Part III: How the Current System Works

Process under the CHRA

The Commission and the Tribunal are two of many administrative decision makers established to deal with legal and regulatory matters. Administrative boards and tribunals are a key component of the legal system in western democracies and are backed by a century-old body of law and jurisprudence. As the Supreme Court has noted: "In Canada [administrative tribunals] are a way of life. Boards and the functions they fulfill are legion."²³

The Commission and the Tribunal, like their provincial counterparts, were created to provide an alternative to the courts for the resolution of human rights complaints by providing a less litigious and more remedial approach to dispute resolution. As articulated in its purpose clause, the CHRA is aimed at promoting and protecting equality and dignity:

Section 2: Purpose
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)

Role of the Canadian Human Rights Commission

One of the primary roles of the Commission is to act as a screening body. It is mandated to receive complaints, analyze them, and determine if they should be dismissed or referred to the Tribunal. It is the Tribunal, and not the Commission, that determines the merits of a case following consideration of the relevant evidence at a hearing.

Anyone who believes that there has been a violation of the CHRA may file a complaint with the Commission.²⁴

The Commission’s process generally involves three steps. At any stage in the process described below, mediation is offered in order to allow the parties to resolve their dispute.

Step 1: Decision on whether to deal with a complaint

The first step is to decide whether the Commission should ‘deal with’ the complaint.

A decision not to deal with a complaint means that the Commission has determined that an investigation is not needed because:

• the complainant has not tried resolving the complaint through a grievance or other procedure;
• the complaint is outside the jurisdiction of the Commission;
• the complaint is trivial, frivolous, vexatious or made in bad faith; or
• the complaint has not been filed within the time limits specified in the CHRA.²⁵

If the Commission decides that it will not deal with a case, it takes no further action except to advise the parties.

If none of these conditions applies the Commission is bound by statute and jurisprudence to deal with the complaint.

Step 2: Investigation

If the complaint proceeds, the Commission assigns an investigator to look into it. The investigator carries out a thorough and objective investigation of the complaint, including interviewing relevant persons and inviting submissions from the respondent and the complainant.

Based on the investigation, the investigator drafts a report. Copies are sent to the complainant and the respondent, who are again invited to make written submissions.

Step 3: Consideration by the Commission

Commissioners²⁶ considering a case are given a copy of the complaint, the investigation report and any submissions made by the parties. No hearings are held. Based on the information before it, the law and the jurisprudence, the Commission then decides whether to:

• refer the complaint to conciliation;
• dismiss it; or
• refer it to the Tribunal.²⁷

Approximately 13.5 percent of all complaints on all grounds are referred to the Tribunal. Of those referred, about 60 percent are resolved through pre-hearing mediation conducted by the Tribunal. This means that around five in every hundred complaints proceed to a full hearing.

Role of the Canadian Human Rights Tribunal

The Tribunal was created to hold hearings on complaints referred to it by the Commission.

Although the Tribunal and Commission are often referred to as one agency, this is incorrect. The Tribunal is a separate and independent agency with no financial, administrative or other connections with the Commission.

When a complaint is referred to the Tribunal for a hearing, the only document the Tribunal has before it is the original complaint form. In this way, the Tribunal is not influenced, or bound, by the findings of the Commission’s investigation. In fact, unless one of the parties enters the investigation report as evidence, the Tribunal is not aware of the contents of the investigation report.²⁸ This helps ensure that the Tribunal is completely unbiased in its decision making.

The complainant and the respondent appear before the Tribunal to present their arguments. Each party is entitled to request the production of relevant documents from the other party and the Commission. They can call witnesses and experts, examine them, and cross-examine those of the other side.

The Commission may also participate as a party before the Tribunal. When it does so, the Commission does not represent the complainant, but rather makes submissions in the public interest.²⁹

The members of the Tribunal are appointed by the Governor in Council. A requirement of all Tribunal members is that they have "…experience, expertise and interest in, and sensitivity to, human rights."³⁰

Although not required by the CHRA, the Tribunal also offers mediation services to resolve complaints before a formal hearing is held. After hearing from all parties, the Tribunal renders a decision based on the evidence, the legislation and jurisprudence.

