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SUPREME COURT OF CANADA
JOHN ROSS TAYLOR AND THE Western GUARD PARTY
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CANADIAN HUMAN RIGHTS COMMISSION AND THE ATTORNEY
GENERAL OF CANADA
-and -
THE ATTORNEY GENERAL FOR
ONTARIO THE ATTORNEY GENERAL OF
QUEBEC. THE ATTORNEY GENERAL OF
MANITOBA THE CANADIAN JEWISH
CONGRESS. THE LEAGUE FOR HUMAN
RIGHTS OF B'NAI BRITH. CANADA THE
WOMEN'S LEGAL EDUCATION AND
ACTION FUND THE CANADIAN
HOLOCAUST REMEMBRANCE
ASSOCIATION AND THE CANADIAN
CIVIL LIBERTIES ASSOCIATION
CORAM:
The Rt. Hon. Brian Dickson*, P.C.
The Hon. Mme Justice Wilson
The Hon. Mr. Justice La Forest
The Hon. Mme Justice L'Heureux-Dub
The Hon. Mr. Justice Sopinka
The Hon. Mr. Justice Gonthier
The Hon. Mme Justice McLachlin
Appeal Heard:
December 4, 1989
Judgment Delivered:
December 13, 1990
Reasons for judgment by:
The Rt. Hon. Brian Dickson, P.C.
* Chief Justice at the time of hearing. - 2 -
Concurred in by: The Hon. Mme Justice Wilson, The
Hon. Mme Justice L'Heureux-Dub,
The Hon. Mr. Justice Gonthier
Partly dissenting reasons by: The Hon. Mme Justice
McLachlin
Concurred in by: The Hon. Mr. Justice La Forest
The Hon. Mr. Justice Sopinka
Counsel at hearing:
For the Appellants: Douglas H. Christie
For the Respondent Canadian Russell G. Juriansz
Human Rights Commission: Paul B. Schabas
For the Respondent Attorney D. Martin Low, Q.C.
General of Canada: Stephen B. Sharzer
For the Interveners: No one appeared for the
Attorney
General of Ontario
For the Attorney General Jean Bouchard
of Quebec Marise Visocchi
For the Attorney General A.L. Berg
of Manitoba Deborah Carlson
For the Canadian Jewish Neil Finkelstein
Congress
For the League for Human David Matas
Rights of B'Nai Brith, Canada
For the Women's Legal Kathleen E. Mahoney
Education and Action Fund Linda A. Taylor
For the Canadian Holocaust Michael A. Penny
Remembrance Association
For the Canadian Civil Marc Rosenberg
Liberties Association
CITATION
F.C.T.D.: Canadian Human Rights Commission v. Taylor and
Western Guard Party (1984), 6 C.H.R.R. D/2595.
F.C.A.: [1987] 3 F.C. 593, 37 D.L.R. (4th) 577, 29 C.R.R. 222, 78
N.R. 180, 9 C.H.R.R. D/4929.
canada (h.r.c,) v. taylor
John Ross Taylor and the Western Guard Party Appellants
v.
Canadian Human Rights Commission
and the Attorney General of Canada Respondents
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Canadian Jewish Congress,
the League for Human Rights of B'Nai Brith, Canada,
the Women's Legal Education and Action Fund.,
the Canadian Holocaust Remembrance Association
and the Canadian Civil Liberties Association Interveners
indexed as: canada (human rights commission) v. taylor
File No.: 20462.
1989: December 4; 1990: December 13.
Present: Chief Justice Dickson * and Wilson, La Forest,
L'Heureux-Dub, Sopinka, Gonthier and McLachlin JJ.
on appeal from the federal court of appeal
* Chief Justice at the time of hearing.
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Constitutional law -- Charter of Rights -- Freedom of expression
-- Hate messages -- Federal human rights legislation prohibiting
telephonic messages likely to expose a person or a group to
hatred or contempt --Whether federal legislation infringes s. 2(b)
of Canadian Charter of Rights and Freedoms -- If so, whether
infringement justifiable under s. 1 of Charter -- Canadian Human
Rights Act, S.C. 1976-77, c. 33, s. 13(1).
Constitutional law -- Charter of Rights -- Reasonable limits --
Federal human rights legislation prohibiting telephonic messages
likely to expose a person or a group to hatred or contempt --
Whether federal legislation too vague to constitute a limit
prescribed by law -- Canadian Charter of Rights and Freedoms, s.
1 -- Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 13(1).
Administrative law -- Natural justice -- Apprehension of bias --
Waiver - - Human rights tribunal -- Appointment procedure --
Whether failure to raise bias at outset of proceedings amounting
to waiver.
The appellants distributed cards inviting calls to a Toronto
telephone number answered by recorded messages. The messages,
while in part arguably innocuous, contained statements
denigrating the Jewish race and religion. In 1979, complaints
about these messages were lodged with the Canadian Human Rights
Commission. The Commission established a tribunal which concluded
that the messages constituted a discriminatory practice under s.
13(1) of the Canadian Human Rights Act and ordered the appellants
to cease the practice. The section makes it a discriminatory
practice to communicate telephonically any matter likely to
expose a person or a group to hatred or contempt on the basis,
inter alia, of race or religion. Pursuant to the Act, the cease and
desist order was filed in the Federal Court. No proceedings were
taken by the appellants to have the order set aside. In spite of
the order, the appellants continued their messages and were found
in contempt of the order. The Party was sentenced to a $5,000
fine and T, the Party's leader, to one year of imprisonment. The
sentence was suspended upon the condition that the appellants
obey the Tribunal's cease and desist order. They did not and the
suspension of sentence was vacated. The Party paid its fine and
T served his sentence. In 1983, the Human Rights Commission filed
a new application with the Federal Court, alleging that further
messages were being transmitted and that
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these messages also breached the Tribunal's order. The
Commission sought a new order of committal of T and a $5,000 fine
against the Party. Relying on the Canadian Charter of Rights and
Freedoms, the appellants argued that s.13(1) of the Act violated
s.2(b) of the Charter, and that the order was of no effect. The
Federal Court, Trial Division rejected the argument, confirmed the
contempt, imposed the fine and made the committal order sought by
the Commission. The appellants' appeal to the Federal Court of
Appeal was dismissed. This appeal is to determine (1) whether s.13(1)
of the Act and the Tribunal's cease and desist order violate s.2(b)
of the Charter; and (2) whether the Tribunal's order is invalid
because of bias. The allegation of bias, raised for the first time
before the Federal Court of Appeal, arises from the fact that the
Tribunal was appointed by the Commission, the latter being a body
intimately connected with investigating and substantiating the
complaint.
Held (La Forest, Sopinka and McLachlin JJ. dissenting in part): The
appeal should be dismissed. Section 13(1) of the Canadian Human
Rights Act is constitutional.
Per Dickson C.J. and Wilson, L'Heureux-Dub and Gonthier JJ.: The
activity described by s.13(1) of the Act is protected by s.2(b) of
the Charter. Where an activity conveys or attempts to convey a
meaning, through a non-violent form of expression, it has
expressive content and -bus falls within the scope of the word
"expression" as found in the guarantee. The type of meaning
conveyed is irrelevant. Section 2(b) protects all content of
expression. In enacting s.13(1), Parliament sought to restrict
expression by singling out for censure particular conveyances of
meaning. Section 13(1), therefore, represents an infringement of
s.2(b).
Hate propaganda messages against identifiable groups, such as
the ones dealt with by s.13(1), do not fall within the ambit of a
possible s.2(b) exception concerning expression manifested in a
violent form. This exception speaks only of physical forms of
violence, and extends neither to analogous types of expression
nor to mere threats of violence.
Section 13(1) of the Act, which is sufficiently precise to
constitute a limit prescribed by law under s.1 of the Charter,
constitutes a reasonable limit upon freedom of expression. First,
Parliament's objective of
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promoting equal opportunity unhindered by discriminatory
practices, and thus of preventing the harm caused by hate
propaganda, is of sufficient importance to warrant overriding a
constitutional freedom. Hate propaganda presents 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(I).
Second, s.13(1) of the Act is proportionate to the government's
objective. The section is rationally connected to the aim of
restricting activities antithetical to the promotion of equality
and tolerance in society. When conjoined with the remedial
provisions of the Act, s.13(1) operates to suppress hate
propaganda and its harmful consequences. It also reminds
Canadians of our fundamental commitment to equality of
opportunity and the eradication of racial and religious
intolerance. The fact that the international community considers
such laws to be an important weapon against racial and religious
intolerance strongly suggests that s.13(1) cannot be viewed as
ineffectual.
The guarantee of freedom of expression is not unduly impaired by
s.13(1). The section is not overbroad or excessively vague. Its
terms, 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. The phrase "hatred or contempt" in the context of s.13(1)
refers only to unusually strong and deep-felt emotions of
detestation, calumny and vilification and, as long as human rights
tribunals continue to be well aware
- 5 -
of the purpose of s.13(1) and pay heed to the ardent and extreme
nature of feeling described in that phrase, there is little danger
that subjective opinion as to offensiveness will supplant the
proper meaning of the section. The absence in the Act of an
interpretative provision to protect freedom of expression does
not create in s.13(1) an overly wide scope, for both its purpose and
the common law's traditional desire to protect expressive
activity permit an interpretation solicitous of this important
freedom. Further, the absence of an intent component in s.13(1)
raises no problem of minimal impairment when one considers that
the objective of the section requires an emphasis upon
discriminatory effects. As in other human rights legislation, an
intent to discriminate is not a precondition of a finding of
discrimination. To import a subjective intent requirement into
human rights provisions, rather than allowing tribunals to focus
solely upon effects, would defeat one of the primary goals of
anti-discrimination statutes. As for the possibility that
imprisonment will be imposed upon an individual by way of a
contempt order, intent is far from irrelevant in this regard,
subjective awareness of the likely effect of one's message being
a necessary precondition for the issuance of such an order by the
Federal Court. Furthermore, the fact that s.13(1) provides no
defences to the discriminatory practice it describes, and most
especially does not contain an exemption for truthful statements,
does not give it a fatally broad scope. A restriction upon freedom
of expression in the context of s.13(1) is not excessive where it
operates to suppress statements which are either truthful or
intended to be truthful, as it is not necessary that truthful
statements be sed for such ends. Finally, by focusing upon
"repeated" telephonic messages, s.13(1) directs its attention to
public, larger-scale schemes for the dissemination of hate
propaganda, the very type of phone use which most threatens the
admirable aim underlying the Act.
- 6 -
The effects of s.13(1) upon freedom of expression are not so
deleterious as to make intolerable its existence in a free and
democratic society. The section furthers a government objective
of great significance and impinges upon expression exhibiting only
tenuous links with the values underlying the freedom of
expression guarantee. Hate propaganda contributes little to the
aspirations of Canadians or Canada in the quest for truth, the
promotion of individual self-development or the protection and
fostering of a vibrant democracy where the participation of ali
individuals is accepted and encouraged. Moreover, operating in
the context of the procedural and remedial provisions of the Act,
s.13(1) plays a minimal role in the imposition of moral, financial or
incarceratory sanctions, the primary goal being to act directly
for the benefit of those likely to be exposed to the harms caused
by hate propaganda.
Assuming that the Charter applies to the Tribunal's cease and
desist order, the latter does not unjustifiably infringe s.2(b) of
the Charter. Read in the context of the Tribunal's expansive
reasons, the order was not too vague and obscure to enable the
appellants to be held in contempt for failure to abide by its
terms. The Tribunal's reasons are emphatically clear in describing
the subject-matter found to constitute a discriminatory practice.
Appellants' submission regarding a reasonable apprehension of
bias, which relied upon s.2(e) of the Canadian Bill of Rights, must
be rejected. Bias must be alleged at the earliest practical
opportunity. Here, the issue had not been raised until the hearing
before the Federal Court of Appeal, almost eight years after the
Tribunal's order was rendered. The exceedingly dilatory manner in
which the appellants raised the matter constitutes waiver and,
accordingly, the Tribunal's cease and desist order cannot be
attacked on this ground.
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Per La Forest, Sopinka and McLachlin JJ. (dissenting in part):
Section 13(1) of the Act infringes the guarantee of freedom of
expression in s.2(b) of the Charter. Where, as in this case, an
activity conveys or attempts to convey a meaning or message
through a non-violent form of expression, this activity falls
within the sphere of the conduct protected by s.2(b). This section
protects all content of expression irrespective of the meaning or
message sought to be conveyed. In enacting s.13(1), Parliament
intended to control attempts to convey a meaning by restricting
the content of expression. The section does not prohibit
communication by telephone. Rather, it regulates the content of
such communications. Section 13(1), therefore, imposes a limit on
s.2(b).
Section 13(1) of the Act is sufficiently precise to constitute a
limit prescribed by law under s.1 of the Charter. By using the same
wording as is found in the common law in defamation cases,
Parliament has provided an intelligible standard for the tribunal
to apply.
Section 13(1) of the Act does not constitute a reasonable limit
upon freedom of expression. While the legislative objectives of
preventing discrimination and of promoting social harmony and
individual dignity are of sufficient importance in our
multicultural society to warrant overriding a constitutional
freedom, s.13(1) fails to meet the proportionality test. The
overbreadth of the section does not withstand constitutional
scrutiny.
First s.13(1) of the Act is not carefully tailored to its aims and
lacks a rational connection with its objectives. While it is well
designed to minimize many of the undesirable aspects of curbing
free expression and its approach to curbing hate propaganda is
far more appropriate than the all or nothing
approach inherent in criminalization of such expression, s.13(1) is
too broad and too invasive and catches more expressive conduct
than can be justified by its objectives. The use of the words
"hatred" and "contempt", which are vague, subjective and
susceptible of a wide range of meanings, extends the scope of
s.13(1) to cover expression presenting little threat of fostering
hatred or discrimination. The absence of any requirement of intent
or foreseeability of the actual promotion of hatred or contempt
further broadens the scope of s.13(1). Without a proof of harm or
actual discrimination, s.13(1) could well reach speech which is in
fact anti-discriminatory. Finally, while the chilling effect of
human rights legislation is likely to be less significant than that
of a criminal prohibition, the vagueness of the law may deter more
conduct than can legitimately be targeted.
Second, s.13(1) does not interfere as little as possible with
freedom of expression. No serious attempt was made to strike an
appropriate balance between furthering equality and safeguarding
free expression. There is no provision in the Act which protects
freedom of expression. Section 13(1) simply applies to all
expression "likely to expose a person or persons to hatred or
contempt". Moreover, the overbreath of the section, the absence
of defences, in particular an exemption for truthful statements,
and the inclusion of private communications between consenting
individuals within the scope of s.13(1) illustrate the significance
of the infringement of the rights of the individual effected by
s.13(1). The section seriously overshoots the mark and goes well
beyond what can be defended as a reasonable limit on free speech
justified by the need to combat discrimination against members of
particular groups.
Third, the benefits to be secured by s.13(1) of the Act fall short
of outweighing the seriousness of the infringement which the
section effects on freedom of expression. The limitation touches
expression which
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may be relevant to social and political issues. Free expression
on such matters has long been regarded as fundamental to the
working of a free democracy and to the maintenance and
preservation of our most fundamental freedoms. Such a limitation
must be proportionate to the evil and sensitive to the need to
preserve as much freedom of expression as may be compatible with
suppressing that evil. Under s.13(1), it is far from clear that the
measure, broad as it is, is calculated to significantly diminish the
evils of group discrimination.
The unconstitutionality of a law upon which a court order is based
does not excuse a refusal to obey the order. Even an invalid court
order must be followed until it is set aside by legal process.
Since s.13(1) of the Act is unconstitutional, it follows that the
Tribunal's cease and desist order rendered pursuant to that
section should be quashed. The effective date of the quashing of
the order, however, must be the date that this judgment is issued.
For the purposes of the contempt proceedings, the order must be
considered to be valid until that date. Thus, the ultimate
invalidity of the order was not a defence to the contempt citation
and the appellants' convictions following the 1983 complaint must
be affirmed. Since the wisdom or validity of the initial decree is
a relevant consideration in determining the appropriate sanction,
T's sentence should be reduced to three months' imprisonment.
Appellants' contention that the findings of the Human Rights
Tribunal were flawed because of an apprehension of bias must be
rejected. The appellants raised this issue several years after
the initial hearing. By failing to raise the issue at the outset of
the proceedings, the appellants must be deemed to have impliedly
waived any right to allege bias.
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Cases Cited
By Dickson C.J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd.
v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra,
S.C.C., No. 21118, December 13, 1990; Re Human Rights Tribunal and
Atomic Energy of Canada Ltd., [1986] 1 F.C. 103; distinguished:
MacBain v Lederman, [1985] 1 F.C. 856; referred to: R. v. Andrews,
S.C.C., No. 21034, December 13, 1990; Slaight Communications Inc. v.
Davidson, [1989] 1 S.C.R. 1038; Reference re ss. 193 and 195.1(i)(c) of
the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rocket v. Royal College
of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Insurance Corp.
of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Boucher v. The
King, [1951] S.C.R. 265; R. v. Carrier (1951), 104 C.C.C. 75; Taylor and
Western Guard Party v. Canada, Communication No. R.24-104, Report
of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40)
231 (1983), reported in part (1983), 5 C.H.R.R. D/2097; Nealy v.
Johnston (1989), 10
C.H.R.R. D/6450; Rasheed v. Bramhill (1980), 2 C.H.R.R. D/249;
Canadian National Railway Co. v. Canada (Canadian Human Rights
Commission), [1987] 1 S.C.R. 1114; Re Sheppard and Sheppard (1976), 67
D.L.R. (3d) 592; Canada Metal Co. v. Canadian Broadcasting Corp. (No.
2) (1974), 4 O.R. (2d) 585; Glimmerveen v. Netherlands (1979), 4
E.H.R.R. 260; Ontario Human Rights Commission and O'Malley v.
Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian
National Railway Co., [1985] 2 S.C.R. 561.
