Canada (human Rights Commission) v. Taylor

Canada (human Rights Commission) v. Taylor
Collection
Supreme Court Judgments
Date
1990-12-13
Report
[1990] 3 SCR 892
Case number
20462
Judges
Dickson, Robert George Brian; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 20462
Decision Content
Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892
John Ross Taylor and the Western Guard Party Appellants
v.
Canadian Human Rights Commission
and the Attorney General of Canada Respondents
and
The Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba,
the Canadian Jewish Congress,
the League for Human Rights of B'Nai Brith, Canada,
the Women's Legal Education and Action Fund,
the Canadian Holocaust Remembrance Association
and the Canadian Civil Liberties Association Interveners
indexed as: canada (human rights commission) v. taylor
File No.: 20462.
1989: December 4; 1990: December 13.
Present: Dickson C.J.* and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and McLachlin JJ.
on appeal from the federal court of appeal
Constitutional law -- Charter of Rights -- Freedom of expression -- Hate messages -- Federal human rights legislation prohibiting telephonic messages likely to expose a person or a group to hatred or contempt -- Whether federal legislation infringes s. 2 (b) of Canadian Charter of Rights and Freedoms ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 13(1).
Constitutional law -- Charter of Rights -- Reasonable limits ‑‑ Federal human rights legislation prohibiting telephonic messages likely to expose a person or a group to hatred or contempt -- Whether federal legislation too vague to constitute a limit prescribed by law -- Canadian Charter of Rights and Freedoms, s. 1 -- Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 13(1).
Administrative law -- Natural justice -- Apprehension of bias ‑‑ Waiver -- Human rights tribunal -- Appointment procedure -- Whether failure to raise bias at outset of proceedings amounting to waiver.
The appellants distributed cards inviting calls to a Toronto telephone number answered by recorded messages. The messages, while in part arguably innocuous, contained statements denigrating the Jewish race and religion. In 1979, complaints about these messages were lodged with the Canadian Human Rights Commission. The Commission established a tribunal which concluded that the messages constituted a discriminatory practice under s. 13(1) of the Canadian Human Rights Act and ordered the appellants to cease the practice. The section makes it a discriminatory practice to communicate telephonically any matter likely to expose a person or a group to hatred or contempt on the basis, inter alia, of race or religion. Pursuant to the Act, the cease and desist order was filed in the Federal Court. No proceedings were taken by the appellants to have the order set aside. In spite of the order, the appellants continued their messages and were found in contempt of the order. The Party was sentenced to a $5,000 fine and T, the Party's leader, to one year of imprisonment. The sentence was suspended upon the condition that the appellants obey the Tribunal's cease and desist order. They did not and the suspension of sentence was vacated. The Party paid its fine and T served his sentence. In 1983, the Canadian Human Rights Commission filed a new application with the Federal Court, alleging that further messages were being transmitted and that these messages also breached the Tribunal's order. The Commission sought a new order of committal of T and a $5,000 fine against the Party. Relying on the Canadian Charter of Rights and Freedoms , the appellants argued that s. 13(1) of the Act violated s. 2 (b) of the Charter , and that the Tribunal's order was of no effect. The Federal Court, Trial Division rejected the argument, confirmed the contempt, imposed the fine and made the commital order sought by the Commission. The appellants' appeal to the Federal Court of Appeal was dismissed. This appeal is to determine (1) whether s. 13(1) of the Act and the Tribunal's cease and desist order violate s. 2 (b) of the Charter ; and (2) whether the Tribunal's order is invalid because of bias. The allegation of bias, raised for the first time before the Federal Court of Appeal, arises from the fact that the Tribunal was appointed by the Commission, the latter being a body intimately connected with investigating and substantiating the complaint.
Held (La Forest, Sopinka and McLachlin JJ. dissenting in part): The appeal should be dismissed. Section 13(1) of the Canadian Human Rights Act is constitutional.
Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: The activity described by s. 13(1) of the Act is protected by s. 2 (b) of the Charter . Where an activity conveys or attempts to convey a meaning, through a non-violent form of expression, it has expressive content and thus falls within the scope of the word "expression" as found in the guarantee. The type of meaning conveyed is irrelevant. Section 2 (b) protects all content of expression. In enacting s. 13(1) , Parliament sought to restrict expression by singling out for censure particular conveyances of meaning. Section 13(1) , therefore, represents an infringement of s. 2 (b).
