Judgments

[1996] 2 F.C. 345

T-404-94

Tony McAleer and Canadian Liberty Net (Applicants)

v.

Canadian Human Rights Commission and John Payzant (Respondents)

Indexed as: McAleer v. Canada (Human Rights Commission) (T.D.)

Trial Division, Joyal J. — Vancouver, May 4 and December 13, 1995; Ottawa, February 6, 1996.

Human rights — Judicial review of CHRT decision ordering applicants to cease discriminatory practice — CHRA, s. 13(1) making it discriminatory practice to communicate by telecommunication undertaking within Parliament’s legislative authority hate messages against persons identifiable on prohibited ground of discrimination — Applicants disseminating recorded message by telephone advocating trampling “queers” into peat bog — CHRT holding sexual orientation prohibited ground of discrimination; message likely to expose homosexuals, identifiable on basis of prohibited ground of discrimination, to hatred, contempt — S. 13(1) infringing Charter, s. 2 freedoms, but justifiable under Charter, s. 1 — Communications relayed by telecommunications undertaking within legislative authority of Parliament “Sexual orientation” neither vague nor overly broad, but precise legal concept dealing specifically with individual’s gender preference in sexual relationships — CHRA should be interpreted, applied, administered as though contained “sexual orientation” as prohibited ground of discrimination.

Constitutional law — Charter of Rights — Fundamental freedoms — CHRA, s. 13(1) making it discriminatory practice to communicate by telecommunication undertaking within Parliament’s legislative authority hate messages against persons identifiable on prohibited ground of discrimination — Infringing Charter, s. 2 freedoms but justified under Charter, s. 1.

Constitutional law — Charter of Rights — Life, liberty and security — CHRA, s. 13(1) making it discriminatory practice to communicate by telecommunication undertaking within Parliament’s legislative authority hate messages against persons identifiable on prohibited ground of discrimination — Applicants disseminating recorded message by telephone advocating trampling “queers” into peat bog — Principle of fundamental justice laws may not be too vague — Law unconstitutionally vague if so lacks in precision as not to give sufficient guidance for legal debate i.e. for reaching conclusion as to meaning by reasoned analysis applying legal criteria — Sexual orientation as prohibited ground of discrimination precise legal concept, dealing specifically with person’s sexual preference in terms of gender — Neither vague nor overly broad.

Constitutional law — Charter of Rights — Limitation clause — CHRA, s. 13(1) making it discriminatory practice to communicate by telecommunication undertaking within Parliament’s legislative authority hate messages against persons identifiable on prohibited ground of discrimination — Infringing Charter, s. 2 freedoms — Justified under Charter, s. 1 — (1) Objective of s. 13, to promote equal opportunity, unhindered by discriminatory practices and preventing serious harm caused by hate propaganda, sufficiently important to warrant overriding freedom of expression — (2) S. 13(1) satisfying proportionality test — (i) Rationally connected to legislative purpose as aids in restricting activities antithetical to promotion of equality, tolerance in society — (ii) Meeting minimal impairment criteria as not overly broad, vague — Offering sufficient guidance for legal debate — (iii) Degree of limitation imposed by s. 13(1) not unduly harsh.

Constitutional law — Distribution of powers — Applicants disseminating recorded message allegedly exposing homosexuals to hatred by telephone — CHRA, s. 13(1) providing discriminatory practice to communicate by telecommunication undertaking within Parliament’s legislative authority hate messages against persons identifiable on prohibited ground of discrimination — Telecommunication system extending beyond or connecting one province to one or more other provinces, within federal jurisdiction — Communications at issue relayed in whole or in part by telecommunication undertaking within legislative authority of Parliament.

This was an application for judicial review of the Canadian Human Rights Tribunal’s decision, ordering the applicants to cease its discriminatory practice under Canadian Human Rights Act, subsection 13(1), which makes it a discriminatory practice to communicate by means of a telecommunication undertaking within the legislative authority of Parliament hate messages against persons identifiable on the basis of a prohibited ground of discrimination.

On dialing the applicant’s telephone number, respondent Payzant heard a recorded message advocating trampling “queers … into the peat bogs”. The Tribunal emphasized that sexual orientation is a prohibited ground of discrimination and found that the message was likely to expose homosexuals, identifiable on the basis of a prohibited ground of discrimination, to hatred or contempt.

Charter, paragraph 2(a) guarantees freedom of conscience and religion; paragraph 2(b) guarantees freedom of expression; and section 7 guarantees the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.

The issues were: whether subsection 13(1) (1) was contrary to Charter, paragraphs 2(a), (b) and section 7; (2) was beyond the jurisdiction of Parliament; and (3) whether the Tribunal’s interpretation of “sexual orientation” was vague and overly broad, thereby infringing Charter, paragraphs 2(a ), (b) and section 7.

Held, the application should be dismissed.

