Current Publications: Law, justice and rights

Contents

• 1 Introduction
• 2 Human Rights Laws and the Charter
  • 2.1 Human Rights Legislation
  • 2.2 The Canadian Charter of Rights and Freedoms
• 3 Freedom of Expression in Canada
• 4 Hate Promotion Offences in the Criminal Code
• 5 Freedom of Expression and the Canadian Human Rights Act
  • 5.1 Section 13 of the Canadian Human Rights Act
    • 5.1.1 Other Legislation Containing Similar Provisions
    • 5.1.2 Constitutionality of Section 13
    • 5.1.3 Calls for Reform of Section 13
    • 5.1.4 Canadian Human Rights Commission Reports Regarding Section 13
      • 5.1.4.1 The Moon Report
      • 5.1.4.2 The Canadian Human Rights Commission’s Special Report to Parliament
  • 5.2 Section 12 of the Canadian Human Rights Act
• 6 Conclusion
• Notes
• Appendix A – Canadian Human Rights Act (r.s.c., 1985, c. H-6, as Amended), Sections 12–13
• Appendix B – Criminal Code (r.s.c., 1985, c. C-46, as Amended), Sections 318–320.1

1 Introduction

In Canada, various laws at the federal, provincial, and territorial levels impose restrictions on the freedom of expression guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter). 1 For instance, the Criminal Code (the Code) 2 includes many such restrictions in offences such as defamatory libel, counselling suicide, perjury and fraud. Justice Lamer, formerly of the Supreme Court of Canada, has described these offences as falling under the following categories: “offences against the public order, offences related to falsehood, offences against the person and reputation, offences against the administration of law and justice, and offences related to public morals and disorderly conduct.” 3

Among the laws that have restricted freedom of expression are those referred to as anti-hate laws, for their purpose is to restrict the publication of messages intended to incite hatred towards members of particular groups. For example, section 13 of the Canadian Human Rights Act (CHRA) 4 makes it a discriminatory practice for anyone to communicate by telephone, by a telecommunication undertaking, or by a computer-based communication, including the Internet, any matter that is likely to expose anyone to hatred or contempt by reason of the fact that he or she is a member of a particular identifiable group. Sections 318 and 319 of the Criminal Code prohibit the promotion of genocide or the incitement of hatred in public. The Supreme Court of Canada has found these restrictions on the freedom of expression to be justifiable under the Charter and the reasonable limitations it permits on rights and freedoms in Canada’s free and democratic society. The Court found that the harm caused by hate propaganda is not in keeping with the aspirations to freedom of expression or the values of equality and multiculturalism contained in sections 15 and 27 of the Charter. 5

In recent years, a number of people and organizations have called for the reform of Canada’s anti-hate laws. In particular, there have been calls for the repeal of section 13 of the CHRA (as well as any provincial counterparts), and for broader reforms to Canada’s human rights institutions that would change the manner in which they handle hate propaganda complaints. Others have conversely urged Parliament to maintain the jurisdiction of the Canadian Human Rights Commission and the Canadian Human Rights Tribunal to process and to hear cases of hate propaganda, if and when any reforms are undertaken.

This paper provides information pertaining to section 13 of the Canadian Human Rights Act and those related provisions in section 12, the anti-hate provisions of the Criminal Code and the constitutional guarantee of freedom of expression contained in the Charter. Firstly, it reviews the nature of the human rights protections in the Act and in the Charter. It also reviews the jurisdiction of the Canadian Human Rights Commission (CHRC) and the Canadian Human Rights Tribunal (CHRT). It then provides a brief analysis of anti-hate laws in Canada and the potential effects of certain proposed amendments to the Canadian Human Rights Act.

2 Human Rights Laws and the Charter

In the constitutional revision of 1982, human rights guarantees were entrenched in the Constitution of Canada by means of the Canadian Charter of Rights and Freedoms. The creation of the Charter did not, however, render statutory human rights codes unnecessary or diminish their importance. On the contrary, Canadian courts have since considered human rights codes to be quasi-constitutional, meaning that Canadian laws are generally read in such a manner as to be consistent with human rights legislation. 6

2.1 Human Rights Legislation

As “human rights” are not listed under the enumerated heads of power in sections 91 and 92 of the Constitution Act, 1867 (which set out the division of powers between the federal and provincial governments), laws that address human rights concerns have been passed at the federal, provincial and territorial levels to respond to various matters within those jurisdictions. 7 Although there is some diversity among Canadian human rights laws, the principles and enforcement mechanisms are very similar. Each statute prohibits discrimination on specified grounds, such as race, sex, age, or religion, and in the context of employment, accommodation and publicly available services. The system of human rights administration is complaint-based. Before any of the legislated procedures can commence, a complaint of discrimination is usually lodged with a human rights commission or council – either by a person who believes that he or she has been discriminated against, or by the commission itself on the basis of its own investigation.

