Canada First Immigration Reform Committee

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13(1) It is a discriminatory practice for a person or a group of persons actng in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is 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.

(2) Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

 6. Subsection 13(2)  was amended in 2001 in the Anti-terrorism Act, S.C. 2001, c. 41 (Bill C-36), in s. 88 as follows:

 

 

88. Subsection 13(2) of the Canadian Human Rights Act is replaced by the following:

 

Interpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

 

 

(ii) Amendments to Section 54

 

7. When considered by the Supreme Court in 1990, section 54(1) read as follows:

 

Limitation of order

54 (1) Where a Tribunal finds that a complaint related to a discriminatory practice described in section 13 is substantiated, it may make only an order referred to in paragraph 53(2)(a)."

 

8. Section 53(2)(a) provided at that time:

 

"53(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:

 

(a) that the person cease the discriminatory practice and, in order to prevent the same or a similar practice from occurring in the future, take measures, including

(i) adoption of a special program, plan or arrangement referred to in subsection 16(1), or

(ii) the making of an application for approval and the implementing of a plan pursuant to section 17,

in consultation with the Commission on the general purposes of those measures."

 

 

9. In 1998 (S.C., 1998, c. 9, s. 28), section 54(1) of the Act was repealed and the following new provision enacted:

 

"Orders relating to hate messages

54(1) If a member or panel finds that a complaint related to a discriminatory practice described in section 13 is substantiated, the member or panel may make only one or more of the following orders:

(a) an order containing terms referred to in paragraph 53(2)(a);

(b) an order under subsection 53(3) to compensate a victim specifically identified in the communication that constituted the discriminatory practice, and

(c) an order to pay a penalty of not more than ten thousand dollars.

 

Factors

(1.1) 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 willfulness 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."

 

10. Section 53(3) authorizes an order against the respondent to pay compensation not exceeding twenty thousand dollars to the victim as the Tribunal may determine "if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly."

 

Canadiam Human Rights Act, 1996 Consolidation,(Authorities, p. 6)

Canadian Human Rights Act, 2002 Consolidation (Authorities, p. 10)

Charter of Rights and Freedoms (Authorities, p. 1)

Canadian Bill of Rights (Authorities, p. 3)

 

 

 

III ARGUMENT

 

11. Section 13(1) of the Act is a violation of the right to freedom of expression guaranteed by s. 2(b) of the Charter. The only issue is whether this violation can be justified under s. 1 of the Charter.

 

12. It is submitted that s. 13(1) is also a violation of the guarantee to freedom of conscience and religion in s. 2(a) of the Charter, a matter not argued in Taylor , which cannot be justified under s. 1.

 

 

 

Objective of Section 13

 

13. In Taylor , the Court held that the first consideration in an analysis under s. 1 of the Charter was whether the objective of the infringing measure was of sufficient importance to warrant overriding a fundamental constitutional guarantee. It held that the broad legislative intent in implementing s. 13 was the promotion of equal opportunity unhindered by discriminatory practices and that these objectives were of sufficient importance that they were capable of overriding the right to freedom of expression guaranteed by section 2(b) of the Charter.

 

14. In arriving at this conclusion, Dickson C.J., speaking for the majority opinion, looked to s. 2 of the Act, which described the purpose of the statute as being the promotion of equal opportunity. Dickson, C.J. held that s. 13 was aimed at preventing communications that contributed “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.” (Emphases added)

 

Taylor (Authorities, p. 26)

 

15. It is submitted that this finding was a fundamental error and that the objective of s. 13 was not equality but, in essence, the silencing of expression and opinion on any matter which might raise controversy between racial, ethnic, or religious groups.

 

16. Section 13 is in substance a reincarnation of the old common law offence of seditious libel, namely, “a matter which is producing, or has a tendency to produce feelings of hatred and ill-will between different classes of His Majesty’s subjects.”

 

17. The provision is in stark contrast to the rest of the Act. All other activities defined as discriminatory practices relate to the provision of goods, services, facilities or accommodations (ss. 5, 14), the provision of commercial premises or residential accommodation (ss. 6, 14), hiring and employment practices (ss. 7,8,9,10,11, 12,14), and retaliation against a complainant under the Act. These provisions relate to the ability of a person to survive in society, to eat, to find a place to live, to find employment and a means of making a living. The retaliation provision is an attempt to protect those seeking a remedy under the statute.

 

18. Section 13, however, does not relate to these fundamental means of surviving and earning a living in Canadian society. It is an attempt to enact, in a different, updated and more acceptable guise, the offence of seditious libel, but without the defences available to a person charged with that criminal offence and without any of the procedural safeguards..

