Lemire v Canada (Human Rights Commission) 2014 FCA 18 (31 January 2014)
The Canadian Federal Court of Appeal has held that the hate speech prohibitions and penalties contained in the Canadian Human Rights Act are constitutionally valid and do not violate the right to freedom of expression in the Canadian Charter of Rights and Freedoms.
Richard Warman made a complaint to the Canadian Human Rights Commission in November 2003 that Marc Lemire had communicated material on the internet in breach of section 13 of the Canadian Human Rights Act. Section 13, entitled “hate messages”, prohibits communication 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”. A “prohibited ground” includes discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital or family status and disability.
The material was an article entitled “AIDS Secrets” posted under a section of the Freedomsite.org called “Controversial Columnists”. Mr Lemire controlled the posting of articles in this section of the website and was personally responsible for posting the relevant article.
In 2009, the Tribunal found that the article constituted a “discriminatory practice” within the meaning of section 13(1) of the Act, by expressing “unusually strong and deep-felt emotions of detestation and vilification towards homosexuals in particular”. The Tribunal found that in the article, “homosexuals are presented as dangerous and immoral persons, who, motivated by a selfish desire to indulge their own sexual deviance and not have their blood donations tested, are responsible for the deaths of untold thousands of persons.”
While the Tribunal found that the publication of the article “AIDS Secrets” constituted a breach of section 13, it refused to apply financial sanctions under the penalty provision in section 54, being of the view that the penalty provisions were overly punitive in regards to freedom of expression and were therefore unconstitutional.
The Supreme Court had previously found section 13 to be constitutional, in the case of Canada (Human Rights Commission) v Taylor  3 SCR 892. While section 13 did limit free speech it was for a reasonable limit and for a legitimate purpose, as allowed under section 1 of the Canadian Charter of Rights and Freedom. However, since that decision, section 13 had been expanded from telephone communications to internet communications and strong penalty provisions, amounting to $10,000 for a breach, had been included under section 54. The Tribunal held that the amended penalty provisions were too similar to criminal sanctions and therefore invalid because they could not be justified under section 1 of the Canadian Charter as reasonable limits on section 2(b) Charter rights.
On judicial review the Federal Court agreed that the financial sanctions in section 54 of the Act had made section 13 unconstitutionally punitive but that the Tribunal should have severed those provisions and found section 13 constitutional to the extent that it had been upheld in Taylor.
The Federal Court of Appeal was asked to decide whether section 13 was now overly broad as it applied to internet communications, and whether the financial sanctions were unconstitutionally punitive.
The Federal Court of Appeal fully endorsed the constitutionality of section 13 as well as the remedial provisions. The Court upheld the constitutionality of those provisions based on the government's pressing and substantial objective to prevent vilification of vulnerable groups. The Court disagreed that the financial sanctions available for a breach of section 13 were unconstitutionally punitive; rather they were administrative in nature and therefore constitutional.
In response to the submission that extending hate speech prohibition to material on the internet constitutes an unacceptable limit on freedom of expression, the Court held that hate speech actually constitutes an extreme form of expression of limited scope that fosters a climate in which unlawful discrimination may be regarded as acceptable and flourish. Such material does this by demeaning, vilifying and marginalizing groups of individuals who share certain characteristics and this constitutes a prohibited ground of discrimination under the CHRA. Hate speech contributes little to the values underlying free speech and therefore its proscription is easily justifiable. The Court determined that the message sent to Canadians by having hate speech laws is part of a necessary endeavour to promote equality in society.
The Federal Court of Appeal pointed out that the impairment in section 13 is constitutionally valid because hate speech actually prevents marginalised groups from contributing as equals in social discourse. The appeal judge pointed out that “because of the extreme nature of prohibited hate speech it strikes me as fanciful to imagine that those who are engaged in it are likely to be open to an educative exchange of ideas.” The fact that the subject matter of the hate speech could be regarded as political or of public interest does not render it acceptable.
His Honour pointed out that the financial penalties available for breach of section 13, combined with the objective of “protecting societal standing of vulnerable groups and preventing discrimination against them”, prevent offenders from avoiding liability when they target vulnerable groups. They are necessary to impose “accountability for the damage caused by vilification of targeted groups and of deterring the communication of hate speech in order to decrease discrimination against them.”
The matter was remitted to the Tribunal for the issue of a declaration and remedial orders. The Tribunal ordered that Mr Lemire cease and desist in communicating the offensive material. The material had been removed before the first hearing but the Tribunal pointed out that a further objective of a cease and desist order is to send a message to others that such conduct is not acceptable. The order is not limited to the content impugned in this case and is made to ensure Mr Lemire no longer engages in the kind of conduct found to be discriminatory in this case.
This case demonstrates the difficulties in balancing the occasionally competing rights of freedom of expression and freedom to be free from discrimination and the responsibility of the state to protect vulnerable groups within society. While freedom of expression is not an absolute right there are differing views as to when, and the extent to which, it can be legitimately limited.
The Canadian Federal Court of Appeal’s approach has been to recognise that hate speech contributes little to the values underlying free speech, therefore its proscription can be justified. Setting standards for the promotion of equality and respect in society, protecting vulnerable groups and preventing discrimination are fundamental elements in the application of human rights legislation.
Despite the fact that Canadian courts have upheld the constitutionality of section 13 on a number of occasions, the Canadian Parliament last year voted to repeal section 13. The repeal will come into effect in July 2014.
This decision is available online at: http://canlii.ca/t/g2x2d
Daniel D’Ambrosio is a Pro Bono intern at DLA Piper.