The CHRA is the principal human rights statute in the federal sector. 8 It applies generally to federal government departments and agencies, Crown corporations, and federally regulated businesses 9 (an exception is section 13, which, as explained below, applies broadly to all persons in Canada). It prohibits an employer or service provider under federal jurisdiction from carrying out discriminatory practices based on certain prohibited grounds, namely: race; national or ethnic origin; colour; religion; age; sex (including pregnancy and childbirth); sexual orientation; marital status; family status; mental or physical disability (including previous or present drug or alcohol dependence); and pardoned conviction.

If the CHRC receives a complaint under the CHRA and determines that the complaint is well-founded, the Commission generally attempts to conciliate any disputes, differences or disagreements between the complainant and the respondent. Where conciliation fails, the CHRT may hear the case and decide to order a remedy or to dismiss the complaint. Unlike the courts, human rights tribunals are specialized bodies that have broad powers to fashion remedies to address the unique social problems underlying a complaint of discrimination. Where the complaint of a discriminatory practice is substantiated, the CHRT may order that a penalty be paid, that compensation be provided to an identified victim, that the practice cease, and that other remedial solutions or programs tailored to address the practice be carried out. Decisions of both the CHRC and the CHRT are reviewable by the Federal Court of Canada. It may also be possible to appeal the Federal Court’s decision all the way to the Supreme Court of Canada.

2.2 The Canadian Charter of Rights and Freedoms

The Constitution Act, 1982 gives human rights and fundamental freedoms an enhanced legal status through the Canadian Charter of Rights and Freedoms, which, as a part of the Constitution, entrenches these rights within the supreme law of the country. Section 52(1) of the Constitution Act, 1982 expressly states that “The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.” As such, all laws in Canada must comply with the Charter and will be interpreted by Canadian courts in a manner that is consistent with its supremacy.

Certain limitations, however, may be placed on Charter guarantees. Firstly, the Charter applies only to relations between governments and the public. Section 32 of the Charter states that it applies to Parliament, provincial legislatures, and the federal and provincial governments. The Charter does not, therefore, generally apply to private actions of individuals or corporations. Secondly, section 1 of the Charter provides that all rights and freedoms guaranteed by the Charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 10 This means that once an infringement of a Charter right has been established, the courts must decide whether the violation can be considered justified by the government responsible. This requires the courts to use a highly discretionary balancing test to weigh the policy interests of the government against the interests of an individual who is claiming that his or her Charter right has been violated. Under section 52 of the Constitution Act, 1982, as mentioned above, a law, or a part thereof, may be found to be unconstitutional and struck down; 11 or, alternatively, a person’s Charter right may be justifiably limited by a law that has been found to be constitutional.

In terms of remedial relief under the Charter, individuals or groups whose Charter rights have been infringed may apply for a remedy under subsection 24(1), which provides that anyone whose rights or freedoms as guaranteed by the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain an appropriate remedy. Section 24 is extremely broad-ranging in permitting courts to award individualized forms of remedy as “appropriate and just” in the circumstances, even if it is entirely innovative. In contrast, although human rights tribunals generally have broad remedial powers, they are limited to making orders that are provided for in their governing legislation.

Given that the Canadian Charter of Rights and Freedoms applies to any federal, provincial or municipal law or regulation, as well as to any governmental activity, it applies to human rights legislation and in this way can affect individual or corporate conduct. There may also be overlap between human rights legislation and the Charter in cases where it can be shown that the practice at issue is an act of government that took place in the context of employment or the provision of services, facilities or accommodation. There is also a great deal of overlap between the anti-discrimination guarantees of section 15 of the Charter and those of federal, provincial and territorial human rights legislation. Decisions rendered by the courts and tribunals in this area to date suggest that these provisions share the same underlying philosophy and have overlapping jurisdiction in many respects. Section 15 of the Charter guarantees the right to equality, and subsection 15(1) provides as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

While the list of prohibited grounds of discrimination in section 15 is equivalent to that in most human rights legislation, the courts have interpreted this section as also extending to other grounds of discrimination that are similar or analogous to those set out in the section. 12

3 Freedom of Expression in Canada

The freedoms of thought, belief, opinion and expression are protected as a fundamental constitutional guarantee in section 2(b) of the Canadian Charter of Rights and Freedoms. This section adds that these rights include “freedom of the press and other media of communication.” (As noted above, however, the freedoms contained in section 2(b), and in other Charter rights, may be subject to certain limitations.) Freedom of speech is declared to be a human right and fundamental freedom in section 1(d) of the Canadian Bill of Rights, 13 along with freedom of religion and freedom of the press.

