. 161 58 N.R. 81[hereinafter Big M Drug Mart, cited to S.C.R.]. [16] Switzman v. Elbling and Attorney General of Quebec, [1957] S.C.R. 285 at 358, 7 D.L.R. (2d) 337, 117 C.C.C. 129. [17] C. Beckton, "Freedom of Expression, s. 2(b)" in W. Tarnopolsky and G. Beaudoin (eds.),Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982) at 82. [18] Keegstra, supra note 1 at 49. [19] There is support in American jurisprudence for the position that only speech that is related to governmental activity is guaranteed: see A. Meiklejohn, "The First Amendment is Absolute" [1961] Sup. Ct. Rev. 245 and H. Kalven Jr., "The New York Times Case: A note on 'The Central Meaning of the First Amendment" [1964] Sup. Ct. Rev. 191 at 221. For arguments that this represents too narrow a view, see, for example, Z. Chafee, "Book Review: Alexander Meiklejohn's Free Speech and Its Relation to Self-Government" (1949) 62 Harv. L. Rev. 891, T. Emerson, "Toward a General Theory of the First Amendment" (1963) 72 Yale L. J. 877 and M. Redish, "The Value of Free Speech" (1982) 130 U. of Penn. L.R 591. These articles are cited as representative of a particular view of the limits of constitutionally protected expression. It is important to note the differing constitutional traditions between Canada and the United States, particularly in light of the significant role played by s. 1 of the Charter in Canadian jurisprudence. Indeed, the Supreme Court of Canada has specifically addressed this in R. v. Rahey [1987] 1 S.C.R. 588, 39 D.L.R. (4th) 481, 74 N.R. 81, 57 C.R (3d) 289, 33 C.R.R. 275, 78 N.S.R. (2d) 183, 33 C.C.C. (3d) 289 at 325, where Justice La Forest stated: While it is natural and even desirable for Canadian Courts to refer to American constitutional jurisprudence in seeking to elucidate the meaning of Charter guarantees that have counterparts in the United States Constitution, they should be wary of drawing too ready a parallel between constitutions born to different countries in different ages and in very different circumstances... [20] C. Beckton, "Freedom of Expression in Canada - how How Free ?" (1983) 13 Man. L.J. 583 at 588. [21] The marketplace analogy derives from Oliver Wendell Holmes' dissenting opinion in Abrams v. United States, 250 U.S. 616 at 630 (1919), where he said that the truth is found in "the power of thought to get itself accepted in the competition of the market". [22] Keegstra, supra note 1 at 48. [23] P. Hogg, Constitutional Law of Canada, 3d ed. (Toronto: Carswell, 1992) at 962. [24] A. Regel, "Hate Propaganda: A Reason to Limit Freedom of Expression" (1985) 49 Sask. L. R. 303 at 307. [25] Keegstra, supra note 1 at 48 and 79, respectively, and further developed by Justice McLachlin in her majority reasons in Zundel, supra note 15 at 263-265. [26] Ibid. [27] Ibid. [28] See, for example, discussions concerning the impact of ideology on viewpoint: G. Therborn, The Ideology of Power and the Power of Ideology (London: Verso Editions, 1980), C. Sumner, Reading Ideologies (London: Academic Press Inc., 1979), S. Gavigan, "Law, Gender and Ideology" in A. Bayefsky (ed.) Legal Theory Meets Legal Practice (Edmonton: Academic Printing and Publishing, 1988), A. Hunt, "The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law" (1985) 19 Law and Society Rev. 11, and S. Boyd, "Child Custody, Ideologies and Employment" (1989) 3 C.J.W.L. 111. [29] Keegstra, supra note 1 at 79. [30] L. Tribe, American Constitutional Law, 2cnd ed. (Mineola, N.Y. : Foundation Press, 1988) at 786. Harry Glasbeek poses a similar question with respect to freedom of the press in Canada: see H. Glasbeek, "Comment: Entrenchment of Freedom of Speech for the Press - Fettering of Freedom of Speech for the People" in P. Anisman & A. Linden, eds., The Media, The Courts and The Charter (Toronto: Carswell, 1986). For a review of freedom of expression in the context of freedom of the press that focuses on whose interests are being served by the idea of a free press, see W. MacKay, "Freedom of Expression: Is It All Just Talk ? (1989) 68 Can. Bar. Rev. 713. [31] C. MacKinnon, Only Words (Cambridge, Mass.: Harvard University Press, 1993) at 77. See also M. Wesson, "Girls Should Bring Lawsuits Everywhere...Nothing Will be Corrupted: Pornography as Speech and Product" in L. Lederer and R. Delgado, eds., The Price We Pay: The Case Against Racist Speech, Hate Propaganda and Pornography (New York: Hill and Wang, 1995), pp 246 - 247. [32] Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 at 612, 94 N.R. 167, 25 C.P.R. (3d) 417, 39 C.R.R. 193, 24 Q.A.C. 2 [hereinafter Irwin Toy, cited to S.C.R.]. [33] See Keegsta, supra note 1 for example, at 22 and commentary of Weinrib and Moon on this point, supra note 15. [34] Keegsta, supra note 1 at 80. [35] Tribe, supra note 30 at 787. [36] Hogg, supra note 23. [37] Keegstra, supra note 1 at 22. [38] MacKinnon, Only Words, supra note 31 at 72 - 73. See also pages 97 - 110 for her discussion of equality and expression as developed in the Canadian context. [39] Irwin Toy, supra note 32. [40] Supra note 3. [41] Canada (A.G.) and Dupond v. Montreal, [1978] 2 S.C.R. 770, 84 D.L.R. (3d) 240. [42] (U.K.), 30 & 31 Vict., c.3. [43] Dupond, supra note 41 at 797 S.C.R. Given the Supreme Court's later decision in Irwin Toy broadly defining expression to include "activity...if it attempts to convey meaning" supra note 30 at 968 , it is unlikely that such demonstrations - which clearly attempt to convey some meaning - would be beyond the protection of freedom of expression. [44] Section 92(13), Constitution Act, 1867. [45] N.S. Board of Censors v. McNeil, [1978] 2 S.C.R. 662 at 688 and 699. The legislation authorised the Board of Censors to ban films altogether, to make such cuts as it deemed appropriate and to set admission restrictions based on age, but political or religious censorship would have been beyond provincial authority. [46] Retail, Wholesale and Department Store Union v. Dolphin Delivery Ltd.,[1986] 2 S.C.R. 573, 33 D.L.R.(4th) 174, 71 N.R. 83, [1987] 1 W.W.R. 577, 9 B.C.L.R. (2d) 273, 38 C.C.L.T. 184, 25 C.R.R. 321, 87 C.L.L.C. 14,002. [47] Irwin Toy, supra note 32. There is a considerable body of commentary concerning commercial expression and its limitation under the Charter. See, for example, R. Shiner, "Advertising and Freedom of expression" (1995) 45 U.T.L.J. 179, L. Weinrib, "Does Money Talk ? Commercial Expression in the Canadian Constitutional Context" in D. Schneiderman, ed., Freedom of Expression and the Charter (Toronto: Carswell, 1991), R. Sharpe, "Commercial Expression and the Charter" (1987) 37 U. Toronto L.J. 229, Anisman and Linden, supra note 30, R. Moon, "Lifestyle Advertising and Classical Freedom of Expression Doctrine" (1991) 36 McGill L.J. 76. [48] Reference re ss. 193 & 195.1(1)(c) of the Criminal Code (Prostitution Reference), [1990] 1 S.C.R. 1123, 56 C.C.C. (3d) 65, 77 C.R. (3d) 1. [49] S. 163(8) of the Criminal Code defines as obscene "any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely crime, horror, cruelty and violence". [50] R. v. Butler, [1992] 1 S.C.R. 452 at 479, 70 C.C.C. (3d) 129. 