Hate propaganda messages against identifiable groups, such as the ones dealt with by s. 13(1) , do not fall within the ambit of a possible s. 2 (b) exception concerning expression manifested in a violent form. This exception speaks only of physical forms of violence, and extends neither to analogous types of expression nor to mere threats of violence.
Section 13(1) of the Act, which is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter , constitutes a reasonable limit upon freedom of expression. First, Parliament's objective of promoting equal opportunity unhindered by discriminatory practices, and thus of preventing the harm caused by hate propaganda, is of sufficient importance to warrant overriding a constitutional freedom. Hate propaganda presents a serious threat to society. It undermines the dignity and self‑worth of target group members and, more generally, contributes to disharmonious relations among various racial, cultural and religious groups, as a result eroding the tolerance and open‑mindedness that must flourish in a multicultural society which is committed to the idea of equality. The international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism enshrined in ss. 15 and 27 of the Charter magnify the weightiness of Parliament's objective in enacting s. 13(1) .
Second, s. 13(1) of the Act is proportionate to the government's objective. The section is rationally connected to the aim of restricting activities antithetical to the promotion of equality and tolerance in society. When conjoined with the remedial provisions of the Act, s. 13(1) operates to suppress hate propaganda and its harmful consequences. It also reminds Canadians of our fundamental commitment to equality of opportunity and the eradication of racial and religious intolerance. The fact that the international community considers such laws to be an important weapon against racial and religious intolerance strongly suggests that s. 13(1) cannot be viewed as ineffectual.
The guarantee of freedom of expression is not unduly impaired by s. 13(1). The section is not overbroad or excessively vague. Its terms, in particular the phrase "hatred or contempt", are sufficiently precise and narrow to limit its impact to those expressive activities which are repugnant to Parliament's objective. The phrase "hatred or contempt" in the context of s. 13(1) refers only to unusually strong and deep‑felt emotions of detestation, calumny and vilification and, as long as human rights tribunals continue to be well aware of the purpose of s. 13(1) and pay heed to the ardent and extreme nature of feeling described in that phrase, there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section. The absence in the Act of an interpretative provision to protect freedom of expression does not create in s. 13(1) an overly wide scope, for both its purpose and the common law's traditional desire to protect expressive activity permit an interpretation solicitous of this important freedom. Further, the absence of an intent component in s. 13(1) raises no problem of minimal impairment when one considers that the objective of the section requires an emphasis upon discriminatory effects. As in other human rights legislation, an intent to discriminate is not a precondition of a finding of discrimination. To import a subjective intent requirement into human rights provisions, rather than allowing tribunals to focus solely upon effects, would defeat one of the primary goals of anti-discrimination statutes. As for the possibility that imprisonment will be imposed upon an individual by way of a contempt order, intent is far from irrelevant in this regard, subjective awareness of the likely effect of one's message being a necessary precondition for the issuance of such an order by the Federal Court. Furthermore, the fact that s. 13(1) provides no defences to the discriminatory practice it describes, and most especially does not contain an exemption for truthful statements, does not give it a fatally broad scope. A restriction upon freedom of expression in the context of s. 13(1) is not excessive where it operates to suppress statements which are either truthful or intended to be truthful, as it is not necessary that truthful statements be used for such ends. Finally, by focusing upon "repeated" telephonic messages, s. 13(1) directs its attention to public, larger‑scale schemes for the dissemination of hate propaganda, the very type of phone use which most threatens the aim underlying the Act.
The effects of s. 13(1) upon freedom of expression are not so deleterious as to make intolerable its existence in a free and democratic society. The section furthers a government objective of great significance and impinges upon expression exhibiting only tenuous links with the values underlying the freedom of expression guarantee. Hate propaganda contributes little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self‑development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. Moreover, operating in the context of the procedural and remedial provisions of the Act, s. 13(1) plays a minimal role in the imposition of moral, financial or incarceratory sanctions, the primary goal being to act directly for the benefit of those likely to be exposed to the harms caused by hate propaganda.
Assuming that the Charter applies to the Tribunal's cease and desist order, the latter does not unjustifiably infringe s. 2 (b) of the Charter . Read in the context of the Tribunal's expansive reasons, the order was not too vague and obscure to enable the appellants to be held in contempt for failure to abide by its terms. The Tribunal's reasons are emphatically clear in describing the subject‑matter found to constitute a discriminatory practice.
