A-1028-84
John Ross Taylor and Western Guard Party
(Appellants) (Respondents)
v.
Canadian Human Rights Commission and Attor
ney General of Canada (Respondents)(Appli-
cants)
INDEXED AS: CANADA (CANADIAN HUMAN RIGHTS COMMIS
SION) v. TAYLOR
Court of Appeal, Mahoney, Stone and Lacombe
JJ.-Vancouver, March 31 and April 1; Ottawa,
April 22, 1987.
Constitutional law - Charter of Rights - Fundamental
freedoms - Freedom of expression - Prohibition of hate
messages in Act s. 13(1) not unreasonable limit on freedom of
expression - Reasonable limit demonstrably justified in free
and democratic society - Canadian Human Rights Act, S.C.
1976-77, c. 33, ss. 2, 3, 4, 13, 32, 33, 35, 36, 39, 40, 41, 42,
42.1, 43 - Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 2(b).
Human rights - Prohibition of hate messages in Act s.
13(1) reasonable limit on freedom of expression demonstrably
justified in free and democratic society - Human Rights
Tribunal order, made Federal Court order, prohibiting com
munication of hate messages against Jews - Conduct con
tinuing - Finding of contempt upheld on appeal - Canadian
Human Rights Act, S.C. 1976-77, c. 33, ss. 2, 3, 4, 13, 32, 33,
35, 36, 39, 40, 41, 42, 42.1, 43.
Practice Contempt of court - Disobedience of Court
order constituting contempt of court even if order later
rescinded - Court orders must be obeyed as long as remain in
force - Intention to tell truth irrelevant - Unnecessary to
prove intent to disobey court order, only intentional doing of
act prohibited - Federal Court Rules, C.R.C., c. 663, R.
355(2).
Judicial review - Appeal against contempt of court com
mittal order - Reasonable apprehension of bias - Human
Rights Tribunal finding appellants communicated hate mes
sages against Jews - Order to cease and desist made order of
Court pursuant to Human Rights Act s. 43 - Appellants
found guilty of contempt for disobeying order - Fact order
made by Tribunal appointed in manner found, in MacBain
case, to raise reasonable apprehension of bias irrelevant
Order of Court, not Tribunal, disobeyed - Court orders must
be obeyed as long as remaining in effect — Canadian Human
Rights Act, S.C. 1976-77, c. 33, ss. 2, 3, 4, 13, 32, 33, 35, 36,
39, 40, 41, 42, 42.1, 43 — Federal Court Rules, C.R.C., c. 663,
R. 355(2) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, ss. 18, 28.
Judges and courts — Duty to file reasons for judgment —
Judges not required to give reasons — However, when reasons
given, duty to file — No apparent remedy for party when
judge fails to file — Court of Appeal hearing appeals from
Trial Division decisions, not dealing with complaints of non-
feasance — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 51.
In July 1979, a Human Rights Tribunal found that the
appellants had, using the telephone, repeatedly communicated
hate messages respecting Jews, thus engaging in a discriminato
ry practice proscribed by section 3 and subsection 13(1) of the
Canadian Human Rights Act. The Tribunal ordered the appel
lants to cease and desist. That order was made an order of the
Court as provided by section 43 of the Act. The appellants did
not cease and desist and, in January 1984, on the basis of
messages transmitted between June 1982 and April 1983, they
were found guilty of contempt of court. The reasons, given
orally at the conclusion of argument, were never filed. An order
committing the appellant Taylor to prison for one year was
made in August 1984 and, in December, the appellants' motion
questioning the constitutionality of subsection 13(1), in view of
the constitutionally entrenched right to freedom of expression,
was dismissed.
This is an appeal from the judgment whereby the appellants
were found in contempt of court and the appellant Taylor
committed to prison.
Held, the appeal should be dismissed.
It is irrelevant that the Tribunal which made the order may
have been appointed under a legislative regime found, in Mac-
Bain, to raise a reasonable apprehension of bias. Since it is not
argued that the order is a nullity, that order must be obeyed as
long as it remains in force, regardless of how flawed it may be.
The appellants' argument, that the messages found to have
been in contravention of the Tribunal's order simply told the
truth, could not be accepted. Even if particular portions of the
messages were true, it is clear that the purpose of the messages
as a whole was to communicate that which had been enjoined
by the cease and desist order: messages likely to expose Jews to
hatred and contempt. In any event, as was stated in Re
Sheppard and Sheppard, the offence of contempt consists of
doing that which is in fact prohibited by an order; the intent to
tell the truth may be a mitigating, but not an exculpatory
circumstance.