Federal and provincial laws have at times placed restrictions on the freedom of expression, whether as part of a law’s intended purpose or as an indirect consequence. When, as mentioned above, these laws are challenged pursuant to the Charter in Canadian courts, judges must decide whether the laws may be upheld as being in accordance with the limitation clause in section 1 of the Charter. Justifying these restrictions on freedom of expression usually involves a balance of competing values. For example, films and television programs that deal with mature subject matter are often censored or restricted so that children are prevented from seeing part or all of them. Here, a balance is struck between the filmmaker’s right to freedom of expression and the desire to protect a potentially vulnerable group from images that may be inappropriate for them or even harmful.

Much has been written by Canadian courts, legal experts and other interested individuals regarding the rationales for guaranteeing freedom of expression or for imposing restrictions on this freedom; the debate is constantly revived whenever new technologies or innovations produce new forms of expression that are then regulated by Canadian laws. In promoting the right to freedom of expression, some have argued that it plays an important role as an “instrument of democratic government,” an “instrument of truth,” or an “instrument of personal fulfilment.” 14

Freedom of expression may be restricted in a number of ways and for a number of purposes by Canadian laws. As discussed below, the CHRA and the Criminal Code contain prohibitions against the publication of messages that promote hatred. Perjury, counselling suicide, and creating child pornography are all forms of expression, but they have been limited through designation as criminal offences. Election surveys are prohibited from being published on an election day while polling stations are still open 15 – which limits the freedom of the press in Canada, but is intended to prevent voters from being unduly influenced by last-minute polls of voter intentions. As noted above, certain media, such as films, magazines or books, may be censored or their distribution may be restricted. The provincial and federal laws in Canada pertaining to defamation are another example of a limitation on free speech; these laws have been created to protect the reputations of other individuals. All of these examples demonstrate that freedom of expression in Canada is not absolute; rather, it can be limited to promote other values that are considered to be of greater social importance.

4 Hate Promotion Offences in the Criminal Code

Hate propaganda provisions have existed in the Criminal Code since 1970. 16 They were added by Parliament in response to a series of events and developments in the 1960s when certain white supremacist and neo-Nazi groups, largely based in the United States, were active in Canada. These groups and individuals engaged in anti-Semitic and anti-Black propagandizing. The hate propaganda provisions of the Code were essentially designed to target these activities. 17

The hate promotion offences and related provisions can be found in sections 318–320.1 of the Criminal Code. 18 Under section 318 of the Code, everyone who advocates or promotes genocide is guilty of an offence punishable by up to five years’ imprisonment. The term “genocide” is defined to mean killing members of an identifiable group or deliberately inflicting on an identifiable group conditions of life calculated to bring about the group’s physical destruction. Section 318(4) of the Criminal Code defines an “identifiable group” as any section of the public distinguished by colour, race, religion, ethnic origin, or sexual orientation. No prosecution under this provision can be undertaken without the consent of the provincial Attorney General.

Under section 319(1) of the Criminal Code, everyone who communicates statements in a public place and thereby incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of an indictable offence punishable by up to two years’ imprisonment, or of a summary conviction offence.

Section 319(2) makes it an offence to communicate, except in private conversation, statements that wilfully promote hatred against an identifiable group. Section 319(7) defines “communicating” to include communicating by telephone, broadcasting or other audible or visible means. 19 “Public place” is defined to include any place to which the public has access as of right or by invitation, express or implied. “Statements” include words spoken or written or recorded electronically, electromagnetically or otherwise, and also include gestures, signs or other visible representations.

No prosecution under section 319(2) can be instituted without the consent of the provincial Attorney General. Any person charged under section 319(2) of the Criminal Code has available four special defences set out in section 319(3). These defences are: 1) that the communicated statements are true; 2) that an opinion or argument on a religious subject was expressed in good faith or based on a belief in a religious text; 3) that the statements were relevant to a subject of public interest and were on reasonable grounds believed to be true; and 4) that the statements were meant to point out matters that produce feelings of hatred toward an identifiable group and were made in good faith for the purpose of their removal. These special defences are not available to those charged under sections 318 and 319(1) of the Code.

