Canadian Human Rights Commission’s Controversial "Anti-hate" Policy

The Canadian Human Rights Commission recently posted a policy on its website concerning how it interprets and applies section 13 of the Canadian Human Rights Act (CHRA) when it receives an inquiry or complaint. The purpose of section 13 of the Act is to balance Canadians’ rights to equality and freedom of expression with respect to hate messages, as protected by the Canadian Charter of Rights and Freedoms. The parliamentary record indicates that section 13 was initially included in the legislation to address activities of individuals and groups who used the telephone system to disseminate hate messages. In December 2001, parliament amended the CHRA by adding section 13(2), which makes it clear that Internet hate messages come under the jurisdiction of the commission. For more information on the history of section 13 see: Hate messages and section 13 of the Canadian Human Rights Act – Legal Milestones.

Specifically, section 13 states:

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the activities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

Sections 13(2) and (3) state:

For greater certainty, the above applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related 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 broadcast undertaking.

For the purpose of section 13, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described above by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

Essentially, the section prohibits the communication of messages that are likely to expose a person to hatred or contempt, by reason of the fact that the persons targeted are identifiable on the basis of a prohibited ground of discrimination such as race, nationality, sex, sexual orientation, religion, and so on.

The Supreme Court of Canada in 1990 defined the meanings of “hatred” and “contempt”, and the commission has adopted these definitions in its policy. In the commission’s opinion, applying these definitions ensures that the exercise of the commission’s mandate does not offend the Charter.

“Hatred” is a set of emotions and feelings that involve extreme ill will towards another person or group of persons. To say that one “hates” another means in effect that one finds no redeeming qualities in the latter.

“Contempt” is a term that suggests a mental process of “looking down” upon or treating as inferior the object of one’s feelings. This is captured by the dictionary definition in the use of terms “despised”, “dishonour” or “disgrace”.

In order to come within the ambit of section 13, the communication that is the subject of the complaint must be so excessive and extreme in nature that it suggests that a given race, sex, religion or other group identifiable in relation to one or more grounds in the CHRA is devoid of any redeeming qualities as human beings. If the message does not meet this high threshold, it will not qualify as hate speech under section 13, notwithstanding that the message is offensive, controversial, shocking or disgusting to some.

The policy indicates that the commission will use investigation, mediation and conciliation to resolve complaints and get hate messages removed as quickly as possible. When Section 13 disputes end up at the Human Rights Tribunal, the commission says it will ask not for penalties but for a cease-and-desist order forcing the message’s removal.

However, many critics view section 13 as a violation of the rights to free speech and self-expression guaranteed under the Charter. In September 2009, in Warman v. Lemire, [2009] C.H.R.T.D. No. 26, the Human Rights Tribunal agreed with the critics and ruled section 13 unconstitutional. The case is being appealed at the Federal Court. Many believe that this case struck a major blow at the foundation of Canadian hate speech controls and placed the future of Section 13 in doubt, which prompted the commission to develop its new policy on the interpretation of section 13 of the CHRA.

Stephen Harper (in Newsmagazine, January 11, 1999) has called the human rights commissions control over hate speech “totalitarianism.” Opposition to section 13 is growing; for example, the Canadian Civil Liberties Association has applied for intervener status in the Lemire constitutional challenge in support of free speech, and to end Internet censorship.

Supporters of keeping the provision, such as Bernie Farber, CEO of the Canadian Jewish Congress, say it’s a necessary limit on free speech because the intent is to curb discrimination.

But the commission is clearly not going to give up its power to rein in hate messages without a fight. In substance and tone, the commission’s new policy tries to recognize and respect the sensitivity of the free speech implications involved; but it also signals the commission’s firm intention to enforce Section 13 unless and until it’s ordered not to.

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Comments

  1. I think the CHRT held that it was the penalty that was unconstitutional, not s. 13 itself – see this post.

    If you watch this webcast from a recent conference, you’ll see some of these issues discussed further. The question period involves a number of characters, including Khurum Awan of the Maclean’s controversy and Bernie Farber of the CJC. Towards the end you’ll even see Farber and I critiquing a recent initiative of B’nai Brith (who sponsored the conference).

