On June 17, 2008, the Canadian Human Rights Commission called their own policy review of Section 13 of the Canadian Human Rights Act –
In a press release posted to the CHRC's website, they stated:
The Canadian Human Rights Commission (CHRC) has launched a comprehensive policy review of how best to address hate messages on the Internet. Leading constitutional law expert Professor Richard
He will conduct legal and policy research and analysis and make recommendations on the most appropriate mechanisms for addressing hate messages on the Internet, with specific emphasis on section 13 of the Canadian Human Rights Act and the role of the CHRC. His work will include a review of existing statutory and regulatory mechanisms, an examination of the mandates of human rights commissions and tribunals, and a consideration of
Within days of the CHRC's announcement, I contacted Professor
Below are the written submissions of
For those wishing to comment on the CHRC's notorious thought control legislation - Section 13, should contact Prof Robert
On Section 13 of the Canadian Human Rights Act
1. Section 13(1) of the Act is a violation of the right to freedom of expression guaranteed by s. 2(b) of the Charter. The only issue is whether this violation can be justified under s. 1 of the Charter.
Objective of Section 13
3. In arriving at this conclusion, Dickson C.J., speaking for the majority opinion, looked to s. 2 of the Act, which described the purpose of the statute as being the promotion of equal opportunity. Dickson, C.J. held that s. 13 was aimed at preventing communications that contributed "to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality." (Emphases added)
4. It is submitted that this finding was a fundamental error and that the objective of s. 13 was not equality but, in essence, the silencing of expression and opinion on any matter which might raise controversy between racial, ethnic, or religious groups.
5. Section 13 is in substance a reincarnation of the old common law offence of seditious libel, namely, "a matter which is producing, or has a tendency to produce feelings of hatred and ill-will between different classes of His
6. The provision is in stark contrast to the rest of the Act. All other activities defined as discriminatory practices relate to the provision of goods, services, facilities or accommodations (ss. 5, 14), the provision of commercial premises or residential accommodation (ss. 6, 14), hiring and employment practices (ss. 7,8,9,10,11, 12,14), and retaliation against a complainant under the Act. These provisions relate to the ability of a person to survive in society, to eat, to find a place to live, to find employment and a means of making a living. The retaliation provision is an attempt to protect those seeking a remedy under the statute.
7. Section 13, however, does not relate to these fundamental means of surviving and earning a living in Canadian society. It is an attempt to enact, in a different, updated and more acceptable guise, the offence of seditious libel, but without the defences available to a person charged with that criminal offence and without any of the procedural safeguards..
8. The major case in
9. One of the major issues to be resolved in Boucher was whether or not incitement to violence was a necessary ingredient, and whether that part of the definition which states that an intention "to promote feelings of ill-will and hostility between different classes of His
10. Rand J. held that the promotion of feelings of ill-will and hostility between different classes of subjects was not enough to constitute seditious intention. He (with the majority) held:
"There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His
11. Cartwright J. held that any definition of seditious intention to mean the promotion of "feelings of ill-will and hostility between different classes of such subjects" held great concerns. He stated:
"The obvious objection to accepting this as a sufficient definition, unless we are bound by authority to do so, is that such acceptance would very seriously curtail the liberty of the press and of individuals to engage in discussion of any controversial topic. It is not easy to debate a question of public interest upon which strong and conflicting views are entertained without the probability of stirring up, to a greater or less degree, feelings of ill-will and hostility between the groups in disagreement.
The reasons of my brother Kellock bring me to the conclusion that the definition quoted above ought not to e accepted without qualification, and that before a writing can be held to disclose a seditious intention by reason of being calculated to promote feelings of ill-will and hostility between different classes of His
12. The accused in Boucher was acquitted and his conviction set aside..
14. It is common sense, as recognized in Boucher, that one cannot discuss many matters of public interest, without intense feelings being generated concerning such things as race and religion. Criticism of
15. The purpose of section 13 was elucidated in 2001 when the government amended section 13 in the Anti-terrorism Act, S.C. 2001, c. 41 (Bill C-36), in s. 88 by extending its reach to communication using a computer or a group of interconnected or related computers, including the Internet.