The Tribunal had sufficient evidence to rule as it did. It did not err jurisdictionally or otherwise.

(1) Subsection 13(1) does infringe Charter, section 2. (i) The infringement is, however, justified under section 1 because the objective of subsection 13(1), to promote equal opportunity unhindered by discriminatory practices and accordingly of preventing the serious harm caused by hate propaganda, is sufficiently important to warrant overriding the freedom of expression. Furthermore, the enshrinement of equality and multiculturalism values in Charter, sections 15 and 27 also indicates the importance of Parliament’s objective in enacting subsection 13(1).

(ii) The means were reasonable and demonstrably justified: (a) Subsection 13(1) is rationally connected to the legislative purpose in enacting the provision. It aids in restricting activities antithetical to the promotion of equality and tolerance. (b) Subsection 13(1) also meets the minimal impairment criteria. The phrase “hatred or contempt” used in subsection 13(1) is not overly broad or vague since it refers only to unusually strong and deep-felt emotions of detestation. As long as the Tribunal always considers the ardent and extreme nature of the feeling as described in the provision, there is little danger of subjectivity with respect to the proper statutory interpretation. The absence in the CHRA of an interpretative provision does not create in subsection 13(1) an overly wide scope. Subsection 13(1) offers sufficient guidance for legal debates and is neither vague nor overbroad. (c) The effects of subsection 13(1) upon freedom of expression are not “so deleterious as to make intolerable its existence in a free and democratic society”. When considering the context of the procedural and remedial provisions of the CHRA, subsection 13(1) plays a minimal role in the imposition of any sanction. As such the degree of limitation imposed upon the freedom of expression by this provision was not unduly harsh.

(2) A telecommunications system extending beyond a province or connecting one province to one or more other provinces falls within federal jurisdiction. Whether an undertaking, service or business is a federal one depends on the nature of its operations. In that light the communications at issue under subsection 13(1) are relayed in whole or in part by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament. This case meets the jurisdictional test.

(3) It is a principle of fundamental justice that laws not be too vague. Courts will be reluctant to find a provision so vague as not to qualify as “law” under section 1, and will rather consider the scope of the provision under the “minimal impairment” test. A law is unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate—that is, for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria. Once the general standard has been met, all other submissions with respect to precision of the statute should be considered at the “minimal impairment” stage of the section 1 analysis. “Sexual orientation” as a prohibited ground of discrimination is a precise legal concept as it deals specifically with an individual’s gender preference in sexual relationships. It is neither vague nor overly broad. Rather “sexual orientation” is an analogous ground of discrimination under Charter, section 15. Therefore the CHRA should be interpreted, applied and administered as though it contained “sexual orientation” as a prohibited ground of discrimination under section 3.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(a),(b), 7, 15, 24(1), 27.

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3, 13(1).

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 92.

Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1 (as enacted by S.C. 1990, c. 8, s. 5), 57 (as am. idem, s. 19).

Human Rights Act, S.B.C. 1984, c. 22.

CASES JUDICIALLY CONSIDERED

APPLIED:

Haig v. Canada (1992), 9 O.R. (3d) 495; 94 D.L.R. (4th) 1; 40 C.R.R. (2d) 287; 57 O.A.C. 272 (C.A.); Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3 C.R.R. (2d) 116; The Queen v. Oakes, [1986] 1 S.C.R. 103; (1986), 26 D.L.R. (4th) 200; 24 C.C.C. (3d) 321; 50 C.R. (3d) 1; 19 C.R.R. 308; 65 N.R. 87; 14 O.A.C. 335; R. v. Keegstra, [1990] 3 S.C.R. 697; (1990), 114 A.R. 81; [1991] 2 W.W.R. 1; 77 Alta. L.R. (2d) 193; 61 C.C.C. (3d) 1; 3 C.P.R. (2d) 193; 1 C.R. (4th) 129; 117 N.R. 284; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; (1992), 114 N.S.R. (2d) 91; 93 D.L.R. (4th) 36; 313 A.P.R. 91; 74 C.C.C. (3d) 289; 43 C.P.R. (3d) 1; 15 C.R. (4th) 1; 10 C.R.R. (2d) 34; 139 N.R. 241; Toronto Corporation v. Bell Telephone Company of Canada, [1905] A.C. 52 (P.C.); Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission), [1989] 2 S.C.R. 225; [1989] 5 W.W.R. 385; (1989), 26 C.P.R. (3d) 289; 98 N.R. 161.

CONSIDERED:

Egan v. Canada, [1995] 2 S.C.R. 513; (1995), 95 CLLC 210-025; Leshner v. Ontario (No. 2) (1992), 16 C.H.R.R. D/184 (Ont. Bd. Inq.); R. v. Barrett (1987), 82 A.R. 45; 56 Alta. L.R. (2d) 20; 39 C.C.C. (3d) 230 (C.A.).

