Common menu bar links
Resources
Publications
Reports
Endnotes
1. Canadian Human Rights Act, R.S., 1985, c.H-6.
2. Criminal Code, R.S., 1985, c.C-46.
3. Broadcasting Distribution Regulations, 1997 SOR/ 97-555. See also the Radio Regulations, 1986 SOR/ 86-982 section 3 and the Television Broadcasting Regulations, 1987 SOR/87-48 s. 5.
4. The power to impose a penalty was added in 1998. At the same time the compensation limit was increased from $5,000 to $20,000.
5. See below in part (d) of this section of the report for references to similar provisions in the provincial human rights codes.
6. A fine of $5,000 was imposed on the Western Guard.
7. Part 1 of the Constitution Act, 1982 ; Schedule B of the Canada Act, 1982 (UK), 1982, c.11.
8. Canada v. Taylor, [1990] 3 SCR 892. The Court divided on the issue 4/3 with Madame Justice McLachlin (as she then was) writing a dissenting judgment.
9. The CHRT, at the time of the writing of this report, in the case of Warman v. Lemire is considering whether section 13, because of recent amendments, is no longer compatible with the Canadian Charter of Rights and Freedoms.
10. Citron v. Zundel, TD 1/02 (2002).
11. Citron v. Zundel supra note 10 at para 85: "Whether a message is communicated aurally, by voice, or visually, by text, has no effect on its capacity to influence the listener, or humiliate the subject. Nor does the specific device used to effect the communication alter the harmful character of the message conveyed. A telephone handset is not uniquely effective in the communication of hate messages."
12. Nealy v. Johnston (1985), 10 CHRR D/6450.
13. Canada v. Taylor, supra note 8. (The electronic version of the judgment does not include paragraph numbers.)
14. See also Warman v. Kalbashian, 2006 CHRT 11 at para. 59: "[T]he language of section 13 is clear, in that it is the effect of messages that has attracted the attention of Parliament. The question to be asked is not whether the conveyor of the message intended to communicate hate or contempt, but whether the message itself is likely to expose persons belonging to the identifiable groups to hatred or contempt."
15. In taking this position I am disagreeing with Madame Justice McLachlin in Taylor, supra note 8: "For establishing the necessary balance between promoting harmony and dignity on the one hand, and safeguarding freedom of expression on the other, the process of this Act is exemplary. It is well designed to minimize many of the undesirable aspects of curbing free expression. This approach to curbing hate propaganda is far more appropriate than the all or nothing approach inherent in criminalization of such expression. Coupled with a more narrowly-drafted prohibition, it might well withstand constitutional scrutiny."
16. Warman v. Kouba, 2006 CHRT 50.
17. Warman v. Kouba, supra note 16 at para. 82.
18. Warman v. Kouba, supra note 16 at para. 22.
19. Andrea Slane, "Hate Speech, Public Communication and Emerging Communications Technologies," in Canadian Issues: Hate on the Internet, ACS, Spring 2006, at p. 119.
20. Citron v. Zundel, supra note 10 at para.115.
21. See for example Warman v. Bahr, 2006 CHRT 52 at para. 25: "the requirement of repetition in s. 13(1) suggests that the section is directed not at private communication, but rather at material intended for wider, public circulation."
22. Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada, (Cohen Committee). Queen’s Printer, Ottawa, 1966.
23. Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100.
24. Quoting R. v. Keegstra, [1990] 3 S.C.R. 697. (The electronic version of the judgment does not include paragraph numbers.)
25. Mugesera v. Canada, supra note 23 at para. 104.
26. R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.) at pp. 384-85, cited with approval in R. v. Keegstra, supra note 24.
27. Mugesera v. Canada, supra note 23 at para. 104.
28. R. v. Keegstra, supra note 24.
29. Section 320(8) defines hate propaganda in the following way: "any writing, sign or visible representation that advocates or promotes genocide or the communication of which by any person would constitute an offence under section 319."
30. CERD, Consideration of Reports, Comments and Information Submitted by State Parties under Article 9 of the Convention, Seventeenth and Eighteenth Periodic Reports of Canada, 2008.
31. Andrea Slane, "Combatting Hate on the Internet: Current Canadian Efforts and the Recommendations of Non-Governmental Organizations to Improve on Them," Working Paper for the Dept. of Justice Canada, Dec. 2007 at p. 44.
