Hate speech and amendments to the Canadian Human Rights Act

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The House of Commons recently passed a private member's bill, Bill C‑304, to amend the Canadian Human Rights Act (CHRA), repealing Section 13, the "hate speech" clause, in its entirety. Bill C‑304, tabled by Brian Storseth, MP for Westlock‑St. Paul, has received very little attention even though its impact may be more extensive than many people realize.

What is the Canadian Human Rights Act?

The Canadian Human Rights Act aims to promote equal opportunity and participation for all individuals by providing protection from discriminatory practices based on a number of prohibited grounds. It applies only to matters that are within the legislative authority of Parliament. For the most part, the Human Rights Act applies to very few areas of Canadian society; however, it does apply to inter-provincial telecommunications facilities, including Internet communications. In today's society, that impact can be far‑reaching.

Section 13(1) of the Human Rights Act targets hate speech. It states that a person or group of persons who engages in repeated communications, through telecommunications facilities, that would likely expose a person or group to hatred or contempt based on a prohibited ground of discrimination, is engaging in discriminatory practices under the CHRA.

Hate speech and the right to freedom of expression

The constitutional validity of Section 13 of the Human Rights Act has been challenged in the courts on the basis that it violates the right to freedom of expression under Section 2(b) of the Canadian Charter of Rights and Freedoms. In 1990, the Supreme Court of Canada addressed this very issue in Taylor et. al v. Canadian Human Rights Commission (CHRC). The appellants, John Taylor and the Western Guard Party, had distributed cards inviting individuals to call a telephone number in Toronto where they could listen to a recorded message. The message contained anti-Semitic statements and referred to some individuals by name. The Canadian Human Rights Tribunal (the Tribunal) found that the messages were likely to expose identified individuals to hatred and contempt because they were Jewish.

The decision of the CHRC was appealed by Taylor and the Western Guard Party. The appellants argued that Section 13(1) violated their right to freedom of expression under the Charter. The Supreme Court concluded that physical forms of violence do not fall under the right to freedom of expression under Section 2(b). However, comparable types of expression, such as threats of violence, do fall within the realm of free speech under the Charter.

Charter rights are not limitless and Parliament can place restrictions on rights under Section 1 of the Charter. In Taylor, the Supreme Court found that Section 13(1) supports the aim of "restricting activities antithetical to the promotion of equality and tolerance in society." According to the Supreme Court, the Section 13(1) limits on freedom of expression were constitutional.

In 1998, the Human Rights Act was amended to include a specific penalty of not more than $10,000 for violating Section 13(1). In addition, the maximum amount of compensation to individuals or groups targeted by hate speech was increased to $20,000.

Because of the 1998 amendments, the Tribunal in another case, Warman v. Lemire, concluded that the limits that Section 13(1) placed on the right to freedom of expression could not be justified under Section 1 of the Charter. According to the Tribunal, the hate speech provision of the Human Rights Act had been transformed to a penal provision because of the amendments. While limiting hate speech was constitutional, the penalty associated with the behaviour was not.

Mr. Storseth has defended Bill C‑304 by highlighting that persons targeted by hate speech could seek recourse through the criminal justice system, and that Section 13(1) of the Human Rights Act has been found to be unconstitutional. The Canadian Bar Association (CBA) addresses both these issues in its submissions on Bill C‑304.

The CBA notes that the evidentiary standard under the Criminal Code is high; the offence must be proven beyond a reasonable doubt. By contrast, the Human Rights Act provides a lower standard of proof, the civil standard based on a balance of probabilities. The lower standard offers protection to individuals and groups who are the target of hate speech that may be very damaging, but does not meet the criminal law standard. According to the CBA, Section 13(1) "protects minorities from psychological harm caused by the dissemination of racial views which inevitably result in prejudice, discrimination and the potential of physical violence."

The CBA reiterates the Supreme Court's position that the right to freedom of expression is not absolute and limits to this right can be warranted. The CBA also clarifies that the Tribunal in Warman v. Lemire did not find the hate speech provision in the Human Rights Act unconstitutional, only the penalty associated with the provision.

Sacrificing equality rights for freedom of expression

No hierarchy exists for Charter rights. When one Charter right conflicts with another, a balance must be found.

One consequence of Bill C‑304, overlooked in the mainstream media, is the legislative void created with respect to hate speech based on sex, age and disability, grounds protected under the equality rights provision of the Charter.

Francoise Boivin, MP for Gatineau, expressed particular concern that the hate speech offence in the Criminal Code does not address sex‑based hate speech, something that is addressed by Section 13(1) of the Human Rights Act. The recent campaign of Internet harassment against feminist Anita Sarkeesian because of her advocacy against misogyny in the online gaming community, including the posting of viral video game "Beat up Anita Sarkeesian" (the post reportedly originated in Sault Ste. Marie, Ontario), illustrates the ease with which targeted hatred can be spread throughout the Internet. It is a clear indication that Section 13(1) of the Human Rights Act remains an important protection against hate speech on the Internet, and one of the few mechanisms available to individuals and groups targeted by sex‑based hate speech in particular.

Unfortunately, Bill C‑304 takes away this important protection of our equality rights in a free and democratic society.

Note: Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

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