Canadian Human Rights Commission and Section 13 of the Canadian Human Rights Act

Canadian Human Rights Commission

What Happened

The Harper government rolled back longstanding human rights protections in Canada by repealing section 13 of the Canadian Human Rights Act (CHRA).[1] Section 13 prohibited speech inciting hatred of people based on race, religion, sexual orientation and other protected characteristics.

Section 13 was the victim of a campaign led by a collection of social conservatives, traditional civil libertarians, mainstream media, and extremist rightwing groups, alleging that hate speech protections are unconstitutional and violations of freedom of expression.

A unanimous Supreme Court of Canada ruled on February 27 2013 in the Saskatchewan Whatcott[2] case that a similar (although not identical) provision in the Saskatchewan Human Rights Code[3] was constitutional. In a balanced decision that also trimmed the language of the Saskatchewan Code that infringed the constitutional right to free expression, the Court ruled that extreme forms of public vilification inciting hate can be legally restricted. The Supreme Court of Canada also unanimously upheld the role of human rights commissions in Canada as both lawful and appropriate means of controlling these extreme forms of speech.

Despite the clear guidance from the Supreme Court, the federal government went ahead and repealed section 13 anyway. The amendment received Royal Assent on 26 June 2013. Although Whatcott was not decided in time to save section 13, it has served to shield Saskatchewan’s law and, by implication, those in other parts of the country.


Background

Between 2007 and 2013, human rights institutions in Canada (commissions and tribunals) came under negative scrutiny from the media, politicians, and rightwing groups because of laws controlling extreme forms of hate speech as a form of discrimination.

At the federal level, this power was conferred by s. 13 of the CHRA.[4]

Hostility to human rights institutions

Hostility to human rights commissions is not new in Canada. In 1999, Stephen Harper told Terry O’Neill of BC Report that “human rights commissions, as they are evolving, are an attack on our fundamental freedoms and the basic existence of a democratic society. It is in fact totalitarianism. I find this very scary stuff.”[5] In 2009, Tom Flanagan, sometime Conservative Party campaign manager, opined in the Globe & Mail, “…we should remember that the existence of the commissions is itself an abuse. They have little to do with genuine human rights such as freedom of speech and worship, security of the person and ownership of property.”[6]

The Maclean’s hate speech debates

Hostility to commissions increased markedly after 2008, following a bitter and divisive debate about the role of human rights commissions when Maclean’s magazine was accused of publishing more than 20 anti-Muslim articles by Mark Steyn and Barbara Amiel. Human rights complaints were filed against Rogers Publishing (which owns Maclean’s) and various officials, including its then-editor Ken Whyte and publisher Ken MacQueen after Maclean’s refused to publish a rebuttal to the articles at the request of a group of Osgoode Hall law students.

In December 2007, the students held a press conference with their lawyer announcing the filing of human rights complaints alleging hate speech. They argued that the Maclean’s articles “went well beyond simply being offensive and became dangerous.”[7] Steyn himself was not a respondent in any of the complaints, despite his public posturing as a victim of censors.

One of the students chose to act as complainant in Ontario, but in what turned out to be a contentious move, the students asked the Canadian Islamic Congress and its controversial president at that time to act as complainants at the federal level before the Canadian Human Rights Commission (CHRC) and in British Columbia at the BC Human Rights Tribunal.[8]

What Maclean’s published[9]

The main target of the human rights complaints was Mark Steyn’s article, “The Future Belongs to Islam,” which predicted a global Muslim takeover and warned that the only remaining question was “how bloody the transfer of real estate will be.”[10]

In another article, “Celebrate tolerance, or you’re dead,” Steyn cited “livelier examples” of “contemporary Islam” such as sex with nine-year-old girls and sheep. Steyn helpfully clarified his views on Muslims, stating that he was not trying to say that “the cities of the Western world will be filling up with sheepshaggers.”[11] He mused about the propriety of roasting sheep after sexual relations with them, and continued with references to “hitting on the livestock.”

Leaving aside Steyn’s curious over-involvement with farm animals, the articles were seen by the students as part of a subgenre of writing that has sought to characterize Muslims as dangerous to society, bestial, and prone to pedophilia.

Once the human rights complaints were filed, the media discovered hate speech controls in human rights laws that had been in place for almost four decades and, until then, largely ignored. White supremacist groups and neo-Nazis suddenly became free speech heroes.[12] Accusations that commissions were “kangaroo courts” or worse spread quickly on the Internet, where they gathered considerable and authoritative weight.

What happened then[13]

Thousands of human rights complaints are filed by Canadians every year, but the three complaints prepared by the law students were the first brought by Muslims, individually and as a group, against mainstream media on a national scale. Journalists and editors were unaccustomed to this kind of complaint and saw the hate speech complaints as a form of censorship or even malicious prosecution.

