Canada (Human Rights Comm.) v. Taylor (1990), 13 C.H.R.R. D/435 (S.C.C.) [Eng./Fr. 53 pp.] Communication of Hate Messages by Telephone Prohibited - Canadian Human Rights Act, which prohibits the communication of hate messages by telephone, does not violate the Canadian Charter

Keywords: HATE PROPAGANDA - exposure to hatred on the basis of race or religion - COMMUNICATIONS - telephonic transmission of hate message - CANADIAN CHARTER OF RIGHTS AND FREEDOMS - s. 2(b) (freedom of expression) - s. 1 (reasonable limits) on freedom of expression - FREEDOM OF EXPRESSION - freedom of speech and communication of hate message

BOARDS OF INQUIRY / TRIBUNALS - HUMAN RIGHTS COMMISSIONS - appointment process and independence of Board members - bias - CANADIAN BILL OF RIGHTS - application of s. 2(e) (right to a fair hearing) - JURISDICTION - waiver of right to challenge jurisdiction

Summary: In a split 4-3 decision, the Supreme Court of Canada rules that s. 13(1) of the Canadian Human Rights Act, which prohibits the communication of hate messages by telephone, does not violate the Canadian Charter of Rights and Freedoms.

Section 13(1) of the Canadian Human Rights Act prohibits the communication of messages by telephone which are likely to expose a group to hatred or contempt because of, inter alia, their race or religion. In 1979 complaints were filed with the Canadian Human Rights Commission alleging that John Ross Taylor and the Western Guard Party were repeatedly communicating messages by telephone which were likely to expose Jewish people to hatred and contempt. Taylor and the Western Guard Party produced recorded messages which played to those who called a number listed under "White Power Message" in the Toronto telephone book.

Taylor and the Western Guard Party were finds to have contravened s. 13(1) of the Act, and a Canadian Human Rights Tribunal issued a cease and desist order. When Taylor and the Western Guard Party continued to communicate hate messages by telephone, the Canadian Human Rights Commission filed its order in Federal Court. Taylor and the Western Guard Party were subsequently finds guilty of contempt of court because they failed to obey the order. Taylor was sentenced to one year's imprisonment and the Western Guard Party was fined $5,000.

In 1983, the Canadian Human Rights Commission filed a new application in Federal Court alleging that Taylor and the Western Guard Party were still communicating hate messages and were again in contempt of the cease and desist order.

This is an appeal by Taylor and the Western Guard Party against the Canadian Human Rights Commission's action to have the Tribunal order enforced for a second time. The appellants argue that s. 13(1) of the Canadian Human Rights Act is now of no force and effect because it violates s. 2(b), the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms. The Federal Court Trial Division, and the Federal Court of Appeal rejected this claim. In the Supreme Court of Canada this case was heard with R. v. Keegstra and R. v. Andrews which challenged the hate propaganda provisions of the Criminal Code.

The issues in this appeal are: 1) whether s. 13(1) of the Canadian Human Rights Act and the Tribunal's cease and desist order violate the Charter and 2) whether the Tribunal's order is invalid because of bias.

For the majority, Dickson C.J. (as he then was) (Wilson, L'Heureux-Dubé. and Gonthier JJ. concurring) finds that s. 13(1) violates the s. 2(b) guarantee of freedom of expression. The hate messages communicated by Taylor and the Western Guard Party constitute "expression" and s. 2(b) protects expression no matter what the content, as long as it is not communicated in violent forms.

However, the majority finds s. 13(1) is a justifiable limit on freedom of expression within the meaning of s. 1 of the Charter. Hate propaganda undermines the dignity and self-worth of minority racial and religious groups and erodes the tolerance and open-mindedness which are essential in a multicultural society. The purpose of s. 13(1) is to promote equality and to prevent the harm which hate propaganda causes to targeted groups. This is a pressing and substantial concern. It is of heightened importance because it is supported by other sections of the Charter, namely ss. 15 and 27, and by international human rights instruments to which Canada is signatory.

Having determined that the objective of s. 13(1) is of sufficient importance to warrant overriding a fundamental freedom, the majority considered whether the means are proportionate. To meet the Oakes test of proportionality, the state must show that 1) there is a rational connection between the impugned measure and the objective; 2) the measure impairs the Charter right as little as possible; and 3) the effects of the measure are not so severe as to represent an unacceptable abridgment of the right.

The majority finds that hate propaganda produces effects that are deleterious to the objective of equality of opportunity. Thus, there is clearly a rational connection between the restriction on communicating hate messages and the objective of promoting equality for racial and religious minorities. The majority rejects the argument that there is no rational connection because s. 13(1) does not, in fact, reduce hate propaganda. In combating discrimination, legislative efforts to suppress hate propaganda are not the only means available but they are considered an important weapon against intolerance by the international community.

Considering whether s. 13(1) impairs the right to freedom of expression as little as possible, the majority rejects a number of arguments advanced by the appellants and the intervener, the Canadian Civil Liberties Association. The Canadian Civil Liberties Association argued that the right is not impaired as little as possible because the words "hatred" and "contempt" are inherently vague and do not precisely define the scope of the discriminatory practices. Because of this, expression which does not contribute to discrimination may be caught. However, the majority finds that these terms are sufficiently precise, when read in light of the objects of the Act, to prevent unacceptable chilling of expressive activity.

