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Policy on the Application of Section 13
For any questions about the policy, please contact us by email.
1. Introduction
The purpose of the Canadian Human Rights Act (CHRA) is to eliminate discrimination on the basis of 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.
Section 13 of the CHRA provides that freedom from discrimination includes the right to live in a society in which the repeated transmission of messages through the telephone, Internet or other telephonic communication, that are likely to expose an individual or group to hatred or contempt on the basis of one or more grounds of discrimination is prohibited. Prohibiting extreme hate messages is intended to ensure equality, not punish wrongdoing.
2. Background
Section 13 was part of the CHRA when it was proclaimed in 1977. It has been subject to one amendment in 2001 that clarified that section 13 covers hate on the Internet as well as the telephonic communication of hate messages.
3. The Law
3.1 The CHRA imposes a legal duty on the Commission to deal with complaints including complaints filed under section 13. The Commission exercises this duty within a legal framework that includes constitutional and international law. The relevant constitutional and international law provisions are found in Appendix A.
3.2 Section 13 states:
(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 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.
(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 broadcast undertaking.
(3) For the purpose of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) 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.
3.3 The words “hatred or contempt” in section 13 have been defined by the Supreme Court of Canada: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 ...
“Contempt” is ... a term which 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 relied on in Taylor ... in the use of terms “despised”, “dishonour” or “disgrace” ...1
3.4 Section 13 strikes a balance between the fundamental rights of equality and freedom of expression, both of which are protected by the Charter of Rights and Freedoms (Charter). The Supreme Court of Canada has decided that the narrow limit placed on extreme hateful expression that results from the application of section 13 is constitutional.3.5 The Commission is a screening body. The Commission’s role is to decide whether further inquiry into a complaint by the Canadian Human Rights Tribunal (the Tribunal) is warranted.
3.6 Section 41 of the CHRA permits the Commission to decide at an early stage not to deal with a complaint for a number of reasons, including: the complaint is beyond the jurisdiction of the Commission (s. 41(1) (c) ); and the complaint is trivial, frivolous, vexatious or made in bad faith (s. 41 (1)(d)).
3.7 The Commission has discretion in deciding the most appropriate dispute resolution method to deal with a complaint. Complaints that are not resolved through alternative dispute resolution and that merit further inquiry, are referred to the Tribunal. A complaint may be referred to the Tribunal following an investigation pursuant to section 44 of the CHRA, or it may be referred to the Tribunal at any stage after filing pursuant to section 49.
3.8 The Commission does not have the authority to decide whether messages are likely to expose persons or people to hatred or contempt. The Tribunal decides whether particular hate messages are discriminatory within the meaning of section 13.
3.9 Decisions of the Commission are subject to review by the Federal Court. If one of the parties does not agree with a decision of the Commission, for example a decision to refer the complaint to the Tribunal or to dismiss the complaint, the party may ask the Federal Court to review the Commission’s decision.
4. Scope of the Policy
This policy describes how the Commission interprets and applies the CHRA to complaints filed under section 13.
5. Policy
5.1 Definition of hatred and contempt - The Commission applies the restrictive definition of hatred and contempt established by the Supreme Court of Canada in the Taylor case. Applying this definition ensures that the exercise of the Commission’s mandate does not offend the Charter.
This means that 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 threshold, it will not be found to come within the ambit of section 13, notwithstanding that the message is offensive, controversial, shocking or disgusting to some.
5.2 Early screening of section 13 complaints under section 41 of the CHRA
5.2.1 Complaints filed under section 13 are screened at the earliest stage possible. Early screening is done to assess whether the complaint should be presented to the Commission for a decision to deal with the complaint or not.
5.2.2 The Commission may decide not to deal with a complaint filed under section 13 where it is clear on its face without an investigation that the allegations cannot meet the Taylor test for hate messages. The Commission may also decide not to deal with a section 13 complaint because it is clear and obvious that, for example, the messages were not communicated telephonically or were not public, or because the complaint has been addressed by the removal of the messages from the Internet.
5.3 Processing of section 13 complaints
5.3.1 Complaints filed under section 13 may be dealt with by the Commission using one or more dispute resolution methods, including investigation leading to Commission decision, mediation and conciliation (see Appendix B - Definitions).
5.3.2 In dealing with complaints under section 13, it is in the public interest to remove hate messages from the telephone, the Internet or any other telephonic communication. Whatever dispute resolution method is used, the Commission attempts to ensure that this objective is met.
5.3.3. In considering whether a section 13 complaint should be referred to the Tribunal for an inquiry, the Commission considers the language, tone, presentation and context of the messages.
5.4 The Commission’s role in appearing before the Tribunal
5.4.1 In those cases in which the Commission appears before the Tribunal, the Commission represents the public interest in eliminating discrimination.
