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Hate propaganda, section 2(b) and section 1 of the Charter : a Canadian constitutional dilemma /
Abstract
Typescript (photocopy). "Submitted to Professor Paul C. Weiler in satisfaction of the written work requirement." Thesis (LL. M.)--Harvard Law School, 1991. Includes bibliographical references (leaves 105-111).
... Its report, submitted to the Minister of Justice on April 14, 1966, suggested that hate propaganda in Canada was not a systemic problem, although "[T]he individuals promoting hate in Canada constitute 'a clear and present danger' to the functioning of a democratic society" (Canada 1966, 24, emphasis added). Censured Notwithstanding, chapter IV of the committee's report engaged with proposed changes to Canada's criminal code designed to protect groups against hate propaganda (Canada 1966, 52, 55, 59;Cohen 1971, 105-6;Valois 1992). Although it censured Canada's failure to incorporate the Genocide Convention into its criminal code, the Committee supported a narrow definition of genocide: "For purposes of Canadian law ... the definition of genocide should be drawn somewhat more narrowly than in the international Convention so as to include only killing and its substantial equivalents … The other components of the international definition, viz, causing serious bodily or mental harm to members of a group and forcibly transferring children of one group to another group with intent to destroy the group, we deem inadvisable for Canada (Canada 1966, 61, emphases added). ...
This article explores the significance of the TRC’s assertion that the establishment and operation of residential schools were a central element of Canada’s Aboriginal policy that can be described as cultural genocide, against the backdrop of Canada’s historical position on cultural genocide and in view of residential schools litigation. It analyzes the deliberations over the United Nations Convention on the Prevention and Punishment of Genocide (The Genocide Convention) in various United Nations (UN) organs, Canada’s historical position, and the selective adoption of the Genocide Convention in Canadian law. My argument is threefold; first, I argue that the TRC assertion is indeed timely. Cultural genocide is not an inferior second-rate type of genocide, although it is not included in the Genocide Convention. Conceptually, cultural genocide is a full-blown genocide, even if it is not legally actionable. Second, Canada shielded itself legally above and beyond claims of genocide as it transplanted the Genocide Convention into Canadian law. Finally, while the cultural genocide phraseology may facilitate a wider scope of tort claims, the absence of appropriate legislation changes means Aboriginal people are likely to continue to view Canadian law as an oppressive settler-state mechanism.
The first section of this article explores the notion of genocide as the destruction of cultures and the contextualization of the colonial experience within this notion. The second outlines briefly the drafters’ justification for the exclusion of cultural genocide in the Genocide Convention, the Canadian position with regard to cultural genocide, and the selective manner in which the Genocide Convention was incorporated in Canada’s criminal code. Section three analyzes residential schools litigation within Canada’s narrow, individual-based tort law. Finally, the significance and implications of the TRC conclusion will be discussed.
... Ronda Bessner of the Western Ontario Law Faculty noted that, according to the Committee, "most of the [hate] `literature' was imported from the United States (Bessner 1987: 183). Martine Valois, a lawyer at the Canadian Department of Justice, cited the Cohen Committee Report's conclusion that the number of hate organizations operating in Canada was "relatively small" and that most of the printed hate materials originated in the United States and were circulated primarily in Ontario (Valois: 1992). Joseph Magnet also describes the Cohen Committee's deliberations, adding that "[m]aterials from the USA still make up a substantial amount of the hate propaganda circulating in Canada" (Magnet 1994). ...
US-Canadian differences in hate speech regulation represent a puzzle for comparative analysts. Doctrinal and historical approaches provide guidance but cannot explain how Americans justify the toleration of hate speech or Canadians justify its criminalization. To probe deeper, this paper looks at law review articles and book chapters written during the late 1980s and early 1990s, a time when the debate over hate speech was in flux. An examination of references to Canada and the United States in the sample reveals that the participants in the debate over hate speech frequently fall back on national tropes concerning ethnic relations, race relations, and popular attitudes toward the state. These tropes provide starting points for comparative historical research and demonstrate the role that national identity plays in comparative legal analysis.
No one concerned with freedom of expression in the United States todaycan fail to be alarmed by the unsatisfactory state of first amendment doctrine.Despite the mounting number of decisions and an even greater volume of comment,no really adequate or comprehensive theory of the first amendment hasbeen enunciated, much less agreed upon. Proponents of the "absolute" or"literal" interpretation of the first amendment have failed to define the boundsof their position or to account for such apparent exceptions to the absolutetest as the law of libel, the application of child labor laws to tMe distribution ofliterature, and the regulation of election campaigns. Their views have thereforebeen dismissed as impractical or illogical, or both. At the other end of thespectrum, the "balancing" test has tended to reduce the first amendment, especiallywhen a legislative judgment is weighed in the balance, to a limp andlifeless formality. Among intermediate positions, the "clear and present danger"test is the best known; yet not only has this formula often been ignored, but itwas discarded in Dennis and at any rate is hardly applicable to many of theissues which now arise, such as the extent of the protection afforded by the firstamendment from the legislative investigating power. Other efforts to formulatean overall theory have not met outstanding success. Nor has doctrine beenevolved to deal with some of the newer problems, where the issue is not purerestraint on government interference but rather the use of governmental powerto encourage freedom of expression or the actual participation by governmentitself in the realm of expression.'