If the Tribunal finds that section 13 has been violated, it may order the respondent to:

• cease any activities contrary to section 13 and desist from communicating hate on the Internet (a cease and desist order);
• compensate a victim specifically identified on the website up to $20,000 if the actions of the respondent have been wilful or reckless (special compensation); and
• pay a penalty of not more than $10,000.³¹

The Tribunal does not have the power to require respondents to apologize for their discriminatory behaviour.

The Tribunal does not have the power to imprison respondents. However, under the CHRA, orders of the Tribunal have the same force as an order of the Federal Court. Therefore, respondents who fail to comply with a Tribunal order can be brought before the Federal Court for contempt of court proceedings. In such cases, the Federal Court has the power of imprisonment. All Canadian courts have similar powers with regard to contempt of court.

In the 31-year history of the Commission, three respondents, including one since 2001, have been imprisoned by the Federal Court for contempt relating to their refusal to comply with a Tribunal order in a section 13 case.³² Contempt proceedings have nothing to do with the original case; rather they are intended to protect the rule of law. If orders of duly constituted tribunals and courts are not enforced, the administration of justice is brought into disrepute and with it our democratic values and our commitment to the rule of law.

The CHRA does not allow for the awarding of costs incurred by respondents at the Commission or Tribunal stage. The main reason for this is the concern that the possibility of cost awards might discourage already vulnerable victims of discrimination from filing complaints.

Safeguards to Ensure Fairness in Decision Making of the Commission and the Tribunal

The decision making processes of the Commission and the Tribunal have many safeguards inherent to administrative and quasi-judicial bodies. The Commission’s and the Tribunal’s decision making processes must be:

• procedurally fair;³³
• correct in law; and
• have a reasonable basis in fact.

At the Tribunal, additional rules apply to ensure that hearings are conducted appropriately. Parties at the Tribunal are entitled to:

• be given notification of the hearing;
• receive disclosure of arguments and evidence in a timely and efficient manner;
• bring preliminary and interlocutory motions;
• adduce evidence;
• cross-examine witnesses; and
• be accorded ample opportunity to be heard through oral submissions.

These protections, which are grounded in the principles of administrative law, ensure that Commission and Tribunal decisions follow an accepted, rigorous and transparent process. This is illustrated in the recent decision of the Federal Court in Tremaine v. Warman and the CHRC, where the Respondent brought an application to the Court for a review of the Tribunal’s decision. The Court carefully examined the Tribunal’s approach to a complaint brought under section 13 of the CHRA:

[16] The Tribunal examined each element of a proscribed discrimination under s.13 of the Act and carefully applied the facts to the law. . .The Tribunal provided a detailed analysis of the meanings of "hatred" and "contempt" and carefully examined evidence of Mr. Tremaine’s numerous postings. The Tribunal noted the extreme and violent nature of the postings and concluded that it would offer readers reason to hate and to be suspicious of minorities. It must also be noted that the Tribunal was careful to balance Mr. Tremaine’s freedom of expression right with the equality rights of all individuals in reaching this decision. Ultimately, the Tribunal correctly applied the evidence to the relevant factors in determining the s.13 violation. The decision was not unreasonable.³⁴

Section 13 Case Data

The Commission and the Tribunal have consistently applied the reasoning in the Taylor decision in the determination of section 13 complaints. In his independent review, Professor Moon confirmed that the complaints referred to the Tribunal by the Commission were limited to "… the most extreme and hateful forms of discriminatory expression."

The impugned hate messages that have been considered by the Tribunal cannot, by any objective standard, be classified as merely offensive and controversial. They are hateful and extreme, and the Tribunal has found them to be so. Selected excerpts of these decisions can be found in Annex C.

The careful approach dictated by the courts is borne out by the data on the handling of section 13 complaints since hate on the Internet was included under the Commission’s jurisdiction in 2001:

• 72 complaints have been filed and accepted under section 13:
  • 66 complaints have been closed; and
  • 6 complaints are still under investigation or pending a hearing and/or decision of the Tribunal.
• 74% (49) of complaints filed under section 13 were closed without the matter proceeding to Tribunal.
• 26% (17) of complaints filed under section 13 went on to the Tribunal for a final determination.

* A closed complaint is any complaint where the Commission has made a final decision on the disposition of the complaint.

**Includes: dismissed, withdrawn, no further proceedings (e.g., situation addressed by a private settlement between the parties), and not to deal with pursuant to section 41.