The failure of the appellants to raise the issue of bias in a timely fashion constituted a waiver of the right to challenge the jurisdiction of the Tribunal on that ground. Bias must be alleged at the earliest practical opportunity. Here, the issue had not been raised until the hearing before the Federal Court of Appeal, almost eight years after the Tribunal's order was rendered. In any event, since the appellants did not challenge the legitimacy of the Tribunal order directly, they could not attack it collaterally in the contempt proceeding. The appellants are bound by the cease and desist order and must obey it while it remains in force, regardless of how flawed it may be.
Per La Forest, Sopinka and McLachlin JJ. (dissenting in part): Section 13(1) of the Act infringes the guarantee of freedom of expression in s. 2 (b) of the Charter . Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non‑violent form of expression, this activity falls within the sphere of the conduct protected by s. 2 (b). This section protects all content of expression irrespective of the meaning or message sought to be conveyed. In enacting s. 13(1) , Parliament intended to control attempts to convey a meaning by restricting the content of expression. The section does not prohibit communication by telephone. Rather, it regulates the content of such communications. Section 13(1) , therefore, imposes a limit on s. 2 (b).
Section 13(1) of the Act is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter . By using the same wording as is found in the common law in defamation cases, Parliament has provided an intelligible standard for the Tribunal to apply.
Section 13(1) of the Act does not constitute a reasonable limit upon freedom of expression. While the legislative objectives of preventing discrimination and of promoting social harmony and individual dignity are of sufficient importance in our multicultural society to warrant overriding a constitutional freedom, s. 13(1) fails to meet the proportionality test. The overbreadth of the section does not withstand constitutional scrutiny.
First, s. 13(1) of the Act is not carefully tailored to its aims and lacks a rational connection with its objectives. While it is well designed to minimize many of the undesirable aspects of curbing free expression and its approach to curbing hate propaganda is far more appropriate than the all or nothing approach inherent in criminalization of such expression, s. 13(1) is too broad and too invasive and catches more expressive conduct than can be justified by its objectives. The use of the words "hatred" and "contempt", which are vague, subjective and susceptible of a wide range of meanings, extends the scope of s. 13(1) to cover expression presenting little threat of fostering hatred or discrimination. The absence of any requirement of intent or foreseeability of the actual promotion of hatred or contempt further broadens the scope of s. 13(1). Without a proof of harm or actual discrimination, s. 13(1) could well reach speech which is in fact anti‑discriminatory. Finally, while the chilling effect of human rights legislation is likely to be less significant than that of a criminal prohibition, the vagueness of the law may deter more conduct than can legitimately be targeted.
Second, s. 13(1) does not interfere as little as possible with freedom of expression. No serious attempt was made to strike an appropriate balance between furthering equality and safeguarding free expression. There is no provision in the Act which protects freedom of expression. Section 13(1) simply applies to all expression "likely to expose a person or persons to hatred or contempt". Moreover, the overbreadth of the section, the absence of defences, in particular an exemption for truthful statements, and the inclusion of private communications between consenting individuals within the scope of s. 13(1) illustrate the significance of the infringement of the rights of the individual effected by s. 13(1). The section seriously overshoots the mark and goes well beyond what can be defended as a reasonable limit on free speech justified by the need to combat discrimination against members of particular groups.
Third, the benefits to be secured by s. 13(1) of the Act fall short of outweighing the seriousness of the infringement which the section effects on freedom of expression. The limitation touches expression which may be relevant to social and political issues. Free expression on such matters has long been regarded as fundamental to the working of a free democracy and to the maintenance and preservation of our most fundamental freedoms. Such a limitation must be proportionate to the evil and sensitive to the need to preserve as much freedom of expression as may be compatible with suppressing that evil. Under s. 13(1), it is far from clear that the measure, broad as it is, is calculated to significantly diminish the evils of group discrimination.
The unconstitutionality of a law upon which a court order is based does not excuse a refusal to obey the order. Even an invalid court order must be followed until it is set aside by legal process. Since s. 13(1) of the Act is unconstitutional, it follows that the Tribunal's cease and desist order rendered pursuant to that section should be quashed. The effective date of the quashing of the order, however, must be the date that this judgment is issued. For the purposes of the contempt proceedings, the order must be considered to be valid until that date. Thus, the ultimate invalidity of the order was not a defence to the contempt citation and the appellants' convictions following the 1983 complaint must be affirmed. Since the wisdom or validity of the initial decree is a relevant consideration in determining the appropriate sanction, T's sentence should be reduced to three months' imprisonment.