- 11 -
By McLachlin J. (dissenting in part)
R. v. Keegstra, S.C.C., No. 21118, December 13, 1990; R. v. Andrews,
S.C.C., No. 21034, December 13, 1990; R. v. Oakes, [1986] 1 S.C.R. 103;
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Re
Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1
F.C. 103.
MacBain v Lederman, [1985] 1 F.C. 856; R. v. Whyte, [1988] 2 S.C.R. 3.
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v.
Edwards Books and Art Ltd. , [1986] 2 S.C.R. 713; Edmonton Journal
v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Walker v. City
of Birmingham, 388 U.S. 307 (1967); R. v. Garofoli, S.C.C., No. 21099,
November 22, 1990.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 15, 24(1), 27.
Canadian Human Rights Act, S.C. 1976-77, c. 33, ss. 2 [rep. & sub.
1980-81-82-83, c. 111, s.5 (Schedule IV, item 1); idem, c. 143, ss. 1,
28(3)], 13(1), 32 [am. idem, s. 15], 35(1), (2), 37, 39(1), 40(1), 41(I), (2)
[am. idem, s. 20], 42, 43(1), (2).
Constitution Act, 1982, s.52.
Criminal Code, R.S.C., 1985, c. C-46, s. 319(2), (3).
European Convention for the Protection of Human Rights
and Fundamental Freedoms, 213 U.N.T.S. 221 (1950).
Human Rights Act, S.N.S. 1969, c. 11, s. 12.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966),
Art. 20.
International Convention on the Elimination of All Forms of Racial
Discrimination, Can. T.S. 1970 No. 28, Art. 4.
- 12 -
Authors Cited
Canada - Law Reform Commission. Working Paper 50. Hate Propaganda. Ottawa:
Law Reform Commission, 1986.
Canada - Special Committee on Hate Propaganda in Canada. Report of the
Special Committee on Hate Propaganda in Canada. Ottawa: Queen's Printer,
1966.
Canada - House of Commons. Special Committee on Participation of Visible
Minorities in Canadian Society. Equality Now! Ottawa: Supply and Services,
1984.
Canadian Bar Association - Report of the Special Committee on Racial and
Religious Hatred. By Ken Norman, John D. McAlpine and Hymie Weinstein, 1984.
McAlpine, John D. - Report Arising Out of the Activities of
the Ku Klux Klan in British Columbia, 1981.
Sharpe, Robert J. - Injunctions and Specific Performance. Toronto: Canada Law
Books Ltd., 1983.
Shorter Oxford English Dictionary, 3rd ed. - Oxford: Clarendon Press, 1987,
"hatred"1?.
APPEAL from a judgment of the Federal Court of Appeal, [1987] 3 F.C. 593, 37
D.L.R. (4th) 577, 29 C.R.R. 222, 78 N.R. 180, 9 C.H.R.R. D14929,
affirming a judgment
of the Trial Division (1984), 6 C.H.R.R. D/2595. Appeal dismissed, La Forest,
Sopinka and McLachlin JJ. dissenting in part.
Douglas H. Christie, for the appellants.
Russell G. Juriansz and Paul B. Schabas, for the respondent the Canadian Human
Rights Commission.
- 13 -
D. Martin Low, Q.C., Stephen B. Sharzer, for the respondent the Attorney
General of Canada.
No one appeared for the intervener the Attorney General for Ontario.
Jean Bouchard and Marise Visocchi, for the intervener the Attorney General
of Quebec.
Aaron Berg and Deborah Carlson, for the intervener the Attorney General of
Manitoba.
Neil Finkelstein, for the intervener the Canadian Jewish Congress.
David Matas, for the intervener the League for Human Rights of B'Nai Brith,
Canada.
Kathleen Mahoney and Linda A. Taylor, for the intervener the Women's Legal
Education And Action Fund.
Michael A. Penny, for the intervener the Canadian Holocaust Remembrance
Association.
Marc Rosenberg, for the intervener the Canadian Civil Liberties Association.
Solicitor for the appellants: Douglas H. Christie, Victoria.
Solicitors for the respondent the Canadian Human Rights Commission: Blake,
Cassels & Graydon, Toronto.
Solicitor for the respondent the Attorney General of Canada: John C. Tait,
Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Ministry
of the Attorney General, Toronto.
Solicitors for the intervener the Attorney General of Quebec: Jean Bouchard,
Ma rise Visocchi and Gilles Laporte, Ste-Foy.
Solicitor for the intervener the Attorney General of Manitoba: Gordon E.
Pilkey, Winnipeg.
Solicitors for the intervener the Canadian Jewish Congress: Blake, Cassels &
Graydon, Toronto.
Solicitors for the intervener the League for Human Rights of B'Nai Brith,
Canada: David Matas, Winnipeg.
- 14 -
Solicitors for the Women's Legal Education and Action Fund: Kathleen Mahoney,
Calgary; Code Hunter, Calgary.
Solicitors for the intervener the Canadian Holocaust Remembrance
Association: Tory, Tory, DesLauriers & Binnington, Toronto.
Solicitors for the intervener the Canadian Civil Liberties Association: Greens
pan, Rosenberg, Toronto.
THE SUPREME COURT OF CANADA
JOHN ROSS TAYLOR AND ThE Western GUARD PARTY
-and-
CANADIAN HUMAN RIGHTS COMMISSION AND THE
ATTORNEY GENERAL OF CANADA
-and-
THE ATTORNEY GENERAL FOR ONTARIO, THE ATTORNEY GENERAL OF QUEBEC, THE
ATTORNEY GENERAL OF MANITOBA, THE CANADIAN JEWISH CONGRESS, THE LEAGUE
FOR HUMAN RIGHTS OF B'NAI BRITH, CANADA, THE WOMEN'S LEGAL EDUCATION AND
ACTION FUND, THE CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, AND THE
CANADIAN CIVIL LIBERTIES ASSOCIATION
CORAM: Chief Justice Dickson* and Wilson, La Forest,
L'Heureux-Dube. Sopinka. Gonthier and McLachlin JJ.
McLACHLIN J.:
Section 13(1) of the Canadian Human Rights Act, S.C. 1976-1977, c. 33,
provides that:
13.(1) It is a discriminatory practice for a person or a
group of persons acting 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
* Chief Justice at the time of hearing
- 2 -
Prohibited grounds of discrimination are set out in s.2 of the Act, and
include (though are not restricted to) race, national or ethnic origin,
colour and religion.
The primary issue in this appeal is whether s.13(1), insofar as it restricts
the communication of certain telephone messages, violates the "freedom of
expression" as guaranteed by s.2(b) of the Canadian Charter of Rights and
Freedoms. In addition, a similar challenge has been launched against a
cease and desist order made by the Canadian Human Rights Tribunal
pursuant to s.13(1) and associated remedial provisions of the Canadian
Human Rights Act. A minor question is also raised with respect to a
reasonable apprehension of bias in the Tribunal, though not in the Charter
context. Both constitutional issues concern the dissemination of "hate
propaganda", a term which I use for convenience to denote expression
intended or likely to circulate extreme feelings of opprobrium and enmity
against a racial or religious group.
In this case, as in the companion appeals of R. v. Keegstra, S.C.C., No. 21118,
and R- v. Andrews, S.C.C., No. 21034, a number of interveners - were granted
leave to file submissions and to present oral argument. The Attorneys
General of Ontario, Ouebec and Manitoba, the Canadian Holocaust
Remembrance Association, the Canadian Jewish Congress the league for
Human Rights of B'nai Brith, Canada, and the Women's Legal Education and
Action Fund have intervened in support of the impugned statutory provision
and order. The Canadian Civil Liberties Association has intervened for the
purpose of arguing that the provision and order are constitutionally
invalid.
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I FACTS
In 1979, the Human Rights Tribunal (hereinafter "the Tribunal") heard a
number of complaints lodged under the Canadian Human Rights Act against
the two appellants, Mr. John Ross Taylor and the Western Guard Party. The
complaints, brought by the respondent Canadian Human Rights Commission
(hereinafter "the Commission"), alleged that the appellants had contravened
the Act by engaging in a discriminatory practice as defined in s. 13(1),
specifically, the telephonic communication of matter that is likely to
expose persons identifiable on the basis of race and religion to hatred or
contempt.
Evidence given at the hearing disclosed that the appellants had instituted
a telephone message service in Toronto whereby any member of the public
could dial a telephone number and listen to a pre-recorded message of
approximately one minute in length. Over a two-year period beginning in
mid-1977, thirteen different messages had been disseminated in this
fashion, each one having been drafted and recorded by Mr. Taylor, the
acknowledged leader of the Western Guard Party. After considering these
communications in some detail, the Tribunal summarized the import of their
message as follows:
Although mane of these messages are difficult to follow, there is a
recurring theme. There is a conspiracy which controls and
programmes Canadian society; it is difficult to find out the truth
about this conspiracy because our books, our schools and our media
are controlled by the conspirators. The conspirators cause
unemployment and inflation; they weaken us by encouraging
perversion, laziness, drug use and race mixing. They become
enriched by stealing our property. They have founded communism
which is responsible for many of our economic problems such as the
postal strike; they continue to control communism and they use it
in the furtherance of the conspiracy. The conspirators are Jews.
The telephone service which supplied the messages in question was financed
from time to time by Mr. Taylor, his assistant Mr. Jack Prins or the Party.
Though the service's number
- 4 -
was not widely publicized by the appellants, they attempted to make it
known by the distribution of cards among individuals and crowds and by
slipping these cards under doorways. The cards bore only a maple leaf
symbol and an admonition to dial the number. As well, the number was placed
in the telephone book opposite a notation which read "White Power Message".
After examining the content of the appellants' messages and hearing
evidence from a number of witnesses, the Tribunal held that the appellants
had engaged in a discriminatory practice as defined by s.13(1). This
conclusion is clearly and pithily stated in the following segment of the
Tribunal's decision:
... Mr. Taylor and The Western Guard Party have communicated
telephonically or have caused to be so communicated, repeatedly,
messages in whole or in part by means of facilities of a
telecommunications undertaking within the legislative authority of
Parliament. Although some of the messages by themselves are
somewhat innocuous, the matter for the most part that they have
communicated, we believe, is likely to expose a person or persons to
hatred or contempt by reason of the fact that the person [sic] is
identifiable by race or religion. In particular, the messages
identify specific individuals by name . . . and we believe that the
remarks about those individuals have a likelihood of exposing them
to hatred or contempt, merely on the basis that they are said to be
Jewish. Moreover, we hold that the messages in question not only
expose identified individuals but persons generally to hatred or
contempt by reason of the fact that those persons are identifiable
as Jews. We therefore find that the complaints are substantiated.
Having come to this conclusion, the Tribunal ordered the appellants to
cease and desist their discriminatory practice, the order stating:
We therefore order the Respondents to cease their discriminatory
practice of using the telephone to communicate repeatedly the
subject matter which has formed the contents of the tape-recorded
messages referred to in the complaints.
- 5 -
This directive, along with the entire decision of the Tribunal, was filed
with the Federal Court Registry and entered in the order and judgment book
of the Federal Court of Canada, Trial Division as of August 23, 1979. As a
result, under s.43(1) of the Canadian Human Rights Act it could be enforced
as a court order. No proceedings were taken to have the order set aside.
in spite of the Tribunal order, the appellants continued their messages and,
following an application by the Commission on February 21, 1980, Dub J. of the
Federal Court, Trial Division found them in contempt: (1980),
1 C.H.R.R. D/47. He
imposed a $5,000 fine on the Western Guard Party and a one year sentence of
imprisonment on Mr. Taylor, but suspended the contempt order (and its
attendant penalties) on the condition that the appellants thereafter
discontinue the discriminatory practice identified by the Tribunal. The
messages did not stop, however, and on June 11, 1980, Walsh J., also of the
Federal Court, Trial Division, vacated the suspension of his colleague's
contempt order. Accordingly, the Party paid its fine and Mr. Taylor served his
sentence, with remission, between October 17, 1981 and March 19, 1982.
Upon his release, Mr. Taylor and the Party resumed the telephone message
service, and on May 12, 1983, the Commission filed a second application with the
Federal Court. This application alleged that the appellants had breached the
order of the Tribunal by taping four messages between the dates of June 22,
1982, and April 20, 1983, and again sought an order of committal against Mr.
Taylor and the Party. Since the first order of committal, however, the Charter
had come into effect, and the appellants thus relied upon the Charter in filing
a notice of
- 6 -
motion challenging the validity of s. 13(1) of the Canadian Human Rights Act as
contrary to the freedom of expression.
Jerome A.C.J. of the Federal Court, Trial Division dealt with both the
Commission's application for committal and the appellants' attempt to have
s.13(1) struck down as unconstitutional. On August 15, 1984 made the committal
order sought by the Commission and gave oral reasons dismissing the
appellants' motion as to the constitutionality of s.13(1). Written reasons on
the Charter issue were released on December 20, 1984: (1984), 6 C.H.R.R.
D/2595.
The appellants sought to overturn the dedsion of Jerome A.C.J. in the Federal
Court of Appeal, but their appeal was dismissed by reasons dated April 22,
1987: [1987] 3 F.C. 593. It is from the ruling of the Federal Court of Appeal
that they now appeal to this Court.
ll STATUTORY AND CHARTER PROVISIONS
The relevant statutory and Charter provisions are as follows:
Canadian Human Rights Act
2 The purpose of this Act is to extend the present laws in
Canada to give effect, within the purview of matters coming
within the legislative authority of the Parliament of Canada, to
the principle that every individual should have an equal
opportunity with other individuals to make for himself or
herself the life that he or she is able and wishes to have,
consistent with his or her duties and obligations as a member of
society, without being hindered in or prevented from doing so by
discriminatory practices based on race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability or conviction for an offence for which a pardon has
been granted.
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13.(1) It is a discriminatory practice for a person or a group of
persons acting 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.
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to much
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communica ...
15.(1) Every individual is equal before and under the law and has
the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
27. This Charter shall be interpreted in a manner consistent
with the preservation and enhancement of the multicultural
heritage of Canadians.
III JUDGMENTS
Federal Court, Trial Division
Jerome A.C.J. delivered his decision on the constitutional question orally
on August 15, 1984. On December 20 of the same year he released brief
written reasons for this disposition. In these reasons, he began by finding
that s.13(1) infringed the freedom of expression guaranteed in s.2(b) of the
Charter, and was thus left with the question as to whether such an
infringement could be
- 8 -
justified under s.1. At the time of the judgment, R. v. Oakes,
[1986] 1 S.C.R. 103, had not yet been decided, and in answering
this question Jerome A.C.J. asked, "whether the sacrifice of
the [s.2(b)] right is in proportion to the objective of
achieving the elimination of the evil under attack from the
Canadian way of life" (p. D/2597).
Referring to s.2 of the Canadian Human Rights Act, Jerome
A.C.J. noted that the promotion of equal opportunity
unhindered by racial discrimination was an object with which
Parliament ought to concern itself and felt it to be obvious
that freedom of expression must give way to some
restrictions in order to prevent the incitement of hatred or
contempt upon racial grounds. As for the manner in which
s.13(1) restricted the s.2(b) guarantee, Jerome A.C.J. saw the
provision as reasonable, making special mention of the
conciliatory nature of the human rights legislation.
Especially pertinent to this conclusion was the fact that
under the Act punishment only occurs where a transgressor
is recalcitrant, and in this respect he stated (at pp. D/2597-
98):
We are not dealing here with a prohibition on the
right to speak or to communicate opinions. We
have instead a declaration of that which is
considered to be unacceptable use of the freedom
of speech in Canadian society - a "discriminatory
practice". The [Human Rights Commission] is
authorized to investigate complaints in the
process of which the alleged transgressor is
given the opportunity to make representations.
Involvement in that process obviously invites
the transgressor to discontinue the offending
practice but if not, it may ultimately lead to an
order to do so. Only upon continued refusal to
comply with such an order is there the
possibility of punishment.
After reviewing the history of complaints against the
appellants and the various investigatory and procedural
steps taken under the Canadian Human Rights Act, Jerome
A.C.J. commented that the case at hand aptly demonstrated
the restrained nature of s.13(1), for only upon continued
refusal to
- 9 -
cease what was clearly a discriminatory practice did the
appellants become subject to punishment. He thus concluded
that the evil which s.13(1) endeavours to combat --
communications which are likely to incite racial hatred -- is
unacceptable in Canadian society and that any restriction
upon the freedom of expression imposed by s.13(1) is not out
of proportion to the objective of suppressing such evil.
Federal Court of Appeal (per Mahoney J. Stone and Lacombe
JJ. concurring)
The appellants relied upon a number of grounds of appeal
before the Federal Court of Appeal, all of which were
dismissed. It is only necessary, however, to recount those
reasons of the appeal court which pertain to the arguments
raised before this Court. Having thus restricted the
discussion somewhat, I begin by reviewing the decision of the
Court of Appeal regarding the crucial issue of the
constitutionality of s.13(1).
In addressing the Charter challenge to s.13(1), Mahoney J.
rejected the argument of the Attorney General of Canada
that the section did not infringe s.2(b); in his view, s.13(1)
represented a substantial and intentional limit upon freedom
of expression. The constitutional validity of s.13(1) thus
depended upon the persuasiveness of the government's
justificatory arguments under s.1 of the Charter, and in
examining the case for saving the impugned provision Mahoney
J. adopted the approach suggested by this Court in Oakes.
Beginning with the requirement that the government
objective be of sufficient importance to warrant overriding
a constitutionally protected right or freedom, Mahoney J.
noted that "the concern of any
- 10 -
free and democratic society to avoid the vilification of
individuals or groups by reason of their race and/or religion
is self-evident" (p. 610). In his view, Canada was a
multicultural country, and such multiculturalism
represented a positive characteristic of its national
persona. While racial and religious strife were not rampant
in Canada, the great upheaval and damage caused by
intolerance in certain other nations amply illustrated the
potentially serious impact of prejudicial ideas. Mahoney J.
thus concluded that "the avoidance of the propagation of
hatred [on grounds of race or religion] is, in itself',
properly a pressing and substantial concern of a free and
democratic society" (p. 611).