5.4.2 When the Commission appears before the Tribunal in a case relating to a section 13 complaint and the complaint is found by the Tribunal to involve hate messages that are discriminatory within the meaning of section 13, the Commission will ask the Tribunal for a “cease and desist” order to ensure that the discriminatory message is removed.
5.4.3 The Commission does not seek an order under section 54(1)c) of the CHRA which provides that a respondent may be required to pay a penalty.
Appendix A - Legal Framework
Constitution
Charter of Rights and Freedoms
Section 1
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 2(b)
Everyone has the following fundamental freedoms: ....
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Section 15(1)
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
International Law
Article 20, International Covenant on Civil and Political Rights
Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Article 4, International Convention on the Elimination of All Forms of Racial Discrimination
State Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination
(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 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.
(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 broadcast undertaking.
(3) For the purpose of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) 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.
Appendix B - Definitions
Preliminary Assessment - When conducting an assessment, the assessor will contact the parties by telephone to obtain their initial response verbally as well as have a frank, open discussion with the parties about the likely outcomes of the case, discuss possible remedies and attempt to clarify matters of fact and explain the requirements of the law. The assessment process provides both parties with critical information to help them establish realistic expectations about the case to determine the most effective and efficient way to proceed. At the conclusion of the assessment, the assessor may have sufficient information to draft a report with a recommendation to the Commission.
Investigation - Investigation involves gathering information about the alleged discrimination. The parties have an obligation to provide relevant evidence to the investigator. It is in the parties’ interests to make sure that all of the relevant facts are available. An investigation report is prepared which contains an analysis of the evidence and a recommendation to the Commission on the disposition of the complaint. Before any decision is made by the Commission, the report is disclosed to the parties, and they are given an opportunity to present written submissions to the Commission. These submissions are shared with each of the parties who are invited to make further comments.
Mediation - Mediation is a confidential and voluntary process. If the parties agree to participate, an ADR practitioner meets with the parties and helps them to find acceptable remedies or solutions and reach a settlement of the complaint that respects the public interest. The mediator is not a decision-maker and has no authority to impose a settlement.
Conciliation - Conciliation is similar to mediation in that it can help parties resolve the complaint. It differs from mediation, however, in a number of significant ways: it is specifically referred to in the legislation, it is provided on the specific instructions of the Commission, it is mandatory, and the conciliator can disclose settlement offers to the commissioners with the consent of the party making the offer. Although the conciliator uses the same techniques as a mediator to encourage discussion and negotiation, he or she can also give the parties an opinion on the likelihood of success in litigation and the remedies that are likely to be achieved.
Frequently asked Questions
Note: For Q’s and A’s regarding section 13, please refer to Internet site
Q.1: What is section 13 of the CHRA?
Section 13 is an “anti-hate” provision. It 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.
Q.2: Why did the Commission issue a policy on the application of section 13?
This policy outlines the processes and procedures followed when the Commission receives an inquiry or complaint relating to section 13, for the information of the public.
Q.3: Who decides what is hateful and what is simply opinion?
The Canadian Human Rights Tribunal decides whether a hate message amounts to discrimination. The Canadian Human Rights Commission is separate from the Tribunal. The Commission screens complaints. Complaints that merit further inquiry are sent to the Tribunal by the Commission.
Q.4: Can someone file a section 13 complaint for a hateful message that is not directed at them?
Yes, a third party may bring allegations of discrimination to the Commission’s attention.
Q.5: What is the dispute resolution process?
Q.6: Can the Commission appear before the Tribunal?
Yes, the Commission may decide to appear before the Tribunal when a case is being heard. The Commission is a separate party from the complainant and the respondent. When the Commission appears before the Tribunal, the Commission represents the public interest. In the context of section 13, this means that, if the complaint is substantiated, the Commission will ask the Tribunal to order that the hate message be taken down.
Q.7: What is “cease and desist"?
A cease and desist order means that someone must stop doing whatever is discriminatory and not do it again in the future.
Q.8: Who has oversight on the decisions rendered by the Tribunal?
The Federal Court has oversight of decisions made by the Tribunal and by the Commission.
Q.9: Does section 13 apply to the print media?
No. Section 13 applies to telephonic communications – this includes the telephone and the Internet.
Q.10: Do events that are organized with the purpose of demonstrating hate, such as a protest or a parade, fall under restrictions of section 13?
No. These kinds of events would not be subject to section 13.
Q.11: If a person expresses a hate message, which is subsequently broadcasted without their permission and/or their knowledge, could they be held accountable for their actions?
In order for section 13 to apply, you must be the person who is responsible for the communication of the hate message.
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