Canadian Human Rights Commission free speech controversy

Legislative History of Section 13(1), 1977-2013

The Canadian Human Rights Act was enacted in 1977. Parliament twice expanded s. 13(1). In 1998, a penalty was added for breaches of s. 13(1). In 2001, s. 13(1) was expanded to apply to telecommunications over the internet, These expansions of the section raised questions as to whether s. 13(1), which had been found by the Supreme Court, in a 1990 ruling, to be constitutional, was now restricting freedom of speech in ways that might be unconstitutional.

In June 2012, the House of Commons voted to repeal Section 13(1) of the Canadian Human Rights Act. On June 26, 2013, Section 13(1) was finally repealed after a vote in the Senate.

Court challenges to the constitutionality of Section 13(1), 1990-2013

In 1990, an individual challenged the constitutionality of s. 13(1) as it applied to telephone communications, arguing that the provision infringed the guarantee of freedom of expression set out in section 2 of the Canadian Charter of Rights and Freedoms. By a 4-3 split decision, the Supreme Court of Canada held that s. 13(1) was constitutional. The Court agreed that the provision infringed the guarantee of freedom of expression, but that the prohibition on hate speech was a justifiable limitation under section 1 of the Charter.

Some high-profile cases under s. 13(1) also raised questions about the public policy rationale for s. 13(1), and about whether it was an acceptable restriction on freedom of expression in Canada. There was also one case where the Canadian Human Rights Tribunal held that the changes to s. 13(1) meant that the section was no longer constitutional under the analysis set out by the Supreme Court in Taylor and was inoperative. However, on review, the Federal Court of Canada held that while the new penalty provision could not be justified under Taylor, the rest of s. 13(1) continued to be in force. In a related development, on February 27, 2013, the Supreme Court of Canada gave its decision in Saskatchewan Human Rights Commission v. Whatcott. Unlike Taylor, the Supreme Court's decision in Whatcott was unanimous.

Criticism, 2006

Marc Lemire and Paul Fromm challenged the constitutionality of the CHRC. Lemire (with the qualified support of PEN Canada and the Canadian Civil Liberties Association, among others) won the right to cross-examine HRC investigators concerning their conduct during investigations, namely their posting of provocative comments on websites.

Criticism from civil libertarians, 2008

Alan Borovoy, general counsel for the Canadian Civil Liberties Association, noted that under Section 13(1), "Intent is not a requirement, and truth and reasonable belief in the truth is no defence." He has said that when he and other human rights activists advocated the creation of human rights commissions they "never imagined that they might ultimately be used against freedom of speech" and that censorship was not the role he had envisioned for the commissions.

He noted that the law could be used to prosecute the authors of scholarly works that are demonstrably true and accurate. As an example he cited the book Hitler's Willing Executioners, which provides evidence of the complicity of German civilians in the Holocaust. Borovoy observed that the book's thesis could be characterized as "likely to expose" German people to contempt, and therefore to be in violation of Section 13(1).

Borovoy further added that:

"Although it's true that they have nailed some genuine hatemongers with it, it has nevertheless been used or threatened to be used against a wide variety of constituencies who don't bear the slightest resemblance to the kind of hatemongers that were originally envisioned: anti-American protesters, French-Canadian nationalists, a film sympathetic to South Africa's Nelson Mandela, a pro-Zionist book, a Jewish community leader, Salman Rushdie's Satanic Verses, and even a couple years ago, a pro-Israeli speaker was briefed about the anti-hate law by a police detective before he went in to make a speech."

Borovoy commented that none of these cases resulted in a lasting conviction or property seizure "But only lawyers could be consoled by that."

Although supportive of restrictions on extreme forms of speech, Lawyer David Matas also criticized Canada's Human rights commissions. In a 2008 report to the Moon Report on Internet hate speech, Matas charged that Canada's human rights commissions have demonstrated "a disastrous combination of investigative zeal and substantive ignorance."

Criticism from advocates of journalistic freedom, 2008

Mary Agnes Welch, president of the Canadian Association of Journalists stated that Human rights commissions "were never meant to act as language nannies. The current system allows complainants to chill the speech of those they disagree with by entangling targets in a human rights bureaucracy that doesn't have to operate under the same strict rules of defence as a court." Sufi Muslim scholar Syed Soharwardy, the founder of the Islamic Supreme Council of Canada, who filed a complaint with the Alberta Human Rights Commission against Ezra Levant for republication of Danish cartoons depicting Muhammad, later dropped the complaint and changed his mind about the value of using Canada's human rights commissions to prosecute 'hate speech'. Fred Henry, Catholic Bishop of Alberta, has argued that the HRCs are used to stifle debate on important issues.

