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Don Cherry’s comments weren’t ‘hate speech,’ but employees can still be fired for being ‘hateful’: legal experts

WATCH: After a history of controversial remarks, Don Cherry was fired from 'Hockey Night in Canada' due to his poppy rant over the weekend.

Longtime hockey commentator Don Cherry was fired from his job as co-host of Coach’s Corner following televised remarks in which he appeared to say new immigrants don’t wear poppies and implied they don’t support veterans.

“You people … you love our way of life, you love our milk and honey, at least you can pay a couple bucks for a poppy or something like that,” Cherry said. “These guys paid for your way of life that you enjoy in Canada, these guys paid the biggest price.”

Sportsnet announced its decision to fire Cherry on Monday.

READ MORE: Don Cherry out as host of ‘Coach’s Corner’ following poppy controversy

“Following further discussions with Don Cherry after Saturday night’s broadcast, it has been decided it is the right time for him to immediately step down,” Sportsnet president Bart Yabsley said in a statement. “During the broadcast, he made divisive remarks that do not represent our values or what we stand for.”

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The firing came as a surprise to some, as this is hardly the first time Cherry has made controversial comments on the air.

In 2018, during a Coach’s Corner segment, Cherry called people who believe in climate change “cuckaloos.” In the segment, Cherry questioned co-host Ron MacLean about whether he and his “left-wing pinko friends” could explain higher temperatures in the face of cold weather.

When MacLean tried to avoid the question, Cherry plowed on: “I’m just asking you, the cuckaloos are always saying there are warming trends — we’re freezing to death.”

Remembering the sacrifices of Canada’s minority soldiers
Remembering the sacrifices of Canada’s minority soldiers

In April 2013, Cherry remarked on a controversy around a hockey player who was facing criticism at the time for what some called a sexist response to a female reporter who had asked the player a question after a game.

“I don’t believe women should be in the male dressing room,” he said at the time, causing MacLean to grimace.

However, the comments made by Cherry on Saturday sparked fierce condemnation from the public, politicians and the National Hockey League, leading to his dismissal by Sportsnet and parent company Rogers.

READ MORE: Don Cherry firing doesn’t solve problem his poppy comments highlighted, WWI historian says

Cherry is refusing to apologize, saying in an interview with the Toronto Sun that he could have kept his job if he’d agreed to become “a tame robot who nobody would recognize.”

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Now, the Canadian public is engaged in a raucous debate: some believe Cherry’s comments constituted hate speech, while others think he should have been allowed to say whatever he wants without consequence under Canada’s freedom of expression law.

But according to James Turk, director of the Centre for Free Expression at Ryerson University, neither is true — Cherry’s comments would not be considered hate speech in a court of law, but he’s also not protected from workplace action under Section 2 of the Constitution.

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“Some people confuse ‘hateful speech’ with criminal hate speech,” Turk told Global News. “Your being offended by speech or finding speech ‘hateful’ isn’t necessarily how the courts understand what the legislation means.”

The difference between ‘hateful’ speech and hate speech

Cherry’s comments about Canadian immigrants might be hateful, but they likely would not be considered hate speech in the eyes of the law, Turk says. In explaining the distinction, Turk cites a decision by Chief Justice Brian Dickson in one of Canada’s landmark hate speech cases, R. v. Keegstra.

In it, Dickson writes: “Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on instances of insensitivity, bigotry and destruction of both the target group and the values of our society.”

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Turk explains that one’s own belief that a comment is hateful does not necessarily qualify it as hate speech.

Nova Scotians condemn Don Cherry’s poppy comments
Nova Scotians condemn Don Cherry’s poppy comments

“What’s illegal … is really extreme hate speech that renders a group of people essentially subhuman,” he said.

“Don Cherry’s comments certainly are hateful, but they wouldn’t be considered hate speech by any court in Canada.”

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The key difference between hateful speech and hate speech is that one is allowed, legally, to have and share opinions that could be considered hateful.