16. The preamble of the Anti-terrorism Act states:
WHEREAS Canadians and people everywhere are entitled to live their lives in peace, freedom and security;
WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security;
WHEREAS acts of terrorism threaten
WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans‑border nature, requires enhanced international cooperation and a strengthening of Canada's capacity to suppress, investigate and incapacitate terrorist activity;
WHEREAS Canada must act in concert with other nations in combating terrorism, including fully implementing United Nations and other international instruments relating to terrorism;
WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms;
AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada's relations with its allies;
NOW, THEREFORE, Her
17. The preamble to the Anti-terrorism Act indicates that s. 13 is part of the State's strategy to eradicate terrorism, to protect Canadians against terrorist activity and to protect the political, social and economic security of
18. The linking of s. 13 to terrorism, through the Anti-terrorism Act, indicates the extreme approbation which attaches to a respondent in proceedings against him, in which he has no defences of intent, truth, fair comment, or proof of actual disturbance being created by the expression or speech.
19. It is submitted that the objective of controlling communications likely to lead to strong emotions of detestation against a group, without evidence that the intended, or natural and probable, consequence of such promotion of ill-will and contempt is to produce disturbance of or resistance, to the authority of lawfully constituted government is NOT a matter of such overriding importance that it should override the right of citizens in a democracy to freedom of expression, thought, belief, opinion and the press and conscience. Boucher, supra, set out the reasons why this is so in the 1950's, when
20. In addition and in the alternative, the respondent submits that sections 13 and 54 do not use proportionate means to achieve the goal of preventing communications exposing a group to hatred or contempt, such that members thereof cannot participate in society.
21. It was held by the majority in Taylor that proportionality was achieved only if the State showed that (1) a connection existed between the measure and objective so that the former could not be said to be arbitrary, unfair or irrational; (2) the measure impaired the Charter right or freedom at stake no more than was necessary; and (3) the effects of the measure were not so severe as to represent an unacceptable abridgment of the right or freedom.
Connection between measure and objective
22. It is submitted that the over-riding objective of the Canadian Human Rights Act is to prevent persons from being denied shelter, food and employment on the basis of such things as race and religion. A person indeed cannot participate fully in society if he is black and is refused service in restaurants because he is black or if he cannot rent an apartment because he is black.
23. If a black person hears discussion, however, that too many blacks commit crimes or that too many black families are dysfunctional with no father, he may be angry and have hurt feelings. He may feel he has been exposed to feelings of contempt, ill-will and hostility. But he is entitled to join the discussion and to counter what has been said about blacks. He is participating in democratic society by doing so. IF he was silenced because he was black and was not allowed to participate in any such discussion, then he would have been discriminated against and would not be participating fully in society. Ernst Zundel, a member of the German ethnic minority, was so silenced regarding discussions of whether Germans committed mass atrocities against Jews during World War II before a panel of this Tribunal.
24. It is submitted that there is a vital difference between actions, such as refusing a black person a seat in a restaurant, and speech. Whereas the first action deals with the ability of an individual to live and obtain services, the second deals with ideas, policies, implications for society, implications for education, and other public policy matters which are the core of democratic functioning.
25. The decision in
26. Section 13(1) is unfair and irrational, because it is impossible not to be subjective in deciding what is hatred and contempt. These are human emotions. Do humans have a right to express emotions? Who has the right to decide what emotions have been expressed and what their effect is?
27. Why is law dealing with emotions? Law is the regulation of human action. Laws such as defamation deal with the accuracy of human speech and the effects on reputation in the community. But laws such as hate laws deal at an even lower and irrational level, with raw human emotion. At this level, there can be no objectivity and no true control and no true law, dispensed fairly, equally, evenly and objectively. Application of the law will always be arbitrary and will depend on the political tone of the day. All of these factors, elucidated so well in Boucher, indicate why s. 13 is unfair, pernicious and irrational.
Impairment of Freedom of Speech and Conscience and Effects Thereon:
28. There is no provision which could impair free speech and conscience more than s. 13, except the death penalty.
29. There are no defences to s. 13 as do exist with the criminal offences of hate propaganda, seditious libel, blasphemous libel, and defamatory libel and the civil action of defamation.
30. The fact that the silencing is done by an administrative tribunal rather than criminal courts in fact makes the silencing even more pernicious and damaging.
