Negotiating the contours of unlawful hate speech: regulation under provincial Human Rights Laws in Canada
This article has examined more than half a century of operation of provincial and territorial hate speech laws in Canada. This examination has confirmed that free speech sensitivity has long been an integral and enduring feature of the administration and interpretation of legislative regimes for the regulation of hate speech—a finding that should come as a shock to no-one. What is surprising is the way in which free speech sensitivity has impacted on the operation of hate speech laws, and the effects of that influence on the quality of the protection provided to victims by existing provincial and territorial laws.... One of the chief objectives of hate speech prohibitions in provincial and territorial human rights statutes is to draw a line between free speech which must be protected (or at least tolerated), and hate speech which must be outlawed and sanctioned because of its harmful effects. Such line-drawing exercises are never simple and almost always controversial. However, the extent of the uncertainty and controversy has been exacerbated in Canada by the multi-layered influences of free speech sensitivity described above, as well as ongoing differences amongst decisionmakers regarding the legitimate scope of hate speech prohibitions. The net result is that the contours of unlawful hate speech in Canada are anything but sharp. On the contrary, the boundary between free speech and hate speech remains contested and fluid.
This article was originally published as McNamara, L, Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada, University of British Columbia Law Review, 38(1), 2005, 1-82. Original journal available here.