Linguist and analytic philosopher Noam Chomsky has said about the section, "I think it's outrageous, like the comparable European laws. It's also pure hypocrisy. If it were applied the media and journals would be shut down. They don't expose current enemies of the state to hatred or contempt?"

Criticism from the Canadian Muslim Congress, 2008

In a press conference on October 2, 2008, Tarek Fatah, a founder of the Muslim Canadian Congress, stated that the Ontario Human Rights Commission (OHRC) has been "infiltrated by Islamists" and that some of its commissioners are closely linked to the Canadian Islamic Congress and the Canadian Arab Federation, both of which, according to Fatah, have "contempt for Canadian values."

Criticism from The National Post, 2008

In June 2008, the National Post published an editorial which harshly criticized Canada's Human Rights Commissions (HRCs). The Post writes that "It is increasingly obvious these commissions were set up deliberately to lower the standard of proof and get around rules of natural justice, thereby ensuring people who would never be convicted in court are punished to the satisfaction of the activists and special interest groups that hover around the tribunals."

The Post criticized the procedures and structure of HRC hearings, citing a number of specific problems:

Suggestions for repeal or reform of Section 13(1), 2008

The controversy regarding the CHRC's practices comes from its enforcement of Section 13(1) of the Canadian Human Rights Act, prior to its repeal, which stated that it is discriminatory to communicate by phone or Internet any material "that is likely to expose a person or persons to hatred or contempt." Critics claim that CHRC adjudicators have limited legal training and poor investigative resources and allege that, as a result, the power of section 13(1) was used for nuisance cases that would be tossed out if they were adjudicated within the judicial system.

In 2008, Liberal MP Keith Martin proposed a private member's bill in Parliament to rescind section 13(1) of the Canadian Human Rights Act, upon which federal HRC hate speech cases are based. Martin described the legal test of "likely to expose" as "a hole you could drive a Mack truck through," and said it is being applied by "rogue commissions where a small number of people [are] determining what Canadians can and can't say." Martin also asserted that some of history's most important ideas "were originally deemed to be sacrilegious and certainly in opposition to conventional wisdom. Who's to say that a commission cannot rule those ideas out of order and penalize people for saying or thinking them?"

Irwin Cotler, a Canadian human rights scholar and former minister of justice, (who has expressed support for prohibitions on the incitement of hate and genocide), floated (but did not endorse) the idea that section 13(1) cases should require the authorization of the Attorney-General, which is the requirement for criminal prosecutions for inciting violence or promoting hatred.

Support for the Human Rights Commissions

In June 2008 a human rights lawyer named Pearl Eliadis defended the CHRC's current mandate at the Niagara-on-the-Lake conference of the Canadian Association of Statutory Human Rights Agencies. Responding to Alan Borovoy's concern that he never expected they would be used against the free expression of opinion, Eliadis stated that what Borovoy thought 40 years ago should not determine the current state of human rights law. She also argued that arguments against human rights commissions dealing with complaints against media are premised on the notion that "new rights are bad rights." She added that the commissions are "strategically and uncomfortably poised" in "dynamic tension" among NGOs, government, voters, industry and other influences." In August 2009, Eliadis wrote an article in Maisonneuve where she argued that expressive behaviour has been the subject of human rights laws in since the 1940s. She also argued that critics of the commissions were causing Canadians to be "misled and lied to about the most basic aspects of Canadian law and human rights" and further stressed "the clear and present danger posed by discriminatory speech and the growth of e-hate."

Wahida Valiante, national vice-president of the Canadian Islamic Congress, stated that the commissions are the only recourse available to minorities treated unfairly in the media since membership in press councils is optional and criminal hate speech charges require the consent of the federal Attorney-General.

In January 2010 the Canadian Bar Association released a statement which supported "retaining section 13 as a useful tool." However, it also called for the adoption of several recommendations for improving the Act "to ensure that the efficacy of this protection is not only enhanced but also accords with other fundamental human rights values," including the repealing of certain penalty provisions and "empowering the CHRC to dismiss at an early stage complaints that lack merit or have no reasonable chance for success."

Statement on Freedom of Speech by CHRC Investigator Dean Steacy

In an exchange during the Marc Lemire case, lead CHRC investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Steacy responded:

"Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept."

