CAFE Submissions in Federal Court of Appeal: Marc Lemire v Canadian Human Rights Commission & Richard Warman
Court File No.: A-456-12
FEDERAL COURT OF APPEAL
– and –
CANADIAN HUMAN RIGHTS COMMISSION
THE ATTORNEY GENERAL OF CANADA
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AFRICAN CANADIAN LEGAL CLINIC
CANADIAN CIVIL LIBERTIES ASSOCIATION
CANADIAN ASSOCIATION FOR FREE EXPRESSION
MEMORANDUM OF FACT AND LAW OF THE INTERVENER,
THE CANADIAN ASSOCIATION FOR FREE EXPRESSION
Solicitor for the Intervener,
The Canadian Association for Free Expression:
Barclay W. Johnson
1027 Pandora Avenue
Victoria, BC V8V 3P6
PART I: STATEMENT OF FACTS:
- In Mr. Lemire’s case, the Canadian Human Rights Tribunal found a single infraction of Section 13(1), in regard to an article on Mr. Lemire’s website that he did not write. The website in question was located on a server in the United States. Similar material is legally available to Canadians from many other servers, located in the United States and other locations. There is no evidence that anybody aside from the complainant downloaded and read the particular article in question.
- In these circumstances, no evidence exists which could possibly tie the obscure article in question to any of the negative effects of hate propaganda described by the Supreme Court of Canada in Canada (Human rights commission) v. Taylor,  3 SCR 892 and Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11.
- In considering the case of Whatcott, the Supreme Court of Canada did not have the benefit of expert testimony to review the Kaufman Report, which was a substantial portion of the Cohen Report relied upon by Parliament when passing Section 13(1) of the Canadian Human Rights Act. The testimony of Dr. Michael Persinger, a professor of psychology and biology who testified before the Canadian Human Rights Tribunal on February 22, 2007, demonstrates that the Kaufman Report used an outdated psychological methodology in dealing with the issue of “hate”:
“MR. CHRISTIE: Now, in neuropsychological, do you use the term hate?
DR. PERSINGER: We don’t use the term hate. We use the term aversive stimuli. Hate is a subjective experience and is just simply one of the many labels that people apply to aversive experiences. So we study aversive experiences very, very significantly and frequently including looking at the correlates of brain function. But the term hate is simply one of the many labels that can be applied to an aversive experience.
MR. CHRISTIE: Why wouldn’t you use the term hate in any of your research?
DR. PERSINGER: Primarily because it’s arbitrary. Secondly, because it’s highly subjective, and third very difficult to quantify because it’s a term that’s used so indiscriminately that you really can’t use it effectively. The term aversive stimulus also is not as pejorative. In other words, it doesn’t have connotations.” [See Examination of Dr. Michael Persinger, pg. 2884(3 – 22)]
- Dr. Persinger goes on to explain why the context of the internet is far less likely to generate adverse stimulus than that of a telephone answering machine (as in Taylor) or unsolicited pamphlets delivered door-to-door (as in Whatcott). On the internet, messages are only delivered to willing recipients who specifically request them. In addition, internet message boards (such as Lemire’s website) are interactive and allow readers to respond:
“MR. CHRISTIE: If I were to give you a hypothetical where there are messages in one location which you must go and find, but you also have the option of placing messages equally accessible to the whole world about your own point of view, could you explain how that would affect the ability of an individual to adapt to aversive stimuli?
DR. PERSINGER: I think I understand the context. If, for example, there is an aversive message posted?
MR. CHRISTIE: That’s correct. If I could use a specific example, hoping not to offend anyone if I were to say, I saw a message somewhere that said, all scots are mean, bitter, vicious, dower, penny-pinching, overly aggressive individuals. But I had the option of putting up a message that said that that’s only me and a few other scots and there are some good ones, would that affect the capacity to adapt to what was an aversive stimuli?
DR. PERSINGER: Certainly. There are two options here. One, if it’s a free operant society in the sense that you have choice to read it or not, okay –
MR. CHRISTIE: That’s one premise?