Sections 320 and 320.1 of the Criminal Code provide that a judge may, on reasonable grounds, issue an order for the seizure and confiscation of hate propaganda in any form, including data on a computer system. Hate propaganda is defined in section 320(8) as any writing, sign or visible representation advocating or promoting genocide, or the communication of which would be an offence under section 319. By implication, this material has to target identifiable groups. It merely needs to be shown that the material is hate propaganda for it to be seized – it does not have to be shown to be dangerous. The consent of the provincial Attorney General is required before these seizure and confiscation provisions can be used. Most of the case law in this area has involved prosecutions under section 319(2) of the Code.

5 Freedom of Expression and the Canadian Human Rights Act

The CHRA does not expressly set out rights in the manner of the Charter, nor does it create negative proscriptions in the manner of the Criminal Code. Rather, it simply states in section 13 and, to a lesser extent, in section 12 (as set out below) that certain conduct amounts to a “discriminatory practice,” that such practices can be the subject of a complaint to the CHRC, and that anyone found to be engaging in, or to have engaged in, a discriminatory practice can be ordered to provide a remedy.

Since its adoption in 1977 the CHRA has stated that it is a discriminatory practice to use telephonic services for the promotion of hatred in Canada. When first adopted, this provision was intended for use against telephone hate message lines: neo-Nazi sympathizers were distributing phone numbers on public streets for telephone answering services that responded automatically with pre-recorded racist messages. The provision was used successfully by the CHRC and the CHRT to stop these hate message lines from operating throughout the 1980s and 1990s. 20 As the Internet became the favoured medium for hate promotion, the provision was also used effectively against offending websites and their operators.

As noted above, the mandate of the Canadian Human Rights Commission under the Canadian Human Rights Act 21 is, in brief, to “investigate and try to settle complaints of discrimination in employment and in the provision of services within federal jurisdiction.” 22 Thus, the CHRC and the CHRT focus on complaints of discrimination – not specifically on the fundamental freedoms outlined in section 2 of the Charter, at least in terms of their constitutional guarantees or whether a law complies with the Charter; such matters are reserved for Canadian courts. For example: religion may arise in the context of a discrimination case before the CHRC. That case will not, however, question a person’s right to practise the religion of his or her choice or to hold a religious belief. Rather, it will question whether the person was discriminated against based on his or her religion or on an aspect of his or her religious belief or practice. 23

5.1 Section 13 of the Canadian Human Rights Act

Section 13 of the CHRA does not specifically prohibit hate messages; rather, it makes it a discriminatory practice to “communicate telephonically or to cause to be so communicated ... by means of the facilities of a telecommunication undertaking ... any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.” Until the mid-1990s, this part of the Act was used against the dissemination of hate promotion messages by telephone services. 24 This changed in July 1996 when the Canadian Human Rights Commission received its first complaint against the use of an Internet website as a means of communicating hate promotion messages (largely containing Holocaust-denial material). Section 13 is set out in full in Appendix A.

In December 2001, section 13 was amended to clarify that Internet hate messages do come under the jurisdiction of the CHRC. This amendment was included as part of a package of anti-terrorism measures introduced after the 11 September 2001 terrorist incidents in the United States. 25 Subsection (2) now adds that subsection (1) applies to communications sent over computers, “including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.” In other words, section 13 now applies to hate messages sent or made over the telephone or the Internet (or a related means of communication, not including broadcasting).

Section 13 does not apply to printed publications, unless a print article has been posted on an Internet site; then it may be subject to the Commission’s jurisdiction. The Supreme Court of Canada has also emphasized that section 13 does not target expression that some may find offensive, but rather targets only the most extreme forms of expression of hatred and contempt. 26

Section 13 is not designed to replace the Criminal Code, or to replace the jurisdiction of the courts with the jurisdiction of the CHRC and the CHRT. As noted by the CHRC, they are complementary systems, and not in competition with each other. The Criminal Code may be used to respond to the promoting of hatred in a public place or the advocating of genocide and there is no limitation with regard to the specific mode of communication. The CHRA is limited to the repeated transmission of hate messages by means of a telecommunication undertaking or by means of a computer system. In contrast to the Criminal Code provisions described above, no specific defences are available to the respondent in a complaint under section 13 of the CHRA. As well, the consent of the Attorney General is not required for such a complaint of discrimination to go forward – anyone may make such a complaint. Furthermore, there is no requirement that a complainant show evidence of specific intent or wilfulness on the part of the respondent.

