In January 1965 the Minister of Justice, then the Hon. Guy Favreau, announced the appointment of a special committee to study and report upon certain problems related to the dissemination of varieties of hate propaganda in Canada. The formation of the committee was a reaction to the activities of a seemingly increasing number of extremist organizations in Canada, all of which promoted some variation of anti-Semitic or racist dogma. The Committee, soon called the Cohen Committee after it's chairman, studied the problem from January 29 to November 10, 1965 when the report was presented to the Hon. Lucien Cardin, Favreau's successor as Minister of Justice. In their conclusions the Cohen Committee called for new legislation that would have three prohibitions and an important caveat:
First, there should be new legislation in Canada because of the present deficiencies in the law, so as to forbid the following: (a) advocacy of genocide, (b) incitement to hatred of groups that is likely to occasion breach of the peace, and (c) group defamation. Second, the legislation should be so drafted as to permit the maximum freedom of expression consistent with its purpose and the needs of a free society.
After more debate, these recommendations were acted upon by the Government and can today be found in regulations of the Post Office Act, the Customs Act, and most importantly, in what is now section 319 of the Criminal Code.
Between 1964 and 1989 the implications of these laws were discussed at length. The majority of the discussion, however, occurred first, during the late 1960s and then, in the early 1980s. For some reason, perhaps the domination of other social issues, there was little discussion of the problem of hate literature during the 1970s. There are three possible reasons for this clustering of discussion. First, the number of initial (and at that time, unique) incidents caused the broaching of the problem in the 1960s. Second, in the early 1980s the trials of Ernst Zundel and Jim Keegstra brought the problem into the public arena for a new generation of citizens. Third, current discussion might also be influenced by the impact of the 1982 Charter of Rights and Freedoms upon Canadian life. This new focus upon individual rights caused a renewal of the debate regarding the constitutionality of the hate speech laws, it seemed possible that the Charter right to freedom of expression might take precedence over any law restraining hate literature. This was indeed how the Alberta Court of Appeal ruled in R.v.Keegstra. The Supreme Court of Canada, however, in considering the Keegstra appeal, upheld the hate speech provisions. Yet, the Court's judgement had only a majority of one, it is possible that this judgement is only another stage in what seems like a continuing debate over the suppression of insidious materials versus certain individual rights guaranteed by the Charter.
The idea that hate literature could be controlled through legal means has never been fully accepted in Canada. Within both the legal and academic communities there are those who consider legal sanctions as dangerous precedents. Such laws, they believe, are more conducive to tyranny than to liberty. Despite such reservations, however the desire to suppress malicious ideas exists even among the most ardent civil libertarians. An example of this bifurcation of belief can be found in the writings of Julian Sher. Sher asserts that progressives must resist the encroachments of the extreme right, typified in this case by individuals such as Zundel. While progressives are, he says, "fervent advocates and defenders of free speech," these positions give rise to a contradiction in cases like Zundel's where the progressive wants to censor while still supporting free speech.
John Dixon, president of the B.C. Civil Liberties Association (BCCLA), explains what some might consider to be the Association's paradoxical position regarding such anti-Semites as Jim Keegstra. While admitting that the willful attempt to promote hatred is ugly, dangerous, and cruel, the Association still believes that there should not be laws against this activity. The major argument against suppression is found in a commitment to democratic government and an understanding of the role that free speech and a free press play in such a system. Indeed, it is the longtime position of BCCLA that a free self-governing people cannot authorize its government to serve as a censor. To do so, they argue, would diminish the people's self-governing capacities and render them unfit for their civic role.
One of the most consistent defenders of unrestricted free speech in Canada is Alan Borovy. Borovy disclaims any limitations on freedom of expression. He believes that there cannot be any such limitations if true freedom is to be attained. Broody illustrates the impediments to full freedom of expression by discussing the judicial restrictions placed upon picketing strikers and other demonstrations. His point is that such events as these are, in effect, expressions and should thus be afforded the full protection of the Charter. Speaking specifically to hate literature [pp.140 4], he criticizes the law as inherently dangerous since it may well cause unnecessary restrictions on innocent materials and people. Borovy does believe that there should be legal prohibitions against discrimination in employment, housing, and public accommodation. That is, public pressure should be brought against racist deeds rather than racist words.
The argument against suppression is persuasive. However, the argument for suppression
of hate literature also contains a certain cogency when lucidly expressed. An
early example is the work of Alan Regler. Regler argues that before it can rationally
be determined what could be permissible limitations to free speech, it must
first be understood why free speech should be protected. Regler asserts that
free speech should always be protected in the political arena but that the abuse
of non-political free speech should be controlled. Hate literature cannot, in
Regale's view, be considered as political speech and for this reason restrictions
on it are justified. Unfortunately, as Regal notes, the Charter does not clarify
this critical area since it does not distinguish between political and non-political
speech.
Arguing along much the same lines as Regler, Irwin Cotler believes that a law
against hate literature is both proper and enforceable. Such laws do not violate
free expression since speech that incites hatred should not be protected. The
problem Cotler sees for the future is that many of the groups who lobbied for
the hate laws now fear that the Charter will become not a shield to protect
them against racial discrimination but a shield to protect the racists.
The essential problem of this debate is that there are few commentators who
allude to the social-political dimensions of the problem. Their attention to
detail at the expense of the larger problems seems to obviate any solution.
However, two analysts of the hate literature controversy have considered this
specific area. Stefan Braun argues that the point of the Zundel case is not
about the "hate propaganda" section of the Criminal Code, nor is it a case for
the Supreme Court of Canada. What the Zundel case represents is, for Braun,
of seminal importance in explicating the essence of the problem involved in
proscribing political and socio-political speech in Canada. Braun effectively
raises the broader issues of the case, especially the problem when those in
power can control what people say about others, their social or political history,
or the state of society. Braun thinks that what the Zundel case illustrates
is that questions of freedom of expression are, first and foremost, questions
of political philosophy and must therefore be framed in wider terms than the
narrow legalistic ones exemplified in the Crown's prosecution of Zundel.
Like Stefan Braun, Arthur Fish's commentary is elevated by a perception that
the laws affecting freedom of expression must be interpreted in their political
context. As he notes: "Hate promotion is an attack on free speech and ultimately
on democracy .... The community which remains inactive in the face of hate propaganda
denies itself the benefits of freedom of expression while securing nothing of
value in return."
Fish's main contention is that "it is possible to draft a justifiable law that
imposes criminal penalties on hate promotion." Such laws, he argues, must distinguish
the legitimate from the illegitimate exercise of freedom of speech and expression.
There is no good reason to protect the willful promotion of hatred; our concern
for freedom of expression is a sufficient reason for its suppression.