An avalanche of articles and editorials appeared in the press arguing for the repeal of human rights laws that regulate hate speech. Most of the opposition relied on deeply flawed understandings of how human rights commissions work and about the role of human rights institutions in limiting speech that incites hatred.

Maclean’s was supported by columns and editorial pages in Canadian newspapers across the country, and Canadian media and led a crusade against human rights commissions dealing with hate speech at all. Although the three complaints were ultimately dismissed, writers such as National Post reporter Joseph Brean and columnists Lorne Gunter, George Jonas, and Jonathan Kay laid the groundwork for eliminating not only controls on hate speech, but also for alienating public opinion against the equality-based work of human rights commissions and tribunals more generally.

Commissions were accused of using illicit investigation techniques in hate speech cases. Criminal charges and privacy complaints were laid against the Canadian Human Rights Commission, garnering widespread attention in, among other publications, Maclean’s.[14] None of these accusations turned out to be true: the RCMP and the Privacy Commission dismissed the charges and privacy complaints as baseless. The media paid little attention to these decisions, which got nothing like the widespread attention given to the original accusations that had been published by Maclean’s and widely reproduced on right-wing blogs.

Ezra Levant, a conservative pundit, also declared war against commissions, as well as against the students who had launched the Maclean’s hate speech cases. Levant had a particular grudge stemming from a human rights complaint under the Alberta Human Rights Act filed against The Western Standard, for publishing “the Danish cartoons”. His campaign to “de-normalize” human rights commissions, to borrow from an Ontario court decision, also included individuals whom he considered to be supporters of these institutions or of hate speech legislation.[15] One target was CHRC lawyer Giacomo Vigna, who finally sued Levant for libel. Another was the former Osgoode student Khurrum Awan, a complainant in the Maclean’s complaint and a prominent target of Levant’s blog. Both libel cases were successful, and the courts noted Levant’s campaign had extended to “reckless disregard for the truth.” Levant was said to have shown malice against both Vigna and Awan.[16]

Hate speech hits the courts

Contrary to what is widely reported in the media, hate speech controls are not recent additions to the law, but rather go back decades in Canada, as far back as the late 1930s.[17]

Having said that, it was not until forty years later that Canada joined the many nations signing on to the International Covenant on Civil and Political Rights (ICCPR), which requires countries to protect free speech and also to outlaw speech that incites hate and discrimination. Article 20 of the ICCPR provides that

“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”

Section 13 was part of the CHRA, thus ensuring Canada’s compliance with its international obligations. It recognized that free speech and the ability speak out against the most vicious verbal attacks can only survive if minorities receive some protection against the worst forms of public vilification that have been demonstrated in the past to lead to significant human rights violations. (Although there have been amendments to the law since that time, namely to reflect technological developments, none of those changes alter the constitutionality of section 13 itself.)

Section 13 was first challenged by John Ross Taylor, a Canadian neo-Nazi advocating totalitarian rule and a proponent of “Jews to Madagascar.”[18] By a narrow majority, the Supreme Court of Canada decided in the 1990 Taylor case that limits on speech that vilify people and incite hate are constitutional as reasonable limits on speech.[19]

But once the Maclean’s hate speech debates were in full swing, many who had opposed controls on hate speech saw an opportunity to turn the tide, and early wins suggested that they might succeed. The Ontario Human Rights Commission Maclean’s complaint was dismissed because the Commission in that province has no authority over hate speech at all. The federal Commission declined to pursue the case and the British Columbia Human Rights Tribunal held a full hearing on the matter, ultimately deciding to dismiss the case mainly for evidentiary reasons.[20]

In 2009, the Canadian Human Rights Tribunal in a case called Warman v. Lemire refused to apply s. 13.[21] Marc Lemire is a webmaster alleged to have hosted racist material. However, he was not found liable for hate speech because the Tribunal said s.13 violated constitutional free speech protections.[22] The Tribunal did not have the authority to actually strike down the law (only courts have that power), but the refusal to apply s.13 elicited considerable glee among those unhappy with controls on hate speech.

Adding fuel to the fire were court decisions in 2009, 2010 and 2012 in Alberta (the Boissoin case) and the Saskatchewan Court of Appeal’s earlier ruling in Whatcott. The upshot of these decisions was that even what would later be characterized as virulent hate speech against gays and lesbians was deemed to be protected speech and that more regard should be paid to freedom of religion.[23]

Rule of law returns

In response to the alarming reversal of these longstanding protections in Canada, people began to speak out in favour of s. 13 of the CHRA, for a recognition of equality rights, and for preserving the role of human rights institutions in enforcing these protections. The list includes the Assembly of First Nations, Égale Canada, the Canadian Bar Association, the Canadian Unitarian Council, Women’s Legal Education and Action Fund, and scholars, civil servants, journalists, and human rights lawyers Jane Bailey, Irwin Cotler, Paul Champ, Philippe Dufresne, Pearl Eliadis, Bernie Farber, Mark Freiman, Lucie Lamarche, Ken Norman, David Matas, Margaret Parsons, Haroon Siddiqui, and Max Yalden.