Appellants' contention that the findings of the Human Rights Tribunal were flawed because of an apprehension of bias must be rejected. The appellants raised this issue several years after the initial hearing. By failing to raise the issue at the outset of the proceedings, the appellants must be deemed to have impliedly waived any right to allege bias.
Cases Cited
By Dickson C.J.
Applied: R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 000; In re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103; distinguished: MacBain v. Lederman, [1985] 1 F.C. 856; referred to: R. v. Andrews, [1990] 3 S.C.R. 000; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Insurance Corp. of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Boucher v. The King, [1951] S.C.R. 265; R. v. Carrier (1951), 104 C.C.C. 75; Taylor and Western Guard Party v. Canada, Communication No. 104/1981, Report of the Human Rights Committee, 38 U.N. GAOR, Supp. No. 40 (A/38/40) 231 (1983), decision reported in part (1983), 5 C.H.R.R. D/2097; Nealy v. Johnston (1989), 10 C.H.R.R. D/6450; Rasheed v. Bramhill (1980), 2 C.H.R.R. D/249; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Re Sheppard and Sheppard (1976), 67 D.L.R. (3d) 592; Canada Metal Co. v. Canadian Broadcasting Corp. (No. 2) (1974), 4 O.R. (2d) 585; Glimmerveen v. Netherlands, Eur. Comm. H. R., Applications Nos. 8348/78 and 8406/78, October 11, 1979, D.R. 18, p. 187; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561.
By McLachlin J. (dissenting in part)
R. v. Keegstra, [1990] 3 S.C.R. 000; R. v. Andrews, [1990] 3 S.C.R. 000; R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; In re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103; MacBain v. Lederman, [1985] 1 F.C. 856; R. v. Whyte, [1988] 2 S.C.R. 3; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Walker v. City of Birmingham, 388 U.S. 307 (1967); R. v. Garofoli, [1990] 2 S.C.R. 1421.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), 15 , 24(1) , 27 .
Canadian Human Rights Act, S.C. 1976‑77, c. 33, ss. 2 [rep. & sub. 1980‑81‑82‑83, c. 111, s. 5 (Schedule IV, item 1); idem, c. 143, ss. 1, 28(3)], 13(1), 32 [am. idem, s. 15 ], 35(1), (2), 37, 39(1), 40(1), 41(1), (2) [am. idem, s. 20], 42, 43(1), (2).
Constitution Act, 1982, s. 52 .
Criminal Code, R.S.C., 1985, c. C‑46, s. 319(2) , (3) .
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (1950).
Human Rights Act, S.N.S. 1969, c. 11, s. 12.
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966), Art. 20.
International Convention on the Elimination of All Forms of Racial Discrimination, Can. T.S. 1970 No. 28, Art. 4.
Authors Cited
Canada. House of Commons. Special Committee on Participation of Visible Minorities in Canadian Society. Equality Now! Ottawa: Supply and Services, 1984.
Canada. Law Reform Commission. Working Paper 50. Hate Propaganda. Ottawa: The Commission, 1986.
Canada. Special Committee on Hate Propaganda in Canada. Report of the Special Committee on Hate Propaganda in Canada. Ottawa: Queen's Printer, 1966.
Canadian Bar Association. Report of the Special Committee on Racial and Religious Hatred. By Ken Norman, John D. McAlpine and Hymie Weinstein, 1984.
McAlpine, John D. Report Arising Out of the Activities of the Ku Klux Klan in British Columbia, 1981.
Sharpe, Robert J. Injunctions and Specific Performance. Toronto: Canada Law Books Ltd., 1983.
Shorter Oxford English Dictionary, 3rd ed. Oxford: Clarendon Press, 1987, "hatred".
APPEAL from a judgment of the Federal Court of Appeal, [1987] 3 F.C. 593, 37 D.L.R. (4th) 577, 29 C.R.R. 222, 78 N.R. 180, 9 C.H.R.R. D/4929, affirming a judgment of the Trial Division (1984), 6 C.H.R.R. D/2595. Appeal dismissed, La Forest, Sopinka and McLachlin JJ. dissenting in part.
