The last word on hate speech and human rights?

• Author: McKay-Panos, Linda
• Position: Human Rights Law

Although complaints to human rights commissions about published hate speech are rare, two recent decisions indicate that the hate speech provisions in human rights legislation can create challenges. While there are significant differences in the legislation between jurisdictions, the cases often discuss whether the hate speech provisions are constitutional.

The Canadian Human Rights Act (R.S.C. 1985, c. H-6, "CHRA") addresses telephonic and Internet communications.

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.

Interpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication ...

Remedies include:

* a cease and desist order;

* compensation for a victim specifically identified in the communication of up to $20,000, if the panel finds that they have engaged in the discriminatory practice wilfully or recklessly; and

* a penalty of up to $10,000.

The Tribunal must take certain factors into account when deciding whether to order the person to pay the penalty, such as:

* the nature, circumstances, extent and gravity of the discriminatory practice; and

* the person's wilfulness or intent, any prior discriminatory practices he or she had engaged in, and the person's ability to pay the penalty.

The leading case on s. 13, Canada (CHRC) v. Taylor, [1990] occurred before the CHRA was amended to include writings on the Internet and to increase the possible penalties for a breach of s. 13. Taylor was a case involving hate message on the telephone. Before the Supreme Court of Canada ("SCC"), Taylor unsuccessfully challenged the constitutionality of section 13. The SCC found that section 13 was constitutional even though it infringed the freedom of expression guarantee in the Charter. Parliament's objective of promoting equal opportunity unhindered by discriminatory practices was of sufficient importance to infringe that constitutionally protected freedom, as systemic, large-scale hate propaganda is a serious threat to society. The means to achieve that end of equal opportunity were rationally connected to, proportional to, and minimally impaired a...