Restrictions on hate speech: An exposé of the risqué
LE3 .A278 2007
Bachelor of Arts
In this thesis, I will attempt to establish that the restrictions of hate speech as currently legislated in the Canadian Criminal Code are a justifiable infringement upon freedom of speech as guaranteed under section 2(b) of the Canadian Charter of Rights and Freedoms. I will begin by examining some philosophy of freedom of speech, most notably, John Stuart Mill’s and his book, On Liberty. It was a surprise to learn that Mill leaves behind a few kernels of thought in his writings, leaving some space for Mill’s theory to possibly be construed as permitting these restrictions on hate speech. A combination of the sort of citizen Mill expects to be adhering to his principles, his repugnance of social coercion, and his distrust of his current government provide this space in his theory for postulating restrictions on hate speech. This leads me to a case study of R. v. Keegstra, the most widely known case in Canada dealing with the current hate speech laws. The Canadian Supreme Court ruled in favour of the constitutionality of the hate speech laws [319(2) and, consequently, 319(3)], although by a small margin. Examining this case through Chief Justice Dickson’s reasoning for the majority, and Justice McLachlin’s reasoning for the minority, I find Dickson CJ’s acceptance of the hate speech laws to be more consistent with Canada’s vision it made for itself through the Charter. McLachlin J raises many pragmatic concerns which are certainly problematic for the law, but ultimately it seems that these concerns are inconsequential when compared to Dickson CJ’s reasoning. Finally, I apply these hate speech laws, in their current form, to three situations around the world. My first example is The Satanic Verses by Salman Rushdie, secondly, the Prophet Muhamed cartoons from a Danish newspaper, and thirdly the case of Hugh Owens of Saskatchewan, a Christian homophobic who advertises his beliefs. My goal is to determine whether or not the expression in question is in violation of the hate speech laws. If this is the case, then I attempt to prove why I believe it is so. If it is not the case that the speech is hate speech, I expound that reasoning as well and investigate where the current laws must be expanded to encompass this speech as hate speech. My next concern is whether or not this new expansion can be considered constitutional. With the exception of an addition to the current law which would stipulate education or therapy as a preferable punishment to incarceration, I believe that the hate speech laws provides enough latitude for people’s ‘freedom to offend,’ while preserving Charter values and Canada’s commitment to multiculturalism.
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