32. Saskatchewan under section 14 of the Saskatchewan Human Rights Code, R.S.S., 1979, c. S-24.1; Alberta under section 2 of the Human Rights, Citizenship and Multiculturalism Act, R.S.A., 2000, c. H-14; British Columbia under section 7 of the of the Human Rights Code, R.S.B.C., 1996, c. 210; Northwest Territories under section 13 of the Consolidation of Human Rights Act , R.S.N.W.T., 2002, c. 18.
33. See Canadian Jewish Congress v. North Shore Press Ltd., [1997] BCHRTD No.23 and Abrams v. North Shore Press, [1999] BCHRTD No.5.
34. Saskatchewan Human Rights Commission v. Bell (1992), 88 D.L.R. (4th) 71. See also Owens v. Sask. (HRC), [2006] S.J. No. 221 (Sask. C.A.) and in Alberta see Kane (Re), [2001] A.J. No. 915 (Alta Q.B.).
35. Ontario Racial Discrimination Act, R.S.O., 1944, c.51.
36. See for example Rasheed v. Bramhill (1981), 2 CHRR D/249 (NS Bd of Inquiry).
37. Luke McNamara, "Negotiating the Contours of Unlawful Hate Speech: Regulation Under Provincial Human Rights Laws in Canada," (2005) 38 UBC L. Rev. 1 at para. 12.
38. Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84 at para. 8.
39. Robichaud v. Canada, supra note 38 at para. 8. See also Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 S.C.R. 536 at para. 12: "It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory."
40. R. Brian Howe and David Johnson, Restraining Equality: Human Rights Commissions in Canada (U of T Press: Toronto, 2000) at p. 44. And at p. 45: "Through the process of ‘truth finding’, commissions sought to bring the contending parties together not as adversaries but as interrelated actors who need to understand one another, in accordance with the principles enshrined in human rights legislation."
41. Warman v. Tremaine, 2007 CHRT 2 at para. 107.
42. Warman v. Winnicki, 2006 CHRT 20 at para. 50.
43. McLachlin J. in R. v. Keegstra, supra note 24 at p. 806.
44. Canada v. Taylor, supra note 8.
45. R. v. Keegstra, supra note 24.
46. The judgment was described earlier in section 2 of this report.
47. Madame Justice McLachlin in her dissenting judgment in Canada v. Taylor, supra note 8 thought that the purpose of section 13 of CHRA was sufficient to justify a restriction on freedom of expression but that the scope of the ban was too broadly defined: "While the suppression of hate messages is an important and desirable objective, in my view s. 13(1) does not achieve that objective in a manner consistent with the proportionality test in Oakes. The broad and vague ambit of s. 13(1), unconditioned by any limitations of significance, has as its effect the unnecessary prohibition of a great deal of defensible speech and belies any suggestion of a serious effort to accommodate the important right of freedom of expression. Notwithstanding the sensitive and appropriate enforcement procedure established by the Act, the dimension of the overbreadth of the legislation is such that the tests established by this Court for the application of s. 1 cannot be met."
48. The Cohen Committee supra note 22 at pp. 8-9.
49. The emphasis in the Keegstra judgment on risk rather than cause, and the "stimulation" or "circulation" of hateful feelings rather than the creation of hatred, suggests some recognition that expression does not cause harm in a simple and predictable way. The impact of expression is unpredictable and creates only a risk of harm because it depends on the reaction of audience members, who bring a wide range of attitudes and assumptions to their assessment of the claims made.
50. Andrea Slane, "Combatting Hate on the Internet," supra note 31 at p. 2.
51. Jane Bailey, "Private Regulation and Public Policy: Toward Effective Restriction of Internet Hate Propaganda", (2004) 49 McGill L.J. 59 at para. 1.
52. See for example Citron v. Zundel, supra note 10 at para. 296.
53. Citron v. Zundel, supra note 10 at para. 300: "Any remedy awarded by this, or any Tribunal, will inevitably serve a number of purposes; prevention and elimination of discriminatory practises is only one of the outcomes flowing from an Order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately larger preventative benefit that can be achieved by open discussion of the principles enunciated in this or any Tribunal decision."
54. This is what occurred in the US case of Collin v. Smith, 587 F.2d 1197 (7th Cir. 1978). However, the court in that case struck down the by-law restricting the march, on the grounds that it breached the First Amendment right to free speech. Similarly, a burning cross planted in front of the home of the first black family to move into a previously all-white neighbourhood is experienced as threatening because it evokes the history of Klan violence against blacks. But see RAV v. City of St Paul, 505 US 377 (1992) and Virginia v. Black, 538 US 343 (2003).
