Strategic Initiatives

Hate messages and Section 13 of the
Canadian Human Rights Act
Legal Milestones

Introduction

The Commission plays a unique role in combating hate on the Internet. Section 13 of the Canadian Human Rights Act gives the Commission the jurisdiction to deal with complaints regarding the use of the Internet to transmit hate messages.

In 1966, the Report of the Special Committee on Hate Propaganda in Canada (the Cohen Committee) was released. It described the serious harm that messages of hatred cause, noting "that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct." (Quoted in Canada (CHRC) v. Taylor, p. 15.) The Committee reported that hate messages can also lead to an increase in discrimination.

1975
Bill C-72, the first bill to introduce federal human rights legislation, received first reading in Parliament on July 25. It did not include a provision for dealing with hate messages. Due to extensive criticism, it stalled in Parliament and died on the order paper.

1976
Bill C-25 received first reading on November 29 and was opposed by the Canadian Civil Liberties Association. Nevertheless, it passed and received Royal Assent on July 14, 1977, becoming the Canadian Human Rights Act S.C.1977, Chapter 33. The Act included a provision for dealing with hate messages.

Until 2001, section 13 read as follows:

13.(1) 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 facilities 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 that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

Section 13 was included in the first draft of Bill C-25, in response to the actions of a Toronto-based group, the Western Guard Party. Led by John Ross Taylor, this group had been playing messages on a telephone answering machine for several years. A number of people complained that the messages were anti-Semitic. The Attorney general of Ontario brought this situation to the attention of the federal Minister of Justice, Ron Basford, noting that the Ontario Human Rights Code offered no remedy.

The Minister suggested that conciliation following a breach of section 13 would not be very useful. He decided that the sole remedy to such a situation, once the complaint was substantiated, would be a cease and desist order, which a tribunal could order under subsection 42(2).

Additionally, if it was found that the person had engaged in the practice wilfully or recklessly or the victim had suffered hurt feelings, subsection 42(3) allowed the Tribunal to order the person to pay compensation of up to $5,000 to the victim.

1985
Subsection 42(3) was renumbered as section 54 but remained essentially the same.

1998
Bill S-5 amended section 54 to allow the Tribunal to do the following:

• make a cease and desist order;

• order the respondent to compensate a victim specifically identified in the communication for up to $20,000, if the panel finds that they have engaged in the discriminatory practice wilfully or recklessly; and
• order the person to pay a penalty of up to $10,000.

The amendments also required the Tribunal to take certain factors into account when deciding whether to order the person to pay the penalty, such as the following:

• the nature, circumstances, extent and gravity of the discriminatory practice; and
• the person’s wilfulness or intent, any prior discriminatory practices he or she had engaged in, and the person’s ability to pay the penalty.

One of the reasons the federal government raised the penalty from $5,000 to $20,000 is because some provincial human rights laws do not limit how much money can be awarded to a complainant, while others have limits ranging from $2,000 to $10,000. Raising the limit under the Act would ensure that tribunals had enough discretion to award an amount that was fair in the circumstances.

Section 54 expanded the order-making powers of the tribunals in response to rising rates of hate crimes around the world. The government hoped the stronger measures would deter people and groups from establishing hate lines. (Bill S-5: An Act to Amend the Canada Evidence Act, the Criminal Code, and the Canadian Human Rights Act, Nancy Holmes, Law and Government Division, October 14, 1997, revised November 1998)

1999
Justice Minister Anne McLellan established an independent panel to review the Act. In recommendation 143 of its report, Promoting Equality: A New Vision, 2000 (the LaForest report), the panel recommended that "the prohibition of hate messages in the Act be broadened to encompass both existing and future telecommunication technologies in federal jurisdiction."

In its report, the Panel noted the following:

• the Internet is a much more powerful way to spread hate messages than the telephone is, since the Internet allows mass audiences to easily access multimedia messages;
• the Internet helps people wishing to spread hate messages to find each other and work together; and
• traditional targets of hate messages are concerned that hate on the Internet is sparking a rise in hate crimes, encouraging younger people to commit these crimes and fostering the spread of such crimes to the suburbs.

2001
Bill C-36 , the anti-terrorism bill, further amended the Act to include the communication of hate messages over the Internet. Subsection 13(2) was replaced by the following:

(2) For greater certainty, subsection (1) 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 broadcasting undertaking.

In 1979, the Human Rights Tribunal held it’s first hearing under the Canadian Human Rights Act concerning a section 13 complaint. This complaint concerned the telephone hotline of John Ross Taylor and the Western Guard Party. Over 10 years later, this landmark case reached the Supreme Court of Canada.