As to proportionality, Mahoney J. stated that the rational
connection of s.13(1) to its object "could hardly be plainer"
(p. 611), and found the limitation imposed upon s.2(b) to be
"tailored precisely to the specific practices of those who
abuse their freedom by repeatedly communicating hate
messages by telephone" (p. 611). Regarding the "effects"
segment of the Oakes proportionality test, he considered
the scheme of the Canadian Human Rights Act as a whole, and
found that the impact of s.13(1) upon the freedom of
expression exemplified restraint rather than severity. In
particular, he noted that (at pp. 611-12):
The determination that a person or group has
contravened subsection 13(1) is made by a Tribunal
after a hearing which must be conducted according
to the requirements of natural justice. A complaint
cannot be referred to a Tribunal unless the alleged
transgressor has been informed of and afforded an
opportunity to respond to the complaint and the
evidence upon which the Commission intends to
decide if a Tribunal is needed, Unless the Tribunal
itself consists of three members, an appeal lies to
a three member Review Tribunal. Both are subject to
judicial supervision in the conduct of their
hearings and the final decision is subject to
judicial review. The only order that can be made is
a cease and desist order. It is only after that
order has been filed in the Registry of this Court
and after being afforded the opportunity to appear
at a show cause hearing and being found in a
judicial proceeding to have continued to disobey
the cease and desist order that an offender can be
penalized. The maximum penalty presently
prescribed is a $5000 fine or one year
imprisonment, not both.
- 11 -
Mahoney J. thus concluded that s.13(1) of the Canadian Human
Rights Act was justified under s.1, stating that (at p. 612):
On balance, the interest of a free and democratic society
to avoid the repeated telephonic communication of
messages of hate based on race or religion clearly
outweighs its interest to tolerate the exercise in that
fashion of their freedom of expression by persons so
inclined.
As already noted, the Federal Court of Appeal considered not
only the Charter challenge to s.13(1), but also examined a
number of other grounds of appeal. One such ground was that
the order of the Tribunal was too vague and obscure to
enable the appellants to be held in contempt for failure to
abide by its terms. The basis of the appellants' argument lay
largely in the contention that the order consisted only of
the following sentence:
We therefore order the Respondents to cease their
discriminatory practice of using the telephone to
communicate repeatedly the subject matter which has
formed the contents of the tape-recorded messages
referred to in the complaints.
It was posited that this single sentence provided no
intelligible guidelines as to the nature of the
communications prohibited.
Mahoney J. had no difficulty in dismissing this complaint,
stating that the test of vagueness is whether the intention
and import of the order is ascertainable to a person of
average intelligence reading it in good faith. Reading the
entire reasons of the Tribunal, and not just the paragraph
cited by the appellants, he felt that there could be "no bona
fide doubt that the subject matter enjoined was subject
matter likely to expose Jews to hatred or contempt" (p. 601).
- 12 -
A final relevant issue canvassed by Mahoney J. concerned the
question of bias. The appellants noted that the Tribunal
issuing the impugned order had been appointed by the Human
Rights Commission, and submitted that as the Commission had
not only initiated and investigated the complaint, but also
had appeared before the Tribunal as a party, there existed a
reasonable apprehension of bias in the Tribunal. While
accepting that the appointment process existing at the time
of the appellants' hearing would ordinarily create a
reasonable apprehension of bias, Mahoney J. held that the
failure of the appellants to raise the issue in a timely
fashion constituted a waiver of the right to challenge the
jurisdiction of the Tribunal on that ground. He felt it
unnecessary to decide this point definitively, however, for
even if the Tribunal was improperly constituted the proper
recourse was to challenge the validity of the order, and not
to treat the order as void. "The duty of a person bound by
an order of a court," stated Mahoney J., "is to obey that
order while it remains in force regardless of how flawed he
may consider it or how flawed it may, in fact, be" (p. 601).
IV ISSUES
The following constitutional questions were stated:
1. Is s.13(1) of the Canadian Human Rights Act, S.C. 1976-77, c-
33, as amended, consistent with the freedom of thought,
belief opinion and expression guaranteed by s.2(b) of the
Canadian Charter of Rights and Freedoms?
2. If s.13(1) of the Canadian Human Rights Act, S.C. 1976-77, c.
33, as amended, is inconsistent with the freedom of
thought, belief, opinion and expression guaranteed by
s.2(b) of the Canadian Charter of Rights and Freedoms, is it
a reasonable limit on that freedom within the meaning of
s.1 of the Charter?
- 13 -
3. Are the order of the Human Rights Tribunal of July 20,
1979, and the orders of the Federal Court, Trial Division
of January 24 and August 15, 1984, subject to challenge
under s.2(b) of the Canadian Charter of Rights and
Freedoms and, if so, are they consistent with the freedom
of thought, belief, opinion and expression as guaranteed
by s.2(b)?
4. If the order of the Human Rights Tribunal of July 20,
1979, and the orders of the Federal Court, Trial Division
of January 24 and August 15, 1984, are subject to
challenge under s.2(b) of the Canadian Charter of Rights
and Freedoms and are inconsistent with the freedom of
thought, belief, opinion and expression as guaranteed by
s.2(b), do they constitute a reasonable limit on that
freedom within the meaning of s.1 of the Charter?
A non-constitutional issue is also raised by the appellants,
namely, whether a reasonable apprehension of bias can be
attributed to the Tribunal. As noted in recounting the
decision of the Federal Court of Appeal, the allegation of
bias arises from the fact that the Tribunal was appointed by
the Commission, the latter being a body intimately connected
with investigating and substantiating the complaint.
V SECTION 13(1) AND THE FREEDOM OF EXPRESSION
Beginning with the constitutional issues raised by this
appeal, the pivotal challenge is to s.13(1), for a ruling that
the section is unconstitutional will necessarily render
invalid any order made to cease and desist telephonic
communications. I will thus look first to the question of
s.13(1)'s validity under s.2(b) of the Charter, an inquiry that
can be divided into two parts: i) does the impugned provision
infringe the Constitutional guarantee of free expression;
and ii) if so, is it nonetheless justified as a reasonable
limit in a free and democratic society under s.1.
- 14 -
As a preliminary matter, I should point out that while s.13(l)
encompasses messages likely to expose persons to hatred or
contempt on the basis of any ground of discrimination
prohibited by the Canadian Human Rights Act, the courts
below examined the constitutional validity of the section
only insofar as it concerns the grounds of race and religion.
Moreover, the effect of the Charter upon the suppression of
expression dealing with other prohibited grounds was not
raised by the parties or interveners in argument. For these
reasons, the comments below speak solely to the question of
whether the effect of s.13(l) upon communications tending to
expose persons to hatred or contempt on the bases of race
or religion violates the Charter.
A. Section 13(1): infringement of section 2(b)
The initial step in determining whether s.13(1) violates the
Charter is to decide whether the sphere of the freedom
entrenched in s.2(b) extends to telephone communications
likely to expose persons to hatred or contempt by reason of
identification on the basis of race or religion. According to
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] l S.C.R.
927, an activity which conveys or attempts to convey a
meaning is generally considered to have expressive content
within the meaning of s.2(b). The s.2(b) guarantee is infringed
if it can be shown that either: i) the purpose of the impugned
government regulation is to restrict expressive activity; or
ii) the regulation has such an effect, and the activity in
question supports the principles and values upon which the
freedom of expression is based.
Applying the Irwin Toy approach to the facts of this appeal, l
have no doubt that the activity described by s.13(1) is
protected by s.2(b) of the Charter. Indeed, the point is
conceded by
- 15 -
the respondent Commission. To begin with, it is self-evident
that this activity conveys or attempts to convey a meaning,
the medium in issue to my mind being susceptible to no other
use. Indeed, I find it impossible to conceive of an instance
where the "telephonic communication of matter" (to
paraphrase the language of s.13(1)) could not be said to
involve a conveyance of meaning. The inescapable conclusion
is that the activity affected by s.13(1) constitutes
"expression" as the term is envisioned by s.2(b).
As for the Irwin Toy requirement that the purpose or effect
of the impugned regulatory measure be to restrict
expressive activity, it is clear that Parliament's aim in
passing s.13(1) is to constrain expression communicated by
telephone, for the section operates to prohibit directly
messages likely to expose certain persons or groups of
persons to hatred or contempt. The desire of the
government in enacting s.13(1) being to restrict expression by
singling out for censure particular conveyances of meaning,
the second requirement of Irwin Toy is met, necessarily
leading to the conclusion that s.2(b) is infringed.
Though having decided that the freedom of expression is
breached by s.13(1), before moving on to the s.1 analysis I
should make brief reference to an argument emanating from
several of the interveners in support of excluding hate
propaganda entirely from the scope of s.2(b). This argument
posits that the expression prohibited by the section is the
very antithesis of the values supporting the freedom of
expression guarantee and therefore is not deserving of
protection under s.2(b). It should be manifest from my
comments in Keegstra, however, that I cannot accept this
argument. The approach taken in Irwin Toy depends upon a
large and
- 16 -
liberal interpretation of the s. 2(b) freedom, and the
gravamen of this approach is the refusal to exclude certain
expression because of content. As Lamer J. said in
Reference re ss.193 and 195.1(1)(c) of the Criminal Code (Man),
[1990] l S.C.R. 1123, on this point speaking for the entire
Court, "s.2(b) of the Charter protects all content of
expression irrespective of the meaning or message sought to
be conveyed" (p.1181). Aside from those instances where only
the effect (as opposed to the purpose) of government
regulation impinges upon the conveyance of meaning, the more
refined and searching analysis of the restricted expression
is better done in the context of s.1.
It is also suggested by certain interveners, however, that
despite the reluctance of the Court to enter into a
discussion of content in defining the scope of s.2(b), Irwin
Toy excludes violence and threats of violence from the ambit
of the freedom of expression guarantee. As the
communications prohibited by s.13(1) are said to be analogous
to these excluded forms of communication, we are urged to
place them outside of the sphere of protected expression.
For the reasons which I gave in Keegstra, however, the
exception suggested in Irwin Toy speaks only of physical
forms of violence, and extends neither to analogous types of
expression nor to mere threats of violence. As the messages
dealt with by s.13(1) do not involve the direct application of
physical violence, I cannot find that they fall within any
exception that might exist under Irwin Toy.
- 17 -
B. Section 13(1): Analysis Under Section 1 of the Charter
Having determined that s.13(1) infringes s.2(b), the question
becomes whether the provision can be justified under s.1 of
the Charter. As a prefatory matter, s.1 requires that a limit
on a Charter right or freedom be "prescribed by law". I have
had the advantage of reading the reasons of McLachlin J., and
share her view that s.13(1) satisfies this requirement.
This preliminary conclusion regarding "prescribed by law"
leaves unanswered the question of whether the impugned
section is a reasonable limit demonstrably justified in a
free and democratic society. According to Oakes, there are
two aspects to this portion of the s.1 inquiry. First, it is
necessary to ask whether the objective of the challenged
measure is sufficiently important to warrant limiting a
Charter right or freedom. If this initial question is
answered affirmatively, the second aspect of the inquiry
arises, namely, that of proportionality. Speaking generally,
the proportionality requirement is met where an impugned
measure is well-suited to carry out the objective and its
impact upon an entrenched right or freedom is not needlessly
or unacceptably severe.
The purpose and methodology of the s.1 analysis have been
outlined in my reasons in Keegstra and the comments made
there are equally applicable in this appeal. What is of
utmost importance is a recognition that s.1 both guarantees
and limits Charter rights and freedoms by reference to
principles fundamental in a free and democratic society. This
- 18 -
analysis requires an approach sensitive to the context of a
given case, it being necessary to explore the nature and
scope of constitutionally entrenched human rights in light of
the facts at hand.
In applying the Oakes approach to legislation restricting
hate propaganda, a meaningful consideration of the
principles central to a free and democratic society requires
reference to the international community's acceptance of
the need to protect minority groups from the intolerance and
psychological pain caused by such expression. Such a
consideration should also give full recognition to other
provisions of the Charter, in particular ss.15 and 27 (dealing
with equality rights and multiculturalism). Finally. the
nature of the association between the expression at stake
in the appeal and the rationales underlying s.2(b) will be
instrumental in assessing whether a particular legislative
effort to eradicate hate propaganda is a reasonable limit
justified in a free and democratic society.
The considerations just mentioned help to set the stage for
a s.1 review of both s.13(1) of the Canadian Human Rights Act
and, as seen in Keegstra and Andrews, s.319(2) of the Criminal
Code, R.S.C., 1985, c. C-46. It is essential, however, to
recognize that, as an instrument especially designed to
prevent the spread of prejudice and to foster tolerance and
equality in the community, the Canadian Human Rights Act is
very different from the Criminal Code. The aim of human
rights legislation, and of s.13(1), is not to bring the full
force of the state's power against a blameworthy individual
for the purpose of imposing punishment. Instead provisions
found in human rights statutes generally operate in a less
confrontational manner, allowing for a
- 19 -
conciliatory settlement if possible and, where discrimination
exists, gearing remedial responses more towards
compensating the victim.
Having made some preliminary comments regarding the nature
of the s.1 analysis, it is possible to look more closely at the
various components of the Oakes approach as they pertain to
the facts of this appeal. The initial task is to identify and
evaluate the objective behind s.13(1), and it is to this aspect
of the inquiry that I now turn.
a. objective
I believe that the broad legislative intent in implementing
s.13(1) can be gleaned directly from the statute in which it is
found. The purpose of the Canadian Human Rights Act is
stated as follows in s.2:
2. The purpose of this Act is to extend the present laws
in Canada to give effect, within the purview of matters
coming within the legislative authority of the Parliament
of Canada, to the principle that every individual should
have an equal opportunity with other individuals to make
for himself or herself the life that he or she is able and
wishes to have, consistent with his or her duties and
obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin,
colour, religion, age, sex, marital status, family status,
disability or conviction for an offence for which a pardon
has been granted.
It is this purpose -- the promotion of equal opportunity unhindered by
discriminatory practices based on, inter alia, race or religion -- which
informs the objective of s.13(1). In denoting the activity
described in s.13(1) as a discriminatory practice, Parliament
has indicated that it views - 20 -
repeated telephonic communications likely to expose
individuals or groups to hatred or contempt by reason of
their being identifiable on the basis of certain
characteristics as contrary to the furtherance of equality.
Parliament's concern that the dissemination of bate
propaganda is antithetical to the general aim of the
Canadian Human Rights Act is not misplaced. The serious
harm caused by messages of hatred was identified by the
Special Committee on Hate Propaganda in Canada, commonly
known as the Cohen Committee, in 1966. The Cohen Committee
noted that individuals subjected to racial or religious
hatred may suffer substantial psychological distress, the
damaging consequences including a loss of self-esteem,
feelings of anger and outrage and strong pressure to
renounce cultural differences that mark them as distinct.
This intensely painful reaction undoubtedly detracts from an
individual's ability to, in the words of s.2 of the Act, "make
for himself or herself the life that he or she is able and
wishes to have". As well, the Committee observed that hate
propaganda can operate to convince listeners, even if
subtlely, that members of certain racial or religious groups
are inferior. The result may be an increase in acts of
discrimination, including the denial of equal opportunity in
the provision of goods, services and facilities, and even
incidents of violence.
Since the release of the Report of the Special Committee on
Hate Propaganda in Canada, numerous other study groups
have echoed the Cohen Committee's conclusion that hate
propaganda presents a serious threat to society.
Affirmation of the Committee's findings may be found in the
1981 Report Arising Out of the Activities of the Ku Klux Klan
in British Columbia by John D. McAlpine, the 1984 report of
the Special Committee on Participation of Visible
- 21 -
Minorities in Canadian Society, entitled Equality Now!, the
Canadian Bar Association's Report of the Special Committee
on Racial and Religious Hatred, also released in 1984, and the
1986 Working Paper 50 of the Law Reform Commission of
Canada, entitled Hate Propaganda. It can thus be concluded
that messages of hate propaganda undermine the dignity and
self-worth of target group members and, more generally,
contribute 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.
In seeking to prevent the harms caused by hate propaganda,
the objective behind s.13(1) is obviously one of pressing and
substantial importance sufficient to warrant some limitation
upon the freedom of expression. It is worth stressing,
however, the heightened importance attached to this
objective by reason of international human rights
instruments to which Canada is a party and ss.15 and 27 of
the Charter.
The stance taken by the international community in
protecting human rights is relevant in reviewing legislation
under s.1, and especially in assessing the significance of a
government objective (Slaight Communications Inc. v.
Davidson, [1989] 1 S.C.R. 1038). Both Article 4 of the
International Convention on the Elimination of All Forms of
Racial Discrimination, Can. T.S. 1970, No. 28, and Article 20 of
the International Covenant on Civil and Political Rights, 999
U.N.T.S. 171 (1966), as well as the jurisprudence of the
European Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 221 (1950) (see, e.g.
Glimmerveen - 22 -
v. Netherlands (1979), 4 E.H.R.R. 260)) demonstrate that the
commitment of the international community to eradicate
discrimination extends to the prohibition of the
dissemination of ideas based on racial or religious
superiority.
Indeed, in 1983 a complaint to the United Nations Human
Rights Committee by Mr. Taylor and the Western Guard Party
alleging a violation of the freedom of expression guaranteed
in the International Covenant of Civil and Political Rights
was rejected on the ground 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": Taylor and Western Guard Party v.
Canada, Communication No. R.24-104, Report of the Human
Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231,
para. 8(b), reported in part in (1983), 5 C.H.R.R. D/2097. This
conclusion is indicative of the approach taken in the realm
of international human rights, and thus emphasizes the
substantial weight which must be given the aim of preventing
the harms caused by hate propaganda.
That the values of equality and multiculturalism are
enshrined in ss.15 and 27 of the Charter further magnify the
weightiness of Parliament's objective in enacting s.13(1).
These Charter provisions indicate that the guiding
principles in undertaking the s.1 inquiry include respect and
concern for the dignity and equality of the individual and a
recognition that one's concept of self may in large part be a
function of membership in a particular cultural group. As
the harm flowing from hate propaganda works in opposition to
these linchpin Charter principles, the importance of taking
steps to limit its pernicious effects becomes manifest.
