Owen Byrne
Thu, 06 Mar 2003 11:25:19 -0400

Russell Turpin wrote:

> Owen Byrne:
>> We have this: "(b) freedom of thought, belief, opinion and 
>> expression." It would be better without this: "Parliament or the 
>> legislature of a province may expressly declare in an Act
>> .. shall operate notwithstanding a provision included in section 2 .. 
>> of this Charter."
> Those fundamental rights sound good, and the
> exception IS unfortunate.
>> but the "notwithstanding" clause has not been invoked yet.
> How, then, does Canada have a hate speech law?
> Here in the US, such laws are unconstitutional,
> since hate speech pretty clearly is a form of
> expression.

This part is probably somewhat unfortunate too:

 *1. *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.

The Canadian Charter of Rights and Freedoms 
guarantees all Canadians freedom of thought, belief, opinion and 
expression. That means we're all free to say what we think. But what 
about statements that are hateful and racist? Where does free speech 
stop and hate crime start?

The Supreme Court of Canada asked this question in 1990. An Alberta high 
school teacher named James Keegstra was found guilty of the crime of 
"wilful promotion of hatred 
Keegstra made many racist statements to his students, and parents 
complained about his teaching. Keegstra said the Charter of Rights and 
Freedoms protected his right to say these things.

The Supreme Court looked at the section of the Criminal Code that makes 
it a crime to wilfully promote hatred. The Court said the crime does 
take away people's freedom of speech - because it doesn't let them say 
things that encourage others to hate people because of their race, 
colour, religion or ethnic origin.


Section 1 means that a law which limits free speech is okay so long as:

    * It's a reasonable limit on free speech; and
    * The limit is justified in a free and democractic society.

The Supreme Court said that there are a number of reasons why limiting 
hateful speech makes sense.

    * Hate propaganda harms all of us.
    * Stopping the spread of hate propaganda makes it easier for people
      with different backgrounds to live together.
    * Stopping hate propaganda may even reduce violence in Canada.

Because of these reasons, the Supreme Court said that section 1 of the 
Charter of Rights and Freedoms "saves" the crime of wilfully promoting 
hatred. In other words, the Court said Keegstra had broken the law. Even 
though the law limits his right to free speech, it's a reasonable limit. 
Democratic societies must stop the spread of hate propaganda so everyone 
can live freely.

But the government has to be really careful about how it limits free 
speech. The Supreme Court of Canada looked at the crime of "spreading 
false news 
in the case of Ernst Zundel 
They decided that the crime was too broad a limit of free speech. So 
even though Zundel published things which weren't true about the 
Holocaust, he wasn't guilty of a crime. His right to free speech was 
protected by the Charter of Rights and Freedoms.