Hate speech and the law

a Canadian perspective

Wayne Sumner

pp. 37-53

in: Arend Soeteman (ed), Pluralism and law, Berlin, Springer, 2001

Abstract

Canada and the United States have distinct legal regimes concerning hate speech, the former favouring restriction, the latter protection. They also have distinct structures of constitutional adjudication, with the Canadian courts being invited, indeed required, to engage in a much more overt balancing of competing interests (in this case, of liberty and equality) under the terms of the limitations clause of the Charter of Rights and Freedoms. This paper explores the extent to which the different results which the Canadian and American courts have reached with respect to hate speech might be attributable to this difference of methodology. In particular, it raises the question whether direct interest balancing tends to favour restrictions on speech, through the intermediate link of judicial deference to the legislature.