REFERRED TO:

Nealy v. Johnston (1989), 10 C.H.R.R. D/6450; R. v. Andrews, [1990] 3 S.C.R. 870; (1990), 77 D.L.R. (4th) 128; 61 C.C.C. (3d) 490; 1 C.R. (4th) 266; 3 C.R.R. (2d) 176; 117 N.R. 284; 47 O.A.C. 293.

AUTHORS CITED

Black’s Law Dictionary, 6th ed., St. Paul, Minnesota: West Publishing Co., 1990. “bestiality”.

Greenspan, Edward L. “Freedom of Expression in Canada: ‘Ifs, Buts and Whereases’” (1995), 29 L. Soc. Gaz. 212.

New Shorter Oxford English Dictionary on Historical Principles, Oxford: Clarendon Press, 1993 “bestiality”, “paedophilia”.

APPLICATION for judicial review of the CHRT’s decision (Payzant v. Tony McAleer, Canadian Liberty Net and Harry Voccaro, [1994] C.H.R.D. No. 4 (QL)), ordering the applicants to cease the discriminatory practice under Canadian Human Rights Act, subsection 13(1) of disseminating a recorded message by telephone which was found to expose homosexuals to hatred and contempt. Application dismissed.

COUNSEL:

Douglas H. Christie, Victoria, for applicants.

Prakash Diar and John Payzant for respondents.

SOLICITORS:

Douglas H. Christie for applicants.

Canadian Human Rights Commission for respondents.

The following are the reasons for judgment rendered in English by

Joyal J.: This is an application for judicial review, pursuant to section 18.1 of the Federal Court Act[1]of a decision of the Canadian Human Rights Tribunal (the Tribunal) rendered on January 27, 1994 [[1994] C.H.R.D. No. 4 (QL)], in which the Tribunal ordered the applicants to cease its discriminatory practice, under subsection 13(1) of the Canadian Human Rights Act (the CHRA),[2] which provides for the following:

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that the person or those persons are identifiable on the basis of a prohibited ground of discrimination.

The suggested grounds of discrimination in the case at bar involve sexual orientation, and in particular, homosexuality. The Tribunal also ordered that the applicants refrain from any such action in the future, anywhere in Canada.

The chronology of events leading up to the present hearing are as follows. The applicants originally applied to this honourable Court for judicial review on February 28, 1994. Then, on April 14, 1994, the two parties consented to a motion brought forward by the Canadian Human Rights Commission for an order extending the time for filing the respondents’ affidavit and for an order extending the time for filing the applicants’ application record.

Subsequently, a date for the hearing was set for May 4, 1995, and in fact, the hearing proceeded on that date. However, by reason of some procedural shortcomings, under section 57 of the Federal Court Act [as am. by S.C. 1990, c. 8, s. 19], the hearing could not be completed on that date, but was continued and was terminated on December 13, 1995.

THE FACTS

The facts of this case, as ably summarized by the Tribunal, highlight the complaints brought forward by the respondent, Mr. John Payzant, under subsection 13(1) of the CHRA, whereby he alleges that the applicants had discriminated against him on the grounds of his sexual orientation in messages on the applicants’ hot line between December 31, 1992 and January 15, 1993. The respondent-complainant argues that certain messages disseminated through the telephone were likely to expose him to hatred or contempt. He testified that he dialled a telephone number, (604) 572-8863, on several occasions during this time period and heard messages which he interpreted as advocating hatred or contempt against gays and lesbians. The full text of this message is as follows, reproduced from Exhibit TM-1:

Transcribed on January 8 1993 from message recorded on December 30, 1992—Canadian Liberty Net

You have reached the Canadian Liberty Net for Monday, December 28, 1992.

In the news, watch out for the latest subtle attack on your freedom of speech and your freedom to read. I am sure many of you have read, with great disgust, the presence and distribution of the N.A.M.B.L.A. newsletter for childmolesters which stands for the North American Man Boy Love Association which believes in legalized sex with consenting children. The newsletter is a thinly veiled “How to” guide for pedophiles. The catch here is that the police cannot do anything about the newsletter which makes it pass Customs. Under the Criminal Code it is illegal to import obscene material but not to possess it. There is a move underfoot to change that law to make it a crime to possess obscene material which is illegal to import. For those who haven’t clued in—this section of the Criminal Code under pressure for amendment is the same one that covers so-called hate literature. The proposed changes would also make it a crime to possess for example, Henry Ford’s founder of the Ford Motor Corporation, his book called “International Jew” or Martin Luther, the great Protestant reformer, his book “The Jews and Their Lives” or Arnold Leesis’ book on “Jewish Ritual Murder”. By the way, we can obtain any and all of these books and many more. If you are interested in obtaining any of these books, leave your name and number after the tone. This is the usual thin edge of the wedge tactic used by the Iron Heal for who would disagree with making it legal to possess the N.A.M.B.L.A. newsletter. I think the newsletter should be allowed in Canada but that childmolesters, homo or otherwise, should be executed. This should decrease the possession or circulation within Canada of the newsletter. Hell, the ancient Celts used to take their queers and trample them into the peat bogs. It’s not such a bad idea, maybe. Perhaps we have finally stumbled across the argument which will save Burns bog in Delta from development because it is the only bog big enough to service the needs of the progressive city of Vancouver.

