Section 13 of the Canadian Human Rights Act

In 2008, Liberal MP Keith Martin proposed a private member's motion (M-446)urging Parliament to repeal section 13.[5] 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?"[6]

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.[6]

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.[7][8] The bill received royal assent on June 26, 2013, coming into force one year later.[9]

In 1990, a 4-3 decision of the Supreme Court of Canada upheld in 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.[10]

In the 2009 case Warman v Lemire,[11] 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.[12] 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 [13] 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.[14]

In December 2007, the Canadian Islamic Congress filed a complaint about hate speech against Maclean's magazine. The substance of the complaint was that Maclean's was publishing articles (a column by Mark Steyn) that insulted Muslims. The Congress filed its complaint with the Canadian Human Rights Commission, the British Columbia Human Rights Tribunal and the Ontario Human Rights Commission.[15] The Ontario Human Rights Commission ruled that it did not have the jurisdiction to hear the complaint. The British Columbia Human Rights Tribunal dismissed the complaint 10 October 2008.[16] The Canadian Human Rights Commission dismissed the complaint on 26 June 2008.

When investigating Marc Lemire's website, HRC investigators were alleged to have tapped into the secured[17] 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.[18] Marc Lemire filed criminal complaints concerning this issue with the Ottawa Police Service and the Royal Canadian Mounted Police (RCMP).[19] The office of the Privacy Commissioner of Canada conducted an investigation of the allegations,[20] but ultimately the complaint was dismissed.

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.[21] La Presse published an editorial criticizing the Commission for its decision.[22]

Before its repeal, section 13 attracted criticism from those who viewed it as unwarranted infringement on freedom of expression.

• Alan Borovoy, general counsel for the Canadian Civil Liberties Association, noted that under Section 13(1), "Intent is not a requirement, and truth and reasonable belief in the truth is no defence."[6] He has said that when he and other human rights activists advocated the creation of human rights commissions they "never imagined that they might ultimately be used against freedom of speech." [23]
• Mary Agnes Welch, president of the Canadian Association of Journalists stated that Human rights commissions "were never meant to act as language nannies. The current system allows complainants to chill the speech of those they disagree with by entangling targets in a human rights bureaucracy that doesn't have to operate under the same strict rules of defence as a court."[24]
• Linguist and analytic philosopher[25] Noam Chomsky said about the section, "I think it's outrageous, like the comparable European laws. It's also pure hypocrisy. If it were applied the media and journals would be shut down. They don't expose current enemies of the state to hatred or contempt?"[26]

Others defended section 13 as a reasonable limit on free expression, given the importance of regulating hate speech.

• In June 2008, human rights lawyer Pearl Eliadis defended section 13. Responding to Alan Borovoy's concern that he never expected they would be used against the free expression of opinion, Eliadis stated that what anyone thought 40 years ago should not determine the current state of human rights law: when human rights laws were created, many of the current protections did not exist, but have developed over time. She also argued that arguments against human rights commissions dealing with complaints against media are premised on the notion that "new rights are bad rights." She added that the commissions are "strategically and uncomfortably poised" in "dynamic tension" among NGOs, government, voters, industry and other influences."[27] Eliadis wrote an article in Maisonneuve where she argued that expressive behaviour has been the subject of human rights laws in since the 1940s. She also argued that critics of the commissions were causing Canadians to be "misled and lied to about the most basic aspects of Canadian law and human rights" and further stressed "the clear and present danger posed by discriminatory speech and the growth of e-hate."[28] Eliadis subsequently published an extensive analysis of the hate speech debates in Canada in Speaking Out on Human Rights: Debating Canada's Human Rights System.
• Wahida Valiante, national vice-president of the Canadian Islamic Congress, stated that the commissions are the only recourse available to minorities treated unfairly in the media since membership in press councils is optional and criminal hate speech charges require the consent of the federal Attorney-General.[27]
• In January 2010 the Canadian Bar Association released a statement which supported "retaining section 13 as a useful tool." However, it also called for the adoption of several recommendations for improving the Act "to ensure that the efficacy of this protection is not only enhanced but also accords with other fundamental human rights values," including the repealing of certain penalty provisions and "empowering the CHRC to dismiss at an early stage complaints that lack merit or have no reasonable chance for success."[29]
• In April 2008, three senior officials of the Canadian Human Rights Commission granted a telephone interview with the media to respond to criticism, stating that the sort of prohibition embodied in section 13 is "actually the predominant view among most of the states of the world. The view in the United States [that the right to free speech is near-absolute] is really a minority view."[30]

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."[31]

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."[31]

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."[31]

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."[31]

In an exchange during the Marc Lemire case, lead CHRC investigator Dean Steacy was asked "What value do you give freedom of speech when you investigate?" Steacy responded:

Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept.[32][33]

In the same transcript, Mr. Steacy later repeated that "freedom of speech is an American concept, it is not a Canadian concept" but added that a person stating that they were protected by "freedom of speech," would be equivalent "to somebody raising a 'freedom of expression' concept," which Mr. Steacy stated was protected under Canada's Charter of Rights and Freedoms "to a point."[34] He later added that "you don't have the right to say absolutely anything you desire, especially when it's in written format."[35]

Jonathan Kay of the National Post criticized Steacy's remarks, stating that: "for an organization that is supposed to promote "human rights," the HRC's agents seem curiously oblivious to basic aspects of constitutional law." He added that, in Mr. Steacy's mind, "Section 2 has been excised from his copy of the Canadian Charter of Rights.[18][36][37] Kay also stated that "someone lacking such basic general knowledge apparently occupies a senior position in the "Human Rights Commission" is cause for serious concern, and certainly an audit of the whole CHRC apparatus."[38]

Senator Doug Finley later criticized Steacy, stating that "He [Steacy] actually said that. The Canadian Human Rights Commission actually admits they do not give free speech any value. That is totally unacceptable. Freedom of speech is the great non-partisan principle that every Member of Parliament can agree on — that every Canadian can agree on." He also called on the Canadian Senate to "reaffirm that freedom of speech is a great Canadian principle that goes back hundreds of years."[39]

Writing in The Lawyers Weekly in October 2011, Toronto lawyer Omar Ha-Redeye cited Steacy's statement to support his view "Restrictions on freedom of expression are acceptable in Canadian law where reasonable goals toward promoting democracy are identified."[40]