Strategic Initiatives

Combating Hate and Preserving Free Speech: Where is the Line?(2)

Canadian Human Rights Act

Looking now to section 13 of the Canadian Human Rights Act, it is first useful to repeat the language of that provision:

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.

At first glance, one might think it odd that a human rights commission – an organization devoted to protecting individual rights – should be charged with restricting an individual’s freedom of expression. One must keep in mind, however, that the main purpose of human rights legislation is to protect individuals from discrimination. Section 2 of the Canadian Human Rights Act states:

The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted [emphasis added].

In earlier days, human rights commissions were concerned with the posting of signs indicating, for example, that only whites would be admitted or that no Jews would be allowed. It seems clear that the prohibition of such signs (or job advertisements expressing similar sentiments) was the proper work of human rights commissions, despite the fact it restricted free expression.

The recognition that the fundamental purpose of human rights legislation is to protect individuals from discrimination is the key to understanding the leading decision of the Supreme Court of Canada on section 13 and the freedom of expression.

That case, Canada (Human Rights Commission) v. Taylor,⁵⁰ began before the Canadian Human Rights Tribunal in 1979.⁵¹

A Nazi sympathizer, John Ross Taylor, and his neo-Nazi organization, the Western Guard Party, made available recorded telephone messages denigrating Jewish and non-white people. The number was listed in the telephone directory under “White Power Message,” and they also distributed cards to the public advertising the telephone number.

The Canadian Human Rights Tribunal concluded that this was a discriminatory practice in violation of section 13(1). Given that this was its first decision on section 13, the Tribunal extensively reviewed the parameters of the section in the context of its overall objectives. In considering the meaning of the phrase “likely to expose a person or persons to hatred and contempt,” the Tribunal noted that similar words are used in the law of defamation. At para. 7, the Tribunal stated:

There is also a well-established body of law relating to defamation in Canada which may make a person liable for damages for the publication of words containing an untrue imputation against the reputation of another. It has been held that an imputation which tends to expose an individual to hatred, contempt or ridicule is defamatory of him… Members of an ethnic or racial group cannot resort to the law of defamation for civil redress in respect of statements which defame a group as a whole without singling out particular individuals [emphasis added].

On its face, the standard set out in section 13(1) of “likely to expose a person or persons to hatred or contempt” is quite similar to that found in the law of defamation. In contrast to defamation, however, the wording of section 13(1) makes clear that it can be relied upon by groups.⁵² Further, and also in contrast to the law of defamation, the Tribunal went on to conclude that truth is not a defence to section 13(1):

Strange as it may sound, the establishment of truth is not in issue in this case… Parliament has deemed that the use of the telephone for this kind of discriminatory message is so fundamentally wrong, that no justification for the communication can avail the Respondents. The sole issue then is whether the telephonic communications of the Respondents are likely to expose a person or persons to hatred or contempt.⁵³

The Tribunal also considered the requisite characteristics of the audience of the messages. It raised the question of “Who it is to do the hating?” People who already hate, or those who did not hate before but are induced or incited to hatred because of the communication? And do these questions refer to a small group already predisposed to hating? The reasonable person? The right-thinking person? Or everyone? Under the law of defamation, the standard is generally set as follows: 29 Simply speaking, does the publication have the tendency to lower the reputation of the plaintiff in the estimation of the community, or at least that portion of the community whose standards of opinion the court is willing to recognize, or what is commonly, if unfortunately, referred to as “right-thinking”members of society?⁵⁴

After reviewing social scientific literature and evidence about the effect of hate propaganda on different individuals, the Tribunal concluded: In interpreting s. 13 of the Canadian Human Rights Act, however, one must be concerned with the possible susceptibilities of those individuals who may dial the phone number in question… The question is whether the matter communicated “is likely to expose a person or persons to hatred or contempt.” It may be that certain individuals find the message so laughable or repulsive that it is the sender of the message who is exposed to hate and contempt. On the other hand, it is reasonable to conclude that there is a likelihood that some individuals may well harbour feelings of hatred and contempt for the minorities groups singled out in the messages after listening to them.

Upon listening to the tapes and reading the messages, it is hard to believe that a rational individual in 1979 would take these incoherent meanderings seriously. But are individuals any more rational than those Germans affected by the comparable rantings of Adolph Hitler and his supporters?