- 23 -
b. proportionality
Having found Parliament's objective to be of sufficient
importance to justify some limitation upon the freedom of
expression, the next step in the s.1 inquiry is to determine
whether s.13(1) of the Canadian Human Rights Act is
proportionate to this valid objective. Adopting the
analytical guidelines suggested in Oakes, an impugned
measure is seen as proportionate only if the state shows
that: i) a connection exists between the measure and
objective so that the former cannot be said to be arbitrary,
unfair or irrational; ii) the measure impairs the Charter
right or freedom at stake no more than is necessary; and iii)
the effects of the measure are not so severe as to
represent an unacceptable abridgement of the right or
freedom.
Before examining in earnest the proportionality of s.13(1) to
the parliamentary objective, it is important that something
be said regarding both the values supporting the free
expression guarantee and the nature of the expression at
stake in this appeal. In the abstract, it is unarguable that
freedom of expression is held especially dear in a free and
democratic society, this Charter guarantee providing the
bedrock for the discovery of truth and consensus in all
facets of human life, though perhaps most especially in the
political arena. Additionally, this freedom allows individuals
to direct and shape their personal development, thereby
promoting the respect for individual dignity and autonomy
that is crucial to (among other things) a meaningful
operation of the democratic process.
As is evident in Rocket v. Royal College of Dental Surgeons
of Ontario, [1990] 2 S.C.R. 232, however, and as I emphasize in
Keegstra, in balancing interests within s.1 one cannot ignore
the
- 24 -
setting in which the s.2(h) freedom is raised. It is not enough
to simply balance or reconcile those interests promoted by a
government objective with abstract panegyrics to the value
of open expression. Rather, a contextual approach to s.1
demands an appreciation of the extent to which a restriction
of the activity at issue on the facts of the particular case
debilitates or compromises the principles underlying the
broad guarantee of freedom of expression.
In Keegstra, I examined in considerable detail the degree to
which the protection of hate propaganda is supported by
general arguments for freedom of expression. The
expressive activity put at risk by s.13(1) of the Canadian
Human Rights Act is not identical to that prohibited under
the Criminal Code's s.319(2), yet for the most part the views
put forth in Keegstra are applicable to this appeal, and I
thus find it possible to adopt the conclusion reached there
at p.71:
... I am of the opinion that hate propaganda contributes
little to the aspirations of Canadians or Canada in
either the quest for truth, the promotion of individual
self-development or the protection and fostering of a
vibrant democracy where the
participation of all individuals is accepted and
encouraged. While I cannot conclude that hate propaganda
deserves only marginal protection under the s.1 analysis,
I can take cognizance of the fact that limitations upon
hate propaganda are directed at a special category of
expression which strays some distance from spirit of
s.2(b), and hence conclude that "restrictions on
expression of this kind might be easier to justify than
other infringements of s.2(b)" (Royal College, supra, at p.
24~).
- 25 -
As I hope is evident from the above quotation, it is important to recognize
that expressive activities advocating unpopular or discredited positions
are not to be accorded reduced constitutional protection as a matter of
routine: content-neutrality is still an influential part of free expression
doctrine when weighing competing interests under s.1 of the Charter. The
unusually extreme extent to which the expression at stake in this appeal
attacks the s.2(b) rationale, however, requires that the proportionality
analysis be carried out with the recognition that the suppression of hate
propaganda does not severely abridge free expression values. Having thus
annunciated the perspective with which I approach the balancing task in
this appeal, it is appropriate to examine in detail the various segments of
the proportionality inquiry as set out in Oakes, beginning with the question
of rational connection.
i) rational connection
In my view, once it is accepted that hate propaganda produces effects
deleterious to the guiding principles of s.2 of the Canadian Human Rights
Act, there remains no question that s.13(1) is rationally connected to the
aim of restricting activities antithetical to the promotion of equality, and
tolerance in society. The section labels as discriminatory the
transmission of messages likely to expose individuals to hatred or
contempt by reason of their being identifiable on the basis of certain
characteristics, including race and religion. Sections 41 and 42 of the Act
allow the Human Rights Tribunal to issue a cease and
desist order against an individual found to be engaging in
this discriminatory practice, and this order can be
enforced upon application to the Federal Court of Canada
by the Commission (s.43). In - 26 -
sum, when conjoined with the remedial provisions of the
Canadian Human Rights Act, s.13(1) operates to suppress
hate propaganda and its harmful consequences, and hence
is rationally connected to furthering the object sought
by Parliament.
In the Keegstra and Andrews appeals, it was suggested
that in practice s.319(2) of the Criminal Code was
ineffectual (or even worse, played a malign role) in
reducing the prevalence of hate propaganda in Canada and
accordingly was not rationally connected to Parliament's
objective. While such an argument is not expressly made
in this appeal, it is implied in the appellants' contention
that, just as Germany of the 1920s and 1930s was unable
to curb human rights abuses through the use of anti-hate
propaganda laws, so s.13(1) will have no effect in reducing
the level of hate propaganda (and its attendant harms) in
Canadian society.
For reasons similar to those given in Keegstra, I am
unable to accede to the view that the impugned
legislative measure does not advance Parliament's aim of
reducing the incidence of hate propaganda. The process
of hearing a complaint made under s.13(1) and, if the
complaint is substantiated, issuing a cease and desist
order reminds Canadians of our fundamental commitment to
equality of opportunity and the eradication of racial and
religious intolerance. In addition, although criminal law
is not devoid of impact upon the rehabilitation of
offenders, the conciliatory nature of the human rights
procedure and the absence of criminal sanctions make
s.13(1) especially well-suited to encourage reform of the
communicator of hate propaganda.
- 27 -
Finally, as I stated in Keegstra, the failure of criminal
laws to curb the prevalence of vicious racism in Germany
was a function of many complex factors; that restrictions
placed upon hate propaganda in themselves failed to
prevent the Holocaust is hardly surprising. The
usefulness of such restrictions in helping to create an
environment conducive to the peaceful coexistence of
diverse cultures cannot be refuted simply by citing the
monumental horrors surrounding the treatment of Jews
and other minorities under the Nazi regime. In combatting
discrimination legislative efforts to suppress hate
propaganda are but one available form of response, and
the fact that the international community considers such
laws to be an important weapon against racial and
religious intolerance strongly suggests that s.13(1)
cannot be viewed as ineffectual.
Ordinarily the above discussion would be sufficient to
conclude that a rational connection exists between s.13(1)
and a valid government objective. The intervener
Canadian Civil Liberties Association (hereafter "CCLA")
has suggested, however, that the words "hatred or
contempt" used in s.13(1) are inherently vague, and that
without further definition the section cannot be said to
provide a clear and precise indication as to the scope of
the discriminatory practice. An associated complaint
raised by the CCLA, again with regard to "rational
connection", concerns the absence of an intent
requirement in s.13(1), it being suggested that telephonic
messages aimed at reducing discrimination might actually
fall within the section's proscription. As an example, the
CCLA cited its own method of detecting widespread
discriminatory practices among employment agencies by
using the telephone to pose as an employer seeking
"whites only" for its business. It would surely be
irrational, so the
- 28 -
argument goes, to prohibit such activity where the
information obtained thereby assists, rather than
hinders, the objective of achieving equality of
opportunity.
The arguments of the CCLA undoubtedly require a
response, yet l feel it more appropriate to do so at the
minimal impairment stage of the proportionality inquiry.
Whether or not there is a rational connection between a
particular statutory provision and a valid s.1 objective
does not necessitate a fastidious examination of each
feature of the impugned measure. Of course, the various
categories of the Oakes approach to proportionality are
simply intended to provide an analytical framework. The
rigid compartmentalization of these categories is
illogical, for each involves the consideration of what we
would generally term "proportionality", and no
bright line separate sone from the other. Nevertheless,
insofar as consistency in method encourages clarity and
accuracy of analysis, the examination of proportionality
is furthered by the approach adopted in Oakes. As for the
"rational connection" aspect of proportionality, the
presence in an impugned measure of care of design and
lack of arbitrariness -- the hallmarks of a rational
connection -- allows the government to pass a sort of
preliminary hurdle, and as long as the challenged
provision can be said to further in a general way an
important government aim it cannot be seen as irrational.
As I have stated above, s.13(1) of the Canadian Human
Rights Act promotes the ends sought by Parliament, and
consequently evinces a rational connection to those ends.
This conclusion does not settle the matter of
proportionality, however, for a legislative measure may
go some way towards securing a pressing and substantial
objective yet do so in a manner which limits a Charter
- 29 -
right or freedom more than is necessary. It is for this
reason that the Oakes approach requires a court to
ensure that a challenged measure minimally impairs the
right or freedom at stake, and to my mind the criticisms
levelled at s.13(1) by the CCLA are best addressed at this
point in the proportionality inquiry. I therefore direct
my attention to the question of minimal impairment.
ii) minimal impairment
I find it helpful to address the question of whether s.13(1)
minimally impairs the freedom of expression by examining
in turn the arguments marshalled by the appellants and
the CCLA in support of striking down the section. One of
the strongest of these arguments is the complaint that
the phrase "hatred or contempt" used in s.13(1) is
overbroad and excessively vague. Specifically, it is said
that the wide range of meanings available for both
"hatred" and "contempt" extend the scope of the section
to cover expression not causing the harm which Parliament
seeks to prevent. Additionally, the appellants contend
that the process of determining whether a particular
communication is likely to expose persons to "hatred or
contempt" is necessarily subjective, leaving open the
possibility that in deciding whether a complaint is well
founded the Tribunal will fall into the error of censuring
expression simply because it is felt to be offensive.
When considering the scope of the phrase "hatred or
contempt", it is worthwhile mentioning that the nature of
human rights legislation militates against an unduly
narrow reading of s.13(1). As was stated by Lamer J. in
Insurance Corp. of British Columbia v. Heerspink, [1982] 2
S.C.R. 145, at p. 158, a human rights code "is not to be
treated as another ordinary law of general application.
It should be recognized for what it is, a fundamental law".
I therefore do not wish to
- 30 -
transgress the well established principle that the rights
enumerated in such a code should be given their full
recognition and effect through a fair, large and liberal
interpretation. At the same time, however, the purposive
definition to be given a human rights code cannot extend
so far as to permit the limitation of a Charter right or
freedom not otherwise justified under s.1.
In my view, there is no conflict between providing a
meaningful interpretation of s.13(1) and protecting the
s.2(b) freedom of expression so long as the interpretation
of the words "hatred" and "contempt" is fully informed by
an awareness that Parliament's objective is to protect
the equality and dignity of all individuals by reducing the
incidence of harm-causing expression. Such a perspective
was employed by the Human Rights Tribunal in Nealy v.
Johnston (1989), 10 C.H.R.R. D/6450, the most recent
decision regarding s.13(1), where it was noted, at p.
D/6469, that,
In defining "hatred" the Tribunal
[in Taylor] applied the definition
in the Oxford English Dictionary
(1971 ed.) which reads (at p. 28):
active dislike, detestation, enmity, ill-will, malevolence.
The Tribunal drew on the same source for their definition of
"contempt". It was characterized as
the condition of being condemned or despised; dishonour
or disgrace.
As there is no definition of "hatred" or "contempt" within the
[Canadian Human Rights Act] it is necessary to rely on what
might be described as common understandings of the meaning of
these terms. Clearly these are terms which have a potentially
emotive content and how they are related to particular factual
contexts by different individuals will vary. There is
nevertheless an important core of meaning in both, which the
dictionary definitions capture. With "hatred" the focus is a set
of emotions and feelings which involve extreme ill will towards
another person or group of persons. To say that one "hates"
another means in effect that one finds no redeeming qualities in
the latter. It is a term, however, which does not necessarily
- 31 -
involve the mental process of "looking down" on another or
others. It is quite possible to "hate" someone who one feels is
superior to one in intelligence, wealth or power. None of the
synonyms used in the dictionary definition for "hatred" give any
clues to the motivation for the ill will. "Contempt" is by
contrast a term which suggests a mental process of "looking
down" upon or treating as inferior the object of one's feelings.
This is captured by the dictionary definition relied on in Taylor
... in the use of the terms "despised", "dishonour" or "disgrace".
Although the person can be hated (i.e. actively disliked) and
treated with contempt" (i.e. looked down upon) the terms are not
fully coextensive, because "hatred" is in some instances the
product of envy of superior qualities, which "contempt" by
definition cannot be. [Emphasis added]
The approach taken in Neal gives full force and
recognition to the purpose of the Canadian Human Rights
Act while remaining consistent with the Charter. The
reference to "hatred" in the above quotation speaks of
"extreme" ill-will and an emotion which allows for "no
redeeming qualities" in the person at whom it is directed.
"Contempt" appears to be viewed as similarly extreme,
though is felt by the Tribunal to describe more
appropriately circumstances where the object of one's
feelings is looked down upon. According to the reading of
the Tribunal, s.13(1) thus refers to unusually strong and
deep-felt emotions of detestation, calumny and
vilification, and I do not find this interpretation to be
particularly expansive. To the extent that the section
may impose a slightly broader limit upon freedom of
expression than does s.319(2) of the Criminal Code,
however, I am of the view that the conciliatory bent of a
human rights statute renders such a limit more acceptable
than would be the case with a criminal provision.
In sum, the language employed in s.13(1) of the Canadian
Human Rights Act extends only to that expression giving
rise to the evil sought to be eradicated and provides a
standard of conduct sufficiently precise to prevent the
unacceptable chilling of expressive activity.
- 32 -
Moreover, 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.
Connected with the argument that the s.2(b) guarantee is
not sufficiently protected by the use of the words
"hatred" and "contempt" in the Canadian Human Rights Act
is the observation that nowhere in the statute is the
scope of s.13(1) tempered by an interpretative provision
or exemption designed to protect the freedom of
expression. This observation arises out of a comparison
of the Act with human rights statutes in most other
Canadian jurisdictions, the practice being to prohibit
discriminatory notices, signs, symbols or messages, yet
to follow such prohibition with an exemption stating, to
use as an example the words of Nova Scotia's Human Rights
Act, S.N.S. 1969, c. 11, s.12, "Nothing in this Section shall
be deemed to interfere with the free expression of
opinion upon any subject in speech or in writing". As the
norm is to include in human rights statutes an exemption
emphasizing the importance of freedom of expression, the
appellants forcefully argue that the absence of such a
provision in the federal statute contributes to its being
overbroad.
Though not wishing to disparage legislative efforts to
bolster the guarantee of free expression, for several
reasons I think it mistaken to place too great an emphasis
upon the explicit protection of expressive activity in a
human rights statute. First, though not necessarily
damaging to the appellants' argument, it is worth noting
that the Canadian, - 33 -
- 33 -
Quebec and Yukon Territory human rights statutes contain
no such protective element, and that in any event the
exemptions referred to by the appellants are found in
provisions which appear to be radically different from
s.13(1). Second, having decided that there exists an
objective in restricting hate propaganda of sufficient
importance to warrant placing some limits upon the
freedom of expression, it would be incongruous to require
that s.13(1) exempt all activity falling under the rubric of
expression
Perhaps the so-called exemptions found in many human
rights statutes are best seen as indicating to human
rights tribunals the necessity of balancing the objective
of eradicating discrimination with the need to protect
free expression (see, e.g., Rasheed v. Bramhill (1980), 2
C.H.R.R. D/249, at p. D/252). In any event, I do not think it
in error to say than even in the absence of such an
exemption an interpretation of s.13(1) consistent with the
minimal impairment of free speech is necessary. I say this
with an eye to pre-Chapter cases in which freedom of
expression is discussed, these making it evident that an
interpretative stance designed to prevent the undue
infringement of freedom of expression is available to the
courts (see, e.g., Boucher v. The King, [1951] S.C.R. 265; R.
v. Carrier (1951) 104 C.C.C. 75 (Que. K.B.)) It is thus telling
that in Taylor the Tribunal was appreciative of both the
common law's predilection for interpretations guarding
open expression and the guarantee of freedom of speech
in s.1(d) of the Canadian Bill of Rights in determining the
scope of s.13(1).
- 34 -
While words in s.13(1) such as "hatred" and "contempt" can
be read consistently with both the intent of Parliament to
eradicate hate propaganda and a minimal impairment of
s.2(b) of the Charter, the appellants argue that no
sympathetic interpretation can remedy the overbreadth
created by reason of the section's lack of an intent
requirement. The focus of s.13(1) is solely upon likely
effects, it being irrelevant whether an individual wishes
to expose persons to hatred or contempt on the basis of
their race or religion. This inconsequentiality of intent
is said to impinge seriously and unnecessarily upon the
freedom of expression, and indeed in my reasons in
Keegstra particular emphasis is placed upon the stringent
intent requirement in saving s.319(2) of the Criminal Code
under s.1 of the Charter. The argument of the CCLA
referred to above in discussing "rational connection" is
thus revisited, the gist of this intervenor's submission
being that individuals oblivious to the consequences of
their communications, or even intending to reduce the
incidence of discrimination, may be caught by s.13(1).
An intent to discriminate is not a precondition of a
finding of discrimination under human rights codes
(Ontario Human Rights Commission and O'Malley v. Simpsons-
Sears Ltd., [1985] 2 S.C.R. 536, at pp.549-50; Bhinder v.
Canadian National Railway Co., [1985] 2 S.C.R. 561, at
p.586). The preoccupation with effects, and not with
intent, is readily explicable when one considers that
systemic discrimination is much more widespread in
our society than is intentional discrimination. To import
a subjective intent requirement into human rights
provisions, rather than allowing tribunals to focus solely
upon effects, would thus defeat one of the primary goals
of anti-discrimination statutes. At the same time,
- 35 -
however, it cannot be denied that to ignore intent in
determining whether a discriminatory practice has taken
place according to s.13(1) increases the degree of
restriction upon the constitutionally protected freedom
of expression. This result flows from the realization
that an individual open to condemnation and censure
because his or her words may have an unintended effect
will be more likely to exercise caution via self-
censorship.