John Ross Taylor and the Western Guard Party (the respondents) distributed cards inviting calls to a Toronto telephone number, where an answering machine played recorded messages. The messages, while in part arguably innocuous, contained statements denigrating the Jewish race and religion. In 1979, the Commission received complaints about these messages.

Mr. Taylor argued that section 13 of the Act violated his rights of free speech under the Canadian Bill of Rights. The Tribunal rejected this argument, saying: "It appears to be the policy of Parliament that these communications systems are not available to assist individuals who are intent upon weakening the fundamental beliefs maintained within the Canadian society." The Tribunal found that the messages, for the most part, were likely to expose persons to hatred or contempt based on their race and religion. The Tribunal ordered the respondents to stop playing the messages.

Within one month, the respondents were playing messages again. The Commission applied to the Federal Court to have Mr. Taylor held in contempt of court for disobeying the tribunal’s order. The Court found Mr. Taylor in contempt and imposed a one-year jail sentence on him, which it suspended on the condition that the respondents shut down the message line.

Mr. Taylor continued to disobey the order and Mr. Justice Walsh of the Federal Court vacated the suspension of sentence. Mr. Taylor served his sentence from October 1981 to March 1982.

The Charter of Rights and Freedoms came into force in April 1982. Messages continued to be played. In May 1983, the respondents were again found in contempt of court, ordered to commit to jail and fined $5,000.

The respondents appealed this finding of contempt to the Federal Court of Appeal arguing, among other things, that section 13 of the Act violated subsection 2(b) of the Charter. The Federal Court of Appeal dismissed this appeal in 1987. The judge dismissed the defence that the messages were true and thus defensible, and also analysed the question using a section 1 analysis under the Charter.

Mr. Taylor was granted leave to appeal to the Supreme Court of Canada.

The Supreme Court of Canada found that, although section 13 of the Act infringed the right of free speech under section 2 of the Charter, this infringement was demonstrably justified under section 1 of the Charter. The Court pointed to the serious harm hate propaganda causes and stated that the objective of section 13 was obvious and one of pressing and substantial concern. In looking at the issue of proportionality, the Court found that hate propaganda contributes little to Canadian society or the values of free expression, and referred to the findings of the Cohen Committee’s report.

The Court specifically held that people don’t have to intend to discriminate to be found guilty of discrimination under section 13. It noted that "systemic discrimination is much more widespread than is intentional discrimination. To import a subjective intent requirement into human rights provisions, rather than allowing tribunals to focus solely upon effect, would defeat one of the primary goals of anti-discrimination statutes."

The Commission received several complaints regarding telephone messages made available by Derek Paterson and Canadian Liberty Net (the respondents). The Canadian Liberty Net phone number offered a menu of telephone messages, including racist ones.

In December 1991, people complained that the respondents had engaged in a discriminatory practice by playing messages on a telephone message service in Vancouver, in violation of subsection 13(1) of the Act. A tribunal later found that the messages were directed at non-white immigrants and Jews.

Prior to the hearing before the Tribunal, the Commission applied to the Federal Court for an interim injunction prohibiting the respondents from playing such messages until the Tribunal made its final order. After some deliberation, the Court granted the injunction. In making it’s decision, the Court held that the Charter does not guarantee the dissemination of hate messages and that the right of freedom of speech should be limited when that freedom collides with the rights listed in sections 7, 12, 15, 27 and 28 of the Charter.

However, within a few months, Canadian Liberty Net was again playing a message on a telephone hotline. The message instructed callers to phone a number in Bellingham, Washington, which played a message from the "Canadian Liberty Net in exile."

In 1992, the Commission applied to the Federal Court for a show cause hearing to have the respondents found in contempt of court. The Court found that "...Canadian Liberty Net and [Tony] McAleer purposely and methodically arranged to have the prohibited messages transmitted by telephone to Canadians by specifically and purposely directing anyone who called the Canadian telephone number to call the American number to hear the prohibited messages."

The Court stated that the Respondents "persisted in causing to be communicated these hateful and reprehensible messages and found the respondents guilty of contempt of court. Mr. McAleer was sentenced to two months in jail and Canadian Liberty Net was fined $5,000.