31. The following factors indicate that the impact and effect of s. 13 on the Charter rights is so damaging that the provision cannot be saved under s. 1 of the Charter:
32. Before this Tribunal, evidence is admissible which would not be admissible in a court of law. A person may be found to be practicing discrimination on the basis of hearsay and silenced.
33. The standard of proof is not the strict one of beyond reasonable doubt but only the civil standard of probabilities.
34. Under the criminal hate propaganda laws, the consent of the Attorney General of the relevant province is required, thus keeping strong control on who can and cannot be prosecuted. Under human rights law, no such control exists. Any person can lay a complaint whether or not he is the victim of the alleged discriminatory practice. While the Commission has a large discretion to dismiss a complaint, where truth and intent are not factors in a complaint under s. 13, it is clear that many matters can be complained of which would not be caught if such standard defences were available. An angry black person, writing about slavery, for instance, could easily be the subject of a complaint under s. 13 for hatred against whites. The fact that so far Canadians have not used the provision in this manner does not mean it will not be so used in the future. The intent of the person or group of persons and whether the matter is true or not will be irrelevant.
35. The human rights law has a declaratory "educative" effect, and is meant to be so, with the Commission having a mandate to "educate" persons about discrimination. Because of s. 13 this includes speech and necessarily the ideas and beliefs which the Commission finds abhorrent. An example is the belief that six million Jews did not die in World War II pursuant to an extermination program. This deals with interpretation of historical evidence that in a democratic society should always be open to investigation. But the Tribunal in the Citron v. Zundel case found such a belief to be hate. Yet, writings on the so-called Holocaust are without doubt likely to expose Germans to hatred and contempt. In sharp contrast, the criminal law is not meant to educate but to punish and protect society. The chilling effect of human rights legislation is therefore much more serious as it permeates all aspects of culture and society, making it "politically incorrect" to question certain events or criticize certain groups, such as homosexuals. The Attorneys General of provinces and Crown Attorneys do not "educate" people about what are acceptable thoughts and opinions and beliefs and what will not be tolerated by the government.
But the Canadian Human Rights Commission does. In a letter to the London Free Press from Robert W. Ward, Secretary General of the Commission, which it reproduces on its website, the Commission stated its position:
"The Commission is aware that the very nature of the Internet, with service providers often located outside Canadian borders, makes it difficult to enforce the Act's provisions regarding hate messages. In order to move away from a case by case approach, the Commission is in the process of establishing a comprehensive, multi‑faceted and proactive strategy to deal with hate on the Internet, which includes, but is not limited to, complaints. Proactive actions could include working with Internet service providers to discourage hate sites, developing public information activities, compiling special reports to Parliament with clear recommendations, working with other organizations and encouraging people to contact service providers and advocacy groups when they are made aware of such sites."
36. The Commission's policy is set out in such documents on its website as "Proactive Initiatives - A Watch on Hate - FAQ Regarding Hate on the Internet and the Canadian Human Rights Commission." In this document, the Commission sets out its policies of working proactively with police, federal and provincial agencies, ISPs, and NGOs that "represent the interests of people who are often the targets of hate."
37. The Commission is deciding what is "hate" and what is not and is working to use its considerable power and influence to pressure Internet Service Providers (ISPs) to drop websites it dislikes, and to use informers and advocacy groups to pressure ISPs to drop websites. It uses this same power to "educate" people that if they do not follow the "party line" about historical events or the proper "group think" about social issues regarding homosexuality, disability or race.
38. The Commission is fully empowered to enforce acceptable thinking under s. 27 of the CHRA which provides:
27. (1) In addition to its duties under Part III with respect to complaints regarding discriminatory practices, the Commission is generally responsible for the administration of this Part and Parts I and III and
(a) shall develop and conduct information programs to foster public understanding of this Act and of the role and activities of the Commission there under and to foster public recognition of the principle described in section 2;
(c) shall maintain close liaison with similar bodies or authorities in the provinces in order to foster common policies and practices and to avoid conflicts respecting the handling of complaints in cases of overlapping jurisdiction;
(h) shall, so far as is practical and consistent with the application of Part III, try by persuasion, publicity or any other means that it considers appropriate to discourage and reduce discriminatory practices referred to in sections 5 to 14.1.