On to other topics, once again, Tom Metzger of WAR, White Aryan Resistance, will be speaking on the 22nd of January. We are keeping the location a secret for obvious reasons but as we get closer to the date, we will announce the meeting place where directions will be given to the venue on the night of the event. You will not want to miss this. That’s Tom Metzger of the White Aryan Resistance speaking in Vancouver. To obtain copies of the WAR newsletter, send $3.00 for a sample and $25.00 for a year’s subscription—that’s U.S. funds—made out to John Metzger at WAR, P.O. Box 65, Fallbrook, California, 92088. Also for sale by the Canadian Liberty Net his song “I’m too Nazi”, $7.00, “Black on Black Hate Calls” $10.00 featuring Lucius Tate; “Might is Right” $10.00. Send orders to P.O. Box 35683 Vancouver, B.C. V6M 4G9 and remember, Liberty Net message is changed every week, usually on a Monday. We leave you now with a poem from Rudyard Kipling: A Song of the White Man by Rudyard Kipling. (He quotes the Song and that ends the tape.)

THE TRIBUNAL’S DECISION

In light of these facts, the Tribunal concluded that the complaints under subsection 13(1) of the CHRA were substantiated for the following reasons:

1. The messages were transmitted over Mr. McAleer’s telephone by way of the B.C. Telephone system, which is an undertaking within the legislative authority of the Parliament.

2. Mr. McAleer acknowledged causing this message to be communicated over his telephone line.

3. In analyzing whether the message communicated was likely to expose a person to hatred or contempt by reason of the fact that that person is identifiable on the basis of a prohibited ground of discrimination, the Tribunal underlined that intent to discriminate is not a pre-condition to a finding of discrimination under the CHRA.

4. The Tribunal also found that the message clearly communicates extreme ill toward a group of persons, namely “queers”, and suggests that such persons have no redeeming qualities. As such, the message creates a condition for hatred to flourish.

Furthermore, the Tribunal underlined that it is now recognized, in light of the Ontario Court of Appeal’s decision in Haig v. Canada,[3] that sexual orientation is a prohibited ground of discrimination and that it is not necessary to go any further in defining the scope of the term “sexual orientation”. Accordingly, the Tribunal found that the message at issue was likely to expose homosexual persons, identifiable on the basis of a prohibited ground of discrimination, to hatred or contempt. In this regard, the Tribunal concluded that it is the effect of the message rather than the intent of its author that must be assessed.

On a final note, the Tribunal remarked that the fact that Mr. McAleer does not approve of homosexuality is certainly a view he is free to communicate telephonically, as long as he does not do so in such manner as to offend subsection 13(1) of the CHRA.

THE APPLICANTS’ POSITION

According to the applicants, subsection 13(1) of the CHRA is beyond the jurisdiction of Parliament as it represents an interference in the provinces’ exclusive jurisdiction over property and civil rights pursuant to section 92 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item I) [R.S.C., 1985, Appendix II, No. 5]]. In this regard, the province of British Columbia has legislated its own B.C. Human Rights Act [S.B.C. 1984, c. 22] and has passed legislation similar to that of subsection 13(1) of the CHRA. The applicants further argue that an answering machine is not a telecommunications undertaking within the legislative authority of Canada.

The applicants also submit that subsection 13(1) of the CHRA is contrary to paragraphs 2(a) and 2(b) as well as section 7 of the Canadian Charter of Rights and Freedoms [being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] (the Charter). Furthermore, the applicants submit that the Tribunal’s interpretation of “sexual orientation,” as a prohibited ground of discrimination under subsection 13(1) of the CHRA, is vague and overly broad, thereby infringing paragraphs 2(a), 2(b) and section 7 of the Charter. As such, subsection 13(1) of the CHRA should be declared of no force or effect pursuant to section 52 of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].

Alternatively, the applicants contend that the inclusion of child molesters or pædophiles in the interpretation of the term “sexual orientation” is overly broad, thereby infringing section 7, and paragraphs 2(a) and 2(b) of the Charter and ought to be stayed or abrogated by the application of subsection 24(1) of the Charter.

The applicants further elaborate on the errors found in the conventional thinking derived from Canada (Human Rights Commission) v. Taylor.[4] As an example, the Supreme Court of Canada decision in Egan v. Canada[5] noted that a ban on marriage between homosexuals did not constitute discrimination, signifying that the state’s legitimate societal interests can prevail.