***Includes: settlements during investigation and at the Tribunal.

Remedies Awarded by the Tribunal

• Cease and desist orders: In the 17 complaints decided since 2001, the Tribunal has issued a cease and desist order with regard to 16.
• Special compensation awards: In four cases, special compensation ranging from $1,000 to $15,000 was awarded to individuals identified on websites.
• Penalties assessed: In 12 cases the Tribunal has assessed penalties against the respondents ranging from $1,000 to $8,000.

Process under the Criminal Code

Allegations of violations of the Criminal Code hate provisions are investigated by police services and prosecuted by provincial Crown prosecutors.³⁵ Some local police services have developed specialized units to deal with hate crimes. In most places, however, the investigation of hate charges is carried out by police officers who do not have specialized training in this area of the law.³⁶ The police submit the results of their investigation to the Crown prosecutors. The prosecutors can decide not to proceed if they determine that there is no reasonable prospect of conviction.

In most criminal cases, the discretion to prosecute lays solely with the Crown prosecutor. However, sections 318 and 319 of the Criminal Code require an additional step: the Attorney General of the province or territory involved must give consent before prosecution can proceed.³⁷ If the Attorney General gives consent, a criminal trial is begun. Decisions of the trial court are subject to appeal to the relevant appeal courts, and ultimately to the Supreme Court of Canada.

The purpose of the Criminal Code is punitive. The focus is on the blameworthiness of the accused.³⁸ As such, the standard of proof in a criminal proceeding is proof beyond a reasonable doubt. The Crown must prove beyond a reasonable doubt that not only did the criminal act take place (actus reus), but that it was accompanied by criminal intent (mens rea). This is the highest standard of proof known to law and it reflects the seriousness of a criminal conviction.

By contrast, the standard of proof in most other areas of law, including human rights and constitutional law, is proof on a balance of probabilities, which is to say proof that it is more likely than not that an event occurred.

Charges and prosecutions under the Criminal Code provisions that deal with hate are relatively rare. In the most recent period for which data are available, 1994–95 to 2006–07, there were 44 cases that resulted in 11 convictions.

There have been two convictions of an individual under section 319 in relation to posting hate on the Internet.³⁹

Source: Adult Criminal Court Survey, Canadian Centre for Justice Statistics, Statistics Canada, 2009

Differences between the Criminal Code and the CHRA

When Parliament enacted section 13, it did so as an alternative to the Criminal Code provisions dealing with hate that had been enacted several years earlier. It was intended that section 13 be parallel and complementary to the Criminal Code and not in competition with it. As noted above, it is also important to emphasize the differences in the breadth of jurisdiction of the two laws. The Criminal Code deals with promoting hatred in a public place or advocating genocide. The specific mode of communication is not limited. On the other hand, the Commission’s jurisdiction under the CHRA is limited to the repeated transmission of hate messages by means of a telecommunication undertaking regulated by Parliament.

In the Taylor and Keegstra cases, the Supreme Court emphasized both the differences between the two laws as well as how they complement each other. In Taylor, the Chief Justice noted:

... It is essential… to recognize that, as an instrument especially designed to prevent the spread of prejudice and to foster tolerance and equality… the

In the Keegstra decision, Madame Justice Beverley McLachlin expanded on the differences between the two approaches by noting the severe consequences of a criminal proceeding compared to the important but different consequences arising out of a human rights proceeding.

The seriousness of the imprisonment which may follow conviction requires no comment. Moreover, the chilling effect of prohibitions on expression is at its most severe where they are effected by means of the criminal law. It is this branch of the law more than any other which the ordinary, law-abiding citizen seeks to avoid.

[…]

Finally, it can be argued that greater precision is required in the criminal law than, for example, in human rights legislation because of the different character of the two types of proceedings. The consequences of alleging a violation of s. 319(2) of the Criminal Code are direct and serious in the extreme. Under the human rights process a tribunal has considerable discretion in determining what messages or conduct should be banned and by its order may indicate more precisely their exact nature, all of which occurs before any consequences inure to the alleged violator.⁴²

The following table illustrates the major differences between the Criminal Code and the CHRA with regard to the promotion of hatred. It illustrates how the two systems were designed to accommodate different but complementary purposes.