DR. PERSINGER: That’s the important feature. I mean, if you read it and become offended, you also have an opportunity in a free operant setting not to read it and to avoid it. That’s also your choice, if you had that opportunity. On the other hand, you also have a chance to respond to overcome what I guess would be the most appropriate explanation, the categorical error. And a categorical error is over-inclusiveness, to say all scots are this way, all scots are that way. That’s the limit of human language.” [See Examination of Dr. Michael Persinger, pg. 2891(16) – 2892(25)]
PART II: STATEMENT OF ISSUES
- The internet is a new and unique medium, not contemplated by the Supreme Court of Canada in Taylor, and not considered in Whatcott. Section 13(1) of the Canadian Human Rights Act, insofar as it applies to the internet, does not meet the rational connection portion of the Oakes Test, and is therefore not a reasonable limit on Section 2(b) of the Charter of Rights and Freedoms.
PART III: SUBMISSIONS
- It will be respectfully submitted that Section 13(1) of the Canadian Human Rights Act, insofar as it relates to the totally new medium of the internet, does not pass the Oakes Test and is therefore an unconstitutional infringement on the right to freedom of expression. In Canada (Human Rights Commission) v. Taylor,  3 SCR 892, when Section 13(1) was upheld by the narrowest of margins by the Supreme Court of Canada, the Respondent was accused of disseminating hateful views using the telephone, a medium which the court found was “particularly suited” to the distribution of hate propaganda, and linked to its negative effects:
Simply to label telephone communications as “private”, however, does not justify the conclusion that s. 13(1) is overbroad. As was noted by the CCLA, the telephone is a medium which allows numerous organizations to present information and views to a sizable proportion of the public, whether through active calling or the use of recorded messages. While conversations almost always take place on a one-to-one basis, the overall effect of phone campaigns is undeniably public, and the reasonable assumption to make is that these campaigns can have an effect upon the public’s beliefs and attitudes. Indeed, in the recent case of Nealy, supra, expert evidence presented to the Human Rights Tribunal by Dr. René-Jean Ravault, who also appeared before the Tribunal in Taylor, suggests that the telephone is ideally suited to the effective transmission of prejudicial beliefs, and in this respect the Tribunal stated (at pp. D/6485-86):
This brings us to the second and more specific contextual reason which justifies the compass of the provision and that is the medium through which the hate messages are communicated. We have earlier pointed to the important testimony of Dr. Ravault as to the attractions and advantages of telephone communication to racists and white supremacists in terms of connecting with and attempting to influence those in the community who are for one reason or another bewildered or disaffected by events and forces over which they feel they have no control. Dr. Ravault was also able to demonstrate how the authors of hate messages are able through subtle manipulation and juxtaposition of material to give a veneer of credibility to the content of the messages. The combination of the telephonic medium and the material is, we believe, particularly insidious, because, while a public means of communication is used, it is one which gives the listener the impression of direct, personal, almost private, contact by the speaker, provides no realistic means of questioning the information or views presented and is subject to no counter-argument within that particular communications context.
I agree with the Tribunal’s comments regarding telephone communications and hate propaganda, and find its observations to be helpful in rebutting the contention that the private nature of telephone conversations makes especially difficult the imposition of constitutionally valid limitations upon expressive telephonic activity. Those who repeatedly communicate messages likely to expose others to racial or religious hatred or contempt are seeking to gain converts to their position. The evidence of the Cohen Committee, referred to extensively in Keegstra, and expert testimony given before the Tribunals in both Taylor and Nealy, suggest that hate propaganda often works insidiously to spread a message of intolerance and inequality, and that the telephone is particularly suited to this mode of communication.” [Emphasis added]
- The case at bar is clearly distinguishable in principle as a totally different method of communication. To search out and access a website requires a conscious choice of an internet user to read the content within. Furthermore, the internet is interactive in nature, allowing for response, dialogue, and debate. Finally, the type of content being prohibited is legally available from any number of private internet sources outside of Canada. Without a corresponding prohibition on downloading and reading hate propaganda, the prohibition against Canadians uploading hate propaganda does nothing to make hate propaganda less accessible to Canadians.