The Federal Court of Canada reversed the Tribunal’s decision in Lemire.[24] It said that the Canadian Human Rights Tribunal had erred by declaring s. 13 of the CHRA unconstitutional.

The Saskatchewan case of Whatcott then made its way to the Supreme Court of Canada. In February 2013, the Supreme Court in Whatcott unanimously and resoundingly upheld Saskatchewan’s human rights laws prohibiting hate speech, noting its discriminatory effects, and its impacts on those who are targeted.

The case has significance not only for Saskatchewan but also for other jurisdictions and for the role of human rights commissions and tribunals in enforcing reasonable limits on hate speech, and underscoring the important role of governments in ensuring reasonable and appropriate protections for minorities. The federal government went ahead and repealed s. 13 of the CHRA a few months later.

Relevant Dates

  • 1976: The Canadian Human Rights Act comes into force and includes section 13 on the regulation of communications that incite hatred.
  • 1990: The Supreme Court of Canada decides Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892, upholding the constitutionality of s. 13 of the CHRA by a narrow margin.
  • November-December 2007: Muslim law students from Osgoode Hall law school file human rights complaints in Ontario, at the federal level and in British Columbia against Maclean’s magazine (Rogers) alleging that anti-Muslim articles are hate speech. Mark Steyn’s 2006 article, “The future belongs to Islam,” is singled out.
  • 2008: The Ontario Human Rights Commission dismisses the case against Maclean’s for lack of jurisdiction, but notes in a news release that “it should be possible to challenge any institution that contributes to destructive, xenophobic opinions.” The Canadian Human Rights Commission and the BC Human Rights Tribunal also dismiss the complaints.[25]
  • 2009: The Canadian Human Rights Tribunal refuses to apply s. 13, claiming that it violates free speech. In Alberta, Darren Lund loses his attempt to characterize virulent anti-gay literature as hate speech before the Alberta Court of Queen’s Bench.
  • 2010: The Saskatchewan Court of Appeal decides that virulent anti-gay pamphlets do not constitute hate speech in Whattcott.
  • 2011: A private member's bill, An Act to amend the Canadian Human Rights Act (protecting freedom), Bill C304, is introduced by MP Brian Storseth (CPC-Westlock-St. Paul) to repeal Section 13 of the CHRA and eliminate hate speech protections.
  • 2012: The Federal Court of Canada overturns the Tribunal’s decision in Warman v. Lemire. Darren Lund loses his hate speech complaint before the Alberta Court of Appeal in Boissoin v. Lund.
  • February 2013: The Supreme Court of Canada overturns the Alberta Court of Appeal in Whattcott, holding (in facts quite similar to Boissoin v. Lund) that the effect of hate speech are such that controls are justifiable in free and democratic societies.
  • June 2013: An Act to amend the Canadian Human Rights Act (protecting freedom), Bill C304 receives Royal Assent on 26 June 2013, thus repealing section 13 of the CHRA.



[1] RSC 1985, c H6.

[2] Saskatchewan Human Rights Commission v. Whatcott, 2013 SCC 11.

[3] Saskatchewan Human Rights Code, SS 1979 c S24.1

[4] Section 13 of the CHRA prohibited communications that are “likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.”

[5] Excerpts from a 1999 interview with Terry O’Neill of BC Report newsmagazine cited in Maclean’s, “Harper Must Act Now to Protect Free Speech,” (20 September 2009).

[6] Flanagan, Tom. “Time to right some wrongs,” The Globe and Mail (May 19 2009), online: <http://www.theglobeandmail.com/opinion/time-to-right-some-wrongs/article...

[7] Naseem Mithoowani, Khurrum Awan, and Muneeza Sheikh, “Rights Complainants Want Only Reasonable Access to Media,” Gazette [Montreal] (24 February 2008) A15.

[8] Mohamed Elmasry was a complainant, on behalf of Muslim residents of the Province of British Columbia, in the B.C. complaint.

