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Queen's University
 

The Taylor Case  (1990)

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

Facts:        

In 1979, the Canadian Human Rights Tribunal found that Taylor and the Western Guard party had violated Section 13 (1) of the Canadian Human Rights Code by repeatedly communicated messages by telephone which were likely to expose Jewish people to hatred (extreme ill-will) and contempt (disrespect). The Tribunal issued a cease and desist order which the respondents ignored. The Commission then filed an order with the Federal Court who found the respondents guilty of contempt for having ignored the cease and desist order. Taylor was sentenced to one year in prison and the Western Guard Party was fined $5000. They continued, however, to communicate hate messages.

In 1983, the Commission filed a second application Federal Court to have the Tribunal order enforced. Taylor and the Western Guard Party filed an appeal against this application on the grounds that Section 13(1) of the Canadian Human Rights Act was invalid because it violated s2(b) of the the Canadian Charter of Rights and Freedoms (the guarantee of freedom of expression). The Federal Court Trial Division and the Federal Court of Appeal rejected this claim.

In 1990, the Respondents brought their appeal to the Supreme Court of Canada, claiming that 13(1) of the Act, as well as the tribunal's cease and desist order, violated the Charter and that the Tribunal's order was invalid because of bias. Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892

Issues

  1. Does s. 13(1) of the Canadian Human Rights Act violate s.2(b) Charter ?
  2. If yes, is it a justifiable limit on the freedom of expression?

Rulings:

  1. Yes
  2. Yes

Reasoning:

  1. All judges found that S. 13 (1) prohibits a form of expression (the expression of hateful or contemptuous messages targeting protected groups), and is therefore a violation of the Charter. The Majority found that s. 13 (1) is a justifiable limitation of the freedom of speech because of its worthy goal; promoting equality by preventing the discriminatory effects of hate propaganda, is of "pressing and substantial importance" in a multi-cultural country,  is supported by other sections of the Charter (ss 15 and 27) and by international human rights agreements signed by Canada.  The minority found that the section was too broad and vague to achieve its goal.
  2. The Majority found that S. 13 (1) was fair by applying the 3-part Oakes test. 

First, the Majority found that there was a rational connection between the prohibition of hate propaganda and the promotion of equal opportunity. The minority disagreed; for them the means were disproportionate to the objective, worthy as it was, because the section prohibits a defensible speech without accommodating the right to freedom of expression.

Second, the Majority found that s.13(1) impairs the Charter right as little as possible because it sets limits on the kinds of messages prohibited a) those that expose inter alia religious minorities to hatred or contempt and b) those that are repeatedly sent). The Minority disagreed; for them the terms "hatred" and contempt" could be interpreted so broadly that they could catch perfectly defensible speech. Truthful statements, said without discriminatory intent, within a private conversation, could be caught by the section. 

Finally, the effects of the measure are not needlessly severe because of the nature of human rights law vs. the nature of criminal law. The goal of human rights law is to protect the victim of discrimination; the goal of criminal law is to punish the criminal. A human rights violation does not carry the same stigma as a criminal conviction. Taylor's imprisonment was not the result of the ruling of the Tribunal; it was the result of his refusal to obey the cease and desist order issued by the Tribunal. 

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