McAleer v. Canada (Human Rights Comm.) (1996), 26 C.H.R.R. D/280 (F.C.T.D.) [Eng./Fr. 15 pp.]: exposure to hatred on the basis of sexual orientation - Tribunal decision upheld in hate messages case

Keywords: HATE PROPAGANDA - exposure to hatred on the basis of sexual orientation - COMMUNICATIONS - telephonic transmission of hate message - SEXUAL ORIENTATION - sexual orientation as ground of discrimination in human rights legislation - definition of sexual orientation - DISCRIMINATION - protection based on non-enumerated grounds of discrimination

CANADIAN CHARTER OF RIGHTS AND FREEDOMS - s. 1 (reasonable limits) and application of Oakes test - s. 2(a) (freedom of conscience and religion) - s. 2(b) (freedom of expression) - s. 7 (security of the person) - CONSTITUTIONAL LAW - constitutional validity of human rights legislation - FREEDOM OF EXPRESSION - freedom of speech and communication of hate messages - JURISDICTION - federal/provincial jurisdiction over telecommunications services

Summary: This is an application for judicial review of a decision of a Canadian Human Rights Tribunal which finds that Tony McAleer and Canadian Liberty Net (CLN) violated s. 13(1) of the Canadian Human Rights Act by transmitting telephonically messages which exposed persons to hatred and contempt because of their sexual orientation.

The applicants argue that: (1) s. 13(1) of the Canadian Human Rights Act which prohibits transmission of telephonic messages which expose a group of persons to hatred or contempt represents an interference in the province's exclusive jurisdiction over property and civil rights; (2) s. 13(1) of the Canadian Human Rights Act contravenes ss. 2(a) and (b) and s. 7 of the Charter of Rights and Freedoms which guarantee freedom of speech and liberty; (3) the Tribunal's interpretation of "sexual orientation" was vague and overly broad and therefore infringes ss. 2(a) and (b) and s. 7 of the Charter; and (4) the Canadian Human Rights Commission failed to show that s. 13(1) should be saved under s. 1 because there is no "pressing social ill" at stake.

The Federal Court Trial Division rules that there is no jurisdictional issue here. Telecommunications falls under federal jurisdiction and the messages at issue here were relayed through telecommunications. It also finds that Counsel for Tony McAleer has already unsuccessfully challenged the constitutionality of s. 13(1) of the Canadian Human Rights Act in the Canada (Human Rights Comm.) v. Taylor case. The Supreme Court of Canada ruled in that case that freedom of expression was breached by s. 13(1) of the Canadian Human Rights Act, but it upheld the infringement under s. 1 of the Charter. Section 13(1) of the Canadian Human Rights Act was held to constitute a reasonable limit upon freedom of expression.

Given the similarity of the issues in this case, the Federal Court Trial Division adopts certain aspects of the Supreme Court's analysis in Taylor. The Court acknowledges that s. 13(1) infringes s. 2 of the Charter and proceeds to determine whether the infringement may be justified as a reasonable limit under s. 1. The parties invoking s. 1, in this case the Canadian Human Rights Commission and John Payzant, must show that the objective of s. 13(1) is sufficiently important to warrant overriding the right to freedom of expression, and in addition that it does it in a way that meets the proportionality test set out in R. v. Oakes.

The Supreme Court of Canada in Taylor found that Parliament's objective of promoting equal opportunity, free of discriminatory penalties, was of sufficient importance to warrant overriding the rights set out in s. 2, and the Court finds that this ruling should be respected.

With regard to the minimal impairment test, the Court notes that the applicants argue that the expression "sexual orientation" is vague and overly broad and may be interpreted as including practices such as bestiality and pedophilia. The Court finds, however, that s. 13(1) is not vague or overly broad, as it offers sufficient guidance for legal debate. The Court also finds that the effects of s. 13(1) are not so deleterious as to make its existence intolerable in a free and democratic society.

Regarding the issue of sexual orientation, CLN and Tony McAleer argue that s. 13(1) might be applied "whenever political correctness says so." However, the Court finds that while this might be a concern, the application of s. 13(1) has not reached an abusive state. Furthermore, the Court finds that the argument that the inclusion of sexual orientation is tantamount to legitimizing or legalizing bestiality and pedophilia has little merit. Pedophilia is a sexual desire directed towards children. Bestiality refers to copulation between a human being and an animal. Sexual orientation refers to an individual's preference with respect to gender. It is not vague or overly broad, and has been found to be an analogous ground under s. 15 of the Charter.

In conclusion, the Court finds that the Tribunal did not err with respect to jurisdiction or otherwise, and consequently there are no grounds for intervention.

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