In the same transcript, Mr. Steacy later repeated that "freedom of speech is an American concept, it is not a Canadian concept" but added that a person stating that they were protected by "freedom of speech," would be equivalent "to somebody raising a 'freedom of expression' concept," which Mr. Steacy stated was protected under Canada's Charter of Rights and Freedoms "to a point." He later added that "you don't have the right to say absolutely anything you desire, especially when it's in written format."

Jonathan Kay of the National Post criticized Steacy's remarks, stating that: "for an organization that is supposed to promote "human rights," the HRC's agents seem curiously oblivious to basic aspects of constitutional law." He added that, in Mr. Steacy's mind, "Section 2 has been excised from his copy of the Canadian Charter of Rights. Kay also stated that "someone lacking such basic general knowledge apparently occupies a senior position in the "Human Rights Commission" is cause for serious concern, and certainly an audit of the whole CHRC apparatus."

Senator Doug Finley later criticized Steacy, stating that "He [Steacy] actually said that. The Canadian Human Rights Commission actually admits they do not give free speech any value. That is totally unacceptable. Freedom of speech is the great non-partisan principle that every Member of Parliament can agree on — that every Canadian can agree on." He also called on the Canadian Senate to "reaffirm that freedom of speech is a great Canadian principle that goes back hundreds of years."

Writing in The Lawyers Weekly in October 2011, Toronto lawyer Omar Ha-Redeye cited Steacy's statement to support his view "Restrictions on freedom of expression are acceptable in Canadian law where reasonable goals toward promoting democracy are identified."

Marc Lemire

When investigating Marc Lemire's website, HRC investigators were alleged to have tapped into the secured wi-fi router of a 26-year-old Ottawa woman who lived near the commission's headquarters in order to avoid revealing the commission's IP address. Marc Lemire filed criminal complaints concerning this issue with the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP). The office of the Privacy Commissioner of Canada conducted an investigation of the allegations, but ultimately the complaint was dismissed.

Shiv Chopra

In September 2008, Human Rights Tribunal (HRT) adjudicator Pierre Deschamps ruled that Chopra was entitled to $4,000 in damages for "hurt feelings," lost wages, and interest, finding that Chopra was subjected to discriminatory comments, was suspended in retaliation for filing an earlier human rights complaint, and was discriminated against when passed over for a temporary promotion to acting chief of his division. The comments in question occurred on Feb. 9. 1998; Chopra was in the audience when his incoming boss at Health Canada, André Lachance, stated that "he liked visible minorities.” Chopra claimed this was “a racist remark" and a "deeply insensitive racial remark toward visible minority employees of the bureau." Deschamps accepted Chopra's argument, writing that Lachance's remark was “discriminatory against Mr. Chopra as well as individuals … who were non-white” and that Lachance's remark "shows a lack of sensitivity on the part of Dr. Lachance for people whose skin is not white." Deschamps stated that Lachance's remark was "by any standard, racist." Deschamps criticized the "inherent racist nature" of Lachance's comment and stated that Lachance's intent was irrelevant: "The test is, over and above the racial nature of the comment itself, whether or not the person alleging discrimination was offended by the comment."

Although the tribunal ruled in favour of Chopra on some points, it also chastised him for "asserting that every manager at Health Canada practises racial discrimination, and for alleging that every appointment in the past 20 years has been discriminatory" and that such sweeping assertions, made "without a proper evidentiary basis," undermine Dr. Chopra's credibility and "have a negative impact on the promotion of human rights." Several other complaints by Dr. Chopra that he was passed over for promotions because of his race were also dismissed. The Tribunal also ruled that "there is no reason for the Tribunal to conclude that systemic discrimination still exists at Health Canada and to order it to take additional measures to address general or systemic issues of discrimination."

Jonathan Kay of the National Post criticized the decision, alleging that Deschamps accepted Chopra's claim without any substantive explanation. Kay argued that the ruling is an "advertisement for why we should be closing down Canada’s human-rights commissions" and "nicely illustrates the absurd lengths to which our society’s elites will now go to demonize Whitey." Kay noted that Chopra alleged discrimination when he was passed over for a promotion, yet he did not have enough experience for the position; the tribunal did not accept Chopra's argument on the point. Kay also noted that one of Chopra's colleagues had complained he was authoritarian and confrontational.