89 D.L.R. (4th) 449, 134 N.R. 81, 11 C.R. (4th) 137, 8 C.R.R. (2d) 1, [1992] 2 W.W.R. 577, 78 Man. L.R. (d) 1, 16 W.A.C. 1. For commentary on Butler, see, generally, R. Moon, "R. v. Butler: The Limits of the Supreme Court's Feminist Re-interpretation of s. 163" (1993) 25 Ottawa L.R. 361, S. Noonan, "Harm Revisited: R. v. Butler" (1992) 4:1 Const. F. 12, I. Hunter, "R. v. Butler: Feminism Trumps Morality" (1993) 35 Crim. L. Q. 147, R. Kramer, "R. v. Butler: A New Approach to Obscenity Law or Return to the Morality Play?" (1993) 35 Crim. L.Q. 77 and J. Cameron, "Abstract Principle v. Contextual Conceptions of Harm: A Comment on R. v. Butler" (1992) 37 McGill L.J. 1135. [51] S. 59 Criminal Code. [52] Criminal Code, s. 22(1),(2). [53] Criminal Code, s. 241(a). [54] Criminal Code, s. 264. [55] Criminal Code, s. 131. [56] This is a common law offence against the court preserved by s. 9 of the Criminal Code, consisting of actions such as an attempt to disrupt the proceedings, an insult to the judge, a refusal to be sworn as a witness or a refusal to testify. The offence may also be committed outside the court by actions intended to obstruct the administration of justice. About the interplay between speech and certain activities, there is this: "Interestingly, once as a society we agree that a certain category of speech is harmful, we are likely to give it a label other than speech: e.g., 'stick 'em up' becomes robbery; shouting fire in a crowded theater [sic] becomes incitement to riot; speech violating a trademark is an intellectual property matter; and so on." L. Lederer and R. Delgado, eds., The Price We Pay, supra note 31 at 6. [57] For example, De Scandalis Magnatum (1275, 3 Edw. I, c. .34) prohibited the spreading of false statements or false news that would create discord between the king and great men of the realm. For an examination of the historical context of De Scandalis, see V. Veeder, "The History and Theory of the Law of Defamation I" (1903) 3 Colum. L.R. 546. See also F. Scott, "Publishing False News" (1952) Can. Bar Rev. 37, J. Kelly, "Criminal Libel and Free Speech" (1958) 6 Kansas L. Rev. 295, Starkie's Treatise on the Law of Slander and Libel , 3d ed. (London: Butterworths, 1869), W. Holdsworth, A History of English Law, vol. III (London: Sweet and Maxwell, 1966), J. Spencer, "Criminal Libel - A Skeleton in the Cupboard" [1977] Crim. L. Rev. 383, P. Belton, "The Control of Group Defamation: A Comparative Study of Law and Its Limitations" (1960) Tul. L. Rev. 299 and D. Fryer, "Group Defamation in England" (1964) 13:1 Clev.-Mar. L. Rev. 33. De Scandalis was abolished in England by the Statute Law Revision Act, 1887 (U.K.), 50 & 51 Vict., c. 59. It remains in the Criminal Code in Canada under s. 181 though it was held constitutionally invalid in Zundel, supra note 4. Examples of criminal prosecutions for group defamation include R. v. Osborne (1732), 2 Swans. 532, 36 E.R. 717, 2 Barn. K.B. 166, 94 E.R. 425, W.Kel. 230, 25 E.R. 584 (libel against a Jewish woman), Gathercole's Case (1838), 2 Lewin 237, 168 E.R. 1140 (libel against an Anglican cleric), R. v. Williams (1822), 5 B. & Ald. 595, 106 E.R. 1308 (a libel against the clergy of a diocese), Scott's Case (1778), 5 New Newgate Calendar 284 (false news of the declaration of war against France), R. v. Berenger (1814), 3 M. & S. 67, 105 E.R. 536 (K.B.) (spreading false news about the war with France). In Canada, cases concerning the spreading of false news and seditious libel include R. v. Hoaglin (1907), 12 C.C.C. 226 (N.W.T.S.C.) (false assertions that Americans were unwelcome in Canada), Boucher v. The King, [1951] S.C.R. 265 (publishing a seditious libel), R. v. Carrier (1951), 104 C.C.C. 75, 16 C.R. 18 (Que. K.B.) (conspiracy to publish a seditious libel) and R. v. Kirby (1970), 1 C.C.C. (2d) 286, 13 Crim. L.Q. 128 (Que. C.A.) (publishing a false statement). [58] S.M. 1934, c.23. Now the Defamation Act, R.S.M. 1987, c. D20. [59] S.M. 1934, c.23, s. 13A (now s. 19(1)). [60] 217 General Assembly, Third Session, Official Records, Part 1, Res. 217A(lll), A/810(1948). [61] (1948) 78 U.N.T.S. 278. [62] General Assembly, Eighteenth Session, Official Records, Res. 1904, Supplement No. 15, A/5515. [63] (1969) 660 U.N.T.S. 212. Canada signed the Convention on 24 August 1966 and ratified it on 14 October 1970. [64] Article 4 reads: * 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 and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention, inter alia: a. Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial hatred, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; b. Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; c. Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. [65] Cohen Committee, supra note 1 at 1. [66] An issue need not be epidemic to be serious: As the Cohen Committee stated at p. 25 of its Report (supra note 1), Canadians who are members of any identifiable group in Canada are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them. In a democratic society, freedom of speech does not mean the right to vilify. The number of organizations involved and the numbers of persons hurt is no test of the issue: the arithmetic of a free society will not be satisfied with over-simplified statistics demonstrating that few are casting stones and not many are receiving hurts. What matters is that incipient malevolence and violence, all of which are inherent in 'hate' activity, deserve national attention. However small the actors may be in number, the individuals and groups promoting hatred in Canada constitute a 'clear and present danger' to the functioning of a democratic society. [emphasis added] [67] Ibid. at 59. [68] Ibid. [69] Ibid. at 60. [70] Ibid. at 69-71. [71] Keegstra, supra note 1 at 18. [72] Ibid. at 59. [73] Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 at D/6469. [74] Law Reform Commission of Canada, Hate Propaganda, supra note 9 at 30. The violence, it should be noted, may come from either the proponents of hate speech or its opponents: hate propaganda may cause violent acts upon the individual or group at whom the hate is directed, or it may trigger a violent reaction from the maligned group or person. In this instance, the violence may be seen as a result of the law's failure to protect against hate propaganda. [75] G. Allport, The Nature of Prejudice (Cambridge, Mass.: Addison-Wesley, 1954) at 14-15. [76] Ibid. at 60. [77] L. Ross, "Hate Groups, African Americans, and the First Amendment" in The Price We Pay, supra note31 at 153. [78] R. v. Buzzanga and Durocher (1979), 101 D.L.R. (3d) 488, 49 C.C.C. (2d) 369, 25 O.R. (2d) 705 (C.A.) at 384-85. [79] Fish, supra note 4 at 129. [80] The Cohen Committee noted in its report that hate propaganda has the effect of encouraging other discriminatory practices, supra note 1 at 27, one aspect of Allport's escalating stages of prejudice, supra note 75. [81] L. Lederer, "Pornography and Racist Speech as Hate Propaganda" in The Price We Pay, supra note 31 at 134. [82] Keegstra, supra note 1 at 36-37. [83] Ibid. at 111. [84] See note 75. [85] Supra note 1 at 24-26 and 97-100. [86] [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174 at 187, 71 N.R. 83, [1987] 1 W.W.R. 577, 9 B.C.L.R. (2d) 273, 38 C.C.L.T. 184, 25 C.R.R. 321, 87 C.L.L.C ¶14,002. [87] Irwin Toy, supra note 32 at 968 S.C.R. [88] Ibid. at 968-69 S.C.R. [89] Ibid. at 969-70 S.C.R. [90] Supra note 1 at 26. [91] H. Ehrlich, "The Ecology of Anti-Gay Violence" (1990) 5:3 J. Interpersonal Violence 359 at 364. [92] Supra note 1 at 98-99. [93] See R. Moon, supra note 15 at 108-113 for a further discussion of the violent expression exception. He examines the analytical difficulties raised by the violent expression issue given the Court's lack of a clear account of the relationship between expression and the values associated