Diatribes like the ones before us eventually gave rise to the most extreme form of hatred and contempt for Jews in Germany in the 1930s and 1940s. We need no other crucible for us to be satisfied that the themes of the Respondent’s telephone utterances, which bear a marked resemblance to the propaganda of Goebbels and Hitler, are likely to expose Jews to hatred or contempt.⁵⁵

Once the case reached the Supreme Court of Canada, the primary issue was whether section 13(1) infringed the constitutional guarantee of freedom of expression. A majority of the Court concluded that, although section 13(1) did infringe s. 2(b) of the Charter, it was demonstrably justified under section 1.

In the decision of the majority, however, Dickson C.J.C. narrowed the application of the decision to just two of the prohibited grounds of discrimination:

[T]he courts below examined the constitutional validity of the section only in so far as it concerns the grounds of race and religion. Moreover, the effect of the Charter upon the suppression of expression dealing with other prohibited grounds was not raised by the parties or interveners in argument. For these reasons, the comments below speak solely to the question of whether the effect of s. 13(1) upon communications tending to expose persons to hatred or contempt on the bases of race or religion violates the Charter.⁵⁶

The Court heard and released its decision in R. v. Keegstra on the same days as it heard and released its decision in Taylor. Unlike Keegstra, however, Taylor was not concerned with the criminal law but with human rights legislation, the purpose of which is not to punish those who violate the law, but to protect individuals from discrimination. Dickson C.J.C. made note of this distinction:

In applying the [section 1] approach to legislation restricting hate propaganda, a meaningful consideration of the principles central to a free and democratic society requires reference to the international community’s acceptance of the need to protect minority groups from the intolerance and psychological pain caused by such expression. Such a consideration should also give full recognition to other provisions of the Charter, in particular ss. 15 and 27 (dealing with equality rights and multiculturalism)…

It is essential, however, to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality in the community, the Canadian Human Rights Act is very different from the Criminal Code. The aim of human rights legislation, and of s. 13(1), is not to bring the full force of the state’s power against a blameworthy individual for the purpose of imposing punishment. Instead, provisions found in human rights statutes generally operate in a less confrontational manner, allowing for a conciliatory settlement if possible and, where discrimination exists, gearing remedial responses more towards compensating the victim.⁵⁷

 It was necessary to keep this distinction in mind when conducting the section 1 analysis.

In conducting that analysis, Dickson C.J.C. first concluded that the objective of promoting equal opportunity and preventing the harm caused by hate propaganda is of sufficient importance to override a constitutional freedom. In so concluding, he particularly referred to the Cohen Committee Report and its discussion on the substantial psychological effects that may result from being subject to racial or religious hatred.

From there, Dickson C.J.C. examined the proportionality factor, considering first the requirement for a rational connection between the constitutionally valid objective and the impugned law. At this stage of the analysis, he again made reference to the unique nature of the human rights regime:

The process of hearing a complaint made under s. 13(1) and, if the complaint is substantiated, issuing a cease and desist order reminds Canadians of our fundamental commitment to equality of opportunity and the eradication of racial and religious intolerance. In addition, although criminal law is not devoid of impact upon the rehabilitation of offenders, the conciliatory nature of the human rights procedure and the absence of criminal sanctions make s. 13(1) especially well suited to encourage reform of the communicator of hate propaganda.⁵⁸

Dickson C.J.C. further noted that “the fact that the international community considers such laws to be an important weapon against racial and religious intolerance strongly suggests that s. 13(1) cannot be viewed as ineffectual.”⁵⁹ Thus, he concluded that s. 13(1) is rationally connected to Parliament’s objective.

In considering whether s. 13(1) minimally impairs the freedom of expression, Dickson C.J.C. concluded that the provision is not overbroad or excessively vague, and that (similar to Keegstra) the phrase “hatred or contempt” refers only “to unusually strong and deep-felt emotions of detestation, calumny and vilification.”⁶⁰ He went on to write:

To the extent that this section may impose a slightly broader limit upon freedom of expression than does s. 319(2) of the Criminal Code, however, I am of the view that the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision.⁶¹