39. It is submitted that the very power of the Commission to use any means necessary to enforce only certain beliefs, opinions or thinking makes section 13 an extraordinarily dangerous provision since its effects are not only on the respondent to a complaint but on an entire society which is subject to the enforced "persuasion" and "publicity" of the Commission on what are and are not acceptable opinions, beliefs and expression. It is the Commission which will have the power to decide what "exposes" a person to "hatred and contempt", two extremely abstract concepts depending on who is doing the speaking and what he believes.
40. It is submitted that the very power of the Commission to work and network with similarly minded groups to enforce the chosen "correct views" magnifies the chill on freedom of expression extraordinarily.
41. The positions of the Commission on unacceptable opinion are not lost on persons or groups attempting to avoid prosecution under the legislation with its attendant cost, stigma, and potential loss of employment or business. While a complainant under the legislation is provided complete protection in employment and freedom from retaliation or harassment, the respondent is provided with no such protection.
Chill upon Freedom of Expression
42. Lack of intent to discriminate is not a defence. Dickson C.J. held in
43. Dickson C.J. held in Taylor that "The chill upon open expression in such a context [of a human rights statue] 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 aim of remedial measures is more upon compensation and protection of the victim. As was stated in Canadian National Railway Co. v.
44. It is respectfully submitted that whatever merit these arguments had in 1990 are negated by the amendment to the penalty provisions for section 13 enacted in 1998, c. 9, s. 28 and the expansion of application to computer networks in 2001.
45. This amendment brought fundamental change to the effects of section 13.
46. The Tribunal, when finding against a respondent in a section 13 complaint, is restricted to making orders set out in section 54. Section 13 has its own special penalties, set apart from all other discriminatory practices in the Act. This fact shows that the objective of section 13 was always something different from the rest of the discriminatory practices, otherwise, it would not have needed its own special orders.
47. For any discriminatory practice other than section 13, there is no jurisdiction in the Tribunal to make any monetary order against a person except in compensation for the discriminatory practice. There are no penalty provisions even though a person may have been denied accommodation or food because of his race or religion.
48. But under section 13, the Tribunal has been given the jurisdiction to make an order, not only for compensation to the victim for acting "wilfully or recklessly" pursuant to s. 53(3) of the Act, but to make an order for "a penalty", i.e., a "punishment, esp. a fine, for a breach of the law" ("Canadian Oxford Dictionary", Oxford University Press: 1998), up to $10,000. In making this order, the Tribunal must look at the "nature, circumstances, extent and gravity of [the thought, opinion, belief, expression] and "the wilfulness or intent" of the person, "any prior discriminatory practices" that the person has engaged in, and his ability to pay the penalty. Should a respondent be unable to pay the penalty, he can be cited for contempt and imprisoned.
49. To "punish" means "cause (an offender) to suffer for an offence" Canadian Oxford Dictionary, supra).
50. The requirement to look at the respondent's intent, his wilfulness, the gravity and nature of the speech and "any priors" is distinctly criminal and penal in nature, having nothing to do with preventing the effects of discrimination.
51. Punishment imports stigma and moral blameworthiness into the human rights context, which according to Dickson, C.J. was strictly about the prevention of discriminatory acts, not their punishment and the stigmatization of the respondent in such proceedings.
52. There is a further implication to this, given the findings in the Taylor case that once an order is made under s. 13, and all appeals are lost, the respondent cannot further challenge the contempt order on the grounds that he has continued to make statements in furtherance of his duty to his conscience or because he believes it is the truth and will further the public interest and so on. Instead, pursuant to Rule 472 of the Federal Court Rules,1998, he becomes liable to up to five years imprisonment. He can be fined, and ordered to do or refrain from doing any act. This process can be repeated for years if the person is one who believes deeply in what he is saying and is willing to continue to "speak truth to power", from his point of view.