5.1.1 Other Legislation Containing Similar Provisions

Different forms of hate speech are prohibited in a number of other federal statutes. For instance, section 8 of the Broadcasting Distribution Regulations prohibits the broadcasting of “any abusive comment or abusive pictorial representation that, when taken in context, tends to or is likely to expose an individual or group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.” 27 Similar provisions are contained in other regulations under the Broadcasting Act. 28 Also, the Customs Act and Customs Tariff 29 prohibit the importation of hate propaganda. Amongst the provinces and territories, only the human rights laws of Alberta, British Columbia, Saskatchewan and the Northwest Territories include a provision similar to section 13 of the CHRA that prevents the publication or posting of messages that incite hatred or contempt. 30

5.1.2 Constitutionality of Section 13

Section 13 has been the subject of challenges before the CHRT and in Canadian courts on the grounds that it infringes upon the freedom of expression guaranteed in section 2(b) of the Charter. The constitutionality of section 13 of the CHRA was considered by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor (“Taylor”). 31 This case involved John Ross Taylor and the Western Guard Party, which at the time were operating a hate promotion telephone message service. Although section 13 was found to be inconsistent with section 2(b) of the Charter, it was saved under section 1 as a reasonable limit in a free and democratic society. The fact that these provisions are found in a remedial human rights legislative context, rather than as part of the criminal law, did not adversely affect section 13’s constitutional acceptability.

The Supreme Court concluded in Taylor that hate propaganda presents a serious threat to society and that: “In seeking to prevent the harms caused by hate propaganda, the objective behind s. 13(1) is obviously one of pressing and substantial importance sufficient to warrant some limitation upon the freedom of expression.” The Court determined that hate propaganda contributes little to the aspirations enshrined in section 2(b) of the Charter such as the quest for truth, the protection of democracy, or individual fulfilment. Furthermore, the Court recognized that the values of equality and multiculturalism found in sections 15 and 27 of the Charter “magnify the weightiness of Parliament’s objective in enacting s. 13(1).” In other words, respect for the dignity and equality of the individual, in particular as a member of a particular group, justifies the infringement on the freedom of expression. Similar reasoning was used in R. v. Keegstra, which examined the constitutionality of the limitation on free speech included in the Criminal Code, adding that:

Parliament’s objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. 32

The most prominent CHRT decision with regard to hate speech on the Internet pertained to a site maintained by Ernst Zundel, a free-speech activist who has been charged on several occasions for disseminating anti-Semitic literature. 33 This decision clarified the applicability of section 13 to the Internet and reinforced its constitutionality. Parliament subsequently amended section 13 to clarify that it applies to Internet communications. The decision in the Zundel case has been followed and applied in subsequent Internet hate promotion decisions made by the CHRT. 34

In a more recent decision, Warman v. Lemire 35 (“Lemire”), the Tribunal concluded that section 13 of the CHRA does in fact violate the Constitution. On 1 October 2009, the CHRC applied to the Federal Court for judicial review of this decision as it is contesting the ruling; at the time of writing this paper, a decision from the Federal Court is pending. 36

In its decision, the CHRT considered the Taylor case, but determined that the penalty provisions in the CHRA, 37 which were added subsequent to that decision, changed the nature of the constitutional analysis involved in that case. In Taylor, the Court found, in part, that given the conciliatory nature of the human rights complaint process, section 13 minimally impaired free speech. As such, in the constitutional analysis applied by the Court, the minimal impairment of the right to freedom of expression allowed the Court to conclude that section 13 remained constitutional. By contrast, in Lemire, the CHRT found that the conciliatory efforts outlined in the Act were not reflected in the process being used in practice to address section 13 complaints. It also concluded that the introduction of a penalty could be seen as having a greater “chilling” effect on free speech than the provision may have previously done. 38 These changes allowed the CHRT to reconsider the decision in Taylor and conclude that section 13 no longer minimally impairs free speech since it “has become more penal in nature.” 39 Though it found that section 13 violates section 2(b) of the Charter, the CHRT does not have the authority to strike down the law. It therefore simply did not apply section 13, even though it concluded that Mr. Lemire had contravened it.

CHRT members are not bound by previous Tribunal decisions, but are obligated to follow decisions of the courts. While Lemire could influence future decisions, it does not prevent other cases from coming before the Tribunal, or from being decided differently. Given that the CHRT distinguished its decision from the Taylor case in large part because of the introduction of the penalty, it is possible that other Tribunal members faced with section 13 complaints where no penalty was being requested might follow Taylor and conclude that section 13 is constitutional.