Even though the Trial Judge did not need to do so, he did
decide that subsection 13(1) of the Canadian Human Rights
Act was not an unreasonable limit on the freedom of expression
guaranteed by paragraph 2(b) of the Charter, and there is an
appeal from that pronouncement. This issue must be resolved
by recourse to section 1 of the Charter: there is nothing trivial,
insubstantial, indirect or unintentional in the impact of subsec
tion 13(1) on the freedom of expression. The criteria in The
Queen v. Oakes as to the applicability of section 1 are applied.
No evidence is required to establish the concern of Canada, a
country populated by immigrants of many races and religions,
to avoid racial and religious hatred. 1) As to the importance of
the objective, the avoidance of the propagation of religious and
racial hatred is properly a pressing and substantial concern of a
free and democratic society. 2) As to proportionality, the
limitation on freedom of expression in subsection 13(1) is
tailored precisely to the specific practices of those who abuse
their freedom by repeatedly communicating hate messages by
telephone. 3) As to severity, the legislative scheme exemplifies
restraint rather than severity.
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada Metal Co. Ltd. et al. v. Canadian Broadcasting
Corp. et al. (No. 2) (1974), 4 O.R. (2d) 585 (H.C.),
approved by (1975), 11 O.R. (2d) 167 (C.A.); Re Shep-
pard and Sheppard (1976), 67 D.L.R. (3d) 592 (Ont.
C.A.); The Queen v. Oakes, [1986] 1 S.C.R. 103.
DISTINGUISHED:
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713.
CONSIDERED:
R. v. Jones, [1986] 2 S.C.R. 284.
REFERRED TO:
MacBain v. Lederman, [1985] 1 F.C. 856 (C.A.); In re
Human Rights Tribunal and Atomic Energy of Canada
Limited, [1986] 1 F.C. 103 (C.A.).
COUNSEL:
Douglas H. Christie for appellants (respond-
ents).
Russell G. Juriansz for Canadian Human
Rights Commission.
D. Martin Low for Attorney General of
Canada.
SOLICITORS:
Douglas H. Christie, Victoria, for appellants
(respondents).
Blake, Cassels & Graydon, Toronto, for
Canadian Human Rights Commission.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This appeal is taken from a judg
ment of the Trial Division which found the appel
lants in contempt of court, and committed the
appellant Taylor to prison for a term of one year.
It imposed no penalty on the appellant Western
Guard Party. The order was consequent upon the
decision of a Tribunal appointed under the
Canadian Human Rights Act, S.C. 1976-77, c. 33,
as amended, that the appellants had engaged in a
discriminatory practice on prohibited grounds of
discrimination as defined and proscribed by sec
tion 3 and subsection 13(1) of the Act. Stated
briefly, the appellants were found to have tele-
phonically and repeatedly communicated hate
messages respecting Jews. The Tribunal's order
was that permitted by paragraph 41(2)(a) and
subsection 42(1) and had been made an order of
the Court as provided by section 43. A brief review
of the history of the proceedings will be helpful.
SUMMARY OF THE PROCEEDINGS
The Tribunal found that the appellants had, by
means that at least included the distribution of
cards, invited calls to a Toronto telephone number
answered by a recorded message. The message was
changed from time to time. Those upon which the
Tribunal's decision was based were transmitted
between August 17, 1977 and May 8, 1979. The
Tribunal's decision and order, a single document,
was dated July 20, 1979, and was made an order
of the Court on August 23. It required the appel
lants to cease and desist. No proceedings were
taken to set aside the Tribunal's decision and
order.
The appellants did not cease and desist. On
application by the Canadian Human Rights Com
mission, by judgment entered February 21, 1980,
Mr. Justice Dubé found the appellants in contempt
and imposed the maximum sanctions permitted by
Rule 355(2) [Federal Court Rules, C.R.C., c.
663]: a $5,000 fine on the respondent Party and a
one year sentence of imprisonment on Taylor. He
suspended the sentence conditional on Taylor and
the Party, of which Taylor is leader, thereafter
obeying the Tribunal's order. An application for
extension of time to appeal Mr. Justice Dubé's
judgment was dismissed by this Court on February
27, 1981, and leave to appeal that dismissal was
refused by the Supreme Court of Canada June 22,
1981. Meanwhile, the appellants had continued to
disobey the Tribunal's order and, on June 11,
1980, Mr. Justice Walsh vacated the suspension of
Taylor's sentence. Mr. Justice Dubé made an
order of committal on June 24. That order was
stayed pending disposition of the applications to
this Court and the Supreme Court. Taylor served
his sentence, with remission, between October 17,
1981 and March 19, 1982.
The Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. il (U.K.)]
came into force April 17, 1982.
On May 12, 1983, the Commission filed the
application leading to the order subject of this
appeal. It was based on the allegation that mes
sages transmitted between June 22, 1982 and
April 20, 1983, breached the Tribunal's cease and
desist order. The application sought both an order
of committal of Taylor and a $5,000 fine of the
Party. The appellants filed a notice of motion
calling into question the validity of subsection
13(1) of the Canadian Human Rights Act, in view
of their constitutionally entrenched freedom of
expression. On January 24, 1984, the Associate
Chief Justice rendered the following decision:
For reasons given orally at the conclusion of argument I am
satisfied that both respondents have acted in disobedience of an
order of this Court and must be found in contempt. The matter
is adjourned for delivery of written reasons to February 6, 1984
at 10 a.m. or so soon thereafter as the matter can be heard.
He did not mention the appellants' motion. On
February 6, he adjourned the matter further to
March 20 and also adjourned the appellants'
motion to that date. On March 21, both matters
were adjourned sine die. On August 15, 1984, he
made the committal order subject of this appeal
and on December 20 dismissed the appellants'
application as to the constitutionality of subsection
13(1). In his reasons for the latter decision, the
learned Trial Judge said:
I was satisfied on affidavit evidence that the respondents must
be found in contempt.
That was the extent of the fulfilment of the inten
tion to deliver written reasons expressed in the
decision of January 24. The oral reasons given
January 24, 1984, have not been recorded. The
notice of appeal, filed August 27, 1984, refers to
both decisions.
THE ISSUES
Section 3 of the Act provides, inter alia, that
race and religion are prohibited grounds of dis
crimination. Subsection 13 (1) provides:
13. (I) 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 that person or those persons are identifi
able on the basis of a prohibited ground of discrimination.
The Tribunal's conclusion and its order follow:
We hold that Mr. Taylor and The Western Guard Party
have communicated telephonically or have caused to be so
communicated, repeatedly, messages in whole or in part by
means of facilities of a telecommunication undertaking within
the legislative authority of Parliament. Although some of the
messages by themselves are somewhat innocuous, the matter
for the most part that they have communicated, we believe, is
likely to expose a person or persons to hatred or contempt by
reason of the fact that the person is identifiable by race or
religion. In particular, the messages identify specific individuals
by name, Mayor Mel Lastman, Judge Sidney Harris, Mr.
Clayton Ruby, and we believe that the remarks about those
individuals have a likelihood of exposing them to hatred or
contempt, merely on the basis that they are said to be Jewish.
Moreover, we hold that the messages in question not only
expose identified individuals but persons generally to hatred or
contempt by reason of the fact that those persons are identifi
able as Jews. We therefore find that the complaints are
substantiated.
[The recitation of subsection 42(1) and paragraph 41(2)(a) of
the Act here is omitted.]
5. ORDER
We therefore order the respondents to cease their discrimina
tory practice of using the telephone to communicate repeatedly
the subject matter which has formed the contents of the
taperecorded messages referred to in the complaints.
The grounds of appeal, in the order in which I
propose to deal with them, are:
1. The Tribunal was appointed by the Commission
in circumstances giving rise to a reasonable appre
hension of bias.
2. The Tribunal's order is too vague and obscure to
enable the appellants to be held in contempt for
disobeying it.
3. The learned Trial Judge failed to find that the
appellants had in fact breached the Tribunal's
order and failed to give any reason for so finding.
4. The learned Trial Judge erred in failing to
consider a desire to communicate truth as a valid
intention and not as an intention to breach the
Tribunal's order.
5. Subsection 13(1) is ultra vires, inoperative and
of no force and effect because it is an unreasonable
limit on freedom of expression.
APPREHENSION OF BIAS
The Tribunal here was appointed under the
legislative regime that was considered by this
Court in MacBain v. Lederman, [1985] 1 F.C. 856
(C.A.), and In re Human Rights Tribunal and
Atomic Energy of Canada Limited, [1986] 1 F.C.
103 (C.A.). MacBain supports the proposition
that, had the issue of a reasonable apprehension of
bias been raised in a timely way, the provisions of
the Act then in force providing for the Tribunal's
appointment would have been declared inoperative
in respect of the complaint in issue and the Tri
bunal declared to be without jurisdiction. The
latter decision held that failure to raise the issue in
a timely fashion constituted a waiver of the right
to challenge the jurisdiction of the Tribunal on
that ground.