with freedom of expression, as well as the problematic nature of determining whether violence as expression should be considered at the s. 2(b) or s. 1 stage. [94] Keegstra, supra note 1 at 99. [95] L. Garnets et al, "Violence and Victimization of Lesbians and Gay Men" (1990) 5:3 J. Interpersonal Violence 274 at 275. [96] White Aryan Resistance Newspaper, vol. 8, no. 2, p. 10 (undated as to year of publication). [97] McAleer v. Canada (Human Rights Commission) (1996), 132 D.L.R. (4th) 672 at 675. [98] J. Kennedy, "Christians advocate violence" Xtra West [Vancouver, BC] (14 December 1996) 9. [99] "Speaker Exits Robinson-Skoke Exchange", The [Toronto] Globe and Mail (1 October 1994) A3. [100] D. Hafer, Homosexuality: Legitimate, Alternate Deathstyle (Boise, Idaho: The Paradigm Company, 1986) 35. [101] R. Brunet, "Tired of celebrating an obsession" British Columbia Report [Vancouver, BC] (16 August 1993) 23. [102] Supra note 100 at 140. This same publication also claims that: "Mass or serial murders have increased sharply in recent years...while homosexuality has been given more 'approval'!" at 147. A remark attributed to an unidentified Alberta MLA continues this theme: "I feel that a chosen lifestyle, whether it's on drugs or whether you are a rapist or whether you are a homosexual is a choice in lifestyle." S. Miller, "Hoping for snow...Human rights in dinosaur land" Xtra West [Vancouver, BC] (no. 88) (26 December 1996) 13. [103] Egale [Equality for Gays and Lesbians Everywhere], Egale Submissions to the House of Commons Standing Committee, House Committee on Justice and Legal Affairs, re: Bill C-41 Hate Crimes, Ottawa (1994). [104] "Abortions okay if fetus has gay gene, scientist says" The [Vancouver] Sun (17 February 1997) A9. [105] R. v. Big M Drug Mart Ltd, supra note 15 at 336 S.C.R. [106] [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1, 25 C.C.E.L. 255 [hereinafter Andrews, cited to D.L.R.]. [107] Ibid. at 15. [108] Ibid. at 152. [109] Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 at 387, [1991] 6 W.W.R. 728, C.L.L.C. 17,023 (B.C.S.C.) Justice Rowles has since been appointed to the British Columbia Court of Appeal. [110] Ibid. at 382 B.C.L.R. [111] Egan, supra note 10 at 545. [112] [1998] 1 S.C.R. 493 [hereinafter Vriend, cited to S.C.R. paragraphs]. [113] The Court was unanimous in the opinion that s. 15(1) was breached by the omission of sexual orientation from the Alberta legislation, with Major J. dissenting in part with respect to the appropriate remedy. [114] Vriend, supra note 112 at para 102. [115] Ibid. and see paras 69 and 103. [116] Ibid. at para 102. [117] Ibid. at paras 100 and 101. See also paras 99 and 102. [118] Keegstra, supra note 1 at 36. [119] It is not my intention to engage in an analysis of freedom of expression as it relates to obscenity and pornography, itself an area of substantial academic investigation. Rather, I use some of the lessons of the obscenity jurisprudence in Canada to make some specific points by way of certain examples. [120] Butler, supra note 50. [121] Ibid. HTML print out 31. [122] Ibid. HTML print out 23. [123] Ibid. HTML print out 9. [124] Ibid. HTML print out 39. [125] Little Sisters Book and Art Emporium v. Minister of Justice (B.C.) (1996), 131 D.L.R. (4th) 486, 18 B.C.L.R. (3d) 241 at B.C.S.C., [hereinafter Little Sisters B.C.S.C. cited to B.C.L.R. paragraphs]. [126] For an insightful examination of the Little Sisters decision at the B.C. Supreme Court and an argument of how gay male pornography undermines sex equality, see C. Kendall, "Gay Male Pornography after Little Sisters Book and Art Emporium: A Call for Gay Male Cooperation in the Struggle for Sex Equality" [1997] 12 Wisconsin Women's L. J. 21. Kendall argues