5.1.3 Calls for Reform of Section 13

An increasing number of individual Canadians and organizations have been calling for the repeal of section 13. Others have responded by calling for a commitment to ensuring that the principles behind this provision remain intact, perhaps conceding that some amendments may be necessary. Given that this debate involves such sensitive topics as racism and freedom of speech, the discussions have often been heated. Supporters of the repeal or reform of section 13 include not only those who have appeared before the CHRT as defendants, but also academics, politicians, free-speech advocates, and journalists. 40 In January 2008, Liberal Member of Parliament Keith Martin introduced an unsuccessful private member’s motion calling on Parliament to repeal section 13. 41 It should be noted that even if section 13 were to be either repealed or amended, the Criminal Code provisions concerning hate propaganda would continue to operate as before: the Attorney General’s consent would still be required, and any persons charged with hate promotion would face a criminal trial before they could be found guilty.

Those who advocate for the repeal of section 13 generally present two arguments. One is that criminal courts are better suited to the prosecution of hate crimes and hate propaganda. This view is perhaps based on the presumption that judges are better trained to handle cases involving Charter rights, or that criminal courts offer better protections for accused persons. The second argument is that all restrictions on freedom of expression should be minimized, if not completely removed. Those who hold the latter view would argue that the best response to a “bad” form of expression, such as hate speech, is either to ignore it or to respond with better arguments.

In contrast, a number of organizations have come forward to oppose the full repeal of section 13 (though not all necessarily oppose reform), arguing that it is vital to the protection of minority communities from the harms that can be caused by hate speech – harms such as the incitement to further hatred, incitement to violence, and affronts to basic human dignity. 42

As noted by the CHRC, while section 13 has “always been controversial,” a particularly vigorous debate has been gathering momentum since 2007 when a complaint against a “mainstream news magazine” was filed, though it was later dismissed. 43 The CHRC is here referring to the case of Canadian Islamic Congress (CIC) v. Rogers Communications, in which the CIC filed a complaint pursuant to section 13 that an article written by Mark Steyn in the online edition of Maclean’s magazine exposed members of the Muslim community to hatred and contempt. 44 The article discussed, through demographics, the argument that the “Western world” was at risk of being supplanted by the “Muslim world.” 45 The CHRC “dealt with the case as required by law and determined that, although some aspects of the article in question were strongly worded, polemical, colourful and calculated to excite discussion, they did not meet the threshold of hate and contempt as determined by the Supreme Court in Taylor.” 46 The complaint was also dismissed by the Ontario Human Rights Commission for reasons of a lack of jurisdiction and by the British Columbia Human Rights Tribunal after a hearing.

Referring to its own role, the CHRC stated that it had “fulfilled its legislative mandate in receiving, processing and making a decision on the complaint; however, the mere fact that the Commission accepted the complaint in the first place subjected the Commission to criticism by many who misunderstood the Commission’s role.” 47

In May 2009, McClelland & Stewart published Shakedown: How Our Government is Undermining Democracy in the Name of Human Rights by Ezra Levant, a journalist and lawyer who has written about his experiences responding to a complaint before the Alberta Human Rights Commission that he had incited hatred by republishing controversial cartoon images of the prophet Mohammed. 48 Levant’s book has drawn considerable attention to the reform of section 13. Within a few months of its publication, it was on national best-seller lists. 49 It has received mixed reviews. Certain reviewers, including those from some of Canada’s leading news publications, have praised it and see Levant as a champion of fundamental freedoms. 50 Others have criticized Levant’s research methodology, claiming selective sourcing of information or biased presentation of findings (though not necessarily disagreeing with the general call for reform). 51

Shakedown highlights what Levant sees as serious problems with human rights commissions, from their methodology to their ethics to their reasons for being in existence. He argues that the commissions were created to respond to past social contexts where discrimination was a problem in a way that it no longer is today. With respect to hate messages, he advocates removing all limitations on free speech and argues that the best way to deal with neo-Nazi hate propaganda is to ignore it. He sees human rights legislation that restricts free speech as an unnecessary intrusion on a fundamental right and is opposed to the current human rights institutional model in Canada.

