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On the one hand, unlike the U.S. trademark law, the wording of our trademark restrictions suggests a focus on avoiding scandalized ,“Oh dear!” reactions from a public with delicate sensibilities, rather than on preventing people or groups from being disparaged. You get the feeling the goal was to shelter society from being barraged with coarse language more than anything else. On the other hand, unlike the U.S. Supreme Court, which considers “speech that demeans on the basis of race, ethnicity, gender, religion, age, disability [etc.]” objectionable but not the government’s business to censor, the Canadian Supreme Court thinks its job is to rid the country of every instance of such rot, no questions asked.

It would be very tempting for the Canadian Supreme Court to back the refusal to register a mark like “The Slants,” or better yet, a mark like “The Redskins,” based on potential prospective hurt to vulnerable groups (for example, by causing discrimination), even if the harm was unintended. The court used similar reasoning in its 2013 Whatcott decision, in which they emphasized that no actual proof of harm needed to be shown to cut off the speech.

Canadians are sometimes proud of how reasonable and middle-of-the-road our freedom of speech jurisprudence is: we recognize freedom of expression when what’s being said is mild or a touch bothersome, but if we think expression may marginalize a group, we step in and cut it off. The problem is that this cautious approach essentially comes down to allowing government to guess about how speech will affect others, which could easily lead to groups like The Slants (who are the others) getting caught up in the web of censorship.

As the U.S. Supreme Court said in The Slants case, “a speech burden based on audience reactions is simply government hostility and intervention in a different guise.” It’s too bad that’s exactly the speech burden all Canadians bear.