El concepto de familia como parte inherente del derecho de la persona de la persona

In the last two decades, an alleged violation of a provincial human rights law prohibition on conduct which promotes hatred or contempt towards identified groups has been resolved by way of quasi-judicial or judicial adjudication on 10 occasions. In five of these matters the complaint was upheld.³⁴⁸ At some time during the past 20 years the legislature in each of the provinces of western Canada has taken the decision that the conventional prohibition on discriminatory signs and symbols is inadequate as a legal mechanism for offering protection and an opportunity for redress to victims of hate speech, and that a wider legislative prohibition was needed. The model of hate speech regulation which currently operates in British Columbia, Alberta and Saskatchewan, and which was recently adopted in the Northwest Territories, appears to offer the promised enhanced protection, by applying to a wide range of methods of communication, and by extending to conduct which promotes hatred and contempt, as well as conduct which indicates discrimination.

However, in terms of evaluating whether the ‘hatred and contempt’ model of hate speech regulation offers more effective protection to target groups, it is necessary to look beyond the raw figure of a 50% complainant success rate in matters resolved by adjudication. Close analysis of the decided cases reveals that despite the appearance of a broader prohibition yielding higher quality protection, in practice, an ostensibly broad prohibition has been interpreted relatively narrowly so that its scope is less than might appear from the face of the legislation.

Certainly, there has been an expansion in the modes of communication covered by the prohibition, reflected in the fact that in the majority of the decisions examined above, the conduct in question was in the form of a newspaper opinion piece—a mode

347 Supra note 344. Having reached this conclusion, the Panel found it unnecessary to consider the second limb of the approach endorsed by Rooke J. in Kane 3, supra note 318.

348 Although in one of these cases (Kane 4, supra note 331.) the decision was overturned on appeal (Alberta Report v. Alberta (Human Rights and Citizenship Commission), supra note 342.).

of communication which was not covered by the traditional Ontario model. However, it is the other key dimension of the scope of a hate speech prohibition which has turned out to be less expansive than targets of hate speech might have hoped for: the harm threshold which must be satisfied before a complaint can be upheld. With a few exceptions, decision-makers in all jurisdictions have tended to establish a high hurdle that complainants must overcome in order to support a finding that the conduct in question was likely to expose members of the target group to hatred or contempt. This tendency towards the application of an elevated threshold has been manifested in various ways, but the overwhelming motivation for this approach has been the concern of adjudicators to limit the impact of hate speech prohibitions on the right to free speech.

The net result of this pattern (which, it must be said, has not been universally followed) is that, save for the fact that a broader range of methods of communication are covered by the legislation, it is doubtful whether the residents of British Columbia, Alberta and Saskatchewan enjoy a significantly higher quality of protection than their fellow Canadians in those provinces and territories which continue to rely on the traditional Ontario model prohibition on discriminatory signs and symbols.

5. CONCLUSION

This article has examined more than half a century of operation of provincial and territorial hate speech laws in Canada. This examination has confirmed that free speech sensitivity has long been an integral and enduring feature of the administration and interpretation of legislative regimes for the regulation of hate speech—a finding that should come as a shock to no-one. What is surprising is the way in which free speech sensitivity has impacted on the operation of hate speech laws, and the effects of that influence on the quality of the protection provided to victims by existing provincial and territorial laws.

As expected, the constitutional jurisprudence surrounding s.2(b) of the Canadian Charter of Rights and Freedoms has provided an important reference-point for the decision-making of provincial adjudicators in hate speech cases. However, constitutional protection of the right to freedom of expression has not resulted in the invalidation of provincial hate speech laws. Consistent with the principles and values

endorsed by the Supreme Court of Canada in Keegstra³⁴⁹ and Taylor,³⁵⁰ restrictions on hate speech in provincial human rights statutes have been regarded as a justifiable restriction on the right protected by s.2(b) of the Charter.

But it is important to recognise that this is not the end of the story of the influence of free speech sensitivity on provincial hate speech laws. One of the important threads which runs consistently, even if not universally, through the history of adjudication under provincial hate speech laws is a lingering unease about the legitimacy of legislative restrictions on the communication of ideas—even ideas of racism, homophobia or other forms of prejudice directed at a particular group. This unease has been manifested in the preference of a number of judicial and quasi-judicial decision-makers for a narrow construction of the scope of provincial hate speech prohibitions, particularly in those jurisdictions where the legislature has expanded the prohibition beyond the traditional, and reasonably innocuous, prohibition on discriminatory signs and symbols. Even in cases where this approach has been taken, some complainants have been able to satisfy the elevated threshold for establishing that the conduct in question was unlawful. However, in a numbers of cases, the direct effect of the raising of the legal threshold has been that the complainant, and the wider community which the complainant represented, have been denied legal redress. In terms of the more general and long-term impact, the tendency towards a narrow construction of provincial hate speech prohibitions in public adjudications sends a powerful symbolic message to the broader community about the practical breadth of the category of protected speech upon which hate speech laws should not be permitted to impinge.

This tendency towards a restrictive interpretation of hate speech prohibitions is not universal. Beneath this dominant thread is a counter-tendency, observable in a smaller number of cases, towards giving legislation a fuller or even expansive definition, without apparent concern for the consequences for freedom of expression.

In fact, one of the surprising findings of this study is that in a context where the jurisprudential landscape for the right to freedom of expression has been well developed, particularly in the past 10 years, there is still a notable amount of inconsistency and divergence amongst adjudicators with respect to central questions about how similar legislative restrictions on hate speech should be interpreted in light

349Supra note 3.

of Charter and free speech sensitivities. This finding demonstrates that it by no means follows that resolution of the legal (or constitutional) status of a set of values—in this case, ‘free speech’—will put an end to wider moral and political debates about the relative importance of those values.³⁵¹ These considerations may be regarded as

‘non-legal’, but there can be little doubt that they exert a strong influence on the decision-making process in the context of adjudications on alleged violations of hate speech prohibitions.

Free speech sensitivity has exerted a powerful influence on the operation (interpretation and application) of hate speech laws, with negative implications for the level and quality of protection afforded to those individuals and groups in Canadian society who suffer discrimination and other forms of harm by virtue of their identity.

This finding reveals that the practical relationship between the concept of ‘free speech’

(including legal rights, political values and rhetoric, and philosophical principles) and hate speech laws is not merely determined at the level of the Supreme Court of Canada’s Charter jurisprudence, but is constituted and reconstituted at the more modest and less visible level of quasi-judicial and judicial decision-making under provincial human rights laws.

One of the chief objectives of hate speech prohibitions in provincial and territorial human rights statutes is to draw a line between free speech which must be protected (or at least tolerated), and hate speech which must be outlawed and sanctioned because of its harmful effects. Such line-drawing exercises are never simple and almost always controversial. However, the extent of the uncertainty and controversy has been exacerbated in Canada by the multi-layered influences of free speech sensitivity described above, as well as ongoing differences amongst decision-makers regarding the legitimate scope of hate speech prohibitions. The net result is that the contours of unlawful hate speech in Canada are anything but sharp. On the contrary, the boundary between free speech and hate speech remains contested and fluid.

350Supra note 4.

351See Moon, supra note 13.