Saturday, April 16, 2011

What is section 13 of the Canadian Human Rights Act?

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What is section 13 of the Canadian Human Rights Act?

Section 13 of the Canadian Human Rights Act (CHRA) empowers the Commission to deal with complaints regarding the communication of hate messages by telephone or on the Internet:

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 person or those persons are identifiable on the basis of a prohibited ground of discrimination.


(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.

What is the history of section 13?

The parliamentary record indicates that section 13 was initially included in the legislation to address activities of individuals and groups who were using the telephone system to disseminate hate messages.

In submissions before the Parliamentary Justice and Legal Affairs Committee in 1977, prior to the enactment of the CHRA, the then Minister of Justice the Honourable Ronald Basford, made the following remarks regarding the proposed section 13:

Clause 13 is the hate message section, which is here as a result largely of actions in Toronto… where some of the extreme groups have adopted the practice of having recorded hate messages on the telephone and this is an attempt, I think a balanced attempt, to endeavour to deal with that situation. I think the key words in terms of a hate message is that it has to be communicated telephonically repeatedly. I underline the word ‘repeatedly’, that it has to be part of a pattern, part of a behaviour.

Minister Basford later added that "what is sought is some method of preventing these messages which, I would say, surely serve no social purpose".

When was section 13 amended to include the Internet? Why?

With the advent of the Internet, the question arose as to whether information posted on a website could constitute hate messages under section 13(1). 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.

This amendment was included as part of a package of anti-terrorism measures introduced on October 15, 2001 in response to the events of 9/11. A government release issued at the time noted the following:

...These necessary measures target people and activities that pose a threat to the security and well being of Canadians. This is a struggle against terrorism, and not against any one community, group or faith. Diversity is one of Canada's greatest strengths, and the Government of Canada is taking steps to protect it. Measures will be included in the bill to address the root causes of hatred and to ensure Canadian values of equality, tolerance and fairness are affirmed in the wake of the September 11 attacks. These include:

amending the Criminal Code to eliminate online hate propaganda and create a new offence of mischief against places of religious worship or religious property; and
amending the CHRA to extend the prohibition against hate messages beyond telephone messages to include all telecommunications technologies.

On February 21, 2005, the then Minister of Justice, the Honourable Irwin Cotler, appeared before the Senate Special Committee on the Anti-terrorism Act as part of the statutory review of the Anti-Terrorism Act. In his testimony before the Committee the Minister identified "the anti-hate principle" as one of eleven principles underlying the Act. He said:

This principle — another variation of the minority rights principle — seeks to protect visible minorities from any hate on the Internet or in the public communications sphere, which can have the effect, not only of singling them out as targets of hatred, but also as targets of terrorist acts.Thus, our anti-terrorism law includes important provisions that will allow the courts to order the deletion of publicly available hate propaganda from computer systems, such as an Internet site. As well, there are Criminal Code amendments that would create a new offence of mischief motivated by bias, prejudice or hate based on religion, race, colour, national or ethnic origin, committed against a place of religious worship or associated religious property.

In addition, there are amendments to the Canadian Human Rights Act to make it clear that using telephone Internet or other communication tools for hatred purposes or discrimination is prohibited. This is particularly important in light of the Internet's ability to extend the potential reach of hate messages to millions.

For more information on the history of section 13 see: Hate messages and section 13 of the Canadian Human Rights Act Legal Milestones.

What was the basis for including the Internet under section 13?

On April 8, 1999, the Honourable Anne McLellan, then Minister of Justice, announced the establishment of an independent Panel to conduct a review of the CHRA. The Act had not been comprehensively reviewed since it was passed in 1977.

The Review Panel was chaired by the Honourable Gérard La Forest, former Justice of the Supreme Court of Canada. Other members of the panel were Mme Renée Dupuis, a former commissioner with the Canadian Human Rights Commission; Mr. William Black, professor of human rights law at the University of British Columbia; and Mr. Harish Jain, a professor of business at McMaster University and noted expert on systemic discrimination issues.

Among many other issues, the Panel was asked to consider the question of whether the Act should expressly prohibit hate messages on the Internet.

The Panel released its report, Promoting Equality: A New Vision, in June 2000. Chapter 18(d) deals with the Panel’s findings and recommendations with regard to hate on the Internet. Recommendation 143 addresses the inclusion of the Internet under section 13:

143. We recommend that, to the extent that it is possible, the prohibition of hate messages in the Act be broadened to encompass both existing and future telecommunications technologies in federal jurisdiction.

In reaching this recommendation, the Panel considered whether broadening the scope of section 13 might be an undue limitation on freedom of expression. The panel noted:

Perhaps the first question is whether this regulation of the content of communication is consistent with the freedom of expression protected by the Charter.

In 1990, the Supreme Court of Canada dealt with this issue in Canadian Human Rights Commission v. Taylor. A Tribunal under the Act found Taylor liable for hate messages contrary to section 13. When he was committed for contempt of the Tribunal Order, he challenged section 13 as an unconstitutional infringement of his freedom of expression. Chief Justice Dickson held that section 13(1) was a reasonable limit on freedom of expression justified in a free and democratic society and did not violate the Charter. He wrote that there was an important objective for section 13. "It can thus be concluded that messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multi-cultural society which is committed to the idea of equality."