The majority also rejects the argument that the absence of a requirement to show that there was an intent to expose a group to hatred makes it a serious and unnecessary impairment of the right to freedom of expression. The Canadian Civil Liberties Association argued that individuals who are oblivious of the consequences of their communications, or who intend to reduce discrimination, may be caught by s. 13(1) because it is only effects which need be considered. In answer, the majority rules that the important objective of s. 13(1) can only be achieved by ignoring intent and therefore the minimal impairment requirement of the Oakes test is satisfied.

In addition, the majority rejects the argument that s. 13(1) does not impair the right as little as possible because it interferes with telephone communication which is generally considered private. The majority of the Court finds that telephonic communication is a particularly effective means of conveying hate messages since the message is subject to no counter-argument in that particular communications context. Also, the Court finds that it is repeated communication of hate messages which is prohibited.

The majority concludes that the effect of s. 13(1) on the right to freedom of expression is not needlessly severe. The chill placed upon expression by a human rights statute is not the same as that caused by criminal law. A criminal conviction carries a degree of stigma and punishment, whereas the emphasis of human rights laws is on protection of the victim.

The year of imprisonment imposed on John Ross Taylor was not the result of the order of the Tribunal, but the result of the Federal Court's ruling that Taylor was in contempt of court when he ignored the order and continued to communicate hate messages. A cease and desist order which must necessarily precede a contempt order brings to the attention of the person the fact that his messages are likely to have a harmful effect. Continuing such messages, after such a ruling, cannot be said to occur without intent regarding the effect of the message.

The majority concludes that s. 13(1) is a reasonable limit on the right to freedom of expression within the meaning of s. 1.

The majority also rejects the appellants' argument that the cease and desist order violated the right to freedom of expression because it was too vague to allow the appellants to determine what expressive activity was prohibited. The order was a part of a lengthy decision which allowed for no doubt as to the subject matter which Taylor and the Western Guard Party were enjoined from communicating.

Finally, the appellants argue that the Tribunal was biased because it was appointed by the Canadian Human Rights Commission which investigated the complaints. This position relied on the 1985 decision of the Federal Court of Appeal in MacBain v. Canada (Human Rights Comm.) which decided that ss. 39(1) and 39(5) of the Canadian Human Rights Act were of no effect to the extent that they allowed the Commission to appoint the tribunal before which it appeared as the prosecuting party. In the present case, the issue of bias was not raised by the appellants until 1987, about eight years after the Tribunal's decision was released. The majority agreed with the reasoning of the Federal Court of Appeal on this question. The Federal Court of Appeal finds that since the appellants had made no effort to raise allegations of a reasonable apprehension of bias over a period of years, their inaction constituted a waiver.

Section 13(1) and the order of the Tribunal are upheld. The appeal is dismissed.

Writing for the minority, McLachlin J. (Sopinka and La Forest JJ. concurring) finds that s. 13(1) violates s. 2(b) for reasons similar to those given by the majority of the Court.

However, the minority concludes that s. 13(1) is not a reasonable limit on freedom of expression within the meaning of s. 1. McLachlin J. agrees that the objective of s. 13(1) is a substantial and pressing concern: to discourage discrimination against groups traditionally discriminated against.

But the minority takes issue with the means used by s. 13(1) to pursue this objective. Section 13(1) is broad and vague, the minority finds. It prohibits a great deal of defensible speech without accommodating the important right to freedom of expression.

To establish whether there is a rational connection between a law and its purpose the minority considers not just the intention of the legislators but whether the law is likely to achieve its ends, and whether it may have an effect contrary to its objective. Rational connection may also be absent when the law goes beyond what can be justified by its objects. The minority concludes that s. 13(1) fails the rational connection test because it is not closely tailored to its objectives and because it infringes freedom of speech in unjustified and essentially irrational ways.

The terms "hatred" and "contempt" are vague and subjective; they will catch much expression which presents little threat of fostering discrimination against protected groups. Also, the breadth of the section is widened by the absence of any requirement of intent. While the absence of a requirement to show intent is consistent with human rights laws, it has the effect of extending the section's application. In addition, no proof of harmful effect is required. This means, the minority finds, that the section is capable of catching expression which clearly goes beyond the scope of its objects. It is no answer to the absence of rational connection to say that, in practice, Commissions and members of Tribunals may choose not to enforce the overbroad aspects of s. 13(1).

In addition to finding a lack of rational connection between the measure and its objects, the minority also concludes that s. 13(1) does not impair the right to freedom of expression as little as possible. It interferes with strictly private communication of ideas. Also no defence of truth is provided and therefore true statements can be prohibited by s. 13(1).

In conclusion, the minority of the Court finds that s. 13(1) intrudes on the fundamental freedom of expression in ways that cannot be justified by the objectives it seeks to promote. It catches speech which is neither intended nor calculated to foster discrimination, which may be accurate and truthful, and which merely communicates information by telephone to a single person. In short, s. 13(1) seriously overshoots the mark.

The minority agrees with the conclusion of the majority with regard to the issue of bias.

The minority would strike down s. 13(1) of the Canadian Human Rights Act. They would quash the order of the Tribunal, but affirm the convictions registered against the appellants in 1984 for contempt. They would vary the sentence imposed on John Ross Taylor by reducing it to three months' imprisonment.

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