(Excerpt from remarks prepared for a conference on Respect for the Rule of Law in Canada, March 17, 2019, Woodbridge Ontario)

The Rule of Law

Albert Venn Dicey wrote in 1885 in his book "An Introduction to the Study of the Law of the Constitution" that the rule of law has three characteristics.  One is that a person can be punished only for breach of the law determined by the courts.  A person can not be punished arbitrarily by officials acting in the exercise of discretionary powers.

The rule of law means second that no one is above the law.  Every person, no matter what his or her rank or title or position is subject to the law and courts of the land.

The rule of law means third that for every right there is a remedy.  Rights, in a country living according to the rule of law, are not mere proclamations of grand statements without enforcement mechanisms.

Dicey had a chapter in his book explaining what the rule of law meant for liberty of expression.  He wrote that the rule of law means that there can not be prior restraint or censorship.  There can be prohibited forms of expression, consistent with the rule of law. However, those prohibitions take effect only if the law is breached, through court proceedings. 

Adherence to the rule of law then does not tell us whether to prohibit hate speech. But it does tell us how it should be done.

Hate speech

With that background in mine, I will address two questions posed by this panel. The first is this: "What is available within the Criminal Code to combat hate speech and do you feel it is effective?"

There is a prohibition in the Criminal Code against incitement to hatred.  It is effective, but not as effective as it could be. There are two specific problems I would mention here.  

i) Consent of the Attorney General

One is the requirement of consent by the Attorney General.  Generally, for crimes which are committed where consent of the Attorney General is not required, the prosecution will proceed if there is sufficient evidence to convict.  Prosecutors have a discretion not to proceed even where the evidence could lead to a conviction.  However, the exercise of that discretion is subject to pretty clear principles.  For instance, prosecution may not proceed if the hardship to the accused would be disproportionate to the benefit society would gain.

Where consent of the Attorney General is required, that consent, from my perspective, in this area of the law, is often withheld arbitrarily because, even though a conviction would likely result and the prosecution recommends in favour of proceeding, the Attorney General nonetheless out of a belief in freedom of expression not consistent with the law, denies consent.  That form of denial of consent both makes the law less effective and violates the rule of law.

The remedy is not, though, to remove the requirement of consent of the Attorney General.  If we did that, it would mean that private prosecutions would be possible.  Anyone could prosecute anyone else for something said which the private prosecutor thought was hate speech.  Arbitrary prosecutions are as harmful to the rule of law as arbitrary refusals to prosecute.

When the Crown prosecutions, it will not do so unless the prosecution believes it has evidence to establish guilt beyond a reasonable doubt.  Private prosecutors need not impose on themselves any such restraint. 

If private prosecution of hate speech were possible, private prosecutors could legally launch a prosecution merely because they disagreed with the accused.  Such a prosecution would not succeed.  But the very fact of prosecution could amount to harassment of the accused.

What we need is that the consent or denial of consent of the Attorney General be exercised according to principle. In British Columbia Crown Counsel Policy Manual provides that in almost all hate offences, the public interest applies in favour of prosecution.

Approvals for alternative measures should be given only if:

1. Identifiable individual victims are consulted and their wishes considered.

2. The offender has no history of related offences or violence.

3. The offender accepts responsibility for the act, and

4. The offence must not have been of such a serious nature as to threaten the safety of the community

Those are criteria which could be adopted for denial of consent.  There needs to be at least something, rather than, as now, a vacuum where consent can be denied arbitrarily, without explanation.

The exercise of prosecutorial discretion is not subject to judicial review.  The courts have reasoned that, if they did either affirm a decision to prosecute or overturn a decision not to prosecute, might seem to be favouring over the defense. To maintain an appearance of neutrality, they have declined to get involved at all in prosecutorial discretion.

The unavailability of judicial review for the exercise of prosecutorial discretion means, if that exercise is to be governed by principle, that governance has to be undertaken by the prosecution itself.   The grant or denial of consent by the Attorney General for hate speech crimes should be subject to clear public criteria.  Reasons should be given for the grant or denial of consent and those reasons should explain why the criteria were or were not met.

ii)  Religious expression

The offence of incitement to hatred in the Criminal Code sets out as a defence statements which "in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text",

Respect for the rule of law and respect for the law are principles which sometimes diverge. This defence is as good example as any.  The defence is the law. Yet, it does not respect the rule of law. it is arbitrary; it means that some people, those who use religion to preach hatred, are above the law; it means that victims of religious based hatred have no remedy.

Freedom of religion is a countervailing value to the right to freedom from incitement to hatred.  In balancing off these two rights, the right to freedom from incitement to hatred must prevail.  Incitement to hatred is integral to no religion.  The defence of religious expression guts the offence of incitement to hatred.

There is, for instance, an optional Muslim prayer calling for the killing of Jews.  Such a call should be prosecutable whether it is made from a religious or secular dais.  Religious expression should not be a defence to this form of incitement.  The defence needs to be repealed.