Section 13 of the Canadian Human Rights Act was a provision of the Canadian Human Rights Act dealing with hate messages. The provision prohibited online communications which were "likely to expose a person or persons to hatred or contempt" on the basis of a prohibited ground of discrimination (such as race, national or ethnic origin, colour, religion, etc.). Complaints under this section were brought to the Canadian Human Rights Commission and if the Commission found sufficient evidence, the case would be heard by the Canadian Human Rights Tribunal. Section 13 was repealed by the Parliament of Canada effective June 2014.
Legislative history
The Canadian Human Rights Act was enacted in 1977, creating the Canadian Human Rights Commission that investigates claims of discrimination as well as the Canadian Human Rights Tribunal to judge the cases. Section 13 dealt with hate messages disseminated through federally regulated telecommunications. Parliament twice expanded the scope of section 13. In 1998, a penalty was added for breaches of the section. In 2001, the section was expanded to apply to telecommunications over the internet.
From 2001 until its repeal in 2014, the first part of section 13 read:
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.
Suggestions for repeal or reform
In 2008, Liberal MP Keith Martin proposed private Member's motion M-446 urging Parliament to repeal section 13. 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?"
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.
Repeal
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. The bill received royal assent on June 26, 2013, coming into force one year later.
Bill C-36
In 2019, the Parliament of Canada Standing Committee on Justice and Human Rights issued a report on ending online hate, which included recommending the reinstatement of section 13 or an analogous provision. Bill C-36 (43rd Parliament, 2nd session), introduced in 2021, would have reinstated section 13 in addition to adding a definition of hatred based on Supreme Court of Canada cases. The bill was still at first reading when Parliament was dissolved in 2021.
Constitutional challenges
Canada (Human Rights Commission) v Taylor
In 1990, a 4-3 decision of the Supreme Court of Canada upheld 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.
Warman v. Lemire
In the 2009 case Warman v Lemire, 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. 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.