It is also argued by the applicants that the position of the CHRC, in the case at bar, failed the test of a “pressing social ill” or, for that matter, the rationality and proportionality test. It did not refer to any “real and present danger”. As a result, there is grave risk that any comment or communication on the subject of race, religion, sexual orientation or any of the other subjects listed in subsection 13(1) of the CHRA against which a complaint is filed, will be immediately proscribed with serious criminal sanctions imposed in the event of a further complaint.

Further, counsel for the applicants refers to the findings of the Tribunal and argues that the facts therein must meet the Charter test. In effect, the panel erroneously dismissed out of hand counsel’s arguments with respect to “queers” and “sodomites”.

It is also argued that the Tribunal failed to consider the later message (Exhibit TM-2). It is a fact, according to counsel, that the second message is a part of the evidence and the contents, of course, are of a nature to mitigate considerably the “hatred or contempt” effect of the first message.

THE RESPONDENTS’ POSITION

The respondents highlight the fact that the applicants do not suggest that the Tribunal erred in reaching its conclusions. It is therefore submitted that where the statutory discretion has been exercised in good faith, in accordance with the principles of natural justice, and where reliance has not been placed upon irrelevant considerations, the courts should not interfere.

According to the respondents, the Tribunal’s decision is well founded for the following reasons:

(1) The applicant, Tony McAleer, admitted to the Tribunal that he communicated telephonically the message at hand. Moreover, the B.C. Telephone Company, incorporated in 1916 pursuant to an Act of the Parliament of Canada, is a telecommunication undertaking within the legislative authority of Parliament since the system extends beyond the province and is subject to federal regulation.

(2) According to the respondents, the validity of subsection 13(1) of the CHRA was tested and upheld by the Supreme Court of Canada in the Taylor[6] case.

(3) As for the inclusion of “sexual orientation” as a prohibited ground of discrimination, the respondents underline that the Ontario Court of Appeal in Haig,[7] held sexual orientation to be an analogous ground of discrimination under section 15 of the Charter.

(4) The respondents further underline the fact that the decision in Haig, supra, was accepted by both the Department of Justice and the Human Rights Tribunal as being good law.

(5) Finally, the respondents submit that courts and tribunals, both federal and provincial, recognize that the concept of “sexual orientation” does not include unlawful or illegal acts such as pædophilia or bestiality, which are not protected by the CHRA.

THE LAW

A.        The constitutionality of subsection 13(1) of the CHRA

Counsel for the applicants has already challenged unsuccessfully the constitutionality of subsection 13(1) of the CHRA before the Supreme Court of Canada in the Taylor[8] case, which dealt with the issue of whether the effect of that subsection upon communications tending to expose persons to hatred or contempt on the specific grounds listed in that provision, violated the provisions of the Charter.

The relevant sections of the Charter read as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.

Having first determined that the freedom of expression was breached by subsection 13(1), the Supreme Court of Canada upheld the infringement on the basis of section 1 of the Charter. Subsection 13(1) of the CHRA was held to constitute a reasonable limit upon the freedom of expression. Given the similarity of the matter at issue, it is possible to adopt herein certain aspects of the Supreme Court’s analysis in the Taylor, supra, decision. In this regard, this Court may acknowledge that subsection 13(1) infringes section 2 of the Charter and proceed to determine whether the infringement may be justified under section 1 in light of this particular factual situation.

It is established law that the onus falls on the respondents to demonstrate that the infringement of the Charter is justified in a free and democratic society pursuant to the following two-branch test enunciated in The Queen v. Oakes[9] and modified more recently by the Supreme Court of Canada:

1. The objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom.

2. Secondly, the party invoking section 1 of the Charter must show the means to be reasonable and demonstrably justified, thus meeting the requirements of a proportionality test, involving three different components. In this regard, the Supreme Court of Canada in Taylor[10] reiterated the well recognized principles of Oakes in the following manner:

… an impugned measure is seen as proportionate only if the state shows that: (i) a connection exists between the measure and objective so that the former cannot be said to be arbitrary, unfair or irrational; (ii) the measure impairs the Charter right or freedom at stake no more than is necessary; and (iii) the effects of the measure are not so severe as to represent an unacceptable abridgment of the right or freedom.

B.        Application of the two-pronged Oakes test, regarding section 1 of the Canadian Charter of Rights and Freedoms

(1)       The objective test

In its analysis, the Supreme Court of Canada in Taylor, supra, fully examined the purpose of subsection 13(1) of the CHRA. In this regard, the Court remarked that Parliament’s objective of promoting equal opportunity unhindered by discriminatory practices and accordingly, of preventing the serious harm caused by hate propaganda, is sufficiently important to warrant overriding the freedom of expression. Dickson C.J., further stated that the enshrinement of equality and multiculturalism values in sections 15 and 27 of the Charter is yet another indicator of the importance of Parliament’s objective in enacting subsection 13(1). In his analysis, Chief Justice Dickson adopted the following conclusion [at page 922], reached by the Supreme Court of Canada in R. v. Keegstra:[11]

… I am of the opinion that hate propaganda contributes little to the aspirations of Canadians or Canada in either the quest for truth, the promotion of individual self-development or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. While I cannot conclude that hate propaganda deserves only marginal protection under the s. 1 analysis, I can take cognizance of the fact that limitations upon hate propaganda are directed at a special category of expression which strays some distance from the spirit of s. 2(b), and hence conclude that “restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b )” ….