The absence of an intent requirement in the Canadian
Human Rights Act thus presents the Court with a conflict
between the objective of eradicating the discriminatory
effects of certain expressive activities and the need to
keep to a minimum restrictions upon the freedom of
expression. This conflict is perhaps best discussed under
the "effects" segment of the Oakes proportionality test,
for the question is not so much whether the objective of
s.13(1) can be accomplished in a less restrictive way as it
is whether the sacrifice required in order to combat
successfully discriminatory effects is so severe as to
make the impact of s.13(1) upon the freedom of expression
unacceptable. Nevertheless, putting aside this
categorizational point, it seems to me that the important
Parliamentary objective behind s.13(1) can only be achieved
by ignoring intent, and therefore the minimal impairment
requirement of the Oakes proportionality test is not
transgressed.
In coming to this conclusion, I do not mean to say that the
purpose of eradicating discrimination in all its forms can
justify any degree of impairment upon the freedom of
expression, but it is well to remember that the present
appeal concerns an infringement of s.2(b) in the context of
a human rights statute. The chill placed upon open
expression in
- 36 -
such a context will ordinarily be less severe than that
occasioned where criminal legislation is involved, for
attached to a criminal conviction is a significant degree
of stigma and punishment, whereas the extent of
opprobrium connected with the finding of discrimination is
much diminished and the aim of remedial measures is more
upon compensation and protection of the victim. As was
stated in Canadian National Railway Co. v. Canada
(Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at
p.1134, under a human rights regime,
It is the [discriminatory] practice itself
which is sought to be precluded. The purpose
of the Act is not to punish wrongdoing but to
prevent discrimination.
The last point is an important one and it
deserves to be underscored. There is no
indication that the purpose of the Canadian
Human Rights Act is to assign or to punish
moral blameworthiness.
In sum, it is my opinion that the absence of an intent
component in s.13(1) raises no problem of minimal
impairment when one considers that the objective of the
section requires an emphasis upon discriminatory effects.
Moreover, and this is where I am perhaps jumping ahead to
the "effects" component of the proportionality test, the
purpose and impact of human rights codes is to prevent
discriminatory effects rather than to stigmatize and
punish those who discriminate. Consequently, in this
context the absence of intent in s.13(1) does not impinge
so deleteriously upon the s.2(b) freedom of expression so
as to make intolerable the challenged provision's
existence in a free and democratic society.
It is said in response by the appellants, however, that a
finding of discrimination may impact upon an individual
very severely indeed, an excellent case in point being the
one year term of imprisonment imposed upon Mr. Taylor in
the Federal Court, Trial Division. While I
- 37 -
would have difficulty defending human rights provisions
from a s.2(b) attack if they exposed a discriminator to
imprisonment despite a lack of intent, it must be
remembered that Mr. Taylor's jail sentence was the result
of a contempt order. While a realistic view of the
operation of s.13(1) demands that the possibility of a
contempt order be considered when reviewing the section
under the Charter, I think it important to understand
fully the circumstances under which such an order may be
issued.
Under the Canadian Human Rights Act, a contempt order
must be preceded by an order of the Tribunal to cease and
desist what has been found to be a discriminatory
practice. Such a directive from the Tribunal necessarily
brings to a respondent's attention the fact that his or
her messages are likely to have a harmful effect.
Uncertainty or mistake as to the probable effect of these
messages is thus dissipated, and consequently their
continued promulgation will be accompanied by the
knowledge that certain individuals or groups are likely to
be exposed to hatred or contempt on the basis of race or
religion. At this stage of the process, it cannot be
argued that an individual is innocent or negligent as to
the effects of his or her message, and hence the spectre
of imprisonment absent intent is dispelled. Indeed, the
risk that incarceration will follow the unknowing
transmission of discriminatory messages is further
reduced by the requirement that a contempt order be
based upon a finding that an individual has wilfully
engaged in action prohibited by a court order (Re
Sheppard v. Sheppard (1976), 67 D.L.R. (3d) 592 (Ont. C.A.), at
pp.595-96). In short, a term of imprisonment is only
possible where the respondent intentionally communicates
messages which he or she knows have been found likely to
cause the harm described in s.13(1), and I
- 38 -
therefore cannot agree that the possibility of a contempt
order issuing against an individual unduly chills the
freedom of expression.
Although I have found the absence of an intent
requirement in s.13(1) to be constitutionally acceptable,
the section evinces yet another feature which is said to
give it a fatally broad scope. In contrast to s.319(2) of
the Criminal Code, s.13(1) provides no defenses to the
discriminatory practice it describes, and most especially
does not contain an exemption for truthful statements.
Accepting that the value of truth in all facets of life,
including the political, is central to the s.2(b) guarantee,
the question becomes whether a restriction upon freedom
of expression is excessive where it operates to suppress
statements which are either truthful or perceived to be
truthful.
In Keegstra, I dealt in considerable detail with hate
propaganda and the defence of truth, though in relation
to the criminal offence of wilfully promoting hatred
against an identifiable group. It was not strictly
necessary in that appeal to decide whether or not this
defence was essential to the constitutional validity of
the impugned criminal provision, but I nevertheless
offered an opinion on the matter, stating (at pp.90-91):
The way in which I have defined the s.319(2)
offence, in the context of the objective
sought by society and the value of the
prohibited expression, gives me some doubt as
to whether the Charter mandates that
truthful statements communicated with an
intention to promote hatred need be excepted
from criminal condemnation. Truth may be used
for widely disparate ends, and I find it
difficult to accept that circumstances exist
where factually accurate statements can be
used for no other purpose than to stir up
hatred against a - 39 -
racial or religious group. It would seem to
follow that there is no reason why the
individual who intentionally employs such
statements to achieve harmful ends must
under the Charter be protected from criminal
censure. [Emphasis in original.]
For the reasons given in the above quotation, I am of the
view that the Charter does not mandate an exception for
truthful statements in the context of s.13(1) of the
Canadian Human Rights Act.
I am of course aware that my comments in Keegstra
related to a provision where an individual could only be
convicted upon proof that he or she intended to promote
hatred, and that in Keegstra the presence of such an
intention was specifically emphasized. Clearly, an
intention to expose others to hatred or contempt on the
basis of race or religion is not required in s.13(1). As I
have just explained, however, s.13(1) operates within the
context of a human rights statute. Accordingly, the
importance of isolating effects (and hence ignoring
intent) justifies this absence of a mens rea requirement.
I also reiterate the point that the impact of the impugned
section is less confrontational than would be the case
with a
criminal prohibition, the legislative framework
encouraging a conciliator settlement and forbidding the
imposition of imprisonment unless an individual
intentionally acts in a manner prohibited by an order
registered with the Federal Court. I thus have no qualms
in finding the sentiments expressed in Keegstra to be
equally applicable in this appeal.
A final submission made in furtherance of the view that
s.13(1) impairs the freedom of expression more than is
necessary pertains to the nature of the medium targeted
by the
- 40 -
section. It is contended that, in restricting use of the
telephone to disseminate hate propaganda, the provision
suppresses expression in instances where the recipient
of communication will likely agree with the content of the
message received. Where he or she does not agree with
the import of the communication, contact can easily be
ended by hanging-up the telephone. In this vein, the CCLA
has argued that the Canadian Human Rights Act should
apply only to use of the telephone to harass recipients.
A related point is that s.13(1) works to suppress private
communications, demonstrating an extensive and serious
intrusion upon the privacy of the individual. Finally, it is
pointed out that the telephone provides an inexpensive
way of communicating with large numbers of people, and
that minority groups and civil rights proponents
attempting to further legitimate causes may be foiled by
s.13(1) and hence deprived of the medium best suited to
relatively impoverished organizations seeking to spread
new and perhaps valuable ideas.
I do not disagree with the view that telephone
conversations are usually intended to be private; it is
surely reasonable for people to expect that these
communications will not be intercepted by third persons.
Moreover, in determining in Keegstra that the criminal
prohibition of hate propaganda in s.319(2) of the Criminal
Code is not constitutionally overbroad, I relied to an
extent upon the fact that private communications were
not affected. The connection between s.2(b) and privacy is
thus not to be rashly dismissed, and I am open to the view
that justifications for abrogating the freedom of
expression are less easily envisioned where expressive
activity is not intended to be public, in large part
because the harms which might arise from the
dissemination of meaning are usually minimize
- 41 -
when communication takes place in private, but perhaps
also because the freedoms of conscience, thought and
belief are particularly engaged in a private setting.
Simply to label telephone communications as "private",
however, does not justify the conclusion that s.13(1) is
overbroad. As was noted by the CCLA, the telephone is a
medium which allows numerous organizations to present
information and views to a sizable proportion of the
public, whether through active calling or the use of
recorded messages. While conversations almost always
take place on a one-to-one basis, the overall effect of
phone campaigns is undeniably public, and the reasonable
assumption to make is that these campaigns can have an
effect upon the public's beliefs and attitudes. Indeed, in
the recent case of Nealy, supra, expert evidence
presented to the Human Rights Tribunal by Dr. Rene-Jean
Ravault, who also appeared before the Tribunal in Taylor,
suggests that the telephone is ideally suited to the
effective transmission of prejudicial beliefs, and in this
respect the Tribunal stated (at pp.D/6485-86):
This brings us to the second and more specific
contextual reason which justifies the compass
of the provision and that is the medium
through which the hate messages are
communicated. We have earlier pointed to the
important testimony of Dr. Ravault as to the
attractions and advantages of telephone
communication to racists and white
supremacists in terms of connecting with and
attempting to influence those in the
community who are for one reason or another
bewildered or disaffected by events and
forces over which they feel they have no
control. Dr. Ravault was also able to
demonstrate how the authors of hate
messages are able through subtle manipulation
and juxtaposition of material to give a veneer
of credibility to the content of the messages.
The combination of the telephonic medium and
the material is, we believe, particularly
insidious, because, while a public means of
communication is used, it is one which gives
the listener the
impression of direct, personal, almost private, contact by the
speaker, provides no realistic means of questioning the
information or views presented and is subject to no counter-
argument within that particular communications context.
- 42 -
I agree with the Tribunal's comments regarding telephone
communications and hate propaganda, and find its
observations to be helpful in rebutting the contention
that the private nature of telephone conversations makes
especially difficult the imposition of constitutionally
valid limitations upon expressive telephonic activity.
Those who repeatedly communicate messages likely to
expose others to racial or religious hatred or contempt
are seeking to gain converts to their position. The
evidence of the Cohen Committee, referred to extensively
in Keegstra, and expert testimony given before the
Tribunals in both Taylor and Nealy, suggest that hate
propaganda often works insidiously to spread a message
of intolerance and inequality, and that the telephone is
particularly suited to this mode of communication.
Section 13(1) is worded so as to diminish phone use of the
type I have just described, for in the context of s.13(1)
the term "repeated" must comport a requirement for
something in the way of a series of messages. Moreover,
because the Tribunal must be satisfied that the messages
are likely to expose persons to hatred or contempt, it may
be than even a series of personal calls (by which I mean
communications with friends and acquaintances) espousing
hate propaganda will not constitute a discriminatory
practice within the definition of the section. I thus think
it misleading to conflate the discussion to the point
where all one sees is the telephone's position as an
apparatus oft-used for private communications, and hence
mistakenly to conclude that s.13(1) suppresses messages
which do little to promote the harms caused by hate
propaganda.
As the preceding discussion shows, the freedom of
expression is not unnecessarily impaired by s.13(1) of the
Canadian Human Rights Act. The terms of the section, in
particular the phrase
- 43 -
"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. That no special
provision exists to emphasize the importance of minimally
impairing the freedom of expression does not create in
s.13(1) an overly wide or loose scope, for both its purpose
and the common law's traditional desire to protect
expressive activity permit an interpretation solicitous
of this important freedom.
Though it is true that the absence of an intent
requirement under s.13(1) may make the section wider in
scope than the criminal provision upheld in Keegstra, this
particular distinction is made necessary by the important
objective of the Canadian Human Rights Act of eradicating
systemic discrimination. Moreover, intent is far from
irrelevant when imposing incarceratory sanctions upon an
individual by way of a contempt order, subjective
awareness of the likely effect of one's messages being a
necessary precondition for the issuance of such an order
by the Federal Court. A similar point can be made
regarding the lack of defenses offered under the Act,
though as I have noted it is quite conceivable that the
full panoply of defenses is not constitutionally required
in even a criminal provision. Finally, by focusing upon
"repeated" telephonic messages, s.13(1) directs its
attention to public, larger-scale schemes for the
dissemination of hate propaganda, the very type of phone
use which most threatens the admirable aim underlying the
Canadian Human Rights Act.
iii) effects
It will be apparent from the preceding discussion that I do
not view the effects of s.13(1) upon the freedom of
expression to be so deleterious as to make intolerable
its existence in a free and
- 44 -
democratic society. The section furthers a government
objective of great significance and impinges upon
expression exhibiting only tenuous links with the
rationale underlying the freedom of expression
guarantee. Moreover, operating in the context of the
procedural and remedial provisions of the Canadian Human
Rights Act, s.13(1) plays a minimal role in the imposition of
moral, financial or incarceratory sanctions, the primary
goal being to act directly for the benefit of those likely
to be exposed to the harms caused by hate propaganda. It
is therefore my opinion that the degree of limitation
imposed upon the freedom of expression by s.13(1) is not
unduly harsh, and that the third requirement of the Oakes
proportionality approach is satisfied.
C. Section 13(1) and the Freedom of Expression: Conclusion
Under Section l of the Charter
Having found that the effects of s.13(1) are acceptable in
light of the important objective sought by Parliament, I
conclude that the government has satisfactorily
demonstrated the proportionality of the provision.
Consequently, s.13(1) is saved under s.1 of the Charter as a
limit reasonable in a free and democratic society. It only
remains to ask after the constitutional validity of the
Tribunal's cease and desist order and the non-
constitutional issue of reasonable apprehension of bias,
and it is to these matters that I now turn.
VI THE TRIBUNAL'S ORDER AND THE FREEDOM OF EXPRESSION
Upon concluding that the appellants had participated in a
discriminatory activity as described in s.13(1), the Tribunal
issued a cease and desist order which, as l have noted, took
the following form:
We therefore order the Respondents to cease their
discriminatory practice of using the telephone to
communicate repeatedly the subject matter which has
formed the contents of the tape-recorded messages
referred to in the complaints.
- 45 -
The appellants contend that, even if s.13(1) of the Canadian
Human Rights Act does not unjustifiably infringe s.2(b) of
the Charter, the order of the Tribunal is unconstitutional
as violating the freedom of expression. By and large, the
submissions of the appellants on this point echo those made
with respect to s.13(1). The only argument truly unique to
the order is that in failing to identify the nature of the
prohibited subject matter the directive of the Tribunal is
unacceptably vague.
Assuming that the Charter applies to the Tribunal's order,
it is my opinion that the appellants' argument must fall. The
entire decision of the Tribunal, including the paragraph just
quoted, has been entered in the Judgment and Order Book of
the Federal Court, and it is only reasonable to read this
paragraph in the context of the Tribunal's expansive
reasons. These reasons are emphatically clear in
describing the subject-matter found to constitute a
discriminatory practice, namely, messages claiming the
existence of a Jewish conspiracy seeking to undermine and
destroy Canadian society, a conspiracy said to be
responsible for most of the ills presently afflicting our
nation and which must be defended against at all costs.
In the words of Mahoney J. in the Federal Court of Appeal,
"[t]he appellants can have had no bona fide doubt that the
subject matter enjoined was subject matter likely to expose
Jews to hatred or contempt" (p.601). It is thus clear that
the order of the Tribunal is constitutionally valid.
VII APPREHENSION OF BIAS IN THE TRIBUNAL
Even if s.13(1) and the cease and desist order are
constitutionally valid, as I have concluded, the appellants
seek to evade the impact of the Federal Court's contempt
order by arguing that
- 46 -
the decision of the Tribunal is inoperative because of a
reasonable apprehension of bias.
This position relies upon the Federal Court of Appeal ruling
in MacBain v. Lederman, [1985] 1 F.C. 856, which decided that
ss.39(1) and 39(5) of the Canadian Human Rights Act were of
no effect to the extent that they permitted the Commission
to appoint the very tribunal before which it appeared as a
prosecuting party. The court in MacBain employed s.2(e) of
the Canadian Bill of Rights, which guarantees the right to a
fair hearing in accordance with the principles of
fundamental justice, to declare inoperative the challenged
provisions of the Act insofar as they applied to the
complaint against the appellant MacBain.
The Federal Court of Appeal rejected the appellants'
argument, Mahoney J. relying upon Re Human Rights Tribunal
and Atomic Energy of Canada Ltd., [1985] 1 F.C. 856, where it
was accepted that a respondent is taken to have waived
s.2(e)'s protection regarding a reasonable apprehension of
bias unless such bias is alleged at the earliest practical
opportunity. In the case at hand, the matter of bias had not
been raised until the hearing before the Federal Court of
Appeal in the spring of 1987, almost eight years after the
Tribunal released its reasons. As over a period of many
years the appellants had made no effort to raise
allegations of reasonable apprehension of bias, Mahoney J.
found their inaction to constitute waiver.
The narrow ratio of Mahoney J.'s reasons, however, hinged on
the fact that the appellants had not sought to challenge the
legitimacy of the Tribunal order directly, but rather had
simply treated the order as void and attacked it
collaterally in a contempt proceeding. Adopting the
- 47 -
rationale of O'Leary J. in Canada Metal Co. v. Canadian
Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585 (H.C.), at p.
613, he stated (at p.601):
The duty of a person bound by an order of a court is to
obey that order while it remains in force regardless of
how flawed he may consider it or how flawed it may, in
fact, be. Public order demands that it be negated by due
process of the law, not by disobedience.
As the appellants had neglected to attack the impugned
order by due process of law, Mahoney J. concluded that the
finding of contempt could not be challenged by alleging a
reasonable apprehension of bias.
