It is not uncommon for legislatures to amend and rework human rights legislation. Nevertheless, the bald repeal of a human rights provision is unusual. The Canadian Parliament’s move to repeal human rights legislation related to ‘hate messages’ is extraordinary. Bill C-304 has received third reading in the House of Commons and is now before the Senate. But even with the repeal of s. 13 of the Canadian Human Rights Act, much of the law related to human rights commissions and freedom of expression will remain unsettled.
The human rights system – an overview
In the 1960s and 70s, federal and provincial human rights statutes were enacted to prohibit discrimination on enumerated grounds. At the same time, human rights commissions were created to promote human rights, exercise discretion whether to refer disputes to human rights tribunals, and (in some cases) prosecute claims before the tribunal.
All of the provincial human rights acts address discrimination in employment and the provision of goods and services, but the Canadian Human Rights Act and some provincial acts also prohibit expression that – intentionally or otherwise – is ‘likely to expose’ others to ‘hatred or contempt’ on the basis of one or more of the a prohibited grounds of discrimination. These human rights statutes supplement a provision of the federal Criminal Code (s. 319(2)), which prohibits the inciting of hatred against an identifiable group, which is a full mens rea offence.
Although most human rights commissions have broad discretion about which cases to send to tribunals for adjudication, private complainants play a directive role. Typically, commissions facilitate private complaints by having commission staff arguing claims on claimants’ behalf, while insulating them from costs they would otherwise incur. Notably, there is no requirement of standing to bring a complaint. The complainant need not have suffered discrimination. In fact, no one needs to have suffered discrimination; it is sufficient to allege a ‘discriminatory practice.’
Defendants, though, must pay the costs of their defence. Even if they are entirely successful, they have no recourse to reimbursement through an award of costs. There is thus a powerful incentive for defendants to settle quickly and quietly with the commission. On the alternative course, exoneration from the tribunal is uncertain, the legal bill is not.
Hate speech and the human rights commissions
The hate speech provisions of the human rights statutes have never been a mainstay. And those complaints that are made, according to the Acting Chief Commissioner of the Canadian Human Rights Commission, tend to be brought against ‘individuals at the extreme margins of society.’ Until recently, that demographic was occupied almost exclusively by white supremacists. Then, complainants began to utilize the hate speech provisions more broadly. The new target groups were persons voicing opinions (through letters to the editor, opinion columns, or paid advertisements) about human sexuality and sexual practices, often in the context of public debate about same-sex marriage and the appropriateness of teaching school children about homosexual practices.
The Steyn/Maclean’s affair
These new targets tended to be uneducated, unresourced, and unable to attract public attention. Like the white supremacists, they were easy pickings. But with a ‘notable exception’, the ground shifted dramatically. In 2007, in a spectacular overreach, three simultaneous complaints before the federal and two provincial human rights commissions were orchestrated against Maclean’s, the Canadian equivalent of The Spectator or Time magazine. The subject matter was Maclean’s republication of excerpts from Steyn’s best-selling book, America Alone, in a column entitled ‘The Future Belongs to Islam’. At about the same time, a complaint was brought against Ezra Levant for publishing the Mohammed cartoons in another news magazine, the Western Standard.
Steyn, in particular, proved to be a formidable opponent. Unlike the unknown defendants of the previous generation of human rights complaints, he commanded considerable financial and non-financial resources. He had a large, international audience and held every misstep of the commissions before the public eye. Eventually, the Canadian Human Rights Commissioner complained that commission supporters felt afraid to speak up in public defence of the commissions because of a ‘reverse chill’ generated by Steyn and others, drawing a bizarre symmetry between the social embarrassment faced by commission supporters, and the court-ordered silence, loss of employment, and financial ruin faced by many human rights defendants.
After the British Columbia Human Rights Tribunal dismissed the complaint after a five-day hearing, Steyn attributed the decision to the Tribunal’s loss of nerve. The Canadian Human Rights Commission dismissed the complaint before it without referring it to its tribunal, and the Ontario Human Rights Commission dismissed its complaint on the grounds of jurisdiction. The end result, apart from the hundreds of thousands of dollars spent by Maclean’s for legal fees, was a popular movement to curb the human rights commissions’ and tribunals’ powers over speech.
The change in the legal landscape
As momentous as the Maclean’s proceedings were for galvanizing public opinion, the proceedings themselves did not result in any changes in the law. But thereafter, the tribunals and reviewing courts began looking more critically at commission practices and at the empowering legislation. And significantly, an internal report commissioned by the Canadian Human Rights Commission recommended that s.13 of the Canadian Human Rights Act be repealed, or in the alternative, that complaints no longer be ‘complainant driven.’
The most important development in the law occurred in Warman v. Lemire  CHRT 26, a white supremacist case in which the Canadian Human Rights Tribunal ruled for the first time that s. 13 violated the right to freedom of expression and was unconstitutional. Judicial review of the decision was sought before the Federal Court of Canada, and judgment has been under reserve since late 2011. Effectively, s.13 has been treated as a dead-letter since that time.
Other courts and tribunals that have declined to strike down hate speech provisions, have nevertheless demonstrated increasing reluctance to allow the claims. Several of these cases remain on appeal, where constitutional challenges continue. In Lund v. Boissoin, 2009 ABQB 592, the Court of Queen’s Bench of Alberta left the relevant statute intact, but quashed a finding by the Alberta Human Rights Panel that statements about homosexuality made by a Christian minister in a newspaper exposed persons to contempt and hatred, and quashed all of the remedies ordered as illegal and unconstitutional. That decision was appealed to the Alberta Court of Appeal, and has also been under reserve since late 2011.
In Saskatchewan, the Human Rights Board of Inquiry in Whatcott v. Saskatchewan Human Rights Commission found a defendant to have violated the hate speech provision for letters to the editor addressing homosexuality and education. That decision as well was overturned on judicial review, which finding was upheld by the Court of Appeal, 2010 SKCA 26. Late last year, a final appeal was argued before the Supreme Court of Canada, which has reserved judgment not only on the question of whether Whatcott engaged in a discriminatory act, but also on the more fundamental question of whether the Saskatchewan hate speech legislation is constitutional.
Much now depends on the Supreme Court of Canada and its long-awaited reasons for judgment in Whatcott. Until this judgment is delivered, it is reasonable to expect that the remainder of the cases to remain on reserve.
In the meantime, what will be the effect of the repeal of s. 13 of the Canadian Human Rights Act? The repeal will obviously have no legal bearing on the human rights laws of the provinces, and no direct application to Whatcott. But it is some evidence – both to the courts and to the provincial legislatures – of a significant body of opinion that (at least in contemporary Canada) complainant-driven hate speech laws are worse than the evils they seek to address. It now falls to the provinces and the Supreme Court of Canada to determine whether they are similarly persuaded.
Bradley W. Miller is an Associate Professor in the Faculty of Law at the University of Western Ontario, and in 2012-13 is the Ann and Herbert W. Vaughan Visiting Professor, James Madison Program in American Ideals and Institutions, Princeton University.
Suggested citation: B. Miller, ‘The Repeal of Hate Speech Legislation in Canada’ UK Const. L. Blog (1st October 2012) (available at http://ukconstitutionallaw.org