Although it might be remembered that the Supreme Court split 4 to 3 on the issue, and that to this day, there is no universal acceptance of it, the decision is still law of the land and, on that principle at least, must be respected.

(2)       The proportionality criteria

With respect to the first branch of the proportionality test, namely the rational connection between the measure and the objective, I respectfully defer to the conclusion drawn by Dickson C.J. in Taylor.[12] In drawing an analogy between that case and the case at bar, I should find that subsection 13(1) of the CHRA is rationally connected to the legislative purpose in enacting this particular provision. In particular, this provision aids in restricting activities considered antithetical to the promotion of equality and tolerance in society.

With regards to the second component of the proportionality test, regard must be had to the applicants’ view that the expression “sexual orientation” is vague, overly broad, and may be interpreted as including such practices as pædophilia and bestiality.

On the one hand, it is important to note that Dickson C.J. found that, in Taylor, supra, subsection 13(1) also met the “minimal impairment” criteria, since the provision was not overly broad or vague. In this regard, he made the following observations:

1. The phrase “hatred or contempt” used in subsection 13(1) is not overly broad or vague since this phrase refers only to unusually strong and deep-felt emotions of detestation. Accordingly, as long as the Tribunal always considers the ardent and extreme nature of the feeling as described in the provision, there is little danger of subjectivity with regards to the proper statutory interpretation.

2. The absence in the CHRA of an interpretative provision does not create in subsection 13(1) an overly wide scope. Finally, the absence of an intent component in the provision does not present a problem when one considers the purpose of this section.

On the other hand, regard must now be paid to the particular context of a complaint filed on the grounds of “sexual orientation”. The leading case with respect to a section’s abrogation due to vagueness is R. v. Nova Scotia Pharmaceutical Society[13] where the Supreme Court of Canada, upon giving a brief overview of the pertinent case law, set out the following general principles.

According to the Supreme Court, the issue of vagueness can be raised under either section 7 or section 1 of the Charter. In this sense, it is a principle of fundamental justice that laws may not be too vague. Vagueness is also relevant to the “minimal impairment” stage of the Oakes test. In this regard, courts will be reluctant to find a provision so vague as not to qualify as “law” under section 1 and will rather consider the scope of the provision under the “minimal impairment” test. Mr. Justice Gonthier also explains that the doctrine of “vagueness” is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion.

On a final note, Mr. Justice Gonthier listed the following factors to be considered with respect to vagueness:[14]

… (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist ….

According to the Supreme Court, the doctrine of vagueness can be thus summed up in one proposition:[15]

… a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate … that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.

Moreover, this standard of “absence of legal debate” applies to all enactments, irrespective of whether they are civil, criminal, administrative or other.

Mr. Justice Gonthier further outlines that once the general standard has been met, all other submissions with respect to the precision of the statute should be considered at the “minimal impairment” stage of the section 1 analysis. In my estimation, subsection 13(1) of the CHRA offers sufficient guidance for legal debates and is neither vague nor overbroad, as alleged by the applicants.

Finally, the last branch of the proportionality test remains to be examined, namely the consideration of the effect of the provision at issue. The Supreme Court of Canada in Taylor[16] states that the effects of subsection 13(1) upon freedom of expression are not “so deleterious as to make intolerable its existence in a free and democratic society”. The Supreme Court also remarked that when considering the context of the procedural and remedial provisions of the CHRA, subsection 13(1) plays a minimal role in the imposition of any sanction. As such, the degree of limitation imposed upon the freedom of expression by this provision is not unduly harsh.

THE JURISDICTIONAL ISSUE

The claim that subsection 13(1) of the Act was constitutionally invalid as constituting an infringement on provincial fields of jurisdiction in section 92 of the Constitution Act, 1867, was raised in the applicants’ pleadings. I do not remember that it was seriously argued at the hearing of the judicial review application, but nevertheless, I should briefly traverse it.

As far back as 1905, in Toronto Corporation v. Bell Telephone Company of Canada,[17] the Privy Council ruled that a telecommunications system extending beyond a province or connecting one province to one or more other provinces, fell within federal jurisdiction.

Similarly, in Alberta Government Telephones v. Canada (Canadian Radio-television and Telecommunications Commission),[18] the Supreme Court of Canada held that notwithstanding the fact that AGT was created by provincial statute to provide telephone services within Alberta, it was nevertheless an interprovincial undertaking within the meaning of section 92(10)(a) of the Constitution Act, 1867. The Supreme Court, in effect, ruled that whether an undertaking, service or business is a federal one depends on the nature of its operations. In this regard, the Court was able to note that AGT had numerous multilateral commercial links which enabled it to play an indispensable role in the Canadian national telecommunications system.