  2. If you want to be technical about it the CHRT did (as Yosie says) say that s. 13 was unconsitutional but that was only (as Omar suggests) in the context of a particular remedy available for breach. It would have made more sense (and caused less confusion) to simply say that the remedy was unconstitution. I don’t get that worked up about many decisions emanating from any body lower than the court of appeal level anyway (unless they’re my cases I suppose).

    Thanks for the link to Mr. Awan’s blog. Good to see that his submissions to the House of Commons on same sex marriage are excluded from the parliamentary submissions section. I guess we all evolve politically.

  3. An interesting article on the same topic that appeared Friday in the National Post
    http://www.nationalpost.com/news/story.html?id=2784664

    And yes, the tribunal judged section 13 unconstitutional as well as section 54 (impose hefty fines) of the Canadian Human Rights Act, both are being equally challenged.

  4. For those who are interested, a whole website on the Constitutional Challenge of Section 13 and 54 of the Canadian Human Rights Act has been set up by Marc Lemire… it is quite interesting!

    http://www.stopsection13.com/constitutional_challenge.html

  5. Has any person ever actually had their speech limited by a Human Rights Tribunal? I know there have been complaints, but have they ever been resolved against the respondent?

    Is everyone just up in arms about a problem that doesn’t actually exist?

  6. “Has any person ever actually had their speech limited by a Human Rights Tribunal?”

    Yes. I think all or all but one of the cases that have been referred to the federal tribunal have resulted in a finding that s. 13 has been breached. At the provincial level there are others as well. I can think of two specifically–Stephen Boissoin and Bill Whattcott–who have been ruled against by tribunals. Both were overturned on appeal but I dont think the appeal process is finished for either.

  7. The case against Bill Whatcott was overturned February 25th by the Saskatchewan Court of Appeal.

    Justice Darla Hunter ruled that Whatcott had not violated the human rights code, and that the Tribunal decision unjustly limited the freedom of expression. “It is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour,” she wrote. “Anything that limits debate on the morality of behaviour is an intrusion on the right to freedom of expression.”

    The Saskatchewan Human Rights Commission (SHRC) has announced their intention to take their case against Bill Whatcott, a Christian fighting the encroachment of homosexualism, to the Supreme Court of Canada.

  8. The case against Stephen Boisson, another Christian, a pastor, who wrote a letter to a local newspaper in Red Deer against homosexuality was appealed to the Alberta Court of Queen’s Bench who ruled in favour of former-pastor Stephen Boissoin.

    However, the Alberta Human Rights Commission has decided to appeal this ruling.

  9. Lawrence, as of April 2005, the Commission has investigated more than 24 section 13 complaints. Several cases are currently before the Tribunal.

    The Zündel case was decided in 2002 and was the first case involving hate on the internet. Ernst Zündel was deported to Germany in 2005 where new accusations related to his heinous hate propaganda activities were waiting for him.

    Since then, the Tribunal has rendered other decisions involving section 13 of the Canadian Human Rights Act: Mark Schnell V. Machiavelli and Associates Emprize Inc. et al. – (2002), Warman v. Kyburz (2003) and Warman v. Warman (2005). In all these cases, the respondents were found to have breached the Act.

    A decision in the case of Warman v. Kulbashian et. al fined them for communicating hate messages. Kulbashian is the first case in which one of the respondents was an Internet service provider. Richardson and Kulbashian are currently appealing the decision on the grounds of error in judgement, as well as challenging the constitutionality of section 13 of the Canadian Human Rights Act.

  10. I think the Zundel case was a criminal case, not a HRT case. Maybe both bodies dealt with him. I don’t know.

    Thanks for all that info, though!

  11. Zundel was a human rights section 13 case… the first one that included hate messages on the Internet… A landmark case confirming that the Canadian Human Rights Act does apply to material posted on the Internet.

    http://www.chrc-ccdp.ca/proactive_initiatives/hoi_hsi/qa_qr/page7-en.asp