The Canadian Human Rights Commission [1]recently posted a policy [2] on its website concerning how it interprets and applies section 13 of the Canadian Human Rights Act [3] (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 [4].
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 [5], 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.