I am in complete accord with the reasoning of Mahoney J. in
the Federal Court of Appeal, and therefore conclude that
the appellants' submission regarding a reasonable
apprehension of bias is without merit. As a postscript,
however, I must emphasize that no arguments were presented
regarding the applicability of Charter provisions, and in
coming to the above conclusion I have not taken the possible
effect of the Charter into account.
VIII DISPOSITION
Having concluded that neither s.13(1) nor the cease and
desist order of the Tribunal unjustifiably infringes s.2(b)
of the Charter, I would answer the constitutional questions
as follows:
1. Is s.13(1) of the Canadian Human Rights Act, S.C. 1976-77,
c. 33, as amended, consistent with the freedom of
thought, belief, opinion and expression guaranteed by
s.2(b) of the Canadian Charter of Rights and Freedoms?
Answer: No.
- 48 -
2. If s.13(1) of the Canadian Human Rights Act, S.C. 1976-77,
c. 33, as amended, is inconsistent with the freedom of
thought, belief, opinion and expression guaranteed by
s. 2(b) of the Canadian Charter of Rights and Freedoms,
is it a reasonable limit on that freedom within the
meaning of s.1 of the Charter?
Answer: Yes.
3. Are the order of the Human Rights Tribunal of July 20,
1979, and the orders of the Federal Court, Trial
Division of January 24 and August 15, 1984, subject to
challenge under s.2(b) of the Canadian Charter of Rights
and Freedoms, and, if so, are they consistent with the
freedom of thought, belief, opinion and expression as
guaranteed by s.2(b)?
Answer: Assuming that the Charter applies, these
orders infringe s.2(b) of the Charter.
4. If the order of the Human Rights Tribunal of July 20,
1979, and the orders of the Federal Court, Trial
Division of January 24 and August 15, 1984, are subject
to challenge under s.2(b) of the
Canadian Charter of Rights and Freedoms and are
inconsistent with the freedom of thought, belief,
opinion and expression as guaranteed by s.2(b), do they
constitute a reasonable limit on that freedom within
the meaning of s.1 of the Charter?
Answer: Yes.
As for the non-constitutional issue regarding the
reasonable apprehension of bias, I agree with the view of
Maloney J. in the Federal Court of Appeal that the order of
the Tribunal cannot be attacked on this ground.
Consequent upon the above conclusions, I would dismiss the
appeal with costs to the respondent Commission.
THE SUPREME COURT OF CANADA
JOHN ROSS TAYLOR AND The Western GUARD PARTY
-and-
CANADIAN HUMAN RIGHTS COMMISSION AND THE
ATTORNEY GENERAL OF CANADA
-and-
THE ATTORNEY GENERAL FOR ONTARIO, THE ATTORNEY
GENERAL OF QUEBEC, THE ATTORNEY GENERAL OF MANITOBA,
THE CANADIAN JEWISH CONGRESS, THE LEAGUE FOR HUMAN
RIGHTS OF B'NAI BRITH, CANADA, THE WOMEN'S LEGAL
EDUCATION AND ACTION FUND, THE CANADIAN HOLOCAUST
REMEMBRANCE ASSOCIATION, AND THE CANADIAN CIVIL
LIBERTIES ASSOCIATION
CORAM: Chief Justice Dickson* and Wilson, La Forest,
L'Heureux-Dube. Sopinka. Gonthier and
McLachlin JJ.
McLACHLIN J.:
This case challenges the constitutional validity of s.13(1)
of the Canadian Human Rights Act, S.C. 1976-77, c. 33,
which prohibits the use of repeated telephonic
communications where
the communication is likely to expose a person or groups
to hatred or contempt.
* chief Justice at the time of hearing.
-2-
The appellants were found by the Human Rights Tribunal to
have violated the section in 1979, before the enactment
of the Canadian Charter of Rights and Freedoms. The
Tribunal ordered that the appellants cease and desist
from such communications. Pursuant to the Act, the order
of the Tribunal was filed as a Federal Court Order. The
appellants continued to violate the order and were cited
for contempt of the court order. After the Charter came
into force, the appellants were again brought before the
Court and again cited for contempt of the original order.
It is this second citation for contempt which is challenged
in the present case.
The appellants argue that s.13(1) of the Canadian Human
Rights Act and the order of the tribunal violate s.2(b) of
the Charter and are invalid. They ask that the findings of
contempt against them be set aside on the ground that the
Federal Court order, which they disobeyed, is without
foundation and invalid.
Facts
Between 1977 and 1979 the appellants distributed cards
inviting calls to a Toronto telephone number answered by
recorded messages. The messages, while in part arguably
innocuous, contained statements denigrating the Jewish
race and religion. In 1979, complaints about these
messages were lodged with the Canadian Human Rights
Commission. The Commission established a tribunal which,
following an investigation, concluded that the messages
constituted a discriminatory practice under s.13(1) of the
Canadian Human Rights Act and ordered the appellants to
cease the practice. The Tribunal wrote:
- 3 -
We hold that Mr. Taylor and the Western Guard
Party have communicated telephonically or have
caused to be so communicated, repeatedly,
messages in whole or in part by means of facilities
of a telecommunication undertaking within the
legislative authority of Parliament. Although some
of the messages by themselves are somewhat
innocuous, the matter for the most part that they
have communicated, we believe, is likely to expose
a person or persons to hatred or contempt by
reason of the fact that the person is identifiable
by race or religion. In particular, the messages
identify specific individuals by name and we
believe that the remarks about those individuals
have a likelihood of exposing them to hatred or
contempt, merely on the basis that they are said
to be Jewish. Moreover, we hold that the messages
in question not only expose identified individuals
but persons generally to hatred or contempt by
reason of the fact that those persons are
identifiable as Jews. We therefore find that the
complaints are substantiated.
The cease and desist order of the Tribunal was filed in
the Federal Court, pursuant to ss.43(1) and 43(2) of the
Act. The messages, however, continued. On February 21,
1980, Dub J. found the appellants in contempt of the
order: (1980), 1 C.H.R.R. DJ47. The Party was sentenced to a
$5,000 fine and Taylor, the Party's leader (who had
recorded the tapes), was sentenced to one-year's
imprisonment. Dub J. suspended the sentence upon the
condition that the appellants obey the Tribunal's order.
The appellants continued to disobey the order.
Accordingly, the Canadian Human Rights Commission applied
to have the suspension lifted.
On June 1, 1980, Walsh J. granted the application, and made
an order lifting the suspension of the sentence. An order
of committal against Taylor followed, notwithstanding
that the appellants had instigated an appeal from the
original order (dismissed by the Federal Court of Appeal,
February 27, 1981). Taylor served his time in prison.
- 4 -
On May 12, 1983, the Canadian Human Rights Commission
filed another application in the Federal Court, alleging
that further messages were transmitted between June 22,
1982 and April 20, 1983 and that these messages also
breached the Tribunal's original cease and desist order.
The Commission sought a further order of committal of
Taylor and a further $5,000 fine against the Party. In
the meantime, the Charter had been adopted on April 17,
1982. Relying on the Charter, the appellants argued that
s.13(1) of the Canadian Human Rights Act violated s.2(b),
and that the order was of no effect. Jerome A.C.J.
rejected this argument. An appeal to the Federal Court of
Appeal was unsuccessful. Leave to appeal to this Court
was granted December 3, 1987, [1987] 2 S.C.R. x.
Relevant Legislation
The Canadian Human Rights Act provides:
2. The purpose of this Act is to extend the present
laws in Canada to give effect, within the purview of
matters coming within the legislative authority of
Parliament of Canada to the principle that every
individual should have an equal opportunity with
other individuals to make for himself or herself
the life that he or she is able and wishes to have,
consistent with his or her duties and obligations
as a member of society, without being hindered in
or prevented from doing so by discriminatory
practices based on race, national or ethnic origin,
colour, religion, age, sex, marital status, family
status, disability or conviction for an offence for
which pardon has been granted.
13.(1) It is a discriminatory practice for a person
or a group of persons acting 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.
- 5 -
Section 13 is part of a comprehensive statutory scheme
aimed at preventing repetitive discriminatory telephone
communications. Any person or group of persons who
believes that a person is engaging in discriminatory
practices contravening s.13(1) may lodge a complaint
pursuant to s.32. Alternatively, the Commission itself
may instigate a complaint. After a complaint is filed, the
Commission may appoint an investigator to investigate
the complaint. At any stage after the filing of a
complaint the Commission may appoint a human rights
tribunal to inquire further into the complaint. If the
tribunal finds that the complaint is substantiated, it may
issue a cease and desist order. An order of the tribunal
can be entered as an order of the Federal Court.
It will be noted that this scheme, unlike the Criminal Code
provisions in question in R. v. Andrews, S.C.C. No. 21034,
and in R. v. Keegstra, S.C.C. No. 21118 (delivered
concurrently), does not without prior warning attach a
penalty to expression. It is only after the Tribunal has
declared that past conduct has violated s.13, and after
the order has been entered, that an individual faces a
penalty for violating the section should he or she
continue the impugned conduct.
The validity of the schemes established by the Canadian
Human Rights Act must be determined in light of the
following sections of the Charter:
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out m it
subject only to such reasonable limits prescribed
by law as can be demonstrably justified in a free
and democratic society.
- 6 -
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;
15.(1) Every individual is equal before and
under the law and has the right to the
equal protection and equal benefit of the
law without discrimination and, in
particular, without discrimination based
on race, national or ethnic origin, colour,
religion, sex, age or mental or physical
disability.
24.(1) Anyone whose rights or freedoms,
as guaranteed by this Charter, have been
infringed or denied may apply to a court
of competent jurisdiction to obtain such
remedy as the court considers
appropriate and just in the
circumstances.
27. This Charter shall be interpreted in
a manner consistent with the
preservation and enhancement of the
multicultural heritage of Canadians.
Judgments Below
Federal Court, Trial Division (1984), 6 C.H.R.R. D/2595.
Jerome A.C.J. found that the appellants had disobeyed the
Federal Court Order filed pursuant to the Canadian. Human
Rights Act. He expressed the view that ss.13(1), 32, 35(1)
and (2), 39(1), 40(1), 41(1) and (2), and s. 43(1) and (2) of the
Act constituted a reasonable restriction upon the
appellants' right of freedom of speech guaranteed in the
Charter. In so concluding, he applied the test of "whether
the sacrifice of the right is in proportion to the
objective of achieving the elimination of the evil under
attack from the Canadian way of life" (p. D/2597). He then
stated (at p. D/2598):
- 7 -
It is appropriate that Parliament express the
principle that communications which have as their
purpose incitement of racial hatred are
unacceptable in Canadian society. That is the evil
which the relevant sections of the Canadian Human
Rights Act endeavour to combat and for the
reasons given, I am not persuaded that the
resulting restriction upon freedom of speech is
out of proportion to that objective. There is
therefore no basis for finding that these
legislative provisions exceed 'reasonable limits ...
demonstrably justified in a free and democratic
society'.
Federal Court of Appeal, [1987] 3 S.C. 593.
The Federal Court of Appeal found that the trial judge
was justified in concluding that the appellants'
disobedience of the subsisting order of the Tribunal
constituted contempt of court. In its view, regardless of
how flawed the order might be, the appellants were bound
to obey it so long as it remained in force. As Mahoney J.
put it, "Public order demands that [the order] be negated
by due process of the law, not by disobedience" (p. 601).
Even if the order were invalid, that would offer no excuse
for refusal to obey it.
Mahoney J. rejected the appellants' argument that the
order of the tribunal was too vague and obscure for them
to be found in contempt of it, noting that the test of
vagueness is "whether the intention is ascertainable or
understandable to a person of average intelligence
reading it in good faith" (p.601). In his opinion, the
appellants could have no bona fide doubt "that the
subject matter enjoined was subject matter likely to
expose Jews to hatred or contempt" (p.601).
- 8 -
Nor was the Federal Court of Appeal persuaded that the
appellants could not be held to have disobeyed the order
for the reason that the messages in question told the
truth. In this respect, Mahoney J. stated (at p.604):
No reasonable person, considering the messages as
a whole, could conclude that their only purpose was
to communicate truth; their purpose was plainly to
communicate that which had been enjoined by the
cease and desist order: a message likely to expose
Jews to hatred or contempt.
On the constitutional question, the Court of Appeal was
of the opinion that s.13(1) of the Canadian Human Rights
Act violates the guarantee of freedom of speech and
must, if it is to survive, be justified under s.1 of the
Charter as a reasonable limit on the appellants' freedom
of expression. After considering the criteria established
by the Supreme Court of Canada in R. v. Oakes, [1986] 1
S.C.R. 103, for determining whether such a limit is
reasonable, Mahoney J. observed that the determination
must be made in the context of the freedom of expression
of persons in Canada generally, rather than with
reference to circumstances peculiar to the appellants.
He went on to state that in making this determination, the
court need not have evidence but may be taken to have a
general knowledge of the history and values of Canadian
society. In the result, he found that the impugned
limitation is "tailored precisely to the specific practices
of those who abuse their freedom by repeatedly
communicating hate messages by telephone" (at p.611). He
concluded that the legislation was saved by s.1, given
that "the interest of a free and democratic society to
avoid the - 9 -
repeated telephonic communication of messages of hate
based on race or religion clearly outweighs its interest
to tolerate the exercise in that fashion of their freedom
of expression by persons so inclined" (p.612).
Issues
This case puts in issue the constitutionality of s.13(l) of
the Canadian Human Rights Act and the order of the
Federal Court under the Charter. Additional questions
are raised as to whether the Order of the Human Rights
Tribunal is invalid because of bias, and whether if a court
order is based on an invalid statutory provision it may
still be the basis for contempt proceedings.
The following constitutional questions were stated by the
Dickson C.J.:
1. Is s.13(1) of the Canadian Human Rights Act, S.C. 1976-
77, c.33, as amended, consistent with the freedom of
thought, belief, opinion and expression guaranteed by
s.2(b) of the Canadian Charter of Rights and
Freedoms?
2. If s.13(1) of the Canadian Human Rights Act, S.C. 1976-
77, c.33, as amended, is inconsistent with the freedom
of thought, belief, opinion and expression guaranteed
by s.2(b) of the Canadian Charter of Rights and
Freedoms, is it a reasonable limit on that freedom
within the meaning of s.1 of the Charter?
3. Are the order of the Human Rights Tribunal of July
20, 1979, and the orders of the Federal Court, Trial
Division of January 24 and August 15, 1984, subject
to challenge under s.2(b) of the Canadian Charter of
Rights and Freedoms, and, if so, are they consistent
with the freedom of thought, belief, opinion and
expression as guaranteed by s.2(b)?
- 10 -
4. If the order of the Human Rights Tribunal of July 20,
1979, and the orders of the Federal Court, Trial
Division of January 24 and August 15, 1984, are
subject to challenge under s. 2(b) of the Canadian
Charter of Rights and Freedoms and are inconsistent
with the freedom of thought, belief, opinion and
expression as guaranteed by s. 2(b), do they
constitute a reasonable limit on that freedom within
the meaning of s. 1 of the Charter?
The appellants raise the following additional issue:
5. Was the Human Rights Tribunal, appointed by the
Canadian Human Rights Commission, hearing a
complaint from the same commission, subject to a
reasonable apprehension of bias, and was that
objection waived by an unrepresented accused prior
to the MacBain case?
Analysis
I. Background
In my reasons in Keegstra, supra, I explored the
historical and philosophical underpinnings of freedom of
expression in Canada, as well as the approach to hate
propaganda taken in this and other jurisdictions.
>From an historical perspective, it is apparent that
freedom of speech, at least in the political context, was
recognized as a fundamental right possessing quasi-
constitutional status even prior to the adoption of the
Charter. The Charter affirmed and expanded the right of
free expression, increasing its scope by extending the
guarantee to a wide range of expression, and confirming
its fundamental nature by entrenching it as a broad-
ranging constitutional right.
>From a philosophic perspective, freedom of expression may
be justified on three broad rationales. The first two are
"instrumental" in nature, viewing freedom of expression
firstly as the means of promoting the "marketplace of
ideas" essential to a vibrant society, and secondly as
being indispensable to the proper functioning of
democratic government. The third justification is that of
self-actualization or
- 11 -
self-fulfilment. Freedom of expression is viewed as an
end in itself, a valuable measure of freedom to which each
person is entitled in our society. This Court has affirmed
all three rationales as supporting the guarantee of free
expression embodied in s.2(b) of the Charter.
The treatment of hate propaganda in other jurisdictions
varies. In the United States, where freedom of expression
is viewed as perhaps the most fundamental liberty, the
validity of legislation restricting the promotion of hate
and discrimination is seen as conflicting with free
expression and to survive must meet onerous tests, such
as a connection between the legislation and a clear and
present danger to society. In international human rights
law, the right of free expression is limited from the
outset by the qualification that it must yield to
reasonable measures prohibiting the promotion of hatred
and discrimination against groups. On this approach, no
conflict between freedom of expression and the limiting
legislation arises; freedom of expression is readily cut
back to accommodate laws against the promotion of hatred
and discrimination. The Canadian Charter suggests an
analysis closer to the American model than the
international, in so far as it confers a broad and
virtually unlimited right, which, in cases of conflict, must
be weighed against countervailing values under s.1 to
determine if the state has established that the limitation
of the right imposed by the anti-hate law is reasonable
and justifiable in a free and democratic society.
II. The Scope of s.2(b) of the Charter
The question posed is whether s.13(l) of the Canadian
Human Rights Act introduces a limit on freedom of
expression as defined by s.2(b) of the Charter.
- 12 -
In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927, the majority of this Court adopted a two-step
analysis. Initially, it is necessary to determine whether
or not the activity falls within the sphere of conduct
protected by the guarantee. If the activity falls within
the protected sphere of expressive conduct, then it is
necessary to determine whether the purpose or effect of
the government action was to restrict freedom of
expression.
The majority in Irwin Toy distinguished between the
content and form of expressive conduct alleged to fall
within the ambit of s.2(b). The guarantee of free
expression protects all content of expression but may not
protect some forms of expression, for example, violence
and threats of violence.