Douglas H. Christie, for the appellants.
Russell G. Juriansz and Paul B. Schabas, for the respondent the Canadian Human Rights Commission.
D. Martin Low, Q.C., Stephen B. Sharzer, for the respondent the Attorney General of Canada.
No one appeared for the intervener the Attorney General for Ontario.
Jean Bouchard and Marise Visocchi, for the intervener the Attorney General of Quebec.
Aaron Berg and Deborah Carlson, for the intervener the Attorney General of Manitoba.
Neil Finkelstein, for the intervener the Canadian Jewish Congress.
David Matas, for the intervener the League for Human Rights of B'nai Brith, Canada.
Kathleen Mahoney and Linda A. Taylor, for the intervener the Women's Legal Education And Action Fund.
Michael A. Penny, for the intervener the Canadian Holocaust Remembrance Association.
Marc Rosenberg, for the intervener the Canadian Civil Liberties Association.
//Dickson C.J.//
The judgment of Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ. was delivered by
DICKSON C.J. -- Section 13(1) of the Canadian Human Rights Act , S.C. 1976-1977, c. 33, provides that:
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.
Prohibited grounds of discrimination are set out in s. 2 of the Act, and include (though are not restricted to) race, national or ethnic origin, colour and religion.
The primary issue in this appeal is whether s. 13(1) , in so far as it restricts the communication of certain telephone messages, violates the "freedom of expression" as guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms . In addition, a similar challenge has been launched against a cease and desist order made by the Canadian Human Rights Tribunal pursuant to s. 13(1) and associated remedial provisions of the Canadian Human Rights Act . A minor question is also raised with respect to a reasonable apprehension of bias in the Tribunal, though not in the Charter context. Both constitutional issues concern the dissemination of "hate propaganda", a term which I use for convenience to denote expression intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group.
In this case, as in the companion appeals of R. v. Keegstra, [1990] 3 S.C.R. 000, and R. v. Andrews, [1990] 3 S.C.R. 000, a number of interveners were granted leave to file submissions and to present oral argument. The Attorneys General of Ontario, Quebec and Manitoba, the Canadian Holocaust Remembrance Association, the Canadian Jewish Congress, the League for Human Rights of B'nai Brith, Canada, and the Women's Legal Education and Action Fund have intervened in support of the impugned statutory provision and order. The Canadian Civil Liberties Association has intervened for the purpose of arguing that the provision and order are constitutionally invalid.
I. Facts
In 1979, the Human Rights Tribunal (hereinafter "the Tribunal") heard a number of complaints lodged under the Canadian Human Rights Act against the two appellants, Mr. John Ross Taylor and the Western Guard Party. The complaints, brought by the respondent Canadian Human Rights Commission (hereinafter "the Commission"), alleged that the appellants had contravened the Act by engaging in a discriminatory practice as defined in s. 13(1) , specifically, the telephonic communication of matter that is likely to expose persons identifiable on the basis of race and religion to hatred or contempt.
Evidence given at the hearing disclosed that the appellants had instituted a telephone message service in Toronto whereby any member of the public could dial a telephone number and listen to a pre-recorded message of approximately one minute in length. Over a two-year period beginning in mid-1977, thirteen different messages had been disseminated in this fashion, each one having been drafted and recorded by Mr. Taylor, the acknowledged leader of the Western Guard Party. After considering these communications in some detail, the Tribunal summarized the import of their message as follows:
Although many of these messages are difficult to follow, there is a recurring theme. There is a conspiracy which controls and programmes Canadian society; it is difficult to find out the truth about this conspiracy because our books, our schools and our media are controlled by the conspirators. The conspirators cause unemployment and inflation; they weaken us by encouraging perversion, laziness, drug use and race mixing. They become enriched by stealing our property. They have founded communism which is responsible for many of our economic problems such as the postal strike; they continue to control communism and they use it in the furtherance of the conspiracy. The conspirators are Jews.
The telephone service which supplied the messages in question was financed from time to time by Mr. Taylor, his assistant Mr. Jack Prins or the Party. Though the service's number was not widely publicized by the appellants, they attempted to make it known by the distribution of cards among individuals and crowds and by slipping these cards under doorways. The cards bore only a maple leaf symbol and an admonition to dial the number. As well, the number was placed in the telephone book opposite a notation which read "White Power Message".