5.1.4 Canadian Human Rights Commission Reports Regarding Section 13

The Canadian Human Rights Commission published two reports in 2008 and 2009 concerning section 13. The first, released in October 2008, was written by Richard Moon, a Canadian law professor, and is titled Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet. 52 The second, the CHRC’s Special Report to Parliament concerning the debate over Section 13, titled Freedom of Expression and Freedom from Hate in the Internet Age, was released in June 2009. 53

5.1.4.1 The Moon Report

Richard Moon’s Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet received considerable media attention, largely due to its recommendation that section 13 should be repealed. The report included a number of recommendations, including several targeting the “role of non-state actors in the prevention of expression that is hateful or discriminatory in character.” 54

The main recommendation of the Moon report is that “section 13 of the CHRA be repealed, so that the CHRC and the Canadian Human Rights Tribunal (CHRT) no longer deal with hate speech, and in particular hate speech on the Internet.” It further stated that:

Hate speech should continue to be prohibited under the Criminal Code but this prohibition should be confined to expression that advocates, justifies or threatens violence. In the fight against hate on the Internet, police and prosecutors should make greater use of section 320.1 of the Criminal Code, which gives a judge power to order an Internet service provider (ISP) to remove “hate propaganda” from its system. Each province should establish a provincial “Hate Crime Team,” composed of both police and Crown law officers with experience in the area, to deal with the investigation and prosecution of hate crimes including hate speech under the Criminal Code. 55

The Moon report also included recommendations for consideration should Parliament decide not to repeal section 13 of the CHRA. These recommendations were intended to modify section 13 “so that it more closely resembles a criminal restriction on hate speech.” The recommendations include:

• changes to the language in order to clarify that the section prohibits only the most extreme instances of discriminatory expression, that threaten, advocate or justify violence against the members of an identifiable group;
• the amendment of section 13(1) of the CHRA to include an intention requirement;
• the amendment of the CHRA to establish a distinct process for the investigation of section 13 complaints by the CHRC. Under the amended process, the CHRC would receive inquiries and information from individuals or community groups but would no longer investigate and assess formal complaints; and
• the CHRC should have the exclusive right to initiate an investigation in section 13 cases. If, following an investigation, the CHRC recommends that the case be sent to the CHRT, the CHRC would have carriage of the case before the Tribunal. 56

One effect of these changes would be that individual complainants would no longer be central to the proceedings, as is currently the case. Moon anticipates this would allow the CHRC to decide whether cases might be likely to succeed before the CHRT at early stages of the investigation process.

5.1.4.2 The Canadian Human Rights Commission’s Special Report to Parliament

The CHRC’s Special Report to Parliament, Freedom of Expression and Freedom from Hate in the Internet Age, opens by stating that its purpose is to provide “a comprehensive analysis of a current debate,” defined as: “what is the most effective way to prevent the harm caused by hate messages on the Internet, while respecting freedom of expression?” 57 The Special Report reviews the pertinent legal provisions of the Criminal Code, the CHRA, and even international law; it summarizes how the CHRC system works to respond to hate messages on the Internet; it includes examples of the types of hate messages it has investigated and that have been heard by the Tribunal; it provides commentary on the roles of civil society and government organizations in responding to hate messages; and it proposes its own recommendations for Parliament.

The CHRC has concluded that both the Criminal Code and the CHRA serve valid purposes in dealing with hate messages on the Internet. It therefore does not support a full repeal of section 13; however, it proposes a number of reforms. The recommendations ask that Parliament:

• add a statutory definition of “hatred” and “contempt” in accordance with that applied by the Supreme Court of Canada in Taylor (i.e., not restrict the definition of hate message to those expressions that advocate, justify or threaten violence – as proposed in the Moon report);
• allow for an award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process;
• include a provision under section 41 of the Canadian Human Rights Act to allow the early dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt;
• repeal subsection 54(1)(c), the provision that allows for the assessment of fines against those who violate section 13;
• review the requirement in the Criminal Code for consent of an Attorney General, which may be a possible barrier to prosecutions; and
• together with the appropriate bodies in provincial and territorial jurisdictions, consider the benefits of better coordination between Crown prosecutors and police services in their efforts to protect Canadians from hate propaganda.

The CHRC supports these recommendations by expressing the view that hatred, prejudice, and discrimination are still significant problems in Canada, meriting continued regulation under the CHRA and the Criminal Code. More specifically, it asserts that all citizens have the right to be treated with equality, dignity and respect, and to be protected from the harm that can be caused by hate messages.