that gay male pornography undermines the equality interests of gay men (and all persons committed to sex equality) and advocates for an approach to pornographic harm that allows those harmed by pornography to bring a civil or human rights-based action against those responsible for their harm. See also C. Kendall "Real Dominant, Real Fun! Gay Male Pornography and the Pursuit of Masculinity" (1993) 57 Sask. L. Rev. 21, where Kendall argues against gay male pornography on the basis that it reinforces compulsory heterosexuality and male dominance and encourages violence in gay relationships. For an interesting gay male analysis opposing any restrictions on expression or speech, see W. Rubenstein "Since When is the Fourteenth Amendment Our Route to Equality?" (1992) Law and Sexuality 19. [127] Little Sisters, supra note 125 (B.C.S.C.) at para 136. [128] Little Sisters (B.C. Court of Appeal.) (24 June 1998), Vancouver, CA 021811 [unreported] at paras 73 to 82. Application for leave to appeal to the Supreme Court of Canada granted 19 February 1999. At the B.C. Court of Appeal, Mr. Justice Macfarlane stated that * Harm is not to be determined by the standard of the gay/lesbian community but by application of a general community standard. The question is not whether harm will be caused to the gay/lesbian community by the importation of obscene material, but whether harm to society generally may be caused by importation and proliferation of such material. At para 77. [129] Little Sisters (C.A.) at para 191. [130] Little Sisters (B.C.S.C.) at para 213. [131] Little Sisters (C.A.) at para 74. [132] Supra note 129. [133] M. Kazu Hiraga, "Anti-Gay and -Lesbian Violence, Victimization, and Defamation: Trends, Victimization Studies, and Incident Descriptions" in the Price We Pay, supra note 31 at 112. [134] L. Lederer and R. Delgado, The Price We Pay, ibid. at 17. [135] Ibid. at 17. [136] Ibid. at 25. [137] [1984] 2 S.C.R. 145, 11 D.L.R (4th) 641, 14 C.C.C. (3d) 97, [1984] 6 W.W.R. 577, 41 C.R. (3d) 97, 2 C.P.R. (3d) 1, sub. nom. Director of Investigation & Research of Combines Investigation Branch v. Southam Inc., 55 N.R 241, 55 A.R 291, 33 Alta. L.R. (2d) 193, 27 B.L.R. 297, 9 C.R.R. 355, 84 D.T.C. 6467. [138] Big M Drug Mart, supra note 15. [139] Edwards v. A. G. Canada, [1930] A.C. 124 at 136. [140] Hunter v. Southam, supra note 137 at 156 S.C.R. [141] Ibid. at 144 S.C.R. [142] Keegstra, supra note 1 at 21-23. [143] Supra note 32. [144] Supra pages 7 - 15 and accompanying note 32. [145] Supra pages 24 - 27. [146] Keegstra, supra note 1 at 23 - 24. [147] Ibid. at 24 - 25. [148] Ibid. at 98. [149] Ibid. [150] Ibid. at 100 - 104. [151] Ibid. at 107. [152] Ibid. [153] Switzman v. Elbling and Attorney General of Quebec, supra note 16. [154] [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321, 53 O.R. (2d) 719n, 50 C.R. (3d) 1, 19 C.R.R. 308, 65 N.R. 87 [hereinafter Oakes cited to C.C.C. (3d)]. [155] Supra note 14. [156] Keegstra, supra note 1 at 28. [157] United States of America v. Cotroni [1989] 1 S.C.R. 1469 at 1489-90, 48 C.C.C. (3d) 193, 42 C.R.R. 101, 23 Q.A.C. 182, 96 N.R. 321, 7 W.C.B. (2d) 301. [158] Oakes, supra note 154 at 346. [159] Ibid. at 348. [160] Keegstra, supra note 1 at 45 and Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R. 892 at 593, 75 D.L.R. (4th) 577, 13 C.H.R.R. D/435, 3 C.R.R. (2d) 116, 117 N.R. 191, 24 A.C.W.S. (3d) 311, where Dickson C.J.C. found that the objective of promoting equal opportunity unhindered by discriminatory practices based on race or religion was pressing and substantial [hereinafter Taylor, cited to S.C.R.]