After examining the content of the appellants' messages and hearing evidence from a number of witnesses, the Tribunal held that the appellants had engaged in a discriminatory practice as defined by s. 13(1) . This conclusion is clearly and pithily stated in the following segment of the Tribunal's decision:
. . . Mr. Taylor and The Western Guard Party have communicated telephonically or have caused to be so communicated, repeatedly, messages in whole or in part by means of facilities of a telecommunications undertaking within the legislative authority of Parliament. Although some of the messages by themselves are somewhat innocuous, the matter for the most part that they have communicated, we believe, is likely to expose a person or persons to hatred or contempt by reason of the fact that the person [sic] is identifiable by race or religion. In particular, the messages identify specific individuals by name . . . and we believe that the remarks about those individuals have a likelihood of exposing them to hatred or contempt, merely on the basis that they are said to be Jewish. Moreover, we hold that the messages in question not only expose identified individuals but persons generally to hatred or contempt by reason of the fact that those persons are identifiable as Jews. We therefore find that the complaints are substantiated.
Having come to this conclusion, the Tribunal ordered the appellants to cease and desist their discriminatory practice, the order stating:
We therefore order the Respondents to cease their discriminatory practice of using the telephone to communicate repeatedly the subject matter which has formed the contents of the tape-recorded messages referred to in the complaints.
This directive, along with the entire decision of the Tribunal, was filed with the Federal Court Registry and entered in the order and judgment book of the Federal Court of Canada, Trial Division as of August 23, 1979. As a result, under s. 43(1) of the Canadian Human Rights Act it could be enforced as a court order. No proceedings were taken to have the order set aside.
In spite of the Tribunal order, the appellants continued their messages and, following an application by the Commission on February 21, 1980, Dubé J. of the Federal Court, Trial Division found them in contempt: (1980), 1 C.H.R.R. D/47. He imposed a $5,000 fine on the Western Guard Party and a one year sentence of imprisonment on Mr. Taylor, but suspended the contempt order (and its attendant penalties) on the condition that the appellants thereafter discontinue the discriminatory practice identified by the Tribunal. The messages did not stop, however, and on June 11, 1980, Walsh J., also of the Federal Court, Trial Division, vacated the suspension of his colleague's contempt order. Accordingly, the Party paid its fine and Mr. Taylor served his sentence, with remission, between October 17, 1981 and March 19, 1982.
Upon his release, Mr. Taylor and the Party resumed the telephone message service, and on May 12, 1983, the Commission filed a second application with the Federal Court. This application alleged that the appellants had breached the order of the Tribunal by taping four messages between the dates of June 22, 1982, and April 20, 1983, and again sought an order of committal against Mr. Taylor and the Party. Since the first order of committal, however, the Charter had come into effect, and the appellants thus relied upon the Charter in filing a notice of motion challenging the validity of s. 13(1) of the Canadian Human Rights Act as contrary to the freedom of expression.
Jerome A.C.J. of the Federal Court, Trial Division dealt with both the Commission's application for committal and the appellants' attempt to have s. 13(1) struck down as unconstitutional. On August 15, 1984, he made the committal order sought by the Commission and gave oral reasons dismissing the appellants' motion as to the constitutionality of s. 13(1) . Written reasons on the Charter issue were released on December 20, 1984.
The appellants sought to overturn the decision of Jerome A.C.J. in the Federal Court of Appeal, but their appeal was dismissed by reasons dated April 22, 1987. It is from the ruling of the Federal Court of Appeal that they now appeal to this Court.
II. Statutory and Charter Provisions
The relevant statutory and Charter provisions are as follows:
Canadian Human Rights Act
2. The purpose of this Act is to extend the present laws in Canada to give effect, within the purview of matters coming within the legislative authority of the Parliament of Canada, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
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.
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.
III. Judgments
Federal Court, Trial Division
Jerome A.C.J. delivered his decision on the constitutional question orally on August 15, 1984. On December 20 of the same year he released brief written reasons for this disposition: (1984), 6 C.H.R.R. D/2595. In these reasons, he began by finding that s. 13(1) infringed the freedom of expression guaranteed in s. 2 (b) of the Charter , and was thus left with the question as to whether such an infringement could be justified under s. 1 . At the time of the judgment, R. v. Oakes, [1986] 1 S.C.R. 103, had not yet been decided, and in answering this question Jerome A.C.J. asked, "whether the sacrifice of the [s. 2 (b)] right is in proportion to the objective of achieving the elimination of the evil under attack from the Canadian way of life" (p. D/2597).