[9] The following two sections are drawn from Eliadis, Pearl, “The Controversy Entrepreneurs”, Maisonneuve magazine (October 2008) Fall 2008; Eliadis, Pearl, Speaking Out on Human Rights: Debating Canada’s Human Rights System, (McGill-Queen’s University Press, 2014); Ken Norman, “Free Speech: ‘The Right to be Stupid’ v. ‘Words Matter’”, JURIST, March, 2013. Online: <http://www.jurist.org/forum/2013/03/kennormanhatespeech.php>

[10] Mark Steyn, “The Future Belongs to Islam,” Maclean’s (20 October 2006). Online: <http://www.macleans.ca/culture/thefuturebelongstoislam/>

[11] Mark Steyn, “Celebrate Tolerance, or you’re dead,” Maclean’s (28 April 2006). The title is from the online version of the article, which at the time of writing had been taken offline by Maclean’s.

[12] See, e.g., Jonathan Kay, “How to Turn a Neo-Nazi into a Free-Speech Martyr,” National Post (25 March 2008) A12.

[13] This section is drawn in part from Pearl Eliadis. “The Controversy Entrepreneurs”, Maisonneuve Magazine 29 (20 August 2009), online: <http://maisonneuve.org/article/2009/08/20/controversyentrepreneurs/>.

[14] E.g., Mark Steyn, “That Poor Woman down the Street,” Maclean’s (2 April 2008).

[15] Vigna v. Levant, 2010 ONSC 6308 at paras 132133.

[16] Ibid., Awan v. Levant, 2014 ONSC 6890, at para. 189 regarding malice. The Awan case was being appealed at the time of writing.

[17] See, e.g., Manitoba’s Libel Act, SM 1934, c 23, s 13(a)).

[18] Interview of John Ross Taylor by Tom Koch (17 January 1965) on This Hour Has Seven Days, CBC Television, Toronto, CBC Digital Archives at 47:05, online: <http://www.cbc.ca/archives/entry/this-hour-has-seven-days-opinions-fly>

[19] Canada (Human Rights Commission) v. Taylor, [1990] 3 SCR 892.

[20] Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378.

[21] Warman v. Lemire, 2009 CHRT 26.

[22] The Tribunal ruled that the CHRA was vulnerable due to a 1998 amendment that created a penalty of up to $10,000 for hate speech. The penalty clause was seen as a punitive sanction, supposedly incompatible with the objectives of human rights legislation. The tribunal refused to apply either section 13 or the penalty clause as a result.

[23] Boissoin v. Lund, 2009 ABQB 592, Boissoin v. Lund, 2009 ABQB 592. See also Lund v. Boissoin, 2012 ABCA 300.

[24] Canada (Human Rights Commission) v. Warman, 2012 FC 1162.

[25] Ontario Human Rights Commission, Press release, “Commission Statement concerning issues raised by complaints against Maclean’s magazine”, April 9, 2008 (Toronto: Ontario Human Rights Commission, 2008) online: <http://www.ohrc.on.ca/en/news_centre/commission-statement-concerning-iss.... The Canadian commission did not issue a formal ruling following a full investigation, just a short statement to the effect that the matter would not be fully investigated or sent to Tribunal. In British Columbia, see Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378.

 

Role or Position

Established in 1977, the Canadian Human Rights Commission (CHRC) is an independent government body that oversees the Canadian Human Rights Act and the Employment Equity Act. The CHRC receives and investigates complaints about discriminatory practices under federal jurisdiction.

Implications and Consequences

  • Democracy: The Supreme Court of Canada pointed out in its 1990 decision in Keegstra, its first hate speech judgment, that the harm done by hate speech is suffered not only by the identifiable group targeted but also by Canada’s democratic project. For, if left unchecked hate speech will silence minority voices that would otherwise make themselves heard in our politics. Section 27 of the Charter was cited in Keegstra in support of this point. Defending multiculturalism is a fundamental interpretive principle guiding one’s reading of all of the Charter. With the repeal of s.13 of the Canadian Human Rights Act, there is no federal human rights institution backing this vital aspect of the foundation of our democracy is troubling.
  • Equality: The deletion of s.13 from the Canadian Human Rights Act is a step in the wrong direction for the principle of substantive equality enshrined in s.15 of the Charter. Groups targeted by hate mongers are vulnerable. The principle of substantive equality calls for special concern to be afforded to them in order to bring them onto an equal footing with those who are comfortably ensconced in Canada’s dominant cultural groups.
  • Free speech: Right at the core of free speech values is political speech. Hate speech may constitute a form of “expression” but doesn’t qualify for protection. The Supreme Court of Canada unanimously reiterated this point in the Whatcott judgment in 2013. Therefore, at best, hate speech sits way out on the margins of expression protected under the Charter. Reasonable laws that curb hate speech are justified in the name of protecting democracy and equality. The repeal of s.13 of the Canadian Human Rights Act was no victory for free speech.

Published: 13 April 2011
Updated: 23 June 2015

Sources