Section 13 of the Canadian Human Rights Act
Section 13 of the "Canadian Human Rights Act" was a provision of the "Canadian Human Rights Act" dealing with hate messages. The provision prohibited online communications which were "likely to expose a person or persons to hatred or contempt" on the basis of a prohibited ground of discrimination (such as race, national or ethnic origin, colour, religion, etc.). Complaints under this section were brought to the Canadian Human Rights Commission and if the Commission found sufficient evidence, the case would be heard by the Canadian Human Rights Tribunal. The provision was used  successfully in several cases against white supremacists, anti-Semitic, and neo-Nazi groups. However, it was repealed by the Parliament of Canada in June 2014, following a Canada-wide campaign when a group of young Muslim law students, for the first time in Canada, used the human rights system to challenge alleged Islamophobia by right-wing columnists, including Ezra Levant and Mark Steyn. The Ontario Court of Appeal would describe the campaign in libel proceedings against Ezra Levant in relation to events that took place from 2007 in "Awan v. Levant". Legislative history. The "Canadian Human Rights Act" was enacted  in 1977, creating the Canadian Human Rights Commission that investigates claims of discrimination as well as the Canadian Human Rights Tribunal to judge the cases. Section 13 dealt with hate messages disseminated through federally regulated telecommunications. Parliament twice expanded the scope of section 13. In 1998, a penalty was added for breaches of the section. In 2001, the section was expanded to apply to telecommunications over the internet. From 2001 until its repeal in 2014, the first part of section 13 read: 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. Suggestions for repeal or reform. In 2008, Liberal MP Keith Martin proposed a private member's motion (M-446) urging Parliament to repeal section 13. Martin described the legal test of "likely to  expose" as "a hole you could drive a Mack truck through," and said it is being applied by "rogue commissions where a small number of people [are] determining what Canadians can and can't say." Martin also asserted that some of history's most important ideas "were originally deemed to be sacrilegious and certainly in opposition to conventional wisdom. Who's to say that a commission cannot rule those ideas out of order and penalize people for saying or thinking them?" Irwin Cotler, a Canadian human rights scholar and former minister of justice, (who has expressed support for prohibitions  on the incitement of hate and genocide), floated (but did not endorse) the idea that section 13 cases should require the authorization of the Attorney-General, which is the requirement for criminal prosecutions for inciting violence or promoting hatred. Repeal. On September 30, 2011, during the 41st Parliament, Conservative MP Brian Storseth introduced Private Member Bill C-304, titled "An Act to amend the Canadian Human Rights Act (protecting freedom)", which would repeal section 13. Bill C-304 received passed third reading in the House of Commons by 153–136 in a free vote on June 6, 2012. The bill received royal assent  on June 26, 2013, coming into force one year later. Bill C-36. Talks reviving section 13 have built over the past 10 years as online hate speech has become a larger topic of public discourse. The Trudeau liberals have been looking at new ways of curtailing online hate and a 2019 report from the standing committee on justice and human rights recommended the reinstatement of section 13 or an analogous provision. Bill C-36 would reinstate section 13 in addition to adding a definition of hatred based on Supreme Court of Canada cases, the Bill was at first reading when the  house paused for summer break in 2021. Constitutional challenges. Section::::"Canada (Human Rights Commission) v Taylor". In 1990, a 4-3 decision of the Supreme Court of Canada upheld the constitutionality of section 13(1). The majority found that the section did infringe freedom of expression under section 2 of the "Canadian Charter of Rights and Freedoms", but that the prohibition on hate speech was a justifiable limitation under section 1 of the Charter. Section::::"Warman v. Lemire". In the 2009 case "Warman v Lemire", the Canadian Human Rights Tribunal ruled that section 13 was an unconstitutional infringement of freedom of expression. The  Tribunal distinguished the provision in place at that time from the earlier version the Supreme Court of Canada had ruled on, finding that amendments in the intervening years made the provision more penal in nature. Since the Tribunal did not have the authority to declare sections of the "Canadian Human Rights Act" invalid, it declined to apply section 13 in that case. The Commission appealed the decision to the