55. J.S. Mill, On Liberty, (Penguin: London, 1982 [1859]) at p. 119: "[E]ven opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about the same mob in the form of a placard."
56. Mugesera v. Canada, supra note 23 at para. 106: "[T]he crime of incitement to hatred requires the trier of fact to consider the speech objectively but with regard for the circumstances in which the speech was given, the manner and tone used, and the persons to whom the message was addressed."
57. Brandenburg v. Ohio, 395 US 444 (1969) at p. 447.
58. The Cohen Committee, supra note 22 at p. 63 writing about the law prior to the enactment of section 319 of the Criminal Code said: "the gap in the law today derives from the fact that it does not penalize the initiating party who incites to hatred and contempt with a likelihood of violence, whether or not intended, and whether or not violence takes place."
59. A quick read through the decisions of the CHRT yields many examples of explicit calls for violence against identifiable groups. See for example Warman v. Harrison, 2006 CHRT 30 at para. 52: "I call on all my white brothers to rise up and kill non whites because god gave Canada to the white man" or "GOD says tot take your guns to jane and finch (nigger town) and open fire on the heathens. You will have 20 virgins waiting for you in the after life." (sic)
60. The Cohen Committee, supra note 22 at p. 24. The obvious example being the rise of Nazism in Germany.
61. There may also be concern that the hate monger need only tone down his or her rhetoric to avoid running afoul of the law.
62. I note that while section 29B of the UK Racial and Religious Hatred Act, 2006 prohibits an individual from making threats to stir up religious hatred, section 29J provides that: "Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or any other belief system or the beliefs or practices of its adherents, or proselytisation or urging adherents of a different religion or belief system to cease practicing their religion or belief system."
63. Article 2 of the Additional Protocol to the Convention on Cybercrime, Council of Europe, Strasbourg, 28.I, 2003 protects from the advocacy, promotion, or incitement of hatred, discrimination or violence "any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors" [emphasis added].
64. If section 13 of the CHRA is repealed, it may also be necessary to amend or repeal section 12 so that it does not substitute for section 13.
65. In this I am disagreeing with Madame Justice McLachlin, who in Taylor, supra note 8 and 47 described the CHRA section 13 process as "sensitive and appropriate."
66. The Cohen Committee, supra note 22 at p. 64.
67. Myron Claridge, "A Criminal Law Approach to Combating Hate," in Canadian Issues: Hate on the Internet, ACS, Spring 2006 at p. 97.
68. Andrea Slane "Combatting Hate on the Internet," supra note 31 at p. 44.
69. But see Craig S. MacMillan, Myron G. Claridge and Rick McKenna, Criminal Proceedings as a Response to Hate: The British Columbia Experience, (2002) 45 Crim. L.Q. 419 at p. 446 ftn 53: "We recognize that the Attorney General has the authority to take over any prosecution in which consent is not a condition for instituting proceedings. However, given the challenges posed by technological developments relating to hate propaganda (eg the Internet) and the committed views held by some advocates in this area, not to mention the emotionally charged context in which these incidents can unfold, it is our view that the potential for unsustainable private informations being sworn and pursued is more of a concern here than it is in other areas of activity that are likely to result in private prosecutions."
70. Andrea Slane, "Combatting Hate on the Internet," supra note 31 at p. 6-7 discusses the BC unit:
The British Columbia Hate Crime Team ("BC Team") not only has designated officers but also has a designated Crown counsel assigned to the BC Team. The BC Team as a whole is made up of representatives from the Ministry of the Attorney General and Minister Responsible for Multiculturalism, such as the Criminal Justice Branch, Settlement and Multiculturalism Branch, Ministry of Public Safety, Solicitor General (represented by the Police Services Branch), as well as the RCMP and municipal police forces.
The BC Team has strong community connections. These connections both derive from its partner in the Multiculturalism Branch of the provincial government and from the mandate carried out by its full time officers during the first few years of its existence, which mainly involved community liaison and training of other law enforcement officers in how to deal with hate crime. Police officers assigned to the BC Team now also investigate and assist in investigations of hate crimes, including Internet-based hate ... The BC Team is known throughout the province as a resource for law enforcement, offering both training in hate crime investigation and prosecution, offering assistance in investigations, or conducting investigations directly, and offering the services of the designated Crown Counsel. ... The BC Team also runs a telephone hotline through which to report hate crime in the province, or to receive information or referrals...
See also Myron Claridge, "A Criminal Law Approach to Combating Hate," supra note 67 at p. 93.