Chief Justice Dickson found other elements required to demonstrate that section 13(1) was a reasonable limit. Parliament had tailored the prohibition to meet its objective. The Act prohibited only extreme hatred and contempt which was clearly antithetical to its purposes. Further, the use of the term "repeated" to describe the proscribed hate messages focused the prohibition on the public, larger scale schemes for the dissemination of hate propaganda which most threatened the "admirable aim underlying the Act." He rejected an argument that the Charter required that the Crown had to prove that the respondent had to intend to communicate hate messages before being liable under the Act, because the general concern in human rights legislation is with the effects of acts rather than whether they were intended. A discriminatory act is just as hurtful if unintended as if intended. Further, the Court also held that the Charter did not require the Act to provide a defence of truth to persons alleged to have disseminated hate messages. A truthful statement in this context is just as damaging as an untruthful one.

We believe that the communication of hate messages by the Internet is just the kind of public and large-scale scheme for the dissemination of hatred that would come within the scope of the Supreme Court of Canada's ruling. (Emphasis added.)

The Panel’s conclusion was affirmed by the Canadian Human Rights Tribunal in its decision in Citron et al v. Zündel issued in January 2002.

What harm is caused by the communication of hate messages?

In upholding the constitutionality of section 13 in the Taylor Decision, Chief Justice Dickson wrote:

Parliament's concern that the dissemination of hate propaganda is antithetical to the general aim of the Canadian Human Rights Act is not misplaced. The serious harm caused by messages of hatred was identified by the Special Committee on Hate Propaganda in Canada, commonly known as the Cohen Committee, in 1966. The Cohen Committee noted 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. This intensely painful reaction undoubtedly detracts from an individual's ability to, in the words of s. 2 of the Act, "make for himself or herself the life that he or she is able and wishes to have". As well, the Committee observed that hate propaganda can operate to convince listeners, even if subtlety, that members of certain racial or religious groups are inferior. The result may be an increase in acts of discrimination, including the denial of equal opportunity in the provision of goods, services and facilities, and even incidents of violence.

The findings of the Supreme Court were reiterated in the Federal Court of Canada decision in Canada (Human Rights Commission) v. Winnicki. The case concerned the application for an interlocutory injunction against Mr. Winnicki to stop him from posting alleged hate messages pending a final determination by the Canadian Human Rights Tribunal.

In granting the injunction Mr. Justice de Montigny wrote:

The damage caused by hate messages to the groups targeted is very often difficult to repair. It insidiously reinforces the prejudice that some people may have towards minorities identified by race, colour and religion, thus prompting and justifying discriminatory practices and even violence against these groups. At the same time, these messages are most likely to affect the perception and self-esteem of all members of these groups, thus precluding their full participation in Canadian society and the achievement of their full potential as human beings...

Both Justices Dickson and de Montigny made reference to the 1965 report of the Special Committee on Hate Propaganda in Canada (no hyperlink available). The Special Committee, which was chaired by Maxwell Cohen, included among its membership Pierre Trudeau. In considering the appropriate limits to be placed on freedom of expression in order to protect citizens from hate propaganda, the Committee noted:

Canadians who are members of any identifiable group in Canada are entitled to carry on their lives as Canadians without being victimized by the deliberate, vicious promotion of hatred against them. In a democratic society, freedom of speech does not mean the right to vilify. The number of organizations involved and the numbers of persons hurt is no test of the issue: the arithmetic of a free society will not be satisfied with over-simplified statistics demonstrating that few are casting stones and not many are receiving hurts. What matters is that incipient malevolence and violence, all of which are inherent in "hate" activity, deserves national attention. However small the actors may be in number, the individuals and groups promoting hate in Canada constitute 'a clear and present danger' to the functioning of a democratic society. For in times of social stress, such "hate" could mushroom into a real and monstrous threat to our way of life. Nor does giving some of these hate promoters a radio or television platform serve any valid debating purpose. The Committee is aware that radio and particularly television may expose malice and fraud for what it is, but such a view of affording an electronic audience to hate promoters does not take into account the effects of hate arguments and pseudo-facts on uncritical and receptive minds. The broadcasting of "hate", therefore, whether for news or exposure purposes, should be carefully disciplined by those in charge. Indeed, the Committee feels that in recent years some radio and T.V. producers, with the best of intentions, have been mistaken in their belief that exposure of this kind will destroy the virus. But whatever the validity of these views, they do not justify giving propagandists a mass platform as if what they had to say was normal debate on real issues. Plainly it is not.

In the Committee's view the "hate" situation in Canada, although not alarming, clearly is serious enough to require action. It is far better for Canadians to come to grips with this problem now, before it attains unmanageable proportions, rather than deal with it at some future date in an atmosphere of urgency, of fear and perhaps even of crisis. The Canadian community has a duty, not merely the right, to protect itself from the corrosive effects of propaganda that tends to undermine the confidence that various groups in a multicultural society must have in each other.


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