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Section 13 has been a part of the Act since it was enacted in 1977. The only change in section 13, which was added in 2001, is the clarification that the repeated telephonic communication of hate messages includes messages transmitted by means of the Internet.
The Commission is bound by the Act, and the jurisprudence, to implement the CHRA as mandated by Parliament.
Is section 13 consistent with the Charter of Rights and Freedoms?
The first case heard by the Canadian Human Rights Tribunal, and one of the first cases investigated by the Commission, dealt with an alleged violation of section 13. The Tribunal decision in the case of Smith and Lodge v. Western Guard Party (Taylor J.R.) was rendered in July 1979. The Tribunal found that the respondents had contravened the CHRA and ordered that they shut down the telephone line.
The respondents appealed the decision up to the Supreme Court alleging that section 13 violated the Canadian Charter of Rights and Freedoms because it denied them freedom of expression as guaranteed by section 2(b). The Court (see decision) ruled that although section 13 did infringe on freedom of expression, this infringement could be justified under section 1 of the Charter which provides that the Charter is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Chief Justice Brian Dickson, writing for the majority of the Court, concluded that the recorded messages disseminated by Mr. Taylor were of such an extreme nature that they strayed far from the intent of section 2(b) [Canadian Charter of Rights and Freedoms : Section 2: Everyone has the following fundamental freedoms: ... b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ...] .
...[t]he unusually extreme extent to which the expression at stake in this appeal attacks the s. 2(b) rationale… requires that the ... analysis be carried out with the recognition that the suppression of hate propaganda does not severely abridge free expression values.
The Court stated that the type of hate propaganda targeted by section 13 was of such a nature that it posed a "a serious threat to society":
... It undermines the dignity and self-worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality. The international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism enshrined in ss. 15 and 27 of the Charter magnify the weightiness of Parliament's objective in enacting s. 13(1).
The decision also noted:
The terms of the section, in particular the phrase ‘hatred or contempt,’ are sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament's objective of promoting equality and tolerance in society.
The Chief Justice went on to comment:
...as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase "hatred or contempt", there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.
Does Canada have an equivalent to the First Amendment?
No. Although many Canadians are aware of the United States First Amendment, the Canadian approach to freedom of expression issues is different.
The First Amendment of the Constitution of the United States of America states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Jurisprudence of the United States’ courts, including the Supreme Court, severely restricts any state action to suppress free expression, including hate speech or propaganda. For example, in the case of R.A.V. v. City of St. Paul, Minnesota, the Supreme Court of the United States found that a municipal law prohibiting the burning of a cross was an impermissible restriction on the First Amendment. The effect of the decision was to allow the burning of a cross on the lawn of the first black family to move into an all-white neighborhood.
An article written by Mr. Justice Russell Juriansz, Ontario Court of Appeal, examines the U.S. approach to hate speech compared to that adopted by other countries, including Canada. The article was presented to a conference on hate on the Internet convened by the CHRC in December 2005. In his article, Combating Hate and Preserving Free Speech: Where is the Line? Justice Juriansz states:
It seems fair to say that the American view is becoming a minority one in the world. Canada is part of what appears to be growing global consensus, which observes that careful restrictions of some forms of speech are both desirable and necessary.
Canadian legislators and courts have tended to seek a balance between the protection of freedom of expression under the Charter and the harm caused by hate speech and propaganda.
In drawing the line between hatred and free expression, the Canadian courts have taken into account other Charter provisions, most importantly section 15, which provides for equality before and under the law and equal benefit and protection of law, and section 27 which provides that: "This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians."
Is section 13 consistent with international human rights law?
Yes. International human rights treaties provide that careful restrictions of some forms of speech are both desirable and necessary.
Both the Universal Declaration of Human Rights (UDHR) and the International Convention on Civil and Political Rights (ICCPR) guarantee freedom of expression.
Article 19 of the Universal Declaration states:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 19 of the ICCPR amplifies on the Universal Declaration by specifying:
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
However section 19 also allows that certain restrictions may be imposed on freedom of expression by specifying that:
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Article 20 of the ICCPR requires states to prohibit speech that incites war or promotes hatred:
- Any propaganda for war shall be prohibited by law.
- Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination also requires states to take action against hate propaganda by providing that:
States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:
a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;
c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.
In General Comment 11 the United Nations Human Rights Committee found that there was no fundamental conflict between Articles 19 and 20:
Article 20 of the Covenant states that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. In the opinion of the Committee, these required prohibitions are fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities. The prohibition under paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations, while paragraph 2 is directed against any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such propaganda or advocacy has aims which are internal or external to the State concerned. The provisions of article 20, paragraph 1, do not prohibit advocacy of the sovereign right of self-defence or the right of peoples to self-determination and independence in accordance with the Charter of the United Nations. For article 20 to become fully effective there ought to be a law making it clear that propaganda and advocacy as described therein are contrary to public policy and providing for an appropriate sanction in case of violation. The Committee, therefore, believes that States parties which have not yet done so should take the measures necessary to fulfil the obligations contained in article 20, and should themselves refrain from any such propaganda or advocacy.
Canada has also signed, but not yet ratified, the Additional Protocol to the Convention on cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems.
Have United Nations bodies made decisions relating to section 13?
In 1983, a complaint to the United Nations Human Rights Committee was filed by Mr. John Ross Taylor and the Western Guard Party alleging a violation of the freedom of expression guaranteed in the International Covenant on Civil and Political Rights. The Human Rights Committee rejected the complaint on the grounds that:
...the opinions which Mr. Taylor seeks to disseminate through the telephone system clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit.