. [161] Supra pages 27 - 37 above. [162] Cohen Committee, supra note 1 at 8. [163] Supra note 4 at 131. [164] Andrews, supra note 107. [165] Keegstra, supra note 1 at 43. [166] Ibid. at 44. [167] Ibid. at 45. [168] Oakes, supra note 154 at 348. [169] Keegstra, supra note 1 at 47. [170] Ibid. at 51-52. [171] R. v. Edwards Books and Art Ltd. [1986] 2 S.C.R. 713 at 770, 35 D.L.R. (4th) 1, 30 C.C.C. (3d) 385, 55 C.R. (3d) 193, 86 C.L.L.C. ¶14,001, 28 C.R.R. 1, 71 N.R. 161, 58 O.R. (2d) 442n. [172] Oakes, supra note 154 at 348. For a discussion of the trend towards a standard minimal rationality, see R. Elliot, "Developments in Constitutional Law: The 1989-90 Term" (1991) 2 Supreme Court L. R. (2d) 83 at 142. [173] Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 at 250, 71 D.L.R. (4th) 68, 73 O.R. (2d) 128, 47 C.R.R. 193, 40 O.A.C. 241, 111 N.R. 161, 21 A.C.W.S. (3d) 958. [174] Taylor, supra note 160 at 597. [175] Keegstra, supra note 1 at 115-116. [176] R. v. Downey [1992] 2 S.C.R. 10 at 33. This phrase represents the reformulation of the "least drastic means" test to the "reasonable minimal impairment" test in which Parliament need not show the absolutely least intrusive means of achieving its legislative objective. See C. Dassios and C. Prophet, "Charter Section 1: The Decline of Grand Unified Theory and the Trend Towards Deference in the Supreme Court of Canada (1993) 15 Advocates' Q. 292 and R. Elliot, supra note 172 for a discussion of this move from a strict to a more relaxed standard for minimal impairment. [177] R. v. Morgentaler [1988] 1 S.C.R. 30 at 70, 44 D.L.R. (4th) 385, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 82 N.R. 1, 63 O.R. (2d) 281n, 3 W.C.B. (2d) 332. [178] Taylor, supra note 160 at 592. [179] Ibid. at 627. [180] Keegstra, supra note at 120. This fear was again raised by Justice McLachlin in her majority reasons in Zundel, supra note 15 at 274 in the context of spreading false news. [181] Taylor, supra note 160 at 628. [182] Zundel, supra note 15 at 266. [183] This difficulty of proving or disproving the falsity of statements was subject to considerable discussion by the Supreme Court in its judgment in Zundel, supra note 15. For a history of the Zundel proceedings (prior to the Supreme Court of Canada hearing), see G. Weimann & C. Winn, Hate on Trial: The Zundel Affair, the Media and Public Opinion in Canada (Oakville: Mosaic Press, 1986). For a closer examination of the Zundel decision, see B. Elman, "Combatting Racist Speech: The Canadian Experience" (1994) 32 Alta. L. Rev. 624 and B. Elman, "Supreme Court Upholds Hate Propaganda Law" (1991) 2 Const. Forum 86. [184] This relates to McLachlin J.'s observations in Keegstra, supra note 1 at 115-116 that there is no "strong and evident connection" that criminal prohibition in fact deters hate propaganda. [185] This phrase underscores Justice McLachlin's discomfort with the extent of the remedy in view of the seriousness of the right or freedom in question. She acknowledges in Taylor, supra note 160 at 628 that it would be inappropriate to conclude that impairment would not be minimum simply because the court "could conceive of an alternative way of legislating which seems to achieve the end desired with less impairment" [emphasis added]. Nevertheless, in her opinion where the legislation seriously overreaches its objective it will unjustifiably infringe the freedom in question and thus fail the minimal impairment aspect of the proportionality test of Oakes. [186] R. v. Buzzanga and Durocher, supra note 78. [187] Keegstra, supra note 1 at 58. [188] Ibid. [189] Ibid. [190] Ibid. [191] Ibid. at 60. [192] Taylor, supra note at 601. [193] Ibid. at 600. [194] The hate-monger remains free to advance his or her views in private conversations and thus be beyond the reach of the legislation's grasp. [195] C. Kendall, "The Gay 'Male' Syndrome: Gay Male Pornography and the Eroticization of Masculine Identity" in The Price We Pay, supra note 31 at 143. [196] j. powell, "Worlds Apart: Reconciling Freedom of Speech and Equality" in The Price We Pay, ibid. at 339. [197] Criminal Code s. 319(3)(a). [198] Criminal Code s. 319(3)(b). [199] Criminal Code s. 319(3)(c). [200] Supra, pages 10, 13 and 53 - 54. [201] Taylor, supra note 160 at 594. [202] M. