[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]:
[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:
[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:
[6] Section 27 of the Charter provides that
[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:
[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:
[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:
[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:
[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
[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.