The appellants argue that, because they were
not professionally represented at the time the issue
ought to have been raised, they cannot be held to
have waived the right to raise it now. No authority
for that proposition was cited and I am not per
suaded it is valid, however I find no need to
express a concluded opinion. The Tribunal's deci
sion is not the one we are now asked to deal with.
This is an appeal from a decision of the Trial
Division finding the appellants in contempt of an
order of the Court. The appellants say, in effect,
that with every application to find them in con
tempt of that order, their right to attack its validi
ty is renewed. That, too, is irrelevant.
The fact is that it was a subsisting order of the
Court during the entire period the appellants did
what the learned Trial Judge found to have diso
beyed it. If he was right in concluding that
disobedience to constitute contempt of court, it
remains so even though the order may later be
rescinded for whatever reason.
The appellants' argument could only be relevant
in respect of an order that was a nullity. Here it is
directed at an order which they say should be set
aside but cannot say is a nullity. It is deemed in
law to be an order of a superior court made within
its jurisdictional competence as expressly provided
by Parliament.
I adopt the rationale of O'Leary J. in Canada
Metal Co. Ltd. et al. v. Canadian Broadcasting
Corp. et al. (No. 2) (1974), 4 O.R. (2d) 585
(H.C.), at page 613, approved (1975), 11 O.R.
(2d) 167 (C.A.):
To allow Court orders to be disobeyed would be to tread the
road toward anarchy. If orders of the Court can be treated with
disrespect, the whole administration of justice is brought into
scorn. Daily, thousands of Canadians resort to our Courts for
relief against the wrongful acts of others. If the remedies that
the Courts grant to correct those wrongs can be ignored, then
there will be nothing left but for each person to take the law
into his own hands. Loss of respect for the Courts will quickly
result in the destruction of our society.
He was there speaking in the context of disobedi
ence of an interlocutory injunction obtained on an
ex parte application which was, by its very nature,
liable to be dissolved upon hearing the parties
bound by it.
The duty of a person bound by an order of a
court is to obey that order while it remains in force
regardless of how flawed he may consider it or
how flawed it may, in fact, be. Public order
demands that it be negated by due process of the
law, not by disobedience.
ORDER TOO VAGUE
This is another spurious argument. The appel
lants would have us accept that the order consists
only of this single sentence:
We therefore order the respondents to cease their discriminato
ry practice of using the telephone to communicate repeatedly
the subject matter which has formed the contents of the tape
recorded messages referred to in the complaints.
The test of vagueness is whether the intention is
ascertainable or understandable to a person of
average intelligence reading it in good faith. In my
opinion, the conclusion proceeding that sentence,
recited above, alone amply satisfies that test with
out recourse to the balance of the decision. The
appellants can have had no bona fide doubt that
the subject matter enjoined was subject matter
likely to expose Jews to hatred or contempt.
NO FINDINGS OF FACT AND REASONS
The proposition that the learned Trial Judge
failed to find that the appellants had breached the
order is baseless. Clearly that finding is implicit in
the decision itself. The question is: was that find
ing supported by the evidence?
The messages of the 1977-79 period were well
described by Mr. Justice Dubé in his reasons for
judgment of February 21, 1980, as
conveying the same basic theme: some corrupt Jewish interna
tional conspiracy is depriving the callers of their birthright and
the White Race should stand up and fight back.
Following are excerpts from the transcript of the
message of February 25, 1983, which was among
those in evidence on the present application.
Without freedom of speech we'd perish. Few know what com
munism really is .... to truly expose communism is the great
no no. But moral decay, economic problems and war are all
coming from the same source that produces communism is
generally not understood .... The Fed's Kuhn-Loeb High
Bank financed the Russian Revolution. December Thunderbolt,
which is banned in Canada, states Andropov's real name is
Leiberman .... Toronto Star, November 14, states of
Andropov: "His mother's family is almost certainly Jewish."
The founder of communism Karl Marx, whose real name was
Moses Mordecai Levy, was the grandson of Rabbi Mordecai.
The founder of the Soviet Army was Trotsky whose real name
is Bronstein. Help the Western Guard expose these bankers and
their agents. Send funds and mail to ....
Clearly, there was evidence upon which the
learned Trial Judge was entitled to conclude that
the appellants were in breach of the cease and
desist order. The unequivocal message is: Jewry is
the source of Communism; moral decay, economic
problems and war all come from that same source.
That might well expose Jews, individually and
collectively, to the contempt or hatred of anyone
who accepted it as true.