The Supreme Court upheld the jurisdiction of the Federal Court to issue an interlocutory injunction under the Act. The Supreme Court also held that tests for restraining potentially defamatory speech should also be applied in cases of potential hate speech. Importantly, the Court held that, although the hotline telephone number was now located in the U.S., it was promoted in Canada via the Canadian Liberty Net phone number and people in Canada listened to the messages on Canadian phone lines. As long as at least part of an offence takes place in Canada, Canadian courts can exert jurisdiction.

3. CHRC v. The Heritage Front and Wolfgang Droege

Facts of the case

By the early 1990s, the Heritage Front had become the most public and powerful of Canada’s white supremacist groups. It served as an umbrella group and a clearing house for the extreme right in Canada. Its primary recruitment tool was the Heritage hotline, a telephone message line eventually run by a professional marketer using sophisticated telemarketing sales techniques. Reportedly, the line received 400 to 500 calls per day.

In February 1992, the Native Canadian Centre in Toronto complained that messages on the Heritage hotline violated subsection 13(1) of the Act, by exposing persons of particular ethnic origin to hatred and contempt.

After referring the matter to the Canadian Human Rights Tribunal for a hearing, the Commission applied to the Federal Court for an interim injunction to stop Wolfgang Droege and the Heritage Front (the respondents) from playing these messages until the Tribunal had rendered a decision. The Court granted an injunction prohibiting the respondents from playing messages "similar in form and content" to those that were the subject of the complaint. Mr. Droege agreed to the injunction.

However, the respondents did not stop playing messages, and the Commission applied to the Federal Court to find them in contempt. On April 6, 1993, the Court found the respondents not guilty of contempt, because the Commission had not proved beyond a reasonable doubt that the messages played after the injunction were sufficiently similar in form and content to the ones that were the subject of the complaint. However, the judge issued an expanded injunction prohibiting the Heritage Front or anyone associated with it from playing any messages that would indicate the social, economic or political views of the respondents.

Within days, a new hotline called Equal Rights for Whites appeared and the messages continued. The Commission made another application to find the respondents in contempt. Following a 12-day trial, the Court found them guilty of contempt. It specifically rejected the argument that subsection 2(b) of the Charter protected the messages. The Court sentenced the three individual respondents to one to three months in jail each and ordered the Heritage Front to pay a $5,000 fine.

In May 1988, Ernst Zündel (the respondent) was found guilty of publishing a pamphlet called Did Six Million Really Die? that he knew was false or likely to cause injury or mischief to a public interest, contrary to section 177 of the Criminal Code.

On July 18, 1996, the Mayor’s Committee on Community and Race Relations (the Mayor’s Committee) filed a complaint with the Commission alleging that Mr. Zündel was placing messages on the World Wide Web likely to expose people to hatred or contempt based on a prohibited ground of discrimination, contrary to subsection 13(1) of the Act.

The complaint alleged that, beginning on October 10, 1995, Mr. Zündel maintained a Web site that repeatedly provided pamphlets and publications likely to expose persons of the Jewish faith and ethnic origin to hatred or contempt. Examples of these publications included Did Six Million Really Die?, 66 Questions and Answers on the Holocaust, and Jewish Soap.

Sabina Citron, a Jewish Holocaust survivor, lodged a parallel complaint on September 25, 1996. In it, she alleged that she had read information similar to that outlined in the Mayor’s Committee’s complaint, and that she believed these messages were likely to expose her and others to hatred or contempt. She also said she downloaded these materials on August 14, 1996, from the Zündelsite, a website she asserted the respondent maintained.

The central thesis of both complaints was that the respondent was engaged in a discriminatory practice when he distributed, via the Internet, communications likely to expose Jews to hatred or contempt. They alleged that, by posting material on the Zündelsite, the respondent caused the repeated telephonic communication of hate messages.

The Zündel case was the first one to determine that section 13 of the Act, before the Act was amended in 2001, applied to the Internet. The Zündel case also dealt with other important hate message issues that are still relevant today. Specifically, the Tribunal considered the following questions.

With "hatred" the focus is a set of emotions and feelings which 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. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power."Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one’s feelings.

Ernst Zündel was deported to Germany in 2005, where new accusations related to his heinous hate propaganda activities were waiting for him.

As of April 2005, the Commission has investigated approximately 24 section 13 complaints. Three cases are currently before the Tribunal.

The Zündel case was decided in 2002 and was the first case involving hate on the internet. Since then, the Tribunal has rendered three 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). The respondents were found to have breached the Act in all of these cases.

A decision in the case of Warman v. Kulbashian et. al has not yet been rendered. Kulbashian is the first case in which one of the respondents was an Internet service provider.