“Don Cherry has every right in the world to hold the views he has … and to express what he believes,” Turk said. “He could stand on a street corner, he can talk with his family, he can be in a group of people saying that all he wants. That’s not illegal in Canada. That is his freedom of expression.”

READ MORE: Here’s what you need to know about Don Cherry

However, under freedom of expression, no corporation has an obligation to employ him if his comments — which could be considered hateful — run directly contrary to the beliefs and values of the corporation.

“Sportsnet is a private business, and it employs commentators,” said Turk. “If those commentators engage in things that are embarrassing to the corporation and the corporation feels are contrary to its values, it certainly has the right to fire them.”

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Cherry’s comments aren’t illegal, but that doesn’t preclude them from affecting his employment or any other area of his life.

Don Cherry fired from Hockey Night in Canada following controversial poppy comments
Don Cherry fired from Hockey Night in Canada following controversial poppy comments

“We still have freedom of expression in Canada, but it’s not unlimited in the sense that the only recourse — if I do or say something that is truly offensive — is the law. In fact, the law is the last resort,” he said.

“Don Cherry was a commentator, and he crossed a line that, for his employer, was a red line so they fired him, which they have a right to do.

“When you’re in a workplace, you’re constrained by the policies of your employer.”

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Freedom of speech doesn’t mean ‘freedom from workplace consequences’

Daniel Lublin, a Canadian workplace lawyer and partner at Whitten & Lublin Employment Lawyers in Toronto, agrees with Turk: freedom of expression cannot be equated to “freedom from workplace consequences.”

“The two just do not add up,” Lublin said. “Cherry or anybody else are entitled to their views. He was entitled to share his views. Nobody’s stopping him from — and nobody has stopped him over the 40 years — from saying what was on his mind.

“That does not render him immune from workplace termination or discipline.”

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READ MORE: ‘I wish I’d handled myself differently’ — How bystanders can challenge unacceptable comments

According to Lublin, whether Cherry has a right to express his views freely isn’t relevant to the conversation. What matters here is how he acted as an employee of a company.

Lublin uses the example of a company executive who writes a controversial blog post that is later picked up by a number of media sources.

“This reflects poorly on the company, and that’s the analogy I give to Cherry … except with Cherry, it’s actually worse because he wasn’t doing it in his own time,” he said. “He was speaking to a live national broadcast.”

Don Cherry faces backlash over comments on Remembrance Day, poppies and immigrants
Don Cherry faces backlash over comments on Remembrance Day, poppies and immigrants

For Sportsnet and Rogers to have sufficient, just cause to dismiss Cherry, his comments didn’t even need to be racist or discriminatory — they just needed to be controversial.

“They certainly were controversial, and controversial enough that people complained,” he said. “There was smoke, if not fire. What happens in that scenario is it casts a negative light on the broadcast. It cast a negative light on ratings.”

In that case, Rogers, or any other company, has every right to “distance themselves from that executive, or in this case, from that TV personality,” Lublin said.

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If Cherry argued he was wrongfully dismissed, Lublin says it would be an interesting case because, “it’s not the first time Cherry has made controversial comments.”

“You’d have to really check into whether he was warned, whether he was disciplined … whether he was given a clear and unequivocal notice that you can’t make controversial comments like that,” he said.

“Cherry’s controversial nature has worked well for CBC and Rogers over the years, but now that it’s not in vogue … There could be an argument to be made that CBC and Rogers condoned the conduct for years.”

Sportsnet, Ron MacLean issue apologies after Don Cherry controversial remarks on immigrants and poppies
Sportsnet, Ron MacLean issue apologies after Don Cherry controversial remarks on immigrants and poppies

Lublin says “an argument of condemnation” would be something a court would consider when determining if there’s cause for dismissal.

“I have cases like that all the time … I’ll have an individual who does something the company disagrees with and then they fire him or her. That client walks into my office and says: ‘Well, wait a second. I know what I did wasn’t great, but this isn’t the first time I’ve done it. Over the years, I was never disciplined.'”

— With files from Andrew Russell, Maryam Shah, Amanda Connolly and the Canadian Press

 
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Meghan.Collie@globalnews.ca