The failure of a Trial Judge to give reasons is
not, of itself, an error upon which an appellate
court can act. In their absence, we must proceed
on the assumption that due consideration was
given the evidence. Having found the Party guilty
of contempt, the learned Trial Judge imposed no
penalty on the Party. While that omission is, in my
opinion, inexplicable, it is not a subject of this
appeal.
I think it proper to observe that while no judge
is required to give reasons, when a judge of the
Federal Court of Canada does, as the record dis-
closes was done on January 24, 1984, he is obliged
by law to put them on the record. The Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10]
provides:
51. Where a judge gives reasons for a judgment pronounced
by him or pronounced by a court of which he was a member, he
shall file a copy of the reasons in the Registry of the Court.
I am at a loss to know what seemly action, within
the appellate process of this Court, a party can
take when a judge fails in that statutory duty. Our
jurisdiction is to hear appeals from decisions of the
Trial Division, not to deal with complaints in
respect of non-feasance.
THE TRUTH
There are two branches to the appelants' argu
ment on the issues of truth. The first is founded on
the following statement by the Tribunal in its
decision:
It would appear from Mr. Taylor's cross-examination of
witnesses and his argument that he was attempting to establish
the truth of what he said about Jews in his tape recorded
statements. Strange as it may sound, the establishment of truth
is not in issue in this case. Unlike the statutory defences set out
in s. 281.2(3) of the Criminal Code which make truth a defence
to a criminal prosecution for public incitement of hatred
against any group distinguished by colour, race, religion, or
ethnic origin, no equivalent defence is available in the Canadi-
an Human Rights Act. Parliament has deemed that the use of
the telephone for this kind of discriminatory message is so
fundamentally wrong, that no justification for the communica
tion can avail the respondents. The sole issue then is whether
the telephonic communications of the respondents are likely to
expose a person or persons to hatred or contempt.
The appellants say that was so egregious an error
of law as to be fatal to any finding that they were
in contempt for disobeying an order founded on
that error.
The argument cannot prevail. The validity of
the Tribunal's order is not in issue here. Whether
the Tribunal erred in law or not, its order now
stands as an order of the Court and, as previously
stated, the appellants' duty is to obey it while it
does stand. Conceding, for the sake of argument,
that the advent of the Charter will, when the issue
is adjudicated, be found to have rendered the
Tribunal's view of the law utterly untenable, the
collateral attack on the order itself is not germane
to the contention that the appellants are not in
contempt for disobeying that order.
The appellants also contend that the messages
found to have disobeyed the Tribunal's order
simply tell the truth and, for that reason, they
cannot be held to have disobeyed it. They say that
their purpose was to tell the truth, not to disobey
the order. The foregoing excerpts from the Febru-
ary 25, 1983 message serve to illustrate their
argument. They say, and for this purpose I accept,
that the publications cited did make the statements
attributed to them and that Andropov, Marx and
Trotsky were Communists and all of some meas
ure of Jewish blood. These are the truths they say
the message told.
The appellants' technique of selecting only par
ticular statements is an unacceptable and invalid
approach to a determination of the purpose of the
message containing them. They were but part of
the message. It was the entire message that was
transmitted and it is the entire message that is to
be construed in determining whether or not its
transmission disobeyed the order.
The appellants' argument here is, to some
extent, a repetition of that based on the paucity of
the. reasons below. Again, we must assume that the
learned Trial Judge did consider the arguments
put to him. No reasonable person, considering the
messages as a whole, could conclude that their
only purpose was to communicate truth; their pur
pose was plainly to communicate that which had
been enjoined by the cease and desist order: a
message likely to expose Jews to hatred or con
tempt. The appellants' argument, in my opinion, is
not well founded in fact.
In any event, even if the appellants were to have
established that their purpose was only to tell the
truth, they would be no less guilty of contempt.
The law was correctly stated by the Ontario Court
of Appeal in Re Sheppard and Sheppard (1976),
67 D.L.R. (3d) 592, at pages 595-596:
We are all of the view, therefore, that in order to constitute a
contempt it is not necessary to prove that the defendant intend
ed to disobey or flout the order of the Court. The offence
consists of the intentional doing of an act which is in fact
prohibited by the order. The absence of the contumacious
intent is a mitigating but not an exculpatory circumstance.
There was no error in rejecting the appellants' plea
that they intended only to communicate the truth,
not to disobey the order.
THE CHARTER OF RIGHTS
Since the appellants' duty was to obey the cease
and desist order while it remained in force as an
order of the Court, a subsequent favourable dispo
sition of their application to have subsection 13(1)
declared constitutionally invalid could have no
bearing on the finding that they were in contempt.