In that light, it is my view that the communications at issue under subsection 13(1) of the CHRA are relayed “in whole or in part by means of the facilities of a telecommunications undertaking within the legislative authority of Parliament”, and that the case before me meets the jurisdictional test.

THE ISSUE OF SEXUAL ORIENTATION

The thesis advanced by counsel for the applicants on this issue is fairly subtle and imaginative. It is a parallel argument to the one advanced with respect to the second test of proportionality set out in the Oakes[19] case and directed at the vague and overbroad meaning attributable to sexual orientation.

Counsel for the applicants argues that the expression “sexual orientation” covers all forms of sexual activity. These activities might not only cover those in which adult gays and lesbians are engaged, but might also include pædophilia, incest, date rape, bestiality and other forms of sexual behaviour.

As a result, says counsel, it is wrong of the Tribunal to ignore the whole communication on the hot line to interpret the impugned message as being directed to loving and caring gays and lesbians. This error is especially egregious when the early thrust of the message is directed to the North American Man Boy Love Association (NAMBLA), which advocates sex with consenting children and whose newsletter is described as a thinly veiled “how to” guide for pædophiles.

The same may be said, says counsel, of a later message, marked TM-2, which attempts to clarify the ambiguities in the early message and which this time quotes from a safe sex pamphlet printed by AIDS—Vancouver, relating to such practices as “fisting”, “rimming”, the risks of infection from urine and excrement on broken skin, or safe methods of torture, be it by whipping, heat or knife branding or by electric terminals.

The conclusion which counsel for the applicants prays the Court to adopt is that the Tribunal has simply said that the complaint was justified and that what was said à propos queers and bogs was likely to expose the complainant to hatred or ridicule. This is regarded as a rubber-stamping operation, the effect of which is to change the order of things in terms of Charter rights and freedoms. It conveniently forgets that subsection 13(1) of the CHRA is a breach of section 2 of the Charter, and its constitutionality is maintained only by reason of section 1. The approach now suggests that any critical comment, in any of the discrimination areas, is prima facie contrary to subsection 13(1) and, as I understand the consequences of counsel’s argument, the burden shifts to the wrong party. In essence, argues counsel for the applicants, subsection 13(1) must always be considered as unconstitutional unless it can be justified under section 1. The burden of justification rests on the complainant or on the Crown and never shifts. In this respect, says counsel for the applicants, the Tribunal was in error.

In my view, the points of argument raised by counsel are certainly pertinent to the issues raised but, with all due respect, are not conclusive. These points constitute more an expression of concern that the prohibition in subsection 13(1), constraining as it does the exercise of the fundamental freedom of speech, might be made to apply whenever political correctness says so.

In this respect, I should refer the parties to a paper by Edward L. Greenspan, Q.C., presented at the Ambassador’s Lecture Series at the Canadian Embassy in Washington, D.C. in September 1995, and found in the September/December 1995 issue of the Law Society of Upper Canada Gazette, entitled “Freedom of Expression in Canada: ‘Ifs, Buts and Whereases’”. The article, in my view, contains much food for thought, but I should not believe that the application of subsection 13(1) to date has reached an abusive state, or that the human rights tribunals have themselves become stereotypes.

Further, I should find it difficult to attribute much merit to the argument that the inclusion of “sexual orientation” in the definition of discrimination is tantamount to legitimizing or legally protecting acts of pædophilia or bestiality.

In Leshner v. Ontario (No. 2),[20] the following comments were made with regards to the concept of “sexual orientation”:

“Sexual orientation” was added to the Code as a prohibited ground in 1986 (S.O. 1986, c. 64, s. 18(1)). While not defined in the Code, it is “commonly understood to denote an individual’s orientation or preference in terms of sexual relationship to others, whether homosexual or heterosexual or perhaps both” (Respondent’s Argument, para. 26). As Dr. Valverde testified, sexual orientation is a vital aspect of an individual’s psychological identity. Dr. Valverde emphasized that sexual orientation functions in a manner similar to religion or ethnicity with respect to a person’s identity (Transcript, Vol. 5, pp. 52-57). Public recognition of one’s identity and inherent dignity is essential to healthy social integration into community life.

In comparison, pædophilia has been defined as follows in R. v. Barrett:[21]

Paedophilia is defined as “sexual desire in an adult for a child” (Random House Dictionary of the English Language, 1987). The fact that two sexual acts committed by an accused with two different immature females would both (if proven) constitute acts of “paedophilia” does not, in itself, means that “similar fact evidence” by first complainant is admissible in a trial arising from the second complaint.

