Tomorrow, Donald J. Trump will be officially sworn in as the 45th President of the United States. Here in Canada, two of the candidates for the leadership of the Conservative Party have been described as “Canada’s Trump”: Kelly Leitch and Kevin O’Leary. Leitch has gained that unfavourable comparison due to her statements about “Canadian culture” which her critics call xenophobic.1 O’Leary admits his similar resume (both men are business tycoons and reality TV stars), but is quite clear that he has drastically different social policies.2 But could either of these people take up the toxic rhetoric that Trump is so known for?
American case law establishes a very narrow window to forbid hate speech. The case law comes from Brandenburg v. Ohio.3 This Supreme Court decision overturned the conviction of a Ku Klux Klan leader for spreading hate. The Court found that advocating for discrimination and hate was insufficient to justify an exception to the First Amendment protections of freedom of speech and criminal prosecution. The appropriate threshold was incitement to imminent violence. Even an act as obviously aggressive as burning a cross was considered unpunishable for the content of the speech in R.A.V. v. City of St. Paul.4 The closest case for our purposes would be Snyder v. Phelps, an attempt to prevent the Westboro Baptist Church from brandishing their homophobic signs.5 These cases demonstrate the high threshold required to ban outrageous and objectionable speech.
In Canada, we tilt the balance toward protecting people’s right to feel safe from discrimination. Our leading case on the subject is R. v. Keegstra.6 Mr. Keegstra was an Alberta Social Studies teacher who taught Holocaust denial and other anti-Semitic conspiracy theories to his students. He was prosecuted under section 319(2) of the Criminal Code, which criminalizes the promotion of hatred against an identifiable group.7 This decision of the Supreme Court of Canada takes into account the reasons that freedom of expression is protected by s. 2(b) of the Charter.8
The SCC considered the spirit of s. 2(b), and decided that it was designed to foster democracy and help people further (socially appropriate) aspirations. Hate propaganda was found to be inconsistent with those principles, making it easier to justify infringement. An application of the Oakes test (the test in Canadian law for justification of infringement of a Charter right), found hate propaganda to be substantially harmful, and the limits set by s. 319(2) of the Criminal Code, in that they could not be overly impairing on the right and must be proportional to the objectives.9 This justified the criminalization of hate propaganda, done in accordance with s 1 of the Charter, which allows infringement of Charter rights when necessary.10
So what about Trump? It would likely be a difficult case. Trump is rarely explicit in his intention to promote hatred of minority groups, despite having that effect. After an attack by his supporters on a homeless Latino man he characterized them as passionate people who had gotten carried away, rather than repudiating their terrible actions. Even his infamous comments about Mexicans being “rapists and drug dealers” were qualified with “some, I assume, are good people”. Moreover, this comments were limited to accusing the Mexican government of sending “undesirables”. His only comments that may be be prosecutable under our laws are his promises to ban and register Muslims.11
Canada and the United States both enshrine freedom of expression in our Constitutions. We both treat these rights as vitally important, but not without exception. In Canada, our exceptions are larger and more nuanced than theirs. However, even the Canadian threshold for what constitutes hate speech is fairly high. For all the awful things someone could say, very little of it would be subject to prosecution. I only hope that if the time ever comes such statements are subject to a massive loss of votes.
1Thomas Walkom, “Canada could have it’s own Donald Trump”, Editorial, The Star (November 14, 2016), online: <www.thestar.com>.
2Josh Elliot, “O'Leary Committee Sees 'Clear Path to Victory' for Conservative leadership”, CTV News (12 January 2016), online: <www.ctvnews.ca/politics/o-leary-committee-sees-clear-path-to-victory-for-conservative-leadership-1.3238107>.
3(1969), 395 US 444.
4(1992), 505 US 377.
5(2011), 562 US 443.
6 3 SCR 697,  SCJ No 131.
7Criminal Code, RSC 1985, C c-46, s 319(2).
8Canadian Charter of Rights and Freedoms, s 2(b), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
9Keegstra, supra note 6.
10Charter, supra note 8, s 1.
11Lydia O’Connor and Daniel Marans, “Here Are 13 Examples Of Donald Trump Being Racist”, Huffington Post (29 February 2016), online: <http://www.huffingtonpost.com/entry/donald-trump-racist-examples_us_56d47177e4b03260bf777e83>.