Section 13(1) must be viewed as directed at limiting the
content of expression. While the form of expression is
specific (i.e., it only applies to the telephone), the Act is
not prohibiting communication by telephone. Rather, it is
only regulating the content of such communications.
Therefore, the first step in Irwin Toy is clearly met.
The second question is whether the purpose or effect of
the government action is to restrict freedom of
expression. If the purpose is to restrict attempts to
convey a meaning, a limitation by law of s.2(b) is
established and a s.1 analysis is required to determine
whether the law is inconsistent with the provisions of the
Constitution. Generally speaking, "if the government has
aimed to control attempts to convey a meaning either by
directly restricting the content of expression or by
restricting a form of expression tied to content, its
purpose trenches upon the guarantee": Irwin Toy, supra,
at p.976. If - 13 -
this was not the government's purpose, the Court must
move on to an analysis of the effects of the government
action.
It is apparent that Parliament, in enacting s.13(1) of the
Canadian Human Rights Act, intended to control attempts
to convey a meaning by restricting the content of
expression. I conclude that the second step in the Irwin
Toy test is met, and that s.13(1) violates s.2(b). This
leaves the question of whether or not s.13(1) is
demonstrably justifiable under s.1 of the Charter.
III. Section 1 of the Charter
Section 13(I) of the Canadian Human Rights Act violates
the guarantee of freedom of expression in s.2(b) of the
Charter. The next question is whether the state has
demonstrated that notwithstanding this violation, the law
is reasonable and demonstrably justified in a free and
democratic society. The fundamental issues at stake in
answering this question are the same as in Keegstra and
Andrews. The contest is between freedom of expression on
the one hand, and the prevention of hate propagation and
discrimination against particular groups in society on the
other. However, there are important differences between
the cases. The most significant is the means by which the
promotion of hatred is to be curbed. In Keegstra and
Andrews, the method at issue was the criminalization of
wilful attempts to promote hatred against groups. In this
case, the method is a prohibition in a human rights
statute, coupled with the enforcement procedures set out
in the statute.
- 14 -
Before examining the justifiability of the limitation on
free expression effected by s.13(1) of the Act, it is
necessary to dispose of a preliminary argument which was
raised in this case alone -- the argument
that s.13(l) is so broad and vague that it does not
constitute a "limit prescribed by law" and hence cannot be
saved under s.1 of the Charter.
1. Limit Prescribed by Law
Before s.1 can apply, the statute or section in question
must be found to constitute a limit "prescribed by law".
The appellants submit that s.13(1) is vitiated by vagueness
which prevents the prospective law-abiding citizen from
ascertaining the point at which his opinions may begin to
expose a person or group to hatred in a prohibited manner.
The meaning of the terms "hatred" and contempt" is vague
and uncertain, it is submitted. Moreover, the phrase
"likely to expose" requires neither real nor actual effect
and is incapable of precise delineation. This is countered
by the submission that s.13(l) is no more vague than many
laws and in any event, is sufficiently precise to
constitute a limit prescribed by law under s.1 of the
Charter.
In Irwin Toy, this Court considered the issue of whether
or not regulations governing commercial advertising
directed at children were sufficiently precise to
constitute legal prescriptions. The respondent argued
that the test in the statute in question in Irwin Toy was
vague because it left an inordinately wide discretion in
the judge to determine whether a - 15 -
commercial advertisement was aimed at children. The
majority, Dickson C.J. with Lamer and Wilson JJ., rejected
this submission, at p.983:
Absolute precision in the law exists rarely, if at all.
The question is whether the legislature has provided
an intelligible standard according to which the
judiciary must do its work. The task of interpreting
how that standard applies in particular instances
might always be characterized as haying a
discretionary element, because the standard can
never specify all the instances in which it applies.
On the other hand, where there is no intelligible
standard and where the legislature has given a
plenary discretion to do whatever seems best in a
wide set of circumstances, there is no "limit
prescribed by law".
In my view, s.13(1) satisfies the test enunciated in Irwin
Toy. By using the same wording as is found in the common
law in defamation cases, Parliament has provided an
intelligible standard for the tribunal to apply. I conclude
that the limits on speech set out in s.13(1) are
sufficiently precise to constitute a limit "prescribed by
law".
That is not to say that the alleged vagueness of the
standard set by the provision is irrelevant to the s.1
analysis. For reasons discussed below, I am of the
opinion that the difficulty in ascribing a constant and
universal meaning to the terms used is a factor to be
taken into account in assessing whether the law is
"demonstrably justified in a free and democratic society".
But I would be reluctant to circumvent the entire
balancing analysis of the s. 1 test by finding that the
words used were so vague as not to constitute a "limit
prescribed by law", unless the provision could truly be
described as failing to offer an intelligible standard.
That is not the case here.
- 16 -
It thus becomes necessary to determine if the limits
imposed by s.13(1) of the Canadian Human Rights Act are
"reasonable" limits in a "free and democratic society".
2. "Reasonable Limit" in a "Free and Democratic Society"
The tests for determining whether an infringement on a
constitutionally guaranteed right or freedom is
reasonable and justified in a free and democratic society
were established in R. v. Oakes, supra, and have been
adhered to ever since. Two requirements must be
satisfied. First, the objective which the limit is designed
to serve must be of sufficient importance to warrant
overriding a constitutionally protected right. Second, if
such an objective is established, the party invoking s.1
must show that the means chosen to attain the objective
are reasonable and demonstrably justified in a free and
democratic society. To conclude that the means chosen
are reasonable and demonstrably justified, the Court
must be satisfied of three things:
1. The measures designed to meet the legislative
objective (in this case s.13(1) of the Canadian Human
Rights Act) must be rationally connected to the
objective;
2. The means used should impair as little as possible
the right or freedom in question; and
3. There must be proportionality between the effect
of the measures which limit the Charter right or
freedom and the legislative objective of the limit on
those rights. This involves balancing the invasion of
rights guaranteed by the Charter against the
objective to which the limitation of those rights is
directed.
- 17 -
(a) The Objective of s. 13(l) of the Act
In Oakes, Dickson C.J. stated that the first consideration
in an analysis under s.1 of the Charter is whether the
objective of the infringing measure is of sufficient
importance to warrant overriding a fundamental
constitutional guarantee. The standard must be high to
ensure that trivial objects do not win s.1 protection ---
indeed, the object which the impugned law is designed to
effect must be of a pressing and substantial nature.
The legislative objective of the Canadian Human Rights
Act is set out within s.2 of the Act. Its purpose is:
... to give effect ... to the principle that every
individual should have an equal opportunity with
other individuals to make for himself or herself the
life that he or she is able and wishes to have,
consistent with his or her duties and obligations as
a member of society, without being hindered in or
prevented from doing so by discriminatory practices
based on race, national or ethnic origin, colour,
religion, age, sex, marital status, family status,
disability or conviction for an offence for which a
pardon has been granted.
Section 13(1) is specifically directed at telephonic
communications which may encourage other discriminatory
practices proscribed by the Act. As the respondent
Canadian Human Rights Commission submits, s.13(1) also has
a special objective -- that of preventing the use of a
federally regulated medium for the promotion of hatred or
contempt against groups protected by the Act. The broad
objective of s.13(1) may be summarized thus: its purpose is
to discourage discrimination against groups traditionally
discriminated against -- discrimination calculated to
result in loss of opportunity, loss of respect, and in
extreme cases, violence against persons who are members
of those groups. More positively, s.13(1)
- 18 -
may be viewed as aimed at enhancing and protecting group
cultural identity and hence furthering the multicultural
heritage in Canada to which the Charter gives express
recognition. It may also be viewed as making a statement
about the kind of society we wish to live in. Section 13(1)
seeks to achieve these broad purposes in the context of
federally regulated telephone services. Viewed globally,
the purposes of s.13(l) may be summed up in the phrase I
used in Keegstra --to promote social harmony and
individual dignity.
For the reasons I set out in Keegstra, I am satisfied that
s.13(1) of the Canadian Human Rights Act addresses
matters of pressing and substantial concern. Its
objectives are of sufficient importance that provided the
means of achieving them are proportionate, they may be
capable of overriding the right to freedom of expression
guaranteed by s.2(b) of the Charter. The real issue to be
determined is whether or not s.13(1) can meet the
proportionality test.
(b) Proportionality
(i) General Considerations
As in Keegstra and Andrews, the real issue in this case is
whether the means chosen to pursue the end of curbing
discrimination are reasonable and proportionate to the
limitation on freedom of expression. At this stage of the
analysis the conflict between the freedom infringed --
freedom of expression -- and the countervailing values
represented by the law -- s.13(l) of the Act -- must be
placed in the factual context of the case. The question is
not whether the cause of curbing group discrimination is
capable of outweighing freedom of
- 19 -
speech; that question has been answered in considering
the seriousness of the objective of the law. The question
is rather whether the particular infringement effected by
s.13(1) of the Act can be justified by the actual benefit
which the legislation is calculated to bestow.
I have concluded that s.13(1) of the Act cannot be upheld by
reference to s.1, as it cannot survive the proportionality
inquiry. While the suppression of hate messages is an
important and desirable objective, in my view s.13(1) does
not achieve that objective in a manner consistent with
the proportionality test in Oakes. The broad and vague
ambit of s.13(1), unconditioned by any limitations of
significance, has as its effect the unnecessary
prohibition of a great deal of defensible speech and
belies any suggestion of a serious effort to accommodate
the important right of freedom of expression.
Notwithstanding the sensitive and appropriate
enforcement procedure established by the Act, the
dimension of the overbreadth of the legislation is such
that the tests established by this Court for the
application of s.1 cannot be met.
The general considerations adverted to in my reasons in
Keegstra are equally relevant in this case. It is
important to keep in mind that what is at issue is not Mr.
Taylor's conduct, but the validity of s.13(1) of the Act
which may have ramifications going far beyond those
raised by the facts of this particular case. It is also
important to bear in mind the peculiar status of freedom
of expression in maintaining our democratic system of
government and all other rights and freedoms. Regard
must also be had to the chilling factor likely to accompany
- 20 -
restrictions on expression; often the effect of such
restrictions extends far beyond those forms of
expression targeted or challenged by legal process.
Finally, in considering the reasonableness of the law, it
is important to consider alternative ways of furthering
its objective.
Against this background, I turn to the specific factors
which must be considered in determining whether the
benefit secured by the law outweighs the gravity of the
infringement of rights which it effects.
(ii) Rational Connection
The first question is whether s.13(1) is, in the words of
Dickson C.J. in R. v. Whyte, [1988] 2 S.C.R. 3, at p.20,
"carefully designed to achieve the objective of the
legislation, with a rational connection to the objective".
In answering this question, it is relevant to consider not
only the links between the legislation and its objective
as Parliament saw them, but whether the practical effects
of the legislation may run counter to the stated
objective: see Keegstra.
Rational connection must be viewed, not only from the
perspective of the intention of the legislators, but from
the perspective of whether in fact the law is likely to
accomplish its objectives. Latitude must be accorded to
the legislators, but where it appears that the law is
unlikely to achieve the ends or indeed, may have a
contrary effect to the objectives by which it is sought to
be justified, it cannot be said to be rationally connected
to those objectives.
- 21 -
Rational connection may also be absent where the
infringement effected by the law goes beyond what can be
justified by the objectives of the legislation. Hence the
insistence of Dickson C.J. that the law be closely tailored
to its objectives. To the extent that the infringement
cannot be justified on the ground that it furthers the
objective, there is no rational connection between the
measure and its object.
Section 13(l) of the Canadian Human Rights Act is said to
fail the rational connection test on the ground that it is
unlikely to have any effect on curbing discrimination and
indeed may have a contrary effect. Thus, the Canadian
Civil Liberties Association argues that the section has
no demonstrable effect on curbing discrimination and
indeed may have the opposite effect by dignifying the
ideas hatemongers put forward.
The case that s.13(l), far from achieving its objectives,
may have a contrary effect, is far less strong than in
Keegstra and Andrews. The use of the human rights
procedures for enforcement and the absence of the
defence of truth may considerably lessen the danger of a
counter-productive effect. And in so far as racial hatred
and discrimination may be stirred up by telephone
messages, the law may have a salutary effect, although
the extent of this effect is made doubtful by the fact
that only those who want to receive the messages will
receive them.
- 22 -
It is the second basis upon which it is contended that
s.13(1) fails the rational connection test -- namely that it
is not closely tailored to its objectives and hence
infringes freedom of speech in unjustified and essentially
irrational ways -- which creates the greatest concern in
this case.
As in Keegstra, a strong case can be made that s.13
catches much expression which presents little threat of
fostering hatred of groups or discrimination, yet may fall
within the traditional justifications for protecting
speech. Indeed, the language of s.13(l) is considerably
broader than that used in s.319(2) of the Criminal Code,
R.S.C. 1985, c. C-46. "Hatred", which appears in both
provisions, covers a range of emotion ranging from active
dislike to enmity and ill-will: Shorter Oxford English
Dictionary (3rd ed. 1987). "Contempt", signifying lack of
respect, is even broader. Moreover, both terms are vague
and subjective, capable of extension should the
interpreter be so inclined. Where does dislike leave off
and hatred or contempt begin? The use of these words in
s.13(l) opens the door to investigations and inquiries for
matters which have more to do with dislike than
discrimination. The phrase does not assist in sending a
clear and precise indication to members of society as to
what the limits of impugned speech are. In short, by using
such vague, emotive terms without definition, the state
necessarily incurs the risk of catching within the ambit
of the regulated area expression falling short of hatred.
The breadth of the section is further widened by the
absence of any requirement of intent or foreseeability of
the actual promotion of hatred or contempt. While this is
consistent with the - 23 -
remedial as opposed to punitive focus of human rights
legislation, it has the effect of extending the section's
application. Any expression "likely to expose" persons to
hatred or contempt on a prohibited head of discrimination
is caught, regardless of whether the expression was
intended or could be foreseen to have this effect. As a
result, s.13(l) may reach speech which is in fact anti-
discriminatory. For example, the Canadian Civil Liberties
Association says that its practice of posing on the
telephone as employers desirous of hiring white-only
employees has helped expose widespread discriminatory
practices in employment, and is the only practical way of
doing so. Such calls might well be caught by s.13(1).
Expression intended to expose discriminatory practices
or demonstrate inequities in the system may equally be
caught by s.13(1). This overbreadth might be more
excusable if
s.13(1) required proof of actual harm or discrimination.
But in the absence of requirements for either intent or
foreseeability of producing such an effect or production
of the effect itself, the section is capable of catching
conduct which clearly goes beyond the scope of its
objects.
The supporters of the legislation respond to the problem
of overbreadth by arguing that in practice, the process
envisaged by the Act removes the danger that it will be
used to catch conduct which is beyond its objectives.
They point out that violation of s.13(1) does not in itself
lead to any penalty. It is merely the starting point in a
process arguably calculated to segregate justifiable
expression from that which is not suitable for
transmission by a public utility and which truly promotes
detrimental hatred and contempt, and to thereafter
effect, hopefully through voluntary means, the cessation
of the offending conduct. The first step in
- 24 -
this human rights process is the Commission's
investigation. The Commission at this stage does not only
investigate; it attempts to conciliate. If the alleged
offender is prepared to make concessions and amend his or
her conduct, this is the end of the matter. On the other
hand, if the alleged offender is adamant in resisting the
law, a board of inquiry can be established to hold a
hearing of the complaint. Given the public nature and the
inconvenience of a hearing, many offenders choose to
amend their conduct voluntarily. The Commission and the
Tribunal function relatively informally and can take into
account the circumstances in which the statement is made
and rule out messages whose content or purpose is in fact
innocent. Even where voluntary compliance cannot be
obtained and the messages are felt to be truly
detrimental to human rights and values with the
consequence that a hearing is held, the tribunal does not
convict, but rather merely makes an order against further
repetition of such messages. Only when a person
deliberately violates such an order can he or she be
convicted of contempt of court and face penal
consequences. Even then, a judge may excuse the
disobedience for good reason, contempt being to some
extent a discretionary matter.
For establishing the necessary balance between promoting
harmony and dignity on the one hand, and safeguarding
freedom of expression on the other, the process of this
Act is exemplary. It is well designed to minimize many of
the undesirable aspects of curbing free expression. This
approach to curbing hate propaganda is far more
appropriate than the all or nothing approach inherent in
criminalization of such expression. Coupled with a more
narrowly-drafted prohibition, it might well withstand
constitutional scrutiny. But the
- 25 -
question at this point is whether the system is capable of
curing the overbreadth of s.13(1). 1 cannot conclude that
it is. In my view, it is no answer to the absence of
rational connection between the broad sweep of
legislation and its objectives, to say that in practice,
Commissioners and members of tribunals may choose not to
enforce the overbroad aspects of a provision. Rights and
freedoms guaranteed by the Charter cannot be left to the
administrative discretion of those employed by or
retained by the state. This is not a case where
constitutional problems are raised only if one presumes
that administrative officials will exercise their
discretion in a manner contrary to the Charter. Rather,
the power to infringe the Charter is delegated explicitly
or by necessary implication by the provision, and so it
must stand or fall on its own terms: see Lamer J. in
Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R.
1038, at p.1078.
Moreover, the chilling effect of leaving overbroad
provisions "on the books" cannot be ignored. While the
chilling effect of human rights legislation is likely to be
less significant than that of a criminal prohibition, the
vagueness of the law means it may well deter more conduct
than can legitimately be targeted, given its objectives.
In the end result, I cannot avoid the conclusion s.13(l) is
capable of catching a broad range of expression beyond
that which can be justifiably limited in pursuit of the
objectives of preventing discrimination and maintaining
social harmony and individual dignity. To the extent it
catches such expression, it is not carefully tailored to
its aims and lacks a rational connection with its
objectives.