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story" (1989) 87 Mich. L. Rev. 2320 at 2338. [203] The Canadian Human Rights Act, R.S.C. 1985, c. H-6; Alberta, Human Rights, Citizenship and Multiculturalism Act, R.S.A. 1990, c. 23; British Columbia, Human Rights Code, S.B.C. 1984, c. 22; Manitoba, Human Rights Code, C.C.S.M., 1987, H175; New Brunswick, Human Rights Act, R.S.N.B., 1973, c. H-11; Newfoundland, Human Rights Code, R.S.N., 1990, c. H-14; Nova Scotia, Human Rights Act, R.S.N.S., 1989, c. 214; Ontario, Human Rights Code, R.S.O., 1990, c. H-19; Prince Edward Island, Human Rights Act, R.S.P.E.I., 1988, c. H-12; Quebec, Charter of Human Rights and Freedoms, R.S.Q., c. C-12; Saskatchewan, Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1. [204] Canadian Human Rights Commission v. Taylor (1980) 1 C.H.R.R. D/47, aff'd supra note 160, Ross v. New Brunswick School District No. 15, (1991), 121 N.B.R. (2d) 1, 304 A.P.R. 1, 15 C.H.R.R. D/339 (board of inquiry), D.L.R. (4th) 259 (N.B.C.A.), aff'd [1996] 1 S.C.R. 825. [205] Taylor, ibid. McAleer, supra note 97. [206] Saskatchewan (Human Rights Commission) v. Bell (1994) 114 D.L.R. (4th) 370 (Sask. C.A.). [207] Taylor, supra note 204, McAleer, supra note 97, Khaki v. Canadian. Liberty Net (1993), 22 C.H.R.R. D/347 (Canadian Human Rights Tribunal), Canada (Human Rights Commission) v. Canadian Liberty Net [1992] 3 F.C. 155 (T.D.), Canada (Human Rights Commission) v. Canadian Liberty Net [1992] 3 F.C.A. 504. [208] Elman (1994), supra note 183 at 665. [209] Moon (1992), supra note 15 at 139. [210] Keegstra, supra note 1 at 65. [211] Supra pages 50 - 62. [212] An Angus Reid poll published 27 April 1996 indicated that 59% of Canadians supported the federal government extending human rights protection to gay men and lesbians (Angus Reid Interactive, 27 April 1996). [213] Section 52(1): The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. [214] For a discussion of the principles to be applied in reading sexual orientation into an underinclusive statute, see the majority judgment of Justice Cory in Vriend, supra note 112 at paras 129 to 179. The remedy of reading in sexual orientation to underinclusive legislation was also adopted in Haig v. Canada (1992) O. R. (3d) 495 (C.A.), where the Ontario Court of Appeal read the words "sexual orientation" into s. 3(1) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6. [215] Schachter v. Canada [1992] 2 S.C.R. 679. For an examination of constitutional remedies and judicial review, see, generally, K. Roach, Constitutional Remedies in Canada (Aurora: Canada Law Book, 1994), D. Beatty, Constitutional Law in Theory and Practice (Toronto: University of Toronto Press, 1995), D. Pothier, "The Sounds of Silence: Charter Application when the Legislature Declines to Speak" (1996) 7 Constit. Forum 113, P. Hogg and A. Bushell, "The Charter Dialogue Between Courts and Legislatures" (1997) 35 Osgoode Hall L. J. 75, and R. Khullar, "Vriend: Remedial Issues for Unremedied Discrimination" (1998) 7 N.J.C.L. 221. For a general discussion of Charter remedies, see P. Hogg, Constitutional Law of Canada (3d ) (Toronto: Carswell, 1992) 903 - 929. [216] Ross, supra note 204 at 110 D.L.R. (N.B.C.A.). [217] See, especially, MacKinnon on this latter point, supra, notes 31 and 38. [218] Matsuda, supra note 202 at 2379.