The learned Trial Judge saw that; otherwise he
could not have found them in contempt eleven
months before disposing of the constitutional ques
tion. He could and, in my opinion, should have
disposed of the application on that basis. It is to be
hoped that, with experience, courts will refuse
unnecessarily to pronounce on interesting Charter
issues even where the parties are all disposed to
have them dealt with. Transparent obiter dicta
tends to trivialize the judicial process, if not the
Charter. That said, the learned Trial Judge did
pronounce on the substantive issue and we have an
appeal from that pronouncement.
The appellants say that subsection 13(1) of the
Canadian Human Rights Act is an unreasonable
limit on the freedom of expression guaranteed
them by paragraph 2(b) of the Canadian Charter
of Rights and Freedoms. The appellants and the
Commission are agreed that this issue is to be
resolved by recourse to section 1 of the Charter.
The Attorney General argues that subsection
13 (1) is not properly to be regarded as a limitation
on freedom of expression at all and that it is
therefore unnecessary to refer to section 1. It is
convenient again to recite subsection 13(1) as well
as the pertinent provisions of the Charter.
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 that person or those persons are identifi
able on the basis of a prohibited ground of discrimination.
1. The Canadian Charter of Rights and Freedoms guaran
tees 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;
(c) freedom of peaceful assembly; and
(d) freedom of association.
The Attorney General finds support for his posi
tion in judgments by Wilson J., in R. v. Jones,
[1986] 2 S.C.R. 284 and Dickson C.J., in R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R.
713. In the former case, the Court was considering
the alleged infringement of freedom of religion by
compulsory school attendance legislation. A
majority, including Wilson J., found no infringe
ment and she, dissenting in part, added, at pages
313 and 314:
However, even assuming that this legislation does affect the
appellant's beliefs, which for the reasons given I doubt, not
every effect of legislation on religious beliefs or practices is
offensive to the constitutional guarantee of freedom of religion.
Section 2(a) does not require the legislature to refrain from
imposing any burdens on the practice of religion. Legislative or
administrative action whose effect on religion is trivial or
insubstantial is not, in my view, a breach of freedom of religion.
In the latter case, a majority of the Court found
the freedom of religion of certain merchants to
have been abridged by legislation restricting hours
of business and that abridgement to have been
justified as required by section 1. In a passage at
page 759, evidently concurred in by a majority, the
Chief Justice said:
All coercive burdens on the exercise of religious beliefs are
potentially within the ambit of s.2(a).
This does not mean, however, that every burden on religious
practices is offensive to the constitutional guarantee of freedom
of religion. It means only that indirect or unintentional burdens
will not be held to be outside the scope of Charter protection on
that account alone. Section 2(a) does not require the legisla
tures to eliminate every miniscule state-imposed cost associated
with the practice of religion. Otherwise the Charter would offer
protection from innocuous secular legislation such as a taxation
act that imposed a modest sales tax extending to all products,
including those used in the course of religious worship. In my
opinion, it is unnecessary to turn to s.1 in order to justify
legislation of that sort.
There is nothing trivial, insubstantial, indirect or
unintentional in the impact of subsection 13(1) on
freedom of expression. Subsection 13(1) is a meas
ure that must be justified under section 1 of the
Charter.
In his book of authorities, the Attorney General
included the following, all of which were referred
to in their Memoranda of Fact and Law by both
the Attorney General and the Commission:
a. United Nations Declaration on the Elimination of All
Forms of Racial Discrimination proclaimed by the General
Assembly November 20, 1963, resolution 1904 (XVIII);
b. Report to the Minister of Justice of the Special Committee
on Hate Propaganda in Canada, dated November 10,
1965, including Appendix V entitled "Hate Legislation in
Other Countries";
c. "Equality Now!", the first report to the House of Com
mons of the Special Committee on Participation of Visible
Minorities in Canadian Society, dated March 8, 1984;
d. Study on the Implementation of Article 4 of the Interna
tional Convention on the Elimination of All Forms of
Racial Discrimination, published May 18, 1983, by the
Secretary General of the United Nations;
e. Fourth Report by Canada presented to the Secretary Gen
eral of the United Nations under the terms of the Interna
tional Convention on the Elimination of All Forms of
Racial Discrimination, dated August, 1978;
f. Annex XXIV to the Report of the Human Rights Commit
tee to the 38th Session of the U.N. General Assembly,
being a decision of the Committee, dated April 6, 1983,
rejecting a complaint by the present Appellants concern
ing, inter alia, the aforementioned refusal of leave to
appeal by the Supreme Court of Canada and the proceed
ings that led up to that refusal.