Federal Court of Appeal and in February 2014 the Federal Court of Appeal ruled section 13 to be constitutionally valid. The Court reinstated the penalty and the Tribunal's cease and  desist order against Lemire for violating section 13. Section 13 cases. Canadian Islamic Congress and "Maclean's". In December 2007, a group of Muslim law students and the Canadian Islamic Congress made complaints about hate speech against "Maclean's" magazine. The substance of the complaint was that a column by Mark Steyn, "The Future Belongs to Islam", exposed Muslims to hatred and contempt. Complaints were filed with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission. The Ontario Human Rights Commission ruled that it did not have the jurisdiction to hear the  complaint. The Canadian Human Rights Commission dismissed the complaint on June 26, 2008. The British Columbia Human Rights Tribunal dismissed the complaint on October 10, 2008. Marc Lemire. When investigating Marc Lemire's website, CHRC investigators were alleged to have tapped into the secured Wi-Fi router of a 26-year-old Ottawa woman who lived near the commission's headquarters in order to avoid revealing the commission's IP address. Lemire filed criminal complaints concerning this issue with the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP). The office of the Privacy Commissioner of Canada conducted an  investigation of the allegations, finding no evidence that the CHRC had accessed the individual's internet connection during the course of their investigation, and that "the association of [the individual's] internet address to the rights commission likely was 'simply a mismatch' on the part of a third party." Imam Al-Hayiti. In December 2008, the Commission declined to investigate a complaint against Imam Abou Hammad Sulaiman al-Hayiti, a Montreal Salafist Muslim who was accused of inciting hatred against homosexuals, Western women, and Jews, in a book he published on the Internet. The National Post accused the Commission of  selectively applying the Act to Christians and Conservatives, noting that it believes that Al-Hayiti should be allowed to promote any particular interpretation of Islam, or any other religion, but that the Human Rights Commissions practice a politically correct double standard. La Presse published an editorial criticizing the commission for its decision. Support and criticism. Criticism. Before its repeal, section 13 attracted criticism from those who viewed it as unwarranted infringement on freedom of expression. Support. Others defended section 13 as a reasonable limit on free expression, given the importance of regulating hate speech. Moon report. In 2008, University of  Windsor law professor Richard Moon was commissioned by the Canadian Human Rights Commission to prepare a report on section 13. In November 2008, Moon released his report in which he recommended that section 13 should be repealed so that online hate speech is a purely criminal matter. Moon wrote that "The use of censorship by the government should be confined to a narrow category of extreme expression -- that which threatens, advocates or justifies violence against the members of an identifiable group." Moon argued that "it's not practical to deal with what one might generously describe as group defamation or  stereotyping through censorship. It's just not a viable option. There's too much of it, and it's so pervasive within our public discourse that any kind of censorship is just overwhelming." Jennifer Lynch, then chief commissioner of the Canadian Human Rights Commission, stated that Moon's report is "one step in a comprehensive review" and that "we can envision Section 13 being retained with some amendments." Lynch also stated that "our commission exists to protect Canadians from discrimination and I'm fervently going to uphold this core principle." She added that "we're going to strive to find  more effective means to protect Canadians from exposure to hate on the Internet." Keith Martin, the Liberal MP who first proposed scrapping section 13 earlier in 2008, called the recommendation "very courageous" and that "Now it's in Parliament's hands to do something to defend one of our true rights, freedom of speech." Pearl Eliadis, a human rights lawyer, stated that Moon's statement that section 13 targets only extreme speech "makes explicit what the courts have already said implicitly." However, she opposed shifting the Canadian Human Rights Commission's role to focus solely on violence as opposed to  hatred. Eliadis argued that "when we deal with genocide and ethnic cleansing cases in other countries, what does the international community say over and over again? We need a warning system. And one of the warnings is incitement to hatred." However, she opposed criminal investigations into hate speech on the basis that people should not be put "in jail for their words."