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Queen's University


When does a recorded message "expose" a group to "hatred or contempt"?

In Western Guard Party (1979),the first case to test s. 13 (1) of the Canadian Human Rights Act, the Human Rights Tribunal provided a succinct interpretation of what it means to expose a group to hatred or contempt:" If one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one then falls within the compass of s.13(1) of the Canadian Human Rights Act". The respondents provided the public with 13 white power messages that were likely to expose Jewish persons to hatred or contempt, contrary to s. 13 (1).

What is the burden of proof in a s/hate case?

In Nealy (1989),the Human Rights Tribunal ruled that a complainant does not need to prove the following:  [(1) intent of the sender, 2) reaction of an actual receiver 3) the victimization of actual person or persons and/or 4) the likely reaction of a reasonable receiver. Rather, "it is enough to prove that the matter in the messages is more likely than not to spark a positive reaction amongst some of the listeners to it which will likely in turn manifest itself in "hatred" or "contempt" towards the targets of the messages. Furthermore, in making the case on the potential impact of the matter on recipients of it, the test is not "the reasonable listener" but whether there is anybody, even the most malevolent or unthinking person, who might be inspired to treat the targets with hatred or contempt". The respondents, who had communicated xenophobic and racist messages over the phone, were found to have violated s. 13 (1).

Is cyber hate prohibited by the Act?

In Zündel (2002),the Tribunal found that internet communication occurs, in large part, via a federally regulated telecommunications network. It therefore found that Zündel had used Zündelsite to communicate anti-Semitic matter contrary to s. 13 of the Act.

In Machiavelli and Associates (2002), Tribunal upheld a complaint against respondents who had used their website to promote hatred against persons based on their sexual orientation. In this case, the respondents argued unsuccessfully that they were exempt from s. 13 because they had used a cable connection, not a telephone connection (a modem), to connect to the internet. The Tribunal determined that all internet connections (dial-up, ADSL or cable) eventually go through a phone line.

Finally, in Kyburz (2003), where the respondent was found responsible for posting anti-Semitic messages on the web in violation of s. 13, the Tribunal pointed out that the Canadian Human Rights Code was amended in 2001, following the proclamation of the Anti-Terrorism Act, to include all forms of internet communication. It no longer mattered whether material on the website is transmitted telephonically.

Is hate a form of expression guaranteed by the Charter of Rights and Freedoms?

In Taylor (1990),appellants of the Taylor (1979) case argued that 13 (1) violated their right to freedom of expression The Supreme Court dismissed the appeal and determined that s.13(1) was a necessary limitation. The tests set forth in this case are used to defeat similar constitutional arguments in McAleer (1996), Canada Liberty Net (1998) and Zündel (2002).

Can a university terminate its employees for posting hate messages on the internet?

In Tremaine (2007), the Human Rights Tribunal found that University of Saskatchewan instructor Terry Tremaine had posted approximately 2000 hate messages on a white supremacist website. Two years before this ruling, the respondent's employer terminated the respondent after conducting its own internal investigation.

Are messages communicated via a provincial phone company exempt from the Canadian Human Rights Act?

In McAleer (1996),respondents Tony McAleer and the Canadian Liberty Net claimed that since they communicated their homophobic messages via a provincially regulated telecommunications system, they were exempt from s. 13(1) which encompasses messages communicated through a federally regulated telecommunications system. The Federal Court Trial Division dismissed the appeal, ruling that even provincially regulated phone companies come under federal jurisdiction and are therefore subject to s. 13 of the Act. (see also Nealy 1989)

Can the Federal Court issue cease and desist injunctions pending a Tribunal decision?

In Canadian Liberty Net (1998),the Supreme Court of Canada ruled that a Federal Court Trial Division had correctly issued an injunction preventing the Canadian Liberty Net from communicating anti-Semitic messages pending a final decision from the Canadian Human Rights Tribunal. The respondents had ignored the injunctions granted during their hearing and were therefore found to be in contempt of court.

Is a web server responsible for hate messages posted on a client's website?

In March 2006,  Alexan Kulbashian (2006),who ran a web-hosting service, was found liable for communicating hate messages through the websites he hosted. Although the Canadian Human Rights Act provides safeguards for web-hosting services who are ignorant of the content of its clients' websites, Kulbashian was not saved because he actively encouraged white power groups to use his server to promote hatred of Jewish persons.

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