53. While the liability to go to prison is indirect, in that an order of contempt is required, the fact that a person cannot again raise the truth of his statements or his intent or that his statements are a matter of religion and conscience, means that the imprisonment is a direct result of continuing to make statements which he in good conscience believes he must make. Thus, imprisonment is being used to enforce beliefs, opinions, and ideologies through the use of s. 13. The case of Catholic Bishop Frederick Henry is a case in point. Bishop Henry issued a pastoral letter stating Catholic teaching regarding homosexuality. As a result, a human rights complaint was laid against him in
54. Because of this legal structure, it is submitted that s. 13 and 54 violate the guarantee in s. 7 of the Charter the "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." That a person could be imprisoned in
55. Truth is not a defence under section 13. Nor is fair comment, both of which are defences to defamatory words in civil actions. While the majority decision in Taylor paid homage to the importance of truth as a core value in Canadian society, the decision to uphold a law banning speech where truth is no defence indicated clearly that the true core value given effect to by the court was control of opinion in Canada on matters which might raise controversy regarding race, ethnicity, religion, etc.
57. It is submitted that truth is indeed the core value which must always take precedence over all other values. It is fundamental to the democratic form of government and it is the most basic right of all humans, to search for the truth, to share beliefs with others, to exchange ideas and opinions, to attempt always to get to the root of all things and find the truth.
58. The search for truth is the basis of freedom of conscience and religion. These are the freedoms recognized in the Charter, paragraph 2(a). The decision in
59. The word "conscience" is defined in the Canadian Oxford Dictionary (Oxford University Press Canada 1998) as "a moral sense of right and wrong esp. as felt by a person and affecting behaviour."
60. An offence for words which does not allow one to tell the truth according to one's conscience is a violation of paragraph 2(a) of the Charter. An offence for words which one speaks with an intent to tell the truth, even though it may expose a group to hatred and contempt, is a violation of paragraph 2(a) of the Charter. It is a violation of the very basis of
61. The extension of s. 13 to the Internet brings whole new considerations to the effects of the provision on freedom of the press and media which did not exist in 1990 when the legislation was limited to taped telephone messages. The legislation covers the communication of video, audio, text, graphics, animation or voice.
62. The Internet is used by Canadians extensively for communicating via emails and for searching for news and information. For the year 2000, a survey of this use was made by Statistics Canada and is set out in its report, "Changing our ways" Why and how Canadians use the Internet" A further chart by Statistics Canada indicates that as of 2003 almost 96% of Canadians used email to communicate, over 55% use the Internet to view news. Some 89% use it for general browsing.
63. Almost all newspapers and magazines and other publishing concerns now are present on the Internet on news sites. This includes the Globe and
64. This situation did not exist in 1990 when
65. The anomaly now exists that such publications as the print version of a newspaper have defences available which the online version of the same article does not. A recent example is the article in the National Post, "Where are the female Einsteins?" by Charles
66. The Internet is fast replacing print versions of many publications because of cost and reach of audience. This situation gives the Canadian Human Rights Commission an astounding reach to stifle opinion simply by letting it be known through its "educative" functions what it will and will not tolerate.
67. Such media as newspapers have been very protected from prosecution under laws such as defamatory libel, hate propaganda, blasphemous libel, and seditious libel, by defences which have due regard to the interests of society in freedom of opinion and the media.
68. No such protection applies to s. 13 of the Act. Newspapers, magazines, online radio and TV are fully vulnerable to a single, determined complainant such as the complainant herein who can make multiple complainants, and who does not need even to be a member of the protected group. It makes the press vulnerable to the Commission itself, which has enthusiastically become an advocate for one version of the historical record regarding treatment of the Jews during World War II, and may become a determined advocate of other historical and social and political viewpoints.
69. While this type of power is compatible with a totalitarian society, it is not one which is compatible with a free democracy.
70. The extension of s. 13 to private computer networks as well as the Internet is a gross violation of privacy of all Canadians. Repeated emails sent to a number of people on a network would fall within the provision even though the emails would be considered by the sender as a private communication. Even a single email could be caught if the email was forwarded by the receiver to other persons, thereby resulting in the email being "repeatedly" sent.
71. Voice communications are now available over the Internet. These conversations are subject to s. 13 with no rights to privacy.
72. Corporate and business computer systems are covered by the Act and subject to the extensive search and seizure provisions of the Act.
73. An impact and effect which allows the State to punish private communications over private computer networks is an unjustifiable violation of freedom of speech and conscience under s. 1 of the Charter.