After reading R. v. Keegstra one might assume that protecting “identifiable groups” from hate communications is an objective maintained through all levels of government and their subsidiary agencies. For we live in a country that prides itself in free expression.
Our highest Court acknowledges that hate speech laws are justifiable to the extent of limiting this Charter right. Further, this form of governmental regulation expresses “our society’s collective disapprobation” that is “harmful to target group members and threatening to harmonious society.”
However, target groups and ethnic communities in particular, neither have the means, legal representation or money to pursue such a charge against large-scale media conglomerates, who, more often than not, are the assailants spreading such propaganda.
In addition to criminal proceedings there are other remedies that target groups may pursue. The following is a brief overview of the legal and non-legal remedies to combating discriminatory publications.
After that, a comparison is made between the Ontario and British Columbia Human Rights Commissions. Interestingly, the BC Human Rights Code contains provisions that are absent in Ontario’s Human Rights Code which are more generous to target groups.
The absence of such provisions makes it nearly impossible for Ontarians to seek any remedy through this avenue.
Remedial Avenues
1. PROFESSIONAL ASSOCATIONS / PRESS COUNCILS
· Generally: impartial third party groups supported by the journalism and media industry to provide a forum for reader complaints.
· Features: Provide guidelines on professional standards of journalism and have the power to censure journalists and newspapers when they do not abide by guidelines.
· Problem: Membership in Press Councils is voluntary; the primary published of discriminatory material do not subscribe
· Conclusion: Ineffective against the primary organizations engaged in publishing discriminatory material targeting identifiable communities.
2. HATE SPEECH LAWS
· Features: Criminal onus of guilt (beyond reasonable doubt) must be satisfied·
Additional Requirement: Consent of Attorney General required for prosecution
· Problem: Very difficult successfully prosecute a media organization for a discriminatory publication targeting an identifiable community; constitutionality of hate speech laws is not beyond doubt.
3. CIVIL (DEFAMATION) LAW
· Problem: No recognition of Community Defamation ® No remedy exists at civil law
4. HUMAN RIGHTS CODES
a. Ontario Human Rights Code (HRC):
· Limitation: Does not cover discriminatory publications targeting identifiable communities
· Conclusion: Provides no remedy for discriminatory publications targeting identifiable communities.
· S. 13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.b.
b. British Columbia Human Rights Code (HRC):
· Scope: Include publications in newspapers and magazines that target an identifiable community.
· Conclusion: Provides an effective and affordable means of accountability for publishers of discriminatory material targeting identifiable communities.
· S. 7 (1): A person must not publish, issue or display … any statement, publication, notice, sign, symbol, emblem or other representation that (a) Indicates discrimination or an intention to discriminate against a person or a group or class of persons, or(b) Is likely to expose a person or a group or class of persons to hatred or contemptbecause of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or that group or class of persons.
CONCLUSION
In Ontario, it is possible to publish discriminatory material targeting identifiable communities with no significant legal consequences.
Over the last couple of weeks, I’ve read much about the recent human rights complaints by various parties against Maclean’s magazine and its publishers (I say read because I am a luddite not having television of any description). As a former practising human rights lawyer, I have an interest in this issue, raising as it does issues of discrimination, hate laws, and freedom of the press and of expression. A few comments if I may be allowed to express them here.
Some of the problems as you describe them above with respect to hate speech laws and press councils are, with respect, not problems at all, but necessary limits on the ability of individuals, groups and organizations to make complaints. I am not aware of any form of court or tribunal that does not allow for the summary dismissal of complaints of a frivolous or vexatious nature.
Hate laws, being laws, must bring a standard of proof of that beyond a reasonable doubt. There can be no separate standard simply because of the level of difficulty of proving an allegation. It is difficult to prove murder, sexual assault and theft, and we as a society want to prevent these crimes. Hate crimes as defined are despicable, but with respect, no more so than those I’ve listed. Hate crimes must therefore continue to have a high standard of proof, or our criminal justice system has no meaning.
Press councils are voluntary. Given that publishing is a voluntary act, I am not surprised to see that organizations concerning the proper civil rules of publishing are also voluntary. Insofar as the state has a role in governing publishing as an industry, labour laws, criminal law, tax laws and, dare I say it, human rights laws are sufficient in my mind. I do not want the state setting out specific standards of what is and what is not “appropriate” for publishing, any more than I want the state setting out what is or is not appropriate political or religious belief or expression.
As a lawyer of some 9 years post-call experience, I am concerned with the level of discourse on this site. I have registered with my real name in order to be able to comment, and hope and trust that my comments will be received in the spirit of professional comradery and open discourse. I will not comment on the specifics of the Maclean’s issue before the Canadian, BC and Ontario human rights tribunals, as apparently this topic is no longer an open subject of debate anywhere on this site. I hope however that future lawyers will be able to comment on and rebut views with which they are opposed openly, rationally and fully.
No judge (or, in my experience, human rights arbitrators and boards) will accept arguments that amount to name calling. Sadly, this is what is happening in this debate, with guilty parties on both sides. As the site administrators, however, are solely responsible for initiating and stifling debate, “editing” comments by adding assertions not attributable to the author, and making legal arguments of a basic nature having no basis in reality (e.g. human rights tribunals are subject to judicial review, and not a form of judicial review: “Editorial discretion is not something this site has a problem with. But the editorial support by Maclean’s for content that is at the very least troublesome is something worthy of judicial review.”), do not add credence to any positions you may support.
Whatever year of law school you are in, you can do much better.
Just my two cents’ worth.
Sean Raleigh BA, LL.B.
UWO Class of ’97
Thank you for your comments Sean. We will respond briefly to your comments in the shared spirit of professional comradery and open discourse.
We agree wholeheartedly that this entire thing has descended into a petty conflict, and endeavour to do better in the future by not descending as low as others. We have tried our best to stay out of it, and I would remind you that you only hear their side because we have chosen not to participate further.
The intent of this site, as indicated by posts earlier in the year, is to foster dialogue openly, rationally and fully. Needless to say, we removed the most volatile comments on the site, which did include some pretty crude content and were not conducive of anything productive. Objecting comments of your nature are always welcome, though I would agree it is better not to continue on the subject of Maclean’s without opening uncontrollable floodgates.
As for the statement regarding judicial review, I do not believe that was directed towards the tribunals, but the possibility of criminal hate speech in this case, which has not (to our knowledge) been formally raised.