In the New Shorter Oxford English Dictionary on Historical Principles, Vol 2, (1993) paedophilia is succinctly defined as “sexual desire directed towards children”.

As for the meaning of “bestiality”, the Oxford Dictionary defines this concept as “copulation between a person and an animal”. As for Blacks’ Law Dictionary , 6th ed, 1990, St.Paul, Minnesota, it defined this concept as “[a] sexual connection between a human being and an animal … At common law the term `crime against nature’ embraced both ‘sodomy’ and `bestiality’”.

Regardless of any moral values attached to these concepts, I fail to agree with the respondents that these acts are surely not included in the concept of “sexual orientation” and it is not really necessary to elaborate on the distinction between them. In my view, “sexual orientation” as a prohibited ground of discrimination is a precise legal concept as it deals specifically with an individual’s preference in terms of gender . It is not vague or overly broad. Rather, as was pointed out recently in the decision of Haig v. Canada,[22] “sexual orientation” is an analogous ground of discrimination under section 15 of the Charter. Therefore, the Court of Appeal concluded that the CHRA should be interpreted, applied and administered as though it contained “sexual orientation” as a prohibited ground of discrimination under section 3 of the Act.[23]

I refer, in this respect, to the following passage from the Taylor[24] decision, which was cited earlier by the Tribunal in the case at bar:

In sum, the language employed in s. 13(1) of the Canadian Human Rights Act extends only to that expression giving rise to the evil sought to be eradicated and provides a standard of conduct sufficiently precise to prevent the unacceptable chilling of expressive activity. Moreover, as long as the Human Rights Tribunal continues to be well aware of the purpose of s. 13(1) and pays heed to the ardent and extreme nature of feeling described in the phrase “hatred or contempt”, there is little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section.

…

The focus of s. 13(1) is solely upon likely effects, it being irrelevant whether an individual wishes to expose persons to hatred or contempt on the basis of their race or religion [or sexual orientation, as in the case at bar]. [My emphasis.]

CONCLUSIONS

As is the case with similar messages which have been the subject of a subsection 13(1) scrutiny, the Court is left with little doubt that the Tribunal in the case at bar had sufficient evidence to rule as it did. In reaching its conclusions, the Tribunal, in my respectful view, did not commit the kind of error, jurisdictional or otherwise, which would justify this Court’s intervention in judicial review proceedings.

A reading of the Tribunal’s considered reasons for decision satisfies me that on the whole, proper and pertinent evidence was relied upon; the Tribunal was well aware of its mandate under subsection 13(1) and, in my view, adroit at coping with the new field of discrimination under the CHRA, namely sexual orientation.

The Tribunal, furthermore, effectively dealt with the concept of intention or mens rea in evaluating the impugned message and it correctly applied the doctrine propounded in the Taylor[25] case and in Nealy v. Johnston[26] in that regard.

The Court, on the meaning attributable to the expression “sexual orientation”, takes judicial notice that the expression would not appear to have confounded provincial tribunals who have dealt with it for some time.

The Tribunal did not fail to enquire into and to rule on gays and lesbians being identified on the basis of their sexual orientation, and its reasoning in this respect cannot be faulted. More than that, the Chairman of the Tribunal expressed specific concern about the scope to be given to “sexual orientation” and wondered, at page 605 et seq. of the transcript of the proceeding,

… whether we would be here if in fact the message had been slightly differently worded, directed only against and clearly against paedophiles, and the message urged that people do what the Celts were alleged to have done … would the legislation protect individuals against the urging for vigilante action and that kind of hatred.

This is, in my view, clear evidence that the Chairman and his tribunal had a firm grasp of the issues and had them well defined in their own minds for purposes of the enquiry.

Judges and scholars have often observed that no right or freedom under the Charter is absolute and in many cases, the Court’s role has been to balance rights and freedoms which are in conflict. What are the elements which will weigh in favour of one or in favour of the other? Often, its “Hobson’s choice”, the limit on one particular right simply enuring to the greater benefit of the other.

The same applies to the elements which will or will not legitimize a Charter breach by recourse to section 1 of the Charter. The difficulty in coming to acceptable terms in all of these cases is perhaps best illustrated by reference to the Supreme Court of Canada decisions in R. v. Andrews,[27] Keegstra[28] and Taylor,[29] where in each case, the Court was split 4 to 3 with both sides issuing some pretty persuasive reasons for judgment.

I might reiterate here that the more generic arguments advanced by counsel for the applicants and to which I have referred directly or inferentially in these reasons, are more expressions of concern that subsection 13(1) might well become a facile instrument to suppress the expression of any opinion which, from time to time, is neither right nor wrong, but simply unpopular. Such a risk no doubt exists and, in my view, our institutions need constant reminders of it. To paraphrase Thomas Jefferson’s famous saying, I might add here: “The price of freedom of expression is eternal vigilance”.

For the rest, however, the within application for judicial review is hereby denied.

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