Referring to s. 2 of the Canadian Human Rights Act , Jerome A.C.J. noted that the promotion of equal opportunity unhindered by racial discrimination was an object with which Parliament ought to concern itself, and felt it to be obvious that freedom of expression must give way to some restrictions in order to prevent the incitement of hatred or contempt upon racial grounds. As for the manner in which s. 13(1) restricted the s. 2 (b) guarantee, Jerome A.C.J. saw the provision as reasonable, making special mention of the conciliatory nature of the human rights legislation. Especially pertinent to this conclusion was the fact that under the Act punishment only occurs where a transgressor is recalcitrant, and in this respect he stated (at pp. D/2597-98):
We are not dealing here with a prohibition on the right to speak or to communicate opinions. We have instead a declaration of that which is considered to be unacceptable use of the freedom of speech in Canadian society -- a "discriminatory practice." The [Human Rights Commission] is authorized to investigate complaints in the process of which the alleged transgressor is given the opportunity to make representations. Involvement in that process obviously invites the transgressor to discontinue the offending practice but if not, it may ultimately lead to an order to do so. Only upon continued refusal to comply with such an order is there the possibility of punishment.
After reviewing the history of complaints against the appellants and the various investigatory and procedural steps taken under the Canadian Human Rights Act , Jerome A.C.J. commented that the case at hand aptly demonstrated the restrained nature of s. 13(1) , for only upon continued refusal to cease what was clearly a discriminatory practice did the appellants become subject to punishment. He thus concluded that the evil which s. 13(1) endeavours to combat -- communications which are likely to incite racial hatred -- is unacceptable in Canadian society and that any restriction upon the freedom of expression imposed by s. 13(1) is not out of proportion to the objective of suppressing such evil.
Federal Court of Appeal (per Mahoney J., Stone and Lacombe JJ. concurring)
The appellants relied upon a number of grounds of appeal before the Federal Court of Appeal, all of which were dismissed: [1987] 3 F.C. 593. It is only necessary, however, to recount those reasons of the appeal court which pertain to the arguments raised before this Court. Having thus restricted the discussion somewhat, I begin by reviewing the decision of the Court of Appeal regarding the crucial issue of the constitutionality of s. 13(1) .
In addressing the Charter challenge to s. 13(1) , Mahoney J. rejected the argument of the Attorney General of Canada that the section did not infringe s. 2 (b); in his view, s. 13(1) represented a substantial and intentional limit upon freedom of expression. The constitutional validity of s. 13(1) thus depended upon the persuasiveness of the government's justificatory arguments under s. 1 of the Charter , and in examining the case for saving the impugned provision Mahoney J. adopted the approach suggested by this Court in Oakes.
Beginning with the requirement that the government objective be of sufficient importance to warrant overriding a constitutionally protected right or freedom, Mahoney J. noted that "the concern of any free and democratic society to avoid the vilification of individuals or groups by reason of their race and/or religion is self-evident" (p. 610). In his view, Canada was a multicultural country, and such multiculturalism represented a positive characteristic of its national persona. While racial and religious strife were not rampant in Canada, the great upheaval and damage caused by intolerance in certain other nations amply illustrated the potentially serious impact of prejudicial ideas. Mahoney J. thus concluded that "the avoidance of the propagation of hatred [on grounds of race or religion] is, in itself, properly a pressing and substantial concern of a free and democratic society" (p. 611).
As to proportionality, Mahoney J. stated that the rational connection of s. 13(1) to its object "could hardly be plainer" (p. 611), and found the limitation imposed upon s. 2 (b) to be "tailored precisely to the specific practices of those who abuse their freedom by repeatedly communicating hate messages by telephone" (p. 611). Regarding the "effects" segment of the Oakes proportionality test, he considered the scheme of the Canadian Human Rights Act as a whole, and found that the impact of s. 13(1) upon the freedom of expression exemplified restraint rather than severity. In particular, he noted that (at pp. 611-12):
The determination that a person or group has contravened subsection 13(1) is made by a Tribunal after a hearing which must be conducted according to the requirements of natural justice. A complaint cannot be referred to a Tribunal unless the alleged transgressor has been informed of and afforded an opportunity to respond to the complaint and the evidence upon