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Queen's University

Display and Publication of Offensive Material

When do racial, religious or ethnic caricatures/epithets indicate discrimination?

Offensive racial caricatures displayed on a restaurant sign (Singer, 1976) and a satirical button (Rasheed, 1980) were found to be unlawful by Boards of Inquiry in Saskatchewan and Nova Scotia. Both representations indicated discrimination by reinforcing latent prejudice of the dominant white community towards the minority black community; and by compromising the latter's access to equal opportunity in employment within the white community.

In Konyk (1983), on the other hand, the B.C. Supreme Court found that an trade name used by a Ukrainian businessman was not unlawful. The trade name featured the word "hunky", an ethnic epithet historically employed to denigrate Ukrainians. The judge found that although it was offensive to members of the Ukrainian community, it did not discriminate against them in one or more of the prohibited areas of housing, employment or services.

How do courts reconcile freedom of religious expression with the prohibition of homophobic expression?

In Hellquist (2001), a Saskatchewan board of inquiry found that a newspaper had discriminated against gay men when it printed an advertisement for homophobic bumper stickers. The stickers indicated that the Bible prohibited homosexuality. The Board ruled that the stickers exposed gay men to hatred, indignity and ridicule. Furthermore, it ruled that the human rights statute prohibiting the publication of discriminatory representations was a reasonable limit to the Charter right to freedom of religious expression because it censured only those publications that exposed a protected group to hatred, indignity or ridicule.

What objective test is used to assess offensive representations?

In McKinlay(1980), a human rights specialist filed a complaint against a landlord who posted a public letter containing negative statements about persons with disabilities.  The Saskatchewan Board of Inquiry determined that the ability of a human rights specialist to identify discriminatory statements in a letter was much higher than that of a "reasonable person".  The correct objective test is "would a reasonable person find this representation to be discriminatory". The board then used this reasonable person test to find the letter to be discriminatory against persons with disabilities.

Are articles considered to be "representations"?

In Kane (2002) the Alberta Human Rights Panel ruled that a business magazine had discriminated against members of a religious group, contrary to the statute prohibiting the publication of discriminatory representations, when it printed an offensive article about a failed business deal between a Jewish party and a non-Jewish party.

In Abrams (1999) the B.C. Human Rights Tribunal determined that a series of columns, published by Doug Collins and the North Shore News, were likely to expose Jewish persons to hatred and contempt because of their race, religion or ancestry, contrary to the statute prohibiting the publication of discriminatory representations.

In Warren (1983),the Court of Appeal concentrated its deliberations on a preliminary technical question; whether or not newspaper articles were covered under (s) 2(1) (a)(b). This statute prohibits the publication of any discriminatory or hate inspiring "notice, sign, emblem or other representation". Newspaper articles were not notices, signs, symbols or emblems; but could they be considered to be "other representations"?

Are offensive signs/symbols displayed on private property considered to be unlawful?

In Kane (1992), an Alberta Board of Inquiry determined that the discriminatory effect of three representations [a sign bearing the words "KKK White Power", a Nazi flag with a swastika and a burning cross] was greatly enhanced by the context in which they were displayed [a large Aryan feast, held on private property but well in view of the public and broadcast by television stations, in which racist and religious slogans were chanted, Nazi uniforms and KKK robes were worn, physical and verbal threats were given, and gunshots were fired].  The Board ruled that the signs clearly indicated discrimination and an intention to discriminate. /p>

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