- In Taylor, all members of the Supreme Court of Canada acknowledged that Section 13(1) infringed upon the right to freedom of expression, as protected by Section 2(b) of the Charter of Rights and Freedoms. The majority (by a 4-to-3 margin), however, found that this infringement was justified as a reasonable limit under Section 1 of the Charter, in accordance with the Oakes test, described by the court as follows:
The tests for determining whether an infringement on a constitutionally guaranteed right or freedom is reasonable and justified in a free and democratic society were established in R. v. Oakes, supra, and have been adhered to ever since. Two requirements must be satisfied. First, the objective which the limit is designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right. Second, if such an objective is established, the party invoking s. 1 must show that the means chosen to attain the objective are reasonable and demonstrably justified in a free and democratic society. To conclude that the means chosen are reasonable and demonstrably justified, the Court must be satisfied of three things:
2. The means used should impair as little as possible the right or freedom in question; and
3. There must be proportionality between the effect of the measures which limit theCharter right or freedom and the legislative objective of the limit on those rights. This involves balancing the invasion of rights guaranteed by theCharter against the objective to which the limitation of those rights is directed.
- The majority decision, penned by Chief Justice Dickson, found that Section 13(1) could be justified under the Oakes Test because it had the valid objective of preventing harm:
“It can thus be concluded that messages of hate propaganda undermine the dignity and self-worth of target group members and, more generally, contribute 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.”
Section 13(1) can only pass the Oakes Test insofar as it is rationally connected to preventing the aforementioned individual and social harms of hate propaganda.
- In 2001, Parliament passed subsection 13(2) of the Canadian Human Rights Act to extend subsection 13(1) to apply to the internet:
“(2) For greater certainty, subsection (1) applies in respect of 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 does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.”
Therefore, Lemire is a case of first instance, the first constitutional challenge of Section 13 in the context of the internet. In this context, it will be respectfully submitted that Section 13(1) has no rational connection to the protection of dignity and self-worth of target group members, nor to the prevention of social harms associated with hate propaganda.
Dignity and Self-Worth of Target Group Members:
- In regard to the harm caused to members of the target group, the same reasoning cannot and does not apply to the internet as would apply to a publicly-advertised telephone hotline. In the context of the internet, material is transmitted at the request of the recipient. Internet users are free to choose from a wide variety of sources, originating around the world and certainly not limited to Canada. In Lemire’s case, the material was never in fact located “in Canada.” A Canadian such as Richard Warman had to seek the material in the United States to be offended. If and when applied to the internet, Section 13(1) of the Canadian Human Rights Act empowers the Tribunal to award “compensation” to the complainant for communication solicited by and deliberately downloaded by the complainant himself. The content is not even “in Canada” until requested. The act of making data available to those who seek it out is tantamount to a private conversation, not to the public dissemination of hate propaganda to those sincerely wishing to avoid it. The communication only occurs when requested by the recipient and is not normally available to anyone else. It is certainly distinct from the active communication of ideas through public speech to people who might or might not want to hear them. It is also distinguishable from a communication broadcast to all who have not requested it.
- In the recent case of Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, the Supreme Court of Canada upheld the hate speech provision in Saskatchewan’s Human Rights Act on the grounds that it prohibits only public and not private communications:
“ … The prohibition only limits the display or publication of representations, such as through newspapers or other printed matter, or through television or radio broadcasting. In other words, it only prohibits public communications of hate speech. The Saskatchewan legislature does not restrict hateful expression in private communications between individuals. While one would expect private expressions of hateful messages might inflict significant emotional harm, they do not impact the societal status of the protected group.”
- The application of Section 13(1) of the Canadian Human Rights Act to private conversations would not be a reasonable limit on freedom of expression under the Oakes Test for the simple reason that policing private conversations between consenting adults is not rationally connected to the objective of shielding target groups from hate propaganda. Even more so, it is not proportional to the objective. Like most private conversations, the groups know nothing about it to be insulted, defamed, or injured. Those individuals who were not party to the conversation would not be aware of any effects of hate propaganda in the first place; therefore, banning the conversation would not protect them from any harmful effects. The application of Section 13(1) to the internet is likewise not rationally connected to the protection of target groups because the internet, by its very nature, involves choice on the part of the recipient. Just as criticized groups can choose not to engage in private conversation with individuals who disseminate hate propaganda, they can choose not to visit websites which disseminate hate propaganda.
