An Overview of Civil Remedies to Combat

Hate

Marvin Kurz

Differences Between Criminal and Civil Law Dealing With

Hate• Civil cases determined on a balance of probabilities rather than beyond a reasonable doubt

• Civil laws generally concerned with effects of conduct, not motivation

• In human rights cases, conciliation/ mediation available

How Civil Remedies Deal With Hate

• Usually look to stop or prevent the misconduct or compensate the victim

(e.g. cease and desist, exclude or deport) • Generally not concerned with punishment

(however penalties under C.H.R.A. very contentious, i.e. Warman v. Lemire)

• No criminal record for purveyor of hate

Immigration and Refugee Protection Act

War Crimes and Crimes Against Humanity

s. 35. (1) makes a permanent resident or a foreign national inadmissible if they committed an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act (i.e genocide, crime against humanity, war crime)’

Mugesera v. Canada[2005] 2 S.C.R. 100

• Case of Rwandan Hutu politician who called Tutsis and moderate Hutus “cockroaches” to be “exterminated”.

• Supreme Court of Canada finds that hate speech as defined by CCC s. 318 or 319, particularly when it advocates egregious acts of violence, may constitute a crime against humanity.

Serious Criminality Under IRPA• A foreign national is inadmissible on grounds of

criminality for having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable or hybrid offence under an Act of Parliament. (s.36(2)(b))

• This definition covers CCC. s. 318 (advocating genocide and s. 319 (promoting hatred)

• Definition also covers acts that “may occur.” (s.33)

Hate Propagandists Excluded From Canada Include:

• Tom Metzger (White Aryan Resistance)

• Dennis Mahon (KKK Grand Dragon)

• David Irving

• Khalid Abdul Mohammed (Nation of Islam)

• Malik Zulu Shabazz (New Black Panther Party)

Customs Act and Customs Tariff Prohibition of Importation of Hate

Customs Tariff prohibits materials listed under item 9899 (b):

Books, printed paper, drawings, paintings, prints, photographs or representations of

any kind that constitute hate propaganda within the meaning of subsection 320(8) of the Criminal Code

Customs Act and Customs TariffCustoms Act allows customs inspectors to:

• examine and open any package or container, or mail greater than 30 gm that they reasonably suspect may contain goods referred to in the Customs Tariff or prohibited (s.99(1)(a) - (b))

• Make initial determination of tariff classification (s. 58), which is subject to internal review and ultimately superior court review (s.60-68)

• detain and ultimately dispose of illegally imported goods (s. 101-102)

Broadcasting Act – Declaration of Broadcast Policy (s. 3. (1)

(d)(iii))The Canadian broadcasting system should… through its programming and the employment opportunities arising out of its operations, serve the needs and interests, and reflect the circumstances and aspirations, of Canadian men, women and children, including equal rights, the linguistic duality and multicultural and multiracial nature of Canadian society and the special place of aboriginal peoples within that society. [emphasis added]

Prohibited Content Under Broadcasting Act Regulations

• Pay Television Regulations, 1990, Section 3(b)

• Radio Regulations, 1986, Section 3(b)

• Specialty Services Regulations, 1990, Section 3(b)

• Television Broadcasting Regulations, 1987, Section 5(b)

Prohibited Content Under Broadcasting Act Regulations

Regulations prohibit “abusive” comment” or “pictorial representations” “that, when taken in context, tends to or is likely to expose an individual or group or class of individuals to hatred or contempt on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, age or mental or physical disability.”

Remedies for Breach of Broadcasting Act Content

RegulationsA broadcaster’s failure to follow the policies of or regulations under the Broadcasting Act may lead the CRTC to impose fines, limit or deny a station’s application for license renewal.

Hate on the Internet and the Broadcasting Act

Hate content:

• Not covered by the Broadcasting Act

• Not under the jurisdiction of the CRTC

• At present jurisdiction is under the Criminal Code and/or Canadian Human Rights Act (subject to Lemire appeal)

Canada Post Corporation ActSection 43

Minister may prohibit the delivery of mail addressed to or posted by a person whom the Minister believes on reasonable grounds is, by means of the mail:

committing, attempting to commit, aiding, abetting, counseling or procuring any other person, to commit an offence

Canada Post Corporation ActReview Mechanisms, ss. 43-46

• Minister may make an interim prohibitory order

• Interim order subject to review by a three member review board, provided that application made to review order within 10 days

• If no application made within the 10 day period, or applicant fails to attend hearing, interim order is deemed final

Provincial and Territorial Human Rights Codes

• All but that of Yukon prohibit the display of:

“any notice, sign, symbol, emblem, or other representation that indicates discrimination or an intention to discriminate against an identifiable group.”