 

19. The major case in Canada on seditious libel is that of R. v. Boucher [1951] S.C.R. 265, which reviewed the history of seditious libel. In that case a member of the Jehovah’s Witnesses had published a pamphlet in Quebec alleging that the police and judicial system in Quebec had persecuted members of the Jehovah’s Witnesses at the behest of the Catholic Church and its priests.

 

R. v. Boucher [1951] S.C.R. 265 (Authorities, p. 30)

 

20. One of the major issues to be resolved in Boucher was whether or not incitement to violence was a necessary ingredient, and whether that part of the definition which states that an intention “to promote feelings of ill-will and hostility between different classes of His Majesty’s subjects” taken literally and by itself, was sufficient to constitute the offence. The Court reviewed cases which involved this allegation, mainly against accused in Ireland charged with conspiring to promote feelings of ill-will and hostility towards the English.

 

21. Rand J. held that the promotion of feelings of ill-will and hostility between different classes of subjects was not enough to constitute seditious intention. He (with the majority) held:

 

“There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty’s subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality. A superficial examination of the word shows its insufficiency: what is the degree necessary to crminality? Can it ever, as mere subjective condition, be so? Controversial fury is aroused constatnly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical puritianism in ideas as well as in mortals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and as we believe, in the search for the constitution and truth of things generally.”

 

Boucher (Authorities, p. 44 )

 

22. Cartwright J. held that any definition of seditious intention to mean the promotion of “feelings of ill-will and hostility between different classes of such subjects” held great concerns. He stated:

 

“The obvious objection to accepting this as a sufficient definition, unless we are bound by authority to do so, is that such acceptance would very seriously curtail the liberty of the press and of individuals to engage in discussion of any controversial topic. It is not easy to debate a question of public interest upon which strong and conflicting views are entertained without the probability of stirring up, to a greater or less degree, feelings of ill-will and hostility between the groups in disagreement.

 

The reasons of my brother Kellock bring me to the conclusion that the definition quoted above ought not to e accepted without qualification, and that before a writing can be held to disclose a seditious intention by reason of being calculated to promote feelings of ill-will and hostility between different classes of His Majesty’s subjects it must further appear that the intended, or natural and probable, consequence of such promotion of ill-will and hostility is to produce disturbance of or resistance, to the authority of lawfully constituted government.”

 

Boucher (Authorities, p. 72 )

 

23. The accused in Boucher was acquitted and his conviction set aside..

 

24. In Taylor , the Supreme Court looked to s. 2 of the Act to discover the objective of section 13. It is submitted that this was a fundamental error and that it should have looked to section 13 itself to look for its purpose. The purpose clearly was to prevent the very type of communications and expressions dealt with in the Boucher case.

 

25. It is common sense, as recognized in Boucher, that one cannot discuss many matters of public interest, without intense feelings being generated concerning such things as race and religion. Criticism of Israel , for instance, is now condemned as being hatred of Jews. Opposition to same-sex marriage is condemned as hatred of homosexuals. Questioning by Germans as to what really happened in concentration camps in Germany to Jews is condemned as hatred of Jews.

 

26. The purpose of section 13 was elucidated in 2001 when the government amended section 13 in the Anti-terrorism Act, S.C. 2001, c. 41 (Bill C-36), in s. 88 by extending its reach to communication using a computer or a group of interconnected or related computers, including the Internet.

 

 

 

27. The preamble of the Anti-terrorism Act states:

 

WHEREAS Canadians and people everywhere are entitled to live their lives in peace, freedom and security;

 

WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security;

 

WHEREAS acts of terrorism threaten Canada 's political institutions, the stability of the economy and the general welfare of the nation;

 

WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans‑border nature, requires enhanced international cooperation and a strengthening of Canada's capacity to suppress, investigate and incapacitate terrorist activity;

 

WHEREAS Canada must act in concert with other nations in combating terrorism, including fully implementing United Nations and other international instruments relating to terrorism;

 

WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms;

 

AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada's relations with its allies;

 

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows...”

 

Anti-terrorism Act, 2001, c. 41 (Authorities, p. 18)

 

 

28. The preamble to the Anti-terrorism Act indicates that s. 13 is part of the State’s strategy to eradicate terrorism, to protect Canadians against terrorist activity and to protect the political, social and economic security of Canada . It is not a “remedial” provision to prevent discrimination. It is a security measure, just as seditious libel is, and it is submitted that its true objective was always to control opposition to policies which might create ill-will between groups in society, and might l