5.2 Section 12 of the Canadian Human Rights Act

Section 12 of the CHRA states that it is a prohibited discriminatory practice to “publish or display” “any notice, sign, symbol, emblem or other representation” that “expresses or implies discrimination or an intention to discriminate,” or “incites or is calculated to incite others to discriminate” against an identifiable group. This provision is further circumscribed by adding that the discrimination expressed or implied must “be a discriminatory practice described in any of sections 5 to 11 or in section 14.” In other words, section 12 does not create any new discriminatory practices per se; rather, it simply adds a prohibition of publishing or displaying any representation of an intention to discriminate or that incites others to discriminate in a manner already set out elsewhere in the Act. Section 12 is included in full in Appendix A.

All provincial and territorial human rights laws, except in Yukon, include a provision similar to section 12. The Moon report notes that when this type of provision was first enacted in the Ontario Racial Discrimination Act, 58 its purpose was “to prohibit signs in store windows that indicated that the members of certain racial or ethnic groups would not be served.” The Ontario Human Rights Commission notes that these provisions “allow human rights agencies to use enforcement powers to deal with the publication of intent to deny housing, employment or services such as access to a restaurant or retail store because of an individual’s race, religion or other enumerated ground.” 59

Section 12 is somewhat similar to section 13 in that subsection (b) pertains to representations that “incite” others to take certain discriminatory actions; in other words, these are representations that spread a message to convince others to undertake certain discriminatory actions. It is possible therefore to compare this aspect of subsection (b) with section 13’s provisions regarding hate messages. If section 12 were to be amended for reasons similar to those arguments made in favour of repealing section 13 (such as those made by Professor Moon and free-speech advocates), then subsection (b) would likely be the focus of any proposed amendment.

The Moon report notes that “in those jurisdictions that do not have a section 13 equivalent in their code, the discriminatory sign provision has sometimes been interpreted broadly so that it extends to discriminatory speech that appears on signs, and in some provinces, that occurs in publications.” 60 Thus, in provincial legislation where no equivalent to section 13 exists, then equivalents to section 12 have been used to similar ends. 61 The Moon report therefore adds that: “If section 13 of the CHRA is repealed, it may also be necessary to amend or repeal section 12 so that it does not substitute for section 13.” 62

The Moon report provides no further explanation of how any amendments to section 12 should be made; and the CHRC Special Report makes no mention of section 12. Indeed, section 12 of the CHRA has not received the same attention from legal experts or commentators, the media, the courts or the CHRT as has section 13. Nonetheless, as section 12 is distinct in many ways from section 13, any proposal to repeal or amend this provision requires its own analysis. If section 12 were to be repealed, the discriminatory practices contained in sections 5 to 11 or in section 14 would still be prohibited by the Act. What would be lost is the clear intent of the law that publishing or displaying an intent to discriminate or inciting others to do so constitutes a discriminatory practice. However, if the original intention of this section were to be preserved (i.e., addressing situations where signs were posted in establishments setting out an intention to discriminate against members of certain identifiable groups), then section 12 would need to be amended rather than wholly repealed.

Lastly, in Dreaver et al. v. Pankiw, 63 the CHRT heard a complaint against a federal member of Parliament who had distributed a series of printed brochures to his constituents that included statements regarding Aboriginal persons in the context of the criminal justice system and the operations of government. The complainants alleged that the distribution of the brochures constituted a discriminatory practice in the provision of public services on the ground of race, and that the statements in question expressed discrimination or incited others to discriminate. With regard to section 12, the CHRT found that statements made in a householder pamphlet that an MP sent to his or her constituents were not a “representation” under the meaning of the section. The Tribunal found that the word “representation” was intended to refer to an image, likeness or reproduction, and could not be interpreted to include statements or articles, such as those in the brochures. In other words, this particular form of published literature was not the type of “representation” that is set out in section 12 (and therefore the section was not applicable to that case). There do not appear to have been any other reported decisions based on complaints brought forward under section 12.

6 Conclusion

At the time of the writing of this report, neither the Government of Canada nor the opposition parties have announced firm plans to repeal or amend sections 13 or 12 of the CHRA. The House of Commons Standing Committee on Justice and Human Rights did hold two meetings in October 2009 on section 13 of the CHRA. The Committee heard from Ezra Levant and Mark Steyn on 5 October 2009 64 and from Jennifer Lynch, Chief Commissioner of the Canadian Human Rights Commission, on 26 October 2009. 65 No further meetings have been held since.

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Notes

†  Library of Parliament Background Papers provide in-depth studies of policy issues. They feature historical background, current information and references, and many anticipate the emergence of the issues they examine. They are prepared by the Parliamentary Information and Research Service, which carries out research for and provides information and analysis to parliamentarians and Senate and House of Commons committees and parliamentary associations in an objective, impartial manner.[ Return to text ]