- 26 -
(iii) Minimum Impairment
The question at the second stage of the proportionality
inquiry is whether s.13(1) impairs the right of freedom of
speech as little as possible. In considering this question,
some degree of deference must be paid to Parliament. The
fact that the Court might be able to conceive a way the
legislative goal could be accomplished with less intrusion
on the right is not necessarily fatal, provided the
legislative scheme, viewed as a whole, constitutes a
measured and proportionate impairment on the right. The
question must be whether the impairment is objectively
reasonable given the objectives of the legislation,
whether, to borrow the language of R. v. Edwards Books and
Art Ltd., [1986] 2 S.C.R. 713, a "serious effort" has been
made to accommodate the right infringed "without undue
damage to the scope and quality of the pause day
objective" (p.783).
As stated in Edwards Books, it would not be appropriate
for this Court to conclude that the degree of impairment
of a right is not "minimum" merely because it can conceive
of an alternative way of legislating which seems to
achieve the end desired with less impairment. On the other
hand, where the measure seriously overreaches and
unjustifiably infringes the right or freedom in question,
the Court has no choice but to find the test not met.
I conclude that s.13(1) does infringe freedom of speech
seriously and ultimately unjustifiably.
The considerations relating to overbreadth discussed in
the context of whether there exists a rational connection
between s.13(l) of the Act and its objectives are relevant
here. Much
- 27 -
expression may be caught which is unrelated to the aims
of the section. This is exacerbated by the potential
chilling effect on expression of the vague and emotive
terms of the prohibition.
There may be good reasons to defer to legislative
judgment on the appropriate balance between furthering
equality and safeguarding free expression, particularly
in the context of a human rights statute. The problem
here, however, is that no serious attempt to strike such
a balance appears to have been made. The Act does not,
as other human rights Codes do, admonish the tribunal to
have regard to the speaker's freedom of expression in
applying the provision. Nor does it contain even one of
the various defences or exceptions included in s.319(3) of
the Criminal Code, and thought to be so significant in
striking the balance by the Cohen Committee: Report of
the Special Committee on Hate Propaganda in Canada,
(1966), at pp.65-66. Rather, it simply applies to all
expression "likely to expose a person or persons to
hatred or contempt".
More specifically, one factor which increases the
seriousness of the infringement on freedom of expression
is the absence of the defence of truth. In defence of this
omission, it can be argued that discrimination can be
fostered even by true statements (e.g., handicapped
people may encounter more difficulties on the job-site
than persons without physical handicaps), and that making
truth a defence merely provides a platform for hate-
mongers to expound on their ideas. For these reasons, I
would not wish to be taken as suggesting that a human
rights prohibition on hate promotion which did not allow
for the defence of truth, but was
- 28 -
otherwise unobjectionable, could not survive
constitutional scrutiny. At the same time, the value of
seeking truth is one of the strongest justifications for
freedom of expression. It is essential to the
"marketplace of ideas" which is a condition of a free,
vibrant society. It is equally central to the rationales of
the working of democracy and self-fulfillment that
underlie freedom of expression. Individuals in a free
society assume that, whatever restriction it may be
necessary to place on free speech, they will always have
the right to say what is true. That right cannot lightly
be restricted. Thus, the exclusion of the defence of
truth from s.13(1) cannot but seriously increase the
degree of infringement of freedom of expression which the
provision effects.
Another aspect of the overreaching nature of s.13(1) is
the fact that it allows the Commission to interfere with
the strictly private communication of ideas. In this
respect s.13(1) again goes further than s.319(2) of the
Criminal Code. The benefit obtained from prohibiting
private conversations between consenting individuals is
arguably small, since only those who are already
receptive to such messages are likely to be interested in
receiving them. On the other hand, the invasion of privacy
may be significant. Without suggesting that prohibition
of offensive telephone calls could never be justified, the
fact that private communications are banned cannot but
enhance the significance of the infringement of the rights
of the individual effected by s.13(1) of the Act.
On the other side of the question, those supporting s.13(1)
point out that it is limited in that it applies to telephone
communications only. This, however, does not explain why
a less
- 29 -
incursive provision, such as a prohibition against
counselling discriminatory practices by telephone, might
not suffice equally well. Moreover, the importance of the
telephone as a medium of communication should not be
underestimated. The telephone is perhaps the least
expensive mode by which less advantaged groups or
individuals can communicate their ideas and beliefs.
Native groups, religious minorities and others who
identify themselves by their colour, religion, or ethnic
origin may find themselves inhibited by overbroad
prohibitions on telephonic communication from using the
telephone to express legitimate grievances against the
perceived inequities imposed by the majority culture. If
the aim of the Charter is to secure to all persons,
regardless of economic means, a justifiable measure of
free expression, then particular care should be taken in
drafting legislation suppressing telephonic
communication.
In conclusion, I am satisfied that s.13(1) intrudes on the
fundamental freedom of expression in ways that cannot,
even with the greatest deference to Parliament, be
justified by the objectives it seeks to promote. The
effort made to accommodate the right of free expression
is insufficient. Section 13(1) catches speech which is
neither intended nor calculated to foster discrimination.
It catches speech which may be entirely accurate and
truthful; speech which merely seeks to air legitimate
group grievances; speech which merely exposes to
ridicule; speech which merely communicates the
information by telephone to a single person who has the
power to hang up the phone if he or she does not like the
message; private speech between consenting participants.
In short, s.13(1) seriously overshoots the mark,
- 30 -
going beyond what can be defended as a reasonable limit
on free speech justified by the need to combat
discrimination against members of particular groups.
(iv) Importance of the Right Versus
Benefit Conferred
I turn finally to the question of whether the deleterious
effects of the infringement of freedom of expression
represented by s.13 outweigh the benefits to be derived
from it. Applying the contextual approach set out by
Wilson J. in Edmonton Journal v. Alberta (Attorney
General), [1989] 2 S.C.R. 1326, the nature and degree of the
impairment must be balanced against the evils it is
calculated to remedy.
The significance of the infringement of the right at issue
in this case is most serious. The limitation touches
expression which may be relevant to social and political
issues. Free expression on such matters has long been
regarded as fundamental to the working of a free
democracy and to the maintenance and preservation of our
most fundamental freedoms. The right to express oneself
freely on such matters is not lightly to be trammelled; a
limitation on such expression must be proportionate to
the evil and sensitive to the need to preserve as much
freedom of expression as may be compatible with
suppressing that evil.
On the other side of the balance, it is not clear that the
measure, broad as it is, is calculated to significantly
diminish the evils of group discrimination. The goals of
elimination of discrimination or promotion of social
harmony may conceivably be advanced by suppression of
some of the expression caught by s.13(1), although this is
not beyond conjecture. At the same
- 31 -
time, much of the expression caught by s.13(1) may bear no
relation to these goals. In these circumstances, it is
difficult to argue that the cost of the legislation in
terms of infringement of the right to free expression is
justified by the benefit it confers.
I conclude that the benefits to be secured by s.13(1) of the
Canadian Human Rights Act fall short of outweighing the
seriousness of the infringement which the section effects
on freedom of expression.
(v) Conclusion on the s.1 Analysis
Has the Crown established that the limit on freedom of
expression effected by s.13(1) of the Canadian Human
Rights Act is reasonable and justifiable in a free and
democratic society? I think not.
A free and democratic society places a high value on the
right of free expression. Indeed, without free expression
a free and democratic society cannot function, nor can
the rights upon which that society is premised be long
maintained. All such societies recognize that freedom of
expression is not absolute. But they also recognize that
where the expression in question goes to political and
social issues, limitations must be proportionate to the
harm which may flow from abusive expression and sensitive
to the need not to trammel free expression more than is
reasonably necessary.
- 32 -
There can be no doubt that the prevention of
discrimination and the maintenance of social harmony and
individual dignity are of the utmost importance in our
multicultural society. Expression which threatens these
values can properly be limited by Parliament and the
legislatures. But the limit must be effected in a
reasonable manner, proportionate to the evil and
sensitive to the fundamental right of free expression. It
is the breadth of the prohibition which creates the
difficulty in this case. On all three criteria for
proportionality laid down in Oakes, s.13(l) of the Act
emerges wanting.
IV. Conclusion on the Charter Issues
I conclude that s.13(1) of the Canadian Human Rights Act
infringes s.2(b) of the Charter, and that the Crown has not
discharged the burden on it of showing that the measure
is reasonable and demonstrably justified in a free and
democratic society. The section is too broad and too
invasive; it overreaches its objectives and ultimately
cannot be justified by them.
V. Bias
The appellants, relying on the Federal Court of Appeal
decision in MacBain v. Lederman, [1985] 1 F.C. 856, argue
that the findings of the Human Rights Tribunal were flawed
because of an apprehension of bias. Pursuant to the
scheme of the Act the Commission investigated, found that
there was sufficient basis for proceeding, and prosecuted
the complaint. The same Commission appointed the members
of the Tribunal, which heard and - 33 -
decided the case. The appellants argue that this gives
rise to an apprehension of bias, and as such they were not
afforded a fair hearing in accordance with principles of
fundamental justice.
In MacBain the same appointment procedure as that in
question in the present case was challenged. The Federal
Court of Appeal found that there was a reasonable
apprehension of bias because there was a direct
connection between the prosecutor of the case, the
Canadian Human Rights Commission, and the decision-maker.
That connection gave rise to a suspicion of influence or
dependency. The court thus concluded that the applicant
was not afforded a fair hearing in accordance with
principles of fundamental justice, as guaranteed by s.2(e)
of the Canadian Bill of Rights.
The Canadian Human Rights Commission argues that MacBain
was wrongly decided. They also argue that if the validity
of the Tribunal's order is questionable due to an
apprehension of bias, such defect merely makes the
Federal Court order voidable and does not affect the
contempt proceedings. The appropriate course would be
for the appellants to move to have the order set aside.
Because the facts in the present case render the MacBain
decision clearly distinguishable, it is not necessary for
me to decide the validity of the principles set forth in
MacBain. In MacBain, the issue of bias was raised at the
outset of the process, as MacBain alleged bias even
before the first meeting of the tribunal. Conversely, the
appellants in this case raised
- 34 -
the issue of bias several years after the initial hearing.
By not raising the issue at the outset and by proceeding
with the Tribunal hearings and contempt hearings without
raising the issue, the appellant must be deemed to have
waived any right to raise an issue of bias now.
I would adopt the reasons of MacGuigan J. in Re Human
Right Tribunal and Atomic Energy of Canada Ltd., [1986] 1
F.C. 103 (C.A.). There, as here, the applicant failed to raise
the allegation of bias at the commencement of the
proceedings. MacGuigan J., distinguishing MacBain, held,
at p.113, that the principle in MacBain was limited to
situations where the applicants raise allegations of bias
at the outset of the proceedings:
...AECL's whole course of conduct before the
Tribunal constituted an implied waiver of any
assertion of a reasonable apprehension of
bias on the part of the Tribunal. The only
reasonable course of conduct for a party
reasonably apprehensive of bias would be to
allege a violation of natural justice at the
earliest practicable opportunity. Here, AECL
called witnesses, cross-examined the
witnesses called by the Commission, made many
submissions to the Tribunal, and took
proceedings before both the Trial Division and
this Court, all without challenge to the
independence of the Commission. In short, it ...
impliedly ... waived its right to object.
In the case at bar, no evidence was presented to prove
that the bias issue was raised at any time prior to
argument before the Federal Court of Appeal. There may
be circumstances in which failure to raise bias from the
outset does not amount to implied waiver (for example,
where, as here, the party was unrepresented at the
initial hearing). However, it is not necessary for the
purpose of this case to delineate a precise time at which
bias must be raised because I am satisfied on the facts of
this case that the appellants did not raise the allegation
at the "earliest practicable opportunity". I conclude that,
like the applicant in Re Human - 35 -
Rights Tribunal, the appellants must be deemed to have
impliedly waived any right to allege bias.
VI. The Orders
Having found s.13(1) to be invalid, it is not necessary to
consider whether the Tribunal's order itself offended
s.2(b) of the Charter by its overbreadth. This leaves for
consideration the question of the effect of the
unconstitutionality of s.13(1) of the Canadian Human Rights
Act on the contempt proceedings in the Federal Court.
We were presented with no authority for the proposition
that the unconstitutionality of a law upon which a court
order is based excuses a refusal to obey the order. Such
a proposition appears not to have been advanced in
Canada prior to this appeal. In the United States, where
it has been advanced, it has been rejected. It has there
been held that an individual can defend an established
violation of an order only by showing (1) that the court
was without in personam or subject-matter jurisdiction
to issue the injunction, or (2) that the injunction was not
only an unconstitutional prior restraint, but that its
challengers had sought judicial review before disobeying
it "and had been met with delay or frustration of their
constitutional claims", threatening the timely exercise of
First Amendment claims, or (3) that the order was
"transparently invalid": Walker v. City of Birmingham, 388
U.S. 307 (1967). Without suggesting that Canadian law
should go as far as American law in recognizing defences
to breaches of court orders, it may be observed that none
of the conditions alluded to in Walker are met in the case
at bar.
- 36 -
Pre-Charter Canadian and common law authority also
supports the proposition that even an invalid court order
must be followed until it is set aside by legal process.
The position at common law has been summarized as
follows:
It is well established that a contempt application is
not answered by the assertion that the injunction was
erroneously granted or even that it was void. The
proper course is to move against the injunction or to
appeal and the court will not permit the original order
to be attacked collaterally in contempt proceedings.
Again, however, courts have considered the wisdom or
validity of the initial decree in determining the
appropriate sanction.
See R. J. Sharpe, Injunctions and Specific Performance
(1983), at p.259, and cases cited therein.
On the other hand, it may be argued that imprisonment for
disobedience of an order founded on a constitutionally
invalid section should not occur in the normal course. On
this view, a review of the contempt citation can be sought
at the same time as the order is challenged, on the basis
that while the order is technically valid until set aside,
it would be unjust to maintain a conviction for contempt
where the conduct consists in exercising one s
constitutional rights as enunciated by the courts. During
the interval while the constitutionality of the statute is
under review, it would be appropriate to request that
service of the sentence be deferred on terms, as is often
done where criminal convictions are under appeal.
In my opinion, the 1979 order of the Tribunal, entered in
the judgment and order book of the Federal Court in this
case, continues to stand unaffected by the Charter
violation until set aside. This result is as it should be.
If people are free to ignore court orders because they
- 37 -
believe that their foundation is unconstitutional,
anarchy cannot be far behind. The citizens' safeguard is
in seeking to have illegal orders set aside through the
legal process, not in disobeying them.
In this case, the appellants ask both that the order be
quashed as an unreasonable restraint on the appellants'
freedom of expression, and that their convictions and
sentences for violating the order be set aside. In my
opinion, while this Court has the power to accede to these
applications under s.24(1) of the Charter, which permits it
to fashion appropriate remedies for constitutional
violations, the two requests must be treated
independently.
Having found that the statutory provision on which the
Tribunal's order was based is invalid, it follows that the
order cannot continue to stand. I would therefore accede
to the appellants' request that the Tribunal's order be
quashed. However, the effective date of the quashing of
the order must be the date that this judgment is issued.
For the purposes of the contempt proceedings, it must be
considered to be valid until set aside by legal process.
Thus, the ultimate invalidity of the order is no defence to
the contempt citation.
The upholding of the conviction in this case must,
however, be distinguished from a situation such as in R. v.
Garofoli, S.C.C., No. 21099, November 20, 1990, where
evidence is held to have been unlawfully obtained
notwithstanding that it was secured pursuant to an
authorization that has not been set aside. The
commission of the offence of contempt does not depend on
the validity of the underlying law but on the existence of
a court order made - 38 -
by a court having jurisdiction. I would therefore affirm
the appellants' convictions. That leaves only the
sentences to consider. in the Federal Court, Trial
Division, Jerome A.C.J. originally imposed sanctions of
one year's imprisonment for the appellant, John Ross
Taylor, and a fine of $5,000 for the appellant, The
Western Guard Party. Applying the principle identified by
Sharpe, op. cit., that the wisdom or validity of the initial
decree is a relevant consideration in determining the
appropriate sanction, I would vary the judgment below, and
reduce the appellant John Ross Taylor's sentence to
three months' imprisonment.
Conclusion
I conclude that s.13(1) of the Canadian Human Rights Act
violates the Charter and must fall under s.52 of the
Constitution Act, 1982. I would therefore allow the appeal
in part.
I would quash the order made against the appellants by
the Human Rights Tribunal on July 20, 1979 and entered
into the judgment and order book of the Federal Court,
Trial Division, as of August 23, 1979, but affirm the
convictions registered against the appellants in the
order of the Federal Court, Trial Division, of August 15,
1984. However, I would vary the sentence imposed on the
appellant, John Ross Taylor, by reducing it to three
months' imprisonment. As success in this appeal has been
mixed, 1 would make no order as to costs.
I would answer the constitutional questions raised as
follows:
- 39 -
1. Is s. 13(1) of the Canadian Human Rights Act, S.C. 1976-
77, c.33, as amended, consistent with the freedom of
thought, belief, opinion and expression guaranteed by
s.2(b) of the Canadian Charter of Rights and Freedoms?
Answer: No.
2. If s.13(1) of the Canadian Human Rights Act, S.C. 1976-
77, c.33, as amended, is inconsistent with the freedom
of thought, belief, opinion and expression guaranteed
by s.2(b) of the Canadian Charter of Rights and
Freedoms, is it a reasonable limit on that freedom
within the meaning of s.1 of the Charter?
Answer: No.
3. Are the order of the Human Rights Tribunal of July
20, 1979, and the orders of the Federal Court, Trial
Division of January 24 and August 15, 1984, subject
to challenge under s.2(b) of the Canadian Charter of
Rights and Freedoms, and, if so, are they consistent
with the freedom of thought, belief, opinion and
expression as guaranteed by s.2(b)?
Answer: It is not necessary to address this issue.
4. If the order of the Human Rights Tribunal of July 20,
1979 and the orders of the Federal Court, Trial
Division of January 24 and August 15, 1984, are
subject to challenge under s.2(b) of the Canadian
Charter of Rights and Freedoms and are inconsistent
with the freedom of thought, belief, opinion and
expression as guaranteed by s.2(b), do they
constitute a reasonable limit on that freedom within
the meaning of s.1 of the Charter?
Answer: It is not necessary to address this issue.
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