- In the defamation case of Crookes v. Newton, 2011 SCC 47, the Supreme Court of Canada made clear that merely making something available does not amount to “communication”:
“Hyperlinks thus share the same relationship with the content to which they refer as do references. Both communicate that something exists, but do not, by themselves, communicate its content. And they both require some act on the part of a third party before he or she gains access to the content.” [See Crookes v. Newton para. 30, emphasis added]
The Supreme Court of Canada relied upon an extensive body of law in coming to this conclusion, including constitutional principles stemming from the Charter of Rights and Freedoms. Justice Abella, writing for the majority, found that the implementation of the Charter, together with technological advancement, had increased the prevalence of freedom of expression considerations in defamation cases:
“Pre-Charter approaches to defamation law in Canada largely leaned towards protecting reputation. That began to change when the Court modified the “honest belief” element to the fair comment defence in WIC Radio Ltd. v. Simpson, 2008 SCC 40,  2 S.C.R. 420, and when, in Grant, the Court developed a defence of responsible communication on matters of public interest. These cases recognize the importance of achieving a proper balance between protecting an individual’s reputation and the foundational role of freedom of expression in the development of democratic institutions and values (Grant, at para. 1; Hill, at para. 101) … Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications.” [See Crookes v. Newton para. 32, emphasis added]
- Like the defendant in Crookes v. Newton, Mr. Lemire did not write the content in question, nor did he promote or advertise it. He merely made it available for those who wished to engage in a private conversation or debate.
- In Crookes v. Yahoo, 2007 BCSC 1325, the BC Supreme Court found at paragraph 26 of its decision that “communication” of defamatory content takes place at the time such content is downloaded, not when it is uploaded to a web server:
“ With respect to internet communications, the site of the alleged defamation is where the damage to reputation occurs: Dow Jones Co. Inc. v. Gutnick, (2002), 194 Aust. L.lR. 433 (H.C.); Barrick Gold Corp. v. Blanchard and Co.,  O.J. No. 5817 (S.C.). It is when a person downloads the impugned material from the internet that the damage to the reputation may be done, and it is at that time and place that the tort of defamation is committed.” [Emphasis added]
- Thus, it is clear that if the message causes group defamation (as set out in Section 13(1)), it is Warman’s download that committed it. The presence of hate propaganda on the internet does not necessarily affect the dignity and self-worth of target group members. Such material will only be seen by those who seek it out.
Social Harms Associated with Hate Propaganda:
- Likewise, imposing punitive sanctions against the content of the internet is not rationally connected to the legislative objective of preventing the social harms associated with hate propaganda. There is no rational justification for prohibiting a person from making available an expression which is readily available to someone who seeks it elsewhere by the same means. If it is hate speech and readily available, imposing sanctions on a Canadian does not connect to or advance the prohibition of availability because an American source which is quite legal is just as available and beyond the reach of our law. This would be and is a ridiculous law against availability from a Canadian. It is equivalent to a codex of books prohibited to Catholics which are freely available to Protestants, with one serious exception – the Protestants can go to jail for making it available.
- The internet is huge, complex, repetitive, and passive unless sought out by the requesting recipient. Any and all of the content alleged against Marc Lemire is available from a wide range of other sources made available by Americans in America, where it is perfectly legal, protected by the First Amendment. (See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) in the U.S. Supreme Court where, by a 9-to-0 margin, the Court struck down the Minnesota hate law, a content-based restriction on freedom of expression. This case occurred after Taylor was decided.)
- It can never be a rational objective to punish the expression by Canadians of words, phrases, content, analysis, or opinions which are readily available from others who are not Canadians in the same place (the internet), at the same time, by the same means, and legally available to all other Canadians. This makes it illegal for a Canadian to make available to Canadians what is just as available to other Canadians from a foreign source, just as easily. Such cannot be a pressing and substantial concern, and is not rationally connected to the legislative objective of shielding vulnerable groups from the effects of hate propaganda. It would only be rationally connected if the prohibition had the effect of making the messages unavailable from any source.
- Likewise, the application of Section 13(1) to the internet is not proportional, but impractical, unfair, and based upon irrational considerations. This is because the same effect is as readily available from other sources on the internet. Further, the effects are not delivered by anyone to another against their will. It is totally irrational to punish expression because of the national origin of the speaker. It is more so to punish expression which is not communicated to anyone in Canada unless requested specifically by the pretended victim.
