Canadian Human Rights Commission Free Speech Controversy

The Canadian Human Rights Commission free speech controversy refers to debates that have arisen over Section 13(1) of the Canadian Human Rights Act and the interpretation and application of it by the Canadian Human Rights Commission.

Parliament enacted section 13(1) in 1977, as part of the Canadian Human Rights Act. In 1990, an individual challenged the constitutionality of s. 13(1) as it applied to telephone communications, arguing that the provision infringed the guarantee of freedom of expression set out in section 2 of the Canadian Charter of Rights and Freedoms. By a 4-3 split decision, the Supreme Court of Canada held that s. 13(1) was constitutional. The Court agreed that the provision infringed the guarantee of freedom of expression, but that the prohibition on hate speech was a justifiable limitation under section 1 of the Charter. However, since that decision, Parliament has expanded the scope of s. 13(1) in two ways: by applying it to telecommunications over the internet, and by adding a penalty for breaches of s. 13(1). These expansions of the provision have raised questions about the continued constitutionality of s. 13(1).

Some high-profile cases under s. 13(1) have also raised questions about the public policy rationale for s. 13(1), and whether it is an acceptable restriction on freedom of expression in Canada. As a result, there have been two private member's bills introduced to repeal the provision. The first bill, introduced in 2008, did not proceed. The second bill, introduced in 2012, has passed the House of Commons and is under consideration in the Senate (as of February 28, 2013). There has also been one case where the Canadian Human Rights Tribunal held that the changes to s. 13(1) meant that it was no longer constitutional under the analysis set out by the Supreme Court in Taylor and was inoperative. However, on review, the Federal Court of Canada held that while the new penalty provision could not be justified under Taylor, the rest of s. 13(1) continued to be in force. In a related development, on February 27, 2013, the Supreme Court of Canada gave its decision in Saskatchewan (Human Rights Commission) v. Whatcott. Unlike Taylor, the Supreme Court's decision in Whatcott was unanimous.