Imam Al-Hayiti

In December 2008, the Commission refused to look at the case of Imam Abou Hammad Sulaiman al-Hayiti. Al-Hayiti is a Montreal Salafist Muslim who was accused of inciting hatred against homosexuals, Western women, and Jews, in a book he published on the Internet. Al-Hayiti had written that Allah has taught that "If the Jews, Christians, and [Zoroastrians] refuse to answer the call of Islam, and will not pay the jizyah [tax], then it is obligatory for Muslims to fight them if they are able." Christianity, in particular, was denounced as a "religion of lies," which is responsible for the West's "perversity, corruption and adultery." Al-Hayiti's book refers to "the incredible number of gays and lesbians (may Allah curse and destroy them in this life and the next) who sow disorder upon the Earth and who desire to increase their numbers."

In declining to hear the case, the Commission stated that Al-Hayiti was free to make comments against "infidels" because they are not an identifiable group. Regarding Al-Hayiti's statements against groups established as "identifiable," such as homosexuals and Jews, the commission simply stated that these "do not seem" to meet the criteria for promoting hatred.

The Commission's decision not to move forward with the case was criticized in two Canadian newspapers. The National Post argued that Al-Hayiti's statements more than meet the criteria under Section 13 of the Human Rights Act and accused the Commission of selectively applying the Act to Christians and Conservatives who have been prosecuted under the Act for comments that are far less severe. The Post noted that a Christian pastor named Stephen Boissoin, who posted negative remarks about homosexuals, was subsequently ordered by the Alberta Human Rights Commission that he "shall cease publishing in newspapers, by e-mail, on the radio, in public speeches or on the Internet, in future, disparaging remarks about gays and homosexuals." The Post wrote that:

Human rights commissions claim to be agencies that fight "hate" generically. But in fact, they are interested in a very narrow sub-category of alleged hatemonger -- the right-winger accused of homophobia, anti-Muslim bias or some other thoughtcrime. The more unvarnished and explicitly murderous forms of hatred made manifest in the publications of, say, Jew-hating Muslims and Hindu-hating Sikhs are of no interest to the thought police.

The Post concluded by noting that it believes that Al-Hayiti should be allowed to promote any particular interpretation of Islam, or any other religion and that the problem is that the Human Rights Commissions practice a politically correct double standard.

This affair also caused indignation in local Quebec media, with La Presse publishing an editorial criticizing the Commission for its decision. .

Response from the Canadian Human Rights Commission

In April 2008, three senior officials of the Canadian Human Rights Commission (CHRC) granted a telephone interview with the media to respond to criticism. The officials were Ian Fine, senior general counsel and director-general of dispute resolution, Monette Maillet, director of legal advisory services and Harvey Goldberg, senior policy advisor on hate speech, disability and First Nations issues.

The officials read out loud some of the material the CHRC deals with to prove the seriousness of their mission. Fine defended tha CHRC stating that:

"If you think that we're concerned, upset, from time to time discouraged with some of what we've been hearing and reading in the press, you're right, we are. Because to be quite clear about it, we do believe in what we do. We believe that in our society there should be limits on freedom of expression and freedom of speech, that there is a line, not one that we draw, but one that must be drawn nevertheless. We are comfortable with what we do."

Harvey Goldberg stated that "Freedom of expression is the lifeblood of any free and open society and the commission embraces freedom of expression. I think if you remove all the rhetoric, at the base of the debate that's been going on ... is a centuries-old debate about the appropriate role of the state in limiting freedom of expression in certain precise areas." Regarding the debate about whether Section 13(1) of the Human Rights Act, which makes it an offence to communicate by phone or Internet any message that is "likely to expose a person or persons to hatred or contempt," Goldberg stated that this is "actually the predominant view among most of the states of the world. The view in the United States [that the right to free speech is near-absolute] is really a minority view." Fine also noted that "Just as Parliament has bestowed on the commission the mandate, in fact the obligation, to deal with Section 13 cases, Parliament can take that power away at any time."

Responding to the complaint that respondents are on the hook for their own defence bills, while complainants have their cases argued by the commission, Fine stated that ""We don't set the rules. It's for Parliament to decide whether or not respondents should have the ability to recover costs." As for the fact that the CHRC has a 100% conviction rate for hate speech cases that have reached the tribunal, Maillet argued that this is a testimony to the commission's efficiency, stating that "To me, it is a sign that we have done a good job in screening complaints, and referring those cases to tribunal that have merit."

Responding to the complaint that Richard Warman, a former CHRC employee turned activist who was the complainant in all but two of the 13 hate speech cases decided by the Canadian Human Rights Tribunal, Fine stated that "Anyone can file a complaint, so from our perspective, that's the end of the matter. The tribunal decisions speak for themselves."