None of the above documents were included in the
Appeal Book. It was not suggested that they were
in evidence in the Trial Division. The record does
disclose that some were in evidence before the
Tribunal. At the hearing, this Court questioned
the propriety of its considering them in the
absence of an application for leave to adduce
further evidence and their proper proof.
Since the decision in The Queen v. Oakes,
[1986] 1 S.C.R. 103, postdates that under appeal,
it is not surprising that the respondents now see
the desirability of introducing evidence relevant to
a section 1 justification. The Rules provide means
for this Court to receive evidence. The means do
not include bootlegging evidence in the guise of
authorities. I do not think that we can properly
consider any of the foregoing. I have not done so.
There is no question that the limit imposed on
the appellants' freedom of expression by subsection
13(1) of the Canadian Human Rights Act is
imposed by law. The issue is whether it is a
"reasonable limit ... demonstrably justified in a
free and democratic society". The criteria for
determining that were established by the Supreme
Court of Canada in Oakes. Some of these are
sufficiently summarized in the headnote [at page
105]:
Section 1 of the Charter has two functions: First, it guaran
tees the rights and freedoms set out in the provisions which
follow it; and second, it states explicitly the exclusive justifica-
tory criteria (outside of s.33 of the Constitutional Act, 1982)
against which limitations on those rights and freedoms may be
measured.
The onus of proving that a limitation on any Charter right is
reasonable and demonstrably justified in a free and democratic
society rests upon the party seeking to uphold the limitation.
Limits on constitutionally guaranteed rights are clearly excep
tions to the general guarantee. The presumption is that Charter
rights are guaranteed unless the party invoking s.1 can bring
itself within the exceptional criteria justifying their being
limited.
The standard of proof under s.1 is a preponderance of
probabilities .... The preponderance of probability test must
be applied rigorously.
In his judgment, unanimously concurred in as to
this issue, the Chief Justice, at pages 138 ff.
continued:
To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central criteria
must be satisfied. First, the objective, which the measures
responsible for a limit on a Charter right or freedom are
designed to serve, must be "of sufficient importance to warrant
overriding a constitutionally protected right or freedom": R. v.
Big M Drug Mart Ltd. ([1985] 1 S.C.R. 295), at p. 352. The
standard must be high in order to ensure that objectives which
are trivial or discordant with the principles integral to a free
and democratic society do not gain s.I protection. It is neces
sary, at a minimum, that an objective relate to concerns which
are pressing and substantial in a free and democratic society
before it can be characterized as sufficiently important.
Second, once a sufficiently significant objective is recognized,
then the party invoking s.1 must show that the means chosen
are reasonable and demonstrably justified. This involves "a
form of proportionality test": R. v. Big M Drug Mart Ltd.,
supra, at p. 352. Although the nature of the proportionality test
will vary depending on the circumstances, in each case courts
will be required to balance the interests of society with those of
individuals and groups. There are, in my view, three important
components of a proportionality test. First, the measures adopt
ed must be carefully designed to achieve the objective in
question. They must not be arbitrary, unfair or based on
irrational considerations. In short, they must be rationally
connected to the objective. Second, the means, even if rational
ly connected to the objective in this first sense, should impair
"as little as possible" the right or freedom in question: R. v. Big
M Drug Mart Ltd., supra, at p. 352. Third, there must be a
proportionality between the effects of the measures which are
responsible for limiting the Charter right or freedom, and the
objective which has been identified as of "sufficient
importance".
With respect to the third component, it is clear that the
general effect of any measure impugned under s.1 will be the
infringement of a right or freedom guaranteed by the Charter;
this is the reason why resort to s.1 is necessary. The inquiry into
effects must, however, go further. A wide range of the rights
and freedoms are guaranteed by the Charter, and an almost
infinite number of factual situations may arise in respect of
these. Some limits on rights and freedoms protected by the
Charter will be more serious than others in terms of the nature
of the right or freedom violated, the extent of the violation, and
the degree to which the measures which impose the limit trench
upon the integral principles of a free and democratic society.
Even if an objective is of sufficient importance, and the first
two elements of the proportionality test are satisfied, it is still
possible that, because of the severity of the deleterious effects
of a measure on individuals or groups, the measure will not be
justified by the purposes it is intended to serve. The more severe
the deleterious effects of a measure, the more important the
objective must be if the measure is to be reasonable and
demonstrably justified in a free and democratic society.