The Canadian Model

As in Canada, many western democracies have criminal laws dealing with the promotion of hatred. Governmental and civil society programs and activities that promote inter-group understanding and aim to reduce intolerance, prejudice and discrimination often accompany these laws.

Canada appears to be unique in that the CHRA provides a non-criminal law approach to deal specifically with the electronic transmission of hate messages in a multi-faceted and flexible manner. Professor Jane Bailey, of the Law Faculty at the University of Ottawa, has noted that the Canadian approach is seen as a model for how to deal with hate on the Internet:

Section 13 places Canada at the forefront of democratic nations in addressing hate propaganda by treating it as a practice of inequality, a mechanism for perpetuating myths, stereotypes and calls for violence that are fundamentally inconsistent with the goal of ensuring that all of us are able to reach our potential and live the life of our own choosing regardless of personal characteristics such as race, religion and sexual identity.⁴³

23. Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities) (1992) S.C.R. 623.
24. For information on how complaints are filed see the Dispute Resolution section of the Commission’s website at: www.chrc-ccdp.gc.ca.
25. Usually the complaint must be filed within one year of the alleged discrimination.
26. The Commission currently consists of the Chief Commissioner and Deputy Chief Commissioner, who are both full-time appointees, and four part-time commissioners. Commissioners are appointed by the Governor in Council for fixed terms and may be removed only by a vote of Parliament.
27. The Act provides that the Commission will refer a case to the Tribunal when in its opinion ”...having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted,..." Section 44(3)(a)(I).
28. In any case, a Commission decision to refer a complaint to the Tribunal is based on a determination that further inquiry into the matter is warranted by means of a Tribunal hearing. The Commission makes no findings on the merits of the case.
29. Section 51 of the CHRA states: In appearing at a hearing, presenting evidence and making representations, the Commission shall adopt such position as, in its opinion, is in the public interest having regard to the nature of the complaint.
30. Section 48.1(2), CHRA.
31. Section 54 (1.1) states: In deciding whether to order the person to pay the penalty, the member or panel shall take into account the following factors: (a) the nature, circumstances, extent and gravity of the discriminatory practice; and (b) the wilfulness or intent of the person who engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person’s ability to pay the penalty.
32. A finding of contempt of court requires the demonstration beyond a reasonable doubt that the person obligated to obey the order had knowledge of the order, that the order was sufficiently clear, and that the order has been breached.
33. This means that the parties to a complaint must be informed of the case against them, and be afforded a fair opportunity of answering it to ensure they are accorded a meaningful opportunity to be heard by an impartial decision maker.
34. Tremaine v. Warman, paragraph 16.
35. As the administration of criminal law is primarily a provincial/territorial matter, the federal Attorney General and federal prosecutors have no role in the prosecution of charges under the Criminal Code.
36. Ontario has 58 municipal police services plus the Ontario Provincial Police. Of these, only 12 have one or more police officers who are specialized in investigating hate. Their roles are chiefly to educate their colleagues in how to recognize hate groups’ insignia, or that some activity might have a component of hate to it. The Ontario group of 12 does not collect statistics; however we were advised by one hate crime specialist from a ‘top 5’ police service that in his 2.5 years serving in that capacity, he had forwarded only 6 cases to the Crown for review, and none of them had received the Crown’s approval to be sent to the Attorney General for consent.
37. Some other Criminal Code provisions that require consent are war crimes, crimes against humanity and abduction of a child where no custody order has been granted.
38. The Cohen Committee indicated that the criminalization of an activity is the highest condemnation that society can bring with respect to that activity. The Committee stated: ” No civil statute can create a moral standard equivalent to that of criminal law.” The criminalization of hate propaganda properly reflects this condemnation. In his report, Professor Moon stressed that: “Hate speech is a serious matter that should be investigated by the police and prosecuted in the courts and should carry a significant penalty”.
39. A “case” may involve one or more charges against an accused.
40. In September 2006, Reni Santana-Reis (formerly known as Reinhard Gustav Mueller) was sentenced to 16 months in jail in an Alberta court. In February 2008, Keith Francis William Noble, 32, was sentenced in B.C. Supreme Court in Prince George to six months in jail and three years’ probation.
41. Taylor.
42. Keegstra.
43. “Democracy suffers when equality is threatened” Jane Bailey, Ottawa Citizen, December 11, 2008. pg. A.15.

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