When asked about the current investigation of CHRC investigators who apparently hijacked a private citizen's Internet account to access a Web site they were investigating, Fine responded that "We believe that the processes we've employed in these cases are appropriate, and that's about all I think I can say on that issue."

November 2008 Report by Professor Richard Moon

In 2008, University of Windsor law professor Richard Moon was commissioned by the CHRC to prepare a report on the CHRC's mandate under Section 13 of Canadian Human Rights Act which deals with hate-speech. In November 2008, Moon released his report in which he recommended that Section 13 should be repealed so that online hate speech is a purely criminal matter. Moon wrote that "The use of censorship by the government should be confined to a narrow category of extreme expression -- that which threatens, advocates or justifies violence against the members of an identifiable group." Moon argued that "it's not practical to deal with what one might generously describe as group defamation or stereotyping through censorship. It's just not a viable option. There's too much of it, and it's so pervasive within our public discourse that any kind of censorship is just overwhelming."

Regarding the legal test for violations of Section 13, which is whether messages were "likely to expose" identifiable groups to "hatred or contempt," neither truth nor intent is a defence, unlike libel law. Moon recommended that intent to advocate or justify violence be made a requirement for Section 13, replacing the test of "likely to expose." However, he did not recommend that truth be allowed as a defence since it could result in tribunals becoming forums to debate, for example, the veracity of the Holocaust, the genetic inferiority of blacks, or the dangers of homosexuality."

Prof. Moon noted that the current complainant-driven system is unequal, in that only well-resourced and determined complainants can see their case through to a conclusion. In this, he was referring to Richard Warman, an Ottawa lawyer and former CHRC employee who has brought more than a dozen cases, far more than any other complainant.

Reactions

Jennifer Lynch, then chief commissioner of the CHRC, stated that Moon's report is "one step in a comprehensive review" and that "we can envision Section 13 being retained with some amendments." Lynch also stated that "our commission exists to protect Canadians from discrimination and I'm fervently going to uphold this core principle." She added that "we're going to strive to find more effective means to protect Canadians from exposure to hate on the Internet."

Keith Martin, the Liberal MP who first proposed scrapping Section 13 earlier in 2008, called the recommendation "very courageous" and that "Now it's in Parliament's hands to do something to defend one of our true rights, freedom of speech."

Pearl Eliadis, a human rights lawyer and prominent supporter of the CHRC, stated that Moon's statement that Section 13 targets only extreme speech "makes explicit what the courts have already said implicitly." However, she opposed shifting the CHRC's role to focus solely on violence as opposed to hatred. Eliadis arged that "when we deal with genocide and ethnic cleansing cases in other countries, what does the international community say over and over again? We need a warning system. And one of the warnings is incitement to hatred." However, she opposed criminal investigations into hate speech on the basis that people should not be put "in jail for their words."

CHRC appeals for support

In August 2009, Jennifer Lynch, then the chief commissioner of the CHRC, told the Canadian Bar Association's annual meeting that opponents of rights bodies have successfully created a "chill" that makes it difficult for anyone to defend those bodies without also becoming a target and asked for those in attendance to write "letters to correct misinformation." Lynch told the CBA that rights commissions represent an important component of the justice system, giving society's "most vulnerable" minority groups access to a mechanism to deal with alleged rights violations. She added that some of the criticisms against the CHRC have been "troubling" and "at times scary," and read out loud a graphic anonymous letter she received stating that she should be shot dead.

Although Lynch did not identify her critics, the National Post noted that she has previously complained about attacks against her by Mark Steyn, political commentator Ezra Levant, and Conservative Member of Parliament Russ Hiebert.

Challenge to Section 13(1)

In the case of Warman v. Lemire, the Canadian Human Rights Tribunal ruled that s. 13(1) infringed the constitutional guarantee of freedom of expression and could not be saved by s. 1 of the Charter. Since the Tribunal did not have the authority to declare sections of the Act which created it invalid, the Tribunal simply declined to apply s. 13(1) in that case. The prohibition of genocide advocacy (s. 318) and the anti-hate speech provision of the Criminal Code (s. 319) are unaffected by this ruling and remain in force.

On October 1, 2009, the Commission appealed the decision to the Federal Court of Appeal and in February 2014 the Federal Court of Appeal ruled section 13 to be constitutionally valid. The Court reinstated the penalty and the CHRT's cease and desist order against Lemire for violating section 13 even though the section had been repealed by parliament.

Also see Richard Warman