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Queen's University
 

The McAleer Case (1996)

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

Facts:

In January-February 1993, three separate complaints were filed against three distinct respondents associated with a set of recorded messages (Tony McAleer, Harry Vaccaro and the Canadian Liberty Net). All three complaints were the same in substance: they claimed that the respondents had used the telephone to communicate messages that were likely to expose gay and lesbians to hatred and contempt, in violation of section 13 of the Canadian Human Rights Act.  In the hearing, it was determined that Tony McAleer had communicated telephonically messages which 1) communicated extreme ill-will against "queers" by linking this group to pedophilia and child molestation 2) exposed "queers" to hatred and by advocating violent retaliation against them (trampling them into peat bogs like the Ancient Celts used to do).  The Tribunal ruled the persons designated in this message by the derogatory term "queers" referred to persons identifiable by their sexual orientation, and, as sexual orientation was a prohibited ground of discrimination, this message was a violation of section 13 of the Canadian Human Rights Act. The respondents were ordered to cease and desist further communication of messages likely to expose protected groups to hatred or contempt on the basis of sexual orientation.

In 1996, Tony McAleer and the Canadian Liberty Net applied for a judicial review of this decision. They contended, among other things, that the term "sexual orientation" was too vague to be justified. For them, sexual orientation included the illegal practices of bestiality and pedophila. Prohibiting them from speaking out against these sexual evils was tantamount to legalizing the practices.  (McAleer v. Canada (Human Rights Comm.) (1996), 26 C.H.R.R. D/280 (F.C.T.D.))

Issues

  1. Does s. 13 (1) of the CHRA represent an interference in the province's jurisdiction over property and civil rights?
  2. Does s 13 (1) of the CHRA contravene ss 2 (1) and (b) and s. 7 of the Charter (freedom of speech and liberty)?
  3. Was the Tribunal's interpretation of "sexual orientation" vague and overly broad?

Rulings:

  1. No
  2. No
  3. No

Reasoning:

  1. S. 13 (1) deals with telecommunications, which are clearly within the federal jurisdiction of Parliament. The tribunal did not err. 
  2. S. 13 (1) does violate the Charter, but it does so justifiably. See the Supreme Court's reasoning.
  3. The tribunal did not err. The term "sexual orientation" is sufficiently clear within the context of this piece of legislation. The "argument that the inclusion of sexual orientation is tantamount to legitimizing or legalizing bestiality and pedophilia has little merit. Pedophilia is a sexual desire directed towards children. Bestiality refers to copulation between a human being and an animal. Sexual orientation refers to an individual's preference with respect to gender. It is not vague or overly broad, and has been found to be an analogous ground under s. 15 of the Charter".

 

 

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000