Dickson C.J.C. noted the absence of an intent component to s. 13(1) (in contrast to the Criminal Code provisions on hate propaganda), but concluded that “the important Parliamentary objective behind s. 13(1) can only be achieved by ignoring intent, and therefore the minimal impairment requirement of the Oakes proportionality test is not transgressed.”⁶² Keeping that in mind,

the chill placed upon open expression in such a context will ordinarily be less severe than that occasioned where criminal legislation is involved, for attached to a criminal conviction is a significant degree of stigma and punishment, whereas the extent of opprobrium connected with the finding of discrimination is much diminished and the aid of remedial measures is more upon compensation and protection of the victim.⁶³

With respect to the possibility that imprisonment may be imposed by way of a contempt order (for failing to adhere to an order of the Tribunal), Dickson C.J.C. concluded that “subjective awareness of the likely effect of one’s messages” would be a “necessary precondition for the issuance of such an order by the Federal Court.”⁶⁴ This is because a contempt order would be preceded by an order of the Tribunal to cease and desist the discriminatory practice. As a result, it could not be argued that the individual is innocent about the effect of his or her message, because the Tribunal has already concluded (and informed the individual) that the messages are likely to have a harmful effect. Further, a finding of contempt by the Federal Court would need to be based upon an intentional disregard of the cease-and-desist order.

Dickson C.J.C. concluded his “minimal impairment” analysis by considering the absence of a defence to a discriminatory practice under s. 13(1), even and especially for truthful state- ments. It will be remembered that, in Keegstra, the presence of defences in the Criminal Code provisions was discussed during the section 1 analysis. In Taylor, however, Dickson C.J.C. seemingly clarified that the Charter does not require an exception for truthful statements. In so doing, he quoted the following from his decision in Keegstra:

The way in which I have defined the s. 319(2) offence, in the context of the objective sought by society and the value of the prohibited expression, gives me some doubt as to whether the Charter mandates that truthful statements communicated with an intention to promote hatred need be excepted from criminal condemnation. Truth may be used for widely disparate ends, and I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred against a racial or religious group. It would seem to follow that there is no reason why the individual who intentionally employs such statements to achieve harmful ends must under the Charter be protected from criminal censure.⁶⁵

Focusing again on the significance of the government objective and the harms caused by hate propaganda, Dickson C.J.C. concluded that the effects of s. 13(1) upon the freedom of expression are not “so deleterious as to make intolerable its existence in a free and democratic society.”⁶⁶ In his words: The section furthers a government objective of great significance and impinges upon expression exhibiting only tenuous links with the rationale underlying the freedom of expression guarantee. Moreover, operating in the context of the procedural and remedial provisions of the Canadian Human Rights Act, s. 13(1) plays a minimal role in the imposition of moral, financial or incarcerating sanctions, the primary goal being to act directly for the benefit of those likely to be exposed to the harms caused by hate propaganda.⁶⁷

The balance

Especially in Dickson C.J.C.’s discussion on minimal impairment, the Supreme Court of Canada appears to have been quite concerned that the words of section 13(1) were capable of being given an extremely broad interpretation. It concluded that section 13(1) was constitutional, but simultaneously narrowed its potential scope to ensure its constitutional application. The majority of the Court drew a connection between its finding that section 13(1) was constitutional and the way in which it must be administered.

Of particular relevance to this point is the following statement by Dickson C.J.C.:

In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase “hatred and contempt”, there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.⁶⁸ It might seem, from this statement, that it is this manner of interpretation (and only this manner) that may (constitutionally) be applied by the Tribunal. This is consistent with what I said earlier, namely that the balance between freedom of expression and the protection against hate is dictated by the supreme law of Canada (the Charter) and its interpretation and application by the Supreme Court of Canada. If the Tribunal effects a less stringent application of section 13(1) in the course of a decision, that decision may become vulnerable to review by the courts as potentially violative of the freedom of expression.

Section 13(1) and the Internet

In Taylor, Dickson C.J.C. made a further observation with the apparent attempt to narrow the application of section 13. He specifically made note of the statutory requirement that the communication be made repeatedly via the telephone network. These comments appear to have been made to alleviate the concern that section 13 might address communications made during private telephone conversations. Dickson C.J.C. wrote:

Simply to label telephone communications as “private”, however, does not jus- 31 tify the conclusion that s. 13(1) is overbroad… While conversations almost always take place on a one-to-one basis, the overall effect of phone campaigns is undeniably public, and the reasonable assumption to make is that these campaigns can have an effect upon the public’s beliefs and attitudes…

I agree with the Tribunal’s comments regarding telephone communications and hate propaganda, and find its observations to be helpful in rebutting the contention that the private nature of telephone conversations makes especially difficult the imposition of constitutionally valid limitations upon expressive telephone activity. Those who repeatedly communicate messages likely to expose others to racial or religious hatred or contempt are seeking to gain converts to their position…

Section 13(1) is worded so as to diminish phone use of the type I have just described, for in the context of s. 13(1) the word “repeated” must comport a requirement for something in the way of a series of messages.⁶⁹

This raises the interesting question of how one might apply section 13(1) to the Internet. Does one look at the number of hits a website receives? Or does the universal availability of every single website automatically constitute “repeated” for the purposes of section 13(1)?