• Originally intended to apply to signs restricting services to certain groups – e.g. (“no Jews or dogs allowed” or "Gentiles Only“)

Provincial and Territorial Human Rights Codes

• Human rights codes of Alberta, British Columbia, Saskatchewan, and the Northwest Territories prohibit broader forms of expression of hate than signs and symbols.

• B.C. Code s. 7 prohibits “…any statement, publication, notice, sign, symbol, emblem or other representation likely to expose a person or a group of persons to hatred or contempt.” [emphasis added]

Provincial and Territorial Human Rights Codes

• Saskatchewan Code s. 14 broadly prohibits publication of “any representation” that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground. [emphasis added]

Canadian Human Rights Act s.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 Human Rights Act

s. 13(2) makes explicit that the s. 13(1) prohibition applies to “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” but not to a “broadcasting undertaking.”

Remedies Under C.H.R.A. s. 54

• Cease and desist order to prevent the same or a similar practice from occurring in future

• Compensation of an amount not exceeding

$20,000.00 "to a victim specifically identified in the communication that constituted the discriminatory practice

• Penalty of not more than $10,000.00

Registration of CHRT Order

CHRA s.57 allows registration of the CHRT order with the Federal Court to make it a Federal Court order for purpose of enforcement (using the Federal Court ’s contempt powers)

Taylor v. Canada, [1990] 3 S.C.R. 892

• Upheld constitutionality of CHRA s. 13

• Majority found s. 13’s definition of hatred and contempt to be precise and narrowly confined to “unusually strong and deep-felt emotions of detestation, calumny and vilification. ”

Taylor v. Canada

• The majority saw minimal impairment of rights because the focus of s. 13(1) is to prevent the harm of hate propaganda, and to "compensate and protect" the victim, rather than "stigmatize or punish" the person who has discriminated

• The majority relied on the “conciliatory bent” of the CHRA

Citron v. Zundel[2002] C.H.R.D. No. 1

• Finding that internet activities covered by CHRA s. 13

• This prior to enactment of CHRA s. 13(2)

• Finding that s. 13 remained constitutional despite its application to the internet.

Warman v. Lemire[2009] C.H.R.D. No. 26

s. 13 of C.H.R.A. found to violate Charter and not be saved by s. 1 because of:

• inclusion of penal provision, and • fact that CHRC rarely avails itself of the

mediation provisions of C.H.R.A.

As a result, the finding in Taylor that the minimum impairment test met by s. 13 no longer applicable

Other Controversial Human Rights Cases

Owens v Saskatchewan [2006] S.J. No. 221(Sask.C.A.): antigay newspaper ad using biblical references does not violate SHRC because not “genuinely extreme.”

Boissoin v. Lund [2009] A.J. No. 1345 (Q.B.)

• Christian Minister published letter to the editor of Red Deer newspaper attacking “the homosexual machine…” which “warps” children to accept same sex marriage.

• Letter coincided with beating of a gay youth

• Finding of breach by AHRT overturned by ACQB

Boissoin v. Lund ACQB Decision

• ACQB finding that letter did not rise to level of hatred and contempt

• Decision raises the bar on test for promoting hatred in human rights context: not sufficient that message is hateful or contemptuous, but must prove intent, and using “concrete evidence,” prove link between message and future discrimination

• Contrary to Sask. C.A. decision in SHRC v Bell, [1994] S.J. No. 380, and arguably, Taylor

Elmasry v. Rogers [2008] B.C.H.R.T. 378

• Complaints initiated on behalf of Mohammed Elmasry of Canadian Islamic Congress against Maclean’s Magazine for publication of Mark Steyn article.

• Article claims that Islam has ambitions for world

domination through demographics and if necessary, violence.

Elmasry v. Rogers• Complaint brought simultaneously in 3 jurisdictions

to CHRC, OHRC and BCHRT (no BC commission).

• CHRC rejected claim, stating that article may be “…obviously calculated to excite discussion and even offend certain readers” but not extreme enough to breach CHRA.

• OHRC found that it had no jurisdiction under Ontario Code, but nonetheless harshly criticized article as “Islamophobic.”

• OHRC Commissioner Barbara Hall was in turn criticized in media for her criticism.

Elmasry v. Rogers

• Tribunal rejected complaint on grounds similar to those relied upon by the CHRC

• Although Tribunal was critical of article’s “inaccuracies”, it found that article did not rise to extreme level of “calumny and vilification” necessary to breach s. 7(1)(b)

• In fact Tribunal found that the article had the positive effect of fostering a debate in which neither side was silenced.

Ezra Levant and “The Cartoons”• Levant, the then publisher of the Weekly Standard,

published the Danish cartoons of the Prophet Mohammed

• Complaint to AHRC by Alberta imam, Syed Soharwardy

• Levant videotaped interview with human rights investigator – calling it a “kangaroo court” and posted to YouTube, ultimately writing book on affair, and provoking a great deal of condemnation of human rights system.

• Complaint ultimately withdrawn before referred to a hearing