On the eve of change? Addressing hate speech in the Internet age at the Federal Court

On January 22, 2010 the Canadian Human Rights Commission (“CHRC”) filed a memorandum (PDF link) with the Federal Court, appealing the decision of the Canadian Human Rights Tribunal (“CHRT”) in Warman v. Lemire, 2009 CHRT 26 (PDF link). The CHRT determined that the hate speech provisions of the Canadian Human Rights Act, R.S.C. 1985, H-6 (“CHRA”) were unconstitutional.  The memorandum claims then-Tribunal chairman Athanasios D. Hadjis erred in law when he determined that s. 13 of the CHRA violated s. 2(b) of the Canadian Charter of Rights and Freedoms – the guarantee of freedom of expression.  Undoubtedly, the appeal will encourage widespread debate on this volatile political issue.

Background

The CHRC, a quasi-judicial body drawing its power from the CHRA, is charged with the duty to promote, advocate and educate society with respect to human rights issues.  Section 13(1) of the CHRA states:

It is a discriminatory practice … 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 … any matter that is likely to expose a person or persons to hatred or contempt … on the basis of a prohibited ground of discrimination.

Further, ss. (2) of the CHRA states that hate speech which uses the Internet as the medium of communication also falls under s. 13.

The legislation came under fire when derogatory comments were made by third party users against homosexuals and blacks on FreedomSite.org, a website administered by Marc Lemire.  In 2003, activist Ottawa lawyer Richard Warman filed a complaint with the CHRC, alleging that postings pn Lemire’s website were capable of inciting hatred or contempt against the aforementioned minority groups and violated s. 13.

The Controversial Earlier Decision

In Warman v. Lemire, 2009 CHRT 26, the Tribunal determined that s. 13(1) was an unconstitutional infringement of s. 2(b). Lemire filed a motion requesting that ss. 13, 54(1) and 54(1.1) be declared unconstitutional, citing that the impugned provisions violated his s. 2(b) Charter guarantee of freedom of expression.  Section 54 outlines the punitive remedies available for a breach of s. 13. Chairman Hadjis addressed the s. 2(b) Charter claim extensively, and it was his decision in Warman that forms the basis for the appeal to the Federal Court.

The SCC had previously grappled with the issue of s. 13 in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892.  The majority decision, delivered by Dickson C.J.C., upheld the constitutionality of s. 13. He found that the infringement was justified. Chairman Hadjis held that circumstances had evolved since the Taylor decision and it was therefore necessary to revisit in the issue, especially in light of the 1998 amendment to the CHRA which added a remedial section.

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

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

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

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

Chairman Hadjis saw this amendment as fundamentally altering the statute from one remedial in nature to a punitive law.  As a result, Chairman Hadjis felt the minimal impairment requirement of the Oakes Test (established in R v. Oakes, [1986] 1 S.C.R. 103) no longer applied, and the impugned provisions could no longer be saved, thus rendering  s. 13 unconstitutional. For The Court’s in-depth analysis on the earlier decision, please refer to Warman v. Lemire: The Constitutionality of Hate Speech Legislation.

The Federal Court Appeal: The Two Positions

The CHRC’s severance approach

Both parties filed documentation outlining the arguments that will be made on appeal.  The CHRC’s memorandum first argues that the manner in which the CHRC pursues hate speech is unrelated and irrelevant to the constitutionality of the impugned hate speech law under s. 13.  This position stems from the fact that the Tribunal notably emphasized both: (a) the fact that the offensive material was removed by Lemire, and (b) that the CHRC and Warman jointly rebuffed efforts at conciliation and instead, pushed the case towards a tribunal hearing.  Implicitly, the CHRC suggests Chairman Hadjis’ views on alternative dispute resolution should not have been factored into his analysis of the law surrounding hate speech.  Secondly, the CHRC maintains that severance of the penalty provisions was the appropriate course of action with respect to s. 54 of the CHRA.

Finally, the CHRC submits that only the penalty provisions included in s. 54 be struck out.  At para. 33, the CHRC makes the argument that ss.  54(1)(a) and 53(2)(a) must be left intact, thereby providing the ability to apply a “cease and desist” order to hate speech.  Furthermore, at para. 34, the CHRC also suggests the Federal Court uphold s. 54 (1)(b), which allows for financial compensation for victims.

Mr. Lemire focuses on policy considerations

Lemire, in his memorandum (PDF link), believes that s. 13 is “outdated” in light of the advances made in Internet communications. Specifically, Lemire states that the purpose of s. 13 is irreconcilable with the current reality of expressive content.  As Dickson C.J.C. wrote in the majority decision in Taylor, telephone expression (which was the issue in that case) is particularly troublesome in the context of discriminatory statements as the method 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.

According to Lemire, the Internet is distinguishable from the telephone in that the Internet allows for instantaneous response and subsequent discussion to offensive public material.  Unlike Taylor, which involved the use of automated phone messages, Lemire argues that his website does not restrict discussion or the ability to respond.

What Will The Outcome Be?

Predicting the outcome of the appeal rests on a multitude of factors, as it is utterly impossible to ascertain which submission the Federal Court will find more convincing.  As for my opinion, I find  Lemire’s submissions stronger, particularly as a result of his purposive approach to the issue at hand.

The purpose of s. 13 is well stated in a legislative summary of Bill S-5 (which added the punitive amendments in 1998).

The government believes that stronger measures are needed to deter individuals and organisations from establishing hate lines. It hopes to accomplish this by allowing victims of such lines to apply for compensation and subjecting offenders to financial penalty.

If a purposive approach is adopted, then it follows that establishing penalties is fundamentally tied to the method by which the government is attempting to quell hate speech.  As such, it is logical to classify the punitive provisions as the “pith and substance” of the impugned provision.  Therefore, severing the punitive provision in s. 54(1), as the CHRC would have done, would have the effect of nullifying the objective of the entire hate speech section. More importantly, the appeal will re-visit the importance Canadian society puts on the inviolable right to freedom of speech.  As written by McLachlin C.J.C. in Grant v. Torstar Corp., 2009 SCC 61

Freedom of expression and respect for vigorous debate on matters of public interest have long been seen as fundamental to Canadian democracy. Many years before the Charter this Court, in the Reference re Alberta Statutes, [1938] S.C.R. 100, per Duff C.J., suggested that the Canadian Constitution contained an implied right of free expression on political matters.

Canadian jurisprudence has consistently emphasized the importance of freedom of expression, however offensive.  However, that does not mean there are no limits to freedom of expression.  Section 319(2) of the Criminal Code provides a punitive sentence of imprisonment for the willful promotion of hatred against an identifiable group.

In my opinion, the scope of s. 319(2) captures hate speech which is actually dangerous to society as a whole.  Section 319(2) does what it was intended to do – prohibit extreme forms of hate propaganda.

Section 13 of the CHRA is a grey area that does not clearly distinguish constitutional free speech and harmful hate speech.  The Federal Court could take this opportunity to clarify the state of the law on hate speech as it currently stands.