71. Monette Maillet, "Hate Message Complaints and Human Rights Tribunal Hearings," in Canadian Issues: Hate on the Internet, ACS, Spring 2006 at p. 81: "Most complaints filed with the Commission deal with alleged discrimination in employment, and often involve situations where acts of discrimination by the employer were unintended. In hate message hearings, by contrast, the communication of discriminatory messages has been deliberate: respondents hold deep-rooted beliefs of racial and/or religious superiority and blame historically disadvantaged groups for a range of social problems. These factors make for a very highly charged and emotional hearing when all parties are present."
72. Warman v. Tremaine, supra note 41 at para. 114: "the most persuasive evidence" of the likelihood of exposure to harm is the language used in the messages; and at para. 110: section 13 applies in cases "where there is no proven or provable actual discriminatory effect". See also Warman v. Bahr, supra note 21 at para. 28: "it is not necessary for the complainant to lead evidence that a person was actually moved to hatred or contempt by the communication of the material."
73. The Cohen Committee, supra note 22 at p. 65.
74. Canada v. Taylor, supra note 8.
75. There is an obvious problem in applying this reasoning to section 13, which does not have an intention requirement.
76. Mark Freiman, "Litigating Hate on the Internet," in Canadian Issues: Hate on the Internet, Association for Canadian Studies, Spring 2006 at p. 70.
77. Delay is sometimes also due to the difficulty in determining or confirming the identity of the person responsible for the website or posting.
78. With that said, it appears that some respondents have welcomed the publicity resulting from the complaints made against them.
79. Andrea Slane, "Combating Hate on the Internet," supra note 31 at p. 38, "[Among the groups consulted] [t]he general feeling is that individual complainants make sense for the other forms of discrimination which are personal in nature, but does not make sense in relation to hate propaganda in which individuals are not specifically targeted." See also Luke McNamara, Regulating Racism: Racial Vilification Law in Australia, (Sydney Institute of Criminology: Sydney, 2002) at pp. 56-7: "... whereas in discrimination cases there is commonly some sort of existing, and more or less direct, relationship between the parties (for example, employer/employee, service provider/customer) in the context in which discrimination occurs, there is frequently no such relationship in vilification cases; indeed, the parties are often total strangers and the respondent’s conduct is, in the majority of cases, not directed personally at the complainant, but at an ethnic or racial group to which the complainant belongs."
80. Andrea Slane, "Combating Hate on the Internet," supra note 31 at p.18.
81. Privacy Act, R.S., 1985, c.P-21.
82. Privacy Act, s. 22(1) "The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) (a) that was obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to ... (ii) the enforcement of any law of Canada or a province ... if the information came into existence less than twenty years prior to the request; (b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information (I) relating to the existence or nature of a particular investigation, (ii) that would reveal the identity of a confidential source of information, or (iii) that was obtained or prepared in the course of an investigation ...."
83. It has also been suggested that ISPs might be more willing to share information concerning the identity of hate site operators if this information could not be accessed by members of the public. However, it seems likely that the ISPs would continue to insist on a court order before releasing such information.
84. But see Warman v. Kalbashian, supra note 14 in which the CHRT held that a small ISP breached section 13 because it specialized in providing space for hate sites and was not simply a conduit.
85. For a discussion of these policies see Jane Bailey, "Private Regulation and Public Policy," supra note 51 at para. 49.
86. This is known as Project Cleanfeed, which involves a tips-line, cybertip.ca, operated by the Canadian Centre for Child Protection.
87. See for example CHRC v. Winnicki, [2005] F.C. 1493, in which the CHRC applied for and obtained an interlocutory injunction ordering an ISP to remove material hosted by it in advance of the CHRT hearing on the merits of the case.
88. Section 36 of the Telecommunications Act , 1993 c.38 provides that "Except where the Commission [the CRTC] approves otherwise, a Canadian carrier should not control the content or influence the meaning or purpose of telecommunications carried by it for the public." Andrea Slane, "Combating Hate on the Internet," supra note 31 at p. 9 notes that this section "has been interpreted by the large ISPs who are carriers to be a bar to their voluntary blocking or otherwise interfering with the content not hosted on their facilities, unless explicitly approved by the Canadian Radio-Television and telecommunications Commission (CRTC) or compelled by court order." This, of course, has not precluded the ISPs from blocking child pornography under Project Cleanfeed.
89. See note 3 for the legislative standards applied to broadcasters.
90. I have not explored the possibility of a right of reply in this report – but would not rule it out. I would note, however, that it is difficult to define the parameters of such a right, particularly in the case of group defamation, which affects the members of the group rather than a particular individual.