- In the recent case of Whatcott, the Supreme Court of Canada applied its previous reasoning in Taylor to a situation involving pamphlets distributed door-to-door. The court unanimously clarified that a legal inquiry into the issue of hate speech must focus on the likely effects of the hate speech in question:
“ An assessment of whether expression exposes a protected group to hatred must therefore include an evaluation of the likely effects of the expression on its audience. Would a reasonable person consider that the expression vilifying a protected group has the potential to lead to discrimination and other harmful effects? This assessment will depend largely on the context and circumstances of each case.
 For example, in the normal course of events, expression that targets a protected group in the context of satire, or news reports about hate speech perpetrated by someone else, would not likely constitute hate speech. Representations made in private settings would also not be captured by provisions prohibiting publication, display or broadcast of the expression, such as in s. 14(1)(b) of the Code. It may also make a difference whether the expression contains a singular remark that comes close to violating the prohibition, or contains a multitude of or repeated, delegitimizing attacks.
 Dickson C.J. emphasized this need to focus on the effects of the expression in his reasons in Taylor. He noted that “the purpose and impact of human rights codes is to prevent discriminatory effects rather than to stigmatize and punish those who discriminate” (p. 933 (emphasis added)). The focus of the prohibition against hate propaganda in s. 13(1) of the CHRA is “solely upon [its] likely effects” (p. 931). Dickson C.J. reasoned that the preoccupation with the discriminatory effects was understandable, given that systemic discrimination is more widespread than intentional discrimination. Tribunals must focus on the likely effects of impugned expression in order to achieve the preventive goals of anti-discrimination statutes.”
- In light of the Supreme Court’s reasoning in Whatcott, it will be respectfully submitted that the application of Section 13(1) to the internet is not rationally connected to the prevention of the social harms of hate propaganda. It is indisputable that alleged hate propaganda of all kinds is available on the internet. Much of this material originates outside of Canada. Section 13(1) does nothing to prevent Canadians from making the choice to download hateful material, which many Canadians (including the complainant in this case) have done.
- The dissemination of hate propaganda on the internet is less likely to attract Canadians to its cause than it is to provoke critical assessment and response. Punitive sanctions against Canadians who make such content available do not make the propaganda less available or less attractive. Internet users have free reign to disagree and object to material they read on a website, and Mr. Lemire’s website (a discussion forum) was specifically designed with this purpose in mind. In any event, the prosecution of Canadians who merely make material available on the internet has no impact on the ability of other Canadians to download hateful material, and therefore no rational connection to preventing social harms caused by such material merely being posted.
- For the aforementioned reasons, it will be respectfully submitted that Section 13(1) of the Canadian Human Rights Act, insofar as it applies to the internet, is not rationally connected to the objectives set out in Taylor, and is therefore not a “reasonable limit” to freedom of expression in accordance with Section 1 of the Charter of Rights and Freedoms.
- In conclusion, it is respectfully submitted that the Supreme Court in Taylor did not pronounce on the constitutionality of Section 13(1) in all contexts, but upheld it by the narrowest of margins using Section 1 of the Charter analysis in telephone answering machine context, where no response or debate is possible. Such analysis does not have any relevant applicability to the totally different context of the then-unforeseeable internet and is no longer valid in this context. Using the same Section 1 analysis and principles, Section 13(1) does not pass constitutional muster.
PART IV: STATEMENT OF ORDER SOUGHT
- The Canadian Association for Free Expression requests an order as follows:
“A declaration that Section 13(1) of the Canadian Human Rights Act, insofar as it relates to the internet, is an unreasonable violation of Section 2(b) of the Charter not saved by Section 1 thereof, and therefore inoperative pursuant to Section 52 of the Constitution Act, 1982.”
ALL OF WHICH IS RESPECTFULLY SUBMITTED this ___ day of May, 2013.
BARCLAY W. JOHNSON
Barrister & Solicitor
1027 Pandora Avenue
Victoria, BC V8V 3P6
Telephone: (250) 418-3255
Fax: (250) 370-1655
Counsel for the Intervener
Canadian Association for Free Expression Inc.