In 1997, hearings began before the Canadian Human Rights Tribunal in the matter of Citron v. Zundel,⁷⁰ after a complaint was filed against Mr. Zundel for placing anti-Semitic messages on a website named the Zundelsite. The complainants sought to have section 13(1) apply in a novel fashion to communications sent and received over the Internet.

By the time the Tribunal released its decision in January 2002, section 13(2) had been amended to address this very situation as follows:

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…

The Tribunal was bound, however, to apply the law as it stood at the time of Mr. Zundel’s alleged discriminatory practices.

It first had to consider whether the Zundelsite was under Mr.Zundel’s control at the times material to the complaint. In the opinion of the Tribunal, s. 13(1) of the Canadian Human Rights Act does not require proof of legal ownership of the website. Rather, control is the driving feature, requiring a finding that Mr. Zundel, acting either alone or with others, communicated or caused to be communicated the offending material on the Zundelsite. After reviewing the evidence, the Tribunal concluded as follows:

 A reading of those documents [from the website], the manner in which they are formatted, and their wording, leads us irresistibly to the conclusion that [Mr. Zundel] exercised a significant measure of control over the website.⁷¹

The Tribunal then considered whether, for the purposes of section 13(1), the material on the Zundelsite was communicated telephonically, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament.

In order to answer this question in the context of the Internet, the Tribunal first considered whether the material was communicated “telephonically.” After reviewing evidence on the technical and operative nature of both telephonics and the Internet, and after discussing the proper interpretive approach to the Canadian Human Rights Act, the Tribunal concluded that

to communicate via the Internet is to communicate telephonically for the purposes of s. 13(1) of the Act, and therefore that repeated communication of hate messages via the Internet is captured by a purposive interpretation of the Act.⁷²

The Tribunal further concluded that the material was communicated by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, because connections in Canada to the Internet “backbone”were (at that time) most often made through the federally regulated telecommunication undertaking.

As for whether there was “repeated communication” for the purposes of section 13(1), the Tribunal observed:

that the very nature of the Internet makes ‘repeated’ communication inevitable and deliberate. The evidence regarding the World Wide Web establishes that it is a specific application designed to enable the transmission and display of text, graphics, audio or video files over the Internet. This technology was calculated to facilitate browsing and the repeated transmission of material posted on a chosen site. A key advantage of the Internet is that it provides an inexpensive means of mass distribution.We are thus satisfied that there was repeated communication from the Zundelsite.⁷³

Despite all these conclusions in the context of the Internet, the Tribunal still had to be satisfied that the material contained on the Zundelsite was likely to expose persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of a prohibited ground of discrimination. In so finding, the Tribunal stated:

[T]hese messages create an environment in which it is likely that Jews will be exposed to extreme emotions of detestation and vilification. Based on our view that the Zundelsite materials characterize Jews as ‘liars, cheats, criminals and thugs’ who have deliberately engaged in a monumental fraud designed to extort funds, we regard it as highly likely that readers of these materials will, at a minimum, hold Jews in very low regard, viewing them either with contempt, scorn and disdain, or hatred, loathing and revulsion.⁷⁴

The Tribunal rejected Mr. Zundel’s claim that section 13(1) unjustifiably violates section 2(b) of the Charter for the same reasons provided by the Supreme Court of Canada in the Taylor decision.

The Tribunal ordered that Mr. Zundel (and any other individuals acting in concert with him) cease his discriminatory practice of communicating prohibited messages on the Zundelsite or any other federal communication undertaking.

