Thursday, October 18, 2012

In determining whether speech is hate speech context is critical

Lund v. Boissoin, 2012 ABCA 300 holds, very properly, that in determining whether speech is hate speech, and subject to legal sanction, context is critical:


B.        Consideration of context


[61]           In cases subsequent to Taylor, the importance of the context and the circumstances of the publication have been emphasized. For example, in considering the application of the comparable Saskatchewan legislation, Richards J.A., in Owens v Saskatchewan Human Rights Commission, 2006 SKCA 41 (CanLII), 2006 SKCA 41, stated at para 60:



As a result, it is apparent that s. 14(1)(b) must be applied using an objective approach. The question is whether, when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred ...


[62]           In Whatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 (CanLII), 2010 SKCA 26, 317 DLR (4th) 69, Hunter J.A. spoke of the “particular importance” of context in cases such as the one before this Court. She stated at para 62:


Context is of particular importance when considering complaints based on sexual orientation and the impact on freedom of expression.  Most often, underlying these complaints are issues relating to matters of morality. It is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour. For this reason there will be a relatively high degree of tolerance for the language used in debates about moral issues, subject, of course, to limitations.  Anything that limits debate on the morality of behaviour is an intrusion on the right to freedom of expression.


[63]           Moreover, the court noted at para. 120 that a contextual analysis is required to ensure that the application of the statutory provision does not exceed the limitations to freedom of expression justifiable in a free and democratic society. In addition to freedom of expression, the Charter also identifies the related freedoms of thought, belief ,and opinion as fundamental freedoms.


[64]           I would add that moral issues often also relate to the freedom of religion – another fundamental right protected by the Charter. A moral statement arising out of religious conviction may, in some cases, be seen as the dissemination of religious belief – an aspect of freedom of religion. Dickson J., as he then was, underscored this point in R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295 at 336, 18 DLR (4th) 321:


The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.


[65]           I agree with the observation of the reviewing judge that the primary freedom applicable in this case is that of freedom of expression. The letter is not so much an expression or dissemination of religious beliefs, as “a manifestation of” Boissoin’s beliefs (para 117).

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