In summary, we must be satisfied that there is a
high degree of probability that the limit of subsec
tion 13(1) on freedom of expression is a reasonable
one in a free and democratic society. That deter
mination is to be made in the context of the
freedom of expression of persons in Canada gener
ally, not with reference to circumstances peculiar
to the appellants. We are not, however, called
upon to consider all prohibited grounds of dis
crimination but only those in issue: race and
religion.
We have no evidence. The Oakes decision, in
observing that evidence will generally be required,
anticipated that it would not always be so. In R. v.
Jones, a majority of the Court did not find it
necessary to enter upon a section 1 inquiry. For
the minority who did, La Forest J., (Dickson C.J.,
and Lamer J., concurring) referring to that obser
vation in Oakes, said at page 299:
... the Chief Justice made it clear that this is so only "[w]here
evidence is required in order to prove the constituent elements
of a s.1 inquiry" (p.138). I do not think such evidence is
required here. A court must be taken to have a general
knowledge of our history and values and to know at least the
broad design and workings of our society. We are not con
cerned with particular facts.
We must proceed on that basis.
It seems to me that the concern of any free and
democratic society to avoid the vilification of
individuals or groups by reason of their race
and/or religion is self-evident. Canada, specifical
ly, is populated by immigrants and the descendants
of immigrants of numerous races and religions and
an indiginous population of races different from
the vast majority of the immigrant population.
Canada recognizes its multiculturalism not only
as a fact but a positive characteristic of its national
persona.
It is not, in my opinion, necessary that vilifica
tion by reason of race and/or religion be rife or
have become subject of active and general public
interest to render pressing and substantial the
concern to avoid it. A similar view, in a totally
different context, appears to have been shared by
the minority in Jones who considered the section 1
justification. There was no intimation that non-
attendance at school on religious grounds was
either widespread or of much popular concern in
Alberta.
We witness today the events in Ulster, the
Punjab, Sri Lanka and Lebanon. The list is not
exhaustive. All are struggling, in the teeth of
violence fueled by racial and/or religious hatred, to
remain free and democratic societies or, within our
ready memory, appear to have lost that struggle. I
have no difficulty with the concept that the avoid
ance of the propagation of hatred on those grounds
is, in itself, properly a pressing and substantial
concern of a free and democratic society. I am not
tempted to disagree with Parliament's evident
decision that it is.
As to proportionality, subsection 13(1) is nar
rowly drawn. Its rational connection to its object
could hardly be plainer. Its limitation on freedom
of expression is tailored precisely to the specific
practices of those who abuse their freedom by
repeatedly communicating hate messages by
telephone.
As to the third branch of the test, the legislative
scheme exemplifies restraint rather than severity. I
see no need to set out the pertinent provisions of
the Canadian Human Rights Act. They are all or
parts of sections 2, 3, 4, 13, 32, 33, 35, 36, 39, 40,
41, 42, 42.1 and 43. In addition sections 18 and 28
of the Federal Court Act and Rule 355 of the
Rules of Court are pertinent.
The determination that a person or group has
contravened subsection 13 (1) is made by a Tri
bunal after a hearing which must be conducted
according to the requirements of natural justice. A
complaint cannot be referred to a Tribunal unless
the alleged transgressor has been informed of and
afforded an opportunity to respond to the com
plaint and the evidence upon which the Commis
sion intends to decide if a Tribunal is needed.
Unless the Tribunal itself consists of three mem
bers, an appeal lies to a three member Review
Tribunal. Both are subject to judicial supervision
in the conduct of their hearings and the final
decision is subject to judicial review. The only
order that can be made is a cease and desist order.
It is only after that order has been filed in the
Registry of this Court and after being afforded the
opportunity to appear at a show cause hearing and
being found in a judicial proceeding to have con
tinued to disobey the cease and desist order that an
offender can be penalized. The maximum penalty
presently prescribed is a $5000 fine or one year
imprisonment, not both.
I see no merit in this branch of the appeal. On
balance, the interest of a free and democratic
society to avoid the repeated telephonic communi
cation of messages of hate based on race or reli
gion clearly outweighs its interest to tolerate the
exercise in that fashion of their freedom of expres
sion by persons so inclined.
CONCLUSION
The Attorney General, while named a respon
dent in the notice of appeal, was an intervenor, on
his own application, in the Trial Division. In the
result, I would dismiss the appeal with costs to the
Commission. Revocation of the stay of execution
of the order of committal is a matter for the Trial
Division.
STONE J.: I agree.
LACOMBE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.