In the wake of Citron v. Zundel, the Federal Court of Canada recently awarded an interlocutory injunction restraining an individual from continuing to post alleged hate messages over the Internet until the Tribunal can make a final determination on the matter.75 Although the Federal Court has awarded similar injunctions in the past, this is the first example of one being awarded in the context of the Internet. The first paragraph of the decision of de Montigny J. is telling of the continued awareness of the fine balance discussed throughout this paper:

This motion, made on behalf of the Canadian Human Rights Commission, is most interesting in its object as it raises especially difficult issues going to the heart of our democratic values and, more particularly, to the difficult reconciliation between freedom of expression on the one hand, and equality rights as well as the inherent dignity of all human beings on the other hand. While the courts, including the Supreme Court of Canada, have had to deal with these issues on a number of occasions, the particular context in which these values clash and the remedy being sought in the present case bring us into uncharted territory.

Concluding remarks

The purpose of this paper has been to provide an answer to the difficult question posed at the beginning: Combating hate and preserving free speech:Where is the line?

In the particular context of section 13, I have suggested that the balance can only be drawn according to the Charter and its interpretation and application by the Supreme Court of Canada. This primarily occurs in the context of section 1 of the Charter, because of the broad interpretation of the freedom of expression at the section 2(b) stage of analysis.

The question of “where to draw the line” appears to become even more interesting and challenging in the context of the Internet and an increase in global communication. As a result of the difficult jurisdictional questions posed by the Internet, some may question the effectiveness of imposing a cease-and-desist order like the one ordered in Citron v. Zundel. In the wake of that order, Canadians can likely access similar forms of expression over the Internet.

In response to that question, others might wish to point out the more symbolic effect of enforcement under the Canadian Human Rights Act: that it sends a message about its overall purpose to protect individuals against discrimination. This appears to have been, at least, the perspective of Dickson C.J.C. in Taylor:

In the Keegstra and Andrews appeals, it was suggested that in practice s. 319(2) of the Criminal Code was ineffectual (or even worse, played a malign role) in 33 reducing the prevalence of hate propaganda in Canada and accordingly was not rationally connected to Parliament’s objective. While such an argument is not expressly made in this appeal, it is implied in the appellants’ contention that, just as Germany of the 1920s and 1930s was unable to curb human rights abuses through the use of anti-hate propaganda laws, so s. 13(1) will have no effect in reducing the level of hate propaganda (and its attendant harms) in Canadian society.

For reasons similar to those given in Keegstra, I am unable to accede to the view that the impugned legislative measure does not advance Parliament’s aim of reducing the incidence of hate propaganda. The process of hearing a complaint made under s. 13(1) and, if the complaint is substantiated, issuing a cease and desist order reminds Canadians of our fundamental commitment to equality of opportunity and the eradication of racial and religious intolerance.⁷⁶

Notes *

I wish to recognize the assistance of my law clerk, Scott Campbell, in preparing this paper.

50. [1990] 3 S.C.R. 892.
51. Supra note 27.
52. See c.f. The Defamation Act, C.C.S.M. c. D20, s. 19(1) (Manitoba), which states: “The publication of a libel against a race, religious creed or sexual orientation likely to expose persons belonging to the race, professing the religious creed, or having the sexual orientation to hatred, contempt or ridicule, and tending to raise unrest or disorder among the people, entitles a person belonging to the race, professing the religious creed, or having the sexual orientation to sue for an injunction to prevent the continuation and circulation of the libel; and the Court of Queen’s Bench may entertain the action.”
53. Supra note 27 at para. 39.
54. R.E. Brown, Defamation Law: A Primer (Toronto: Thomson Carswell, 2003) at 24.
55. Supra note 27 at paras. 34, 36 & 40.
56. Supra note 61 at 913 [emphasis added].
57. Ibid. at 916-917 [emphasis added].
58. Ibid. at 924.
59. Ibid.
60. Ibid. at 928.
61. Ibid.
62. Ibid. at 932.
63. Ibid.
64. Ibid. at 939.
65. Ibid. at 935, quoting from Keegstra, supra note 57 at 781 [emphasis in original].
66. Ibid.
67. Ibid. at 939-940.
68. Ibid. at 928-929 [emphasis added].
69. Ibid. at 937-938 [emphasis added].
70. Supra note 53.
71. Ibid. at para. 41.
72 Ibid. at para. 88.
73. Ibid. at para. 115.
74. Ibid. at para. 140.
75. Canadian Human Rights Commission v.Winnicki, 2005 FC 1493.
76. Supra note 61 at 923-924

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