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Legal challenge of Section 13 (Marc Lemire constitutional challenge)
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History and operation of Section 13, and CHRC totalitarianism.
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History of Section 13

 

Section 13 Backgrounders:

 

 

Genesis of Section 13 

From Taylor to “Terrorism”

 

In November of 1975, Ontario’s Deputy Attorney General, F.W. Callaghan, lobbied the Federal Department of Justice demanding the inclusion of speech-restricting legislation that removed the need for “willfulness” or fair comment based on public interest. 

In a letter dated November 13, 1975, F.W. Callaghan outlined some of the problems they faced when trying to “get” a man named John Ross Taylor, who was recording messages on his telephone answering machine that members of the public could dial up and listen to. In reference to his taped telephone answering machine, Callaghan stated:

“The messages usually are topical and political and focus on a wide variety of subjects.  However, the emphasis always is racial and federal immigration policies frequently are criticized.”

 Callaghan continued in his letter: “The messages discuss such matters as immigration, integration and urban crime, all of which clearly are matters of public interest.”

 The real intent of Section 13 was to silence legitimate non-violent criticism of immigration, crime, multiculturalism and integration.  Ontario’s Deputy AG Callaghan summed up the true motivation behind silencing Taylor using the Human Rights Act:

“The simple forced deletion of the message which I have proposed could have a major advantage over a criminal prosecution in that, presumably, it would not be attended by great publicity whereas a criminal prosecution, through publicity and polarization, might promote the mischief which it sought to suppress.”[1]

In 1976, the Federal Government was looking at a larger Act for employment issues and the provision of federally regulated services.  This Act eventually would end up with the innocuous sounding name: the Canadian Human Rights Act. Although no other section of the Human Rights Act covered speech, it was not a problem for the Federal government to capitulate and slip in an extra section to satisfy Ontario’s Attorney General’s lust to silence John Ross Taylor and his home-based answering machine.

During the initial discussions on Section 13, it became clear that there was much discussion about adding intent, truthfulness, artistic expression and other defenses to the act. But as the law wound it way through the legislative review process and at the behest of special interest groups, all defenses were removed.  After all, a good gag law can’t have any pesky defenses that the poor defendants could use to prove their innocence.  And in the case of John Ross Taylor, even Ontario’s AG conceded that what Taylor was doing on his answering machine was “topical and political and focus on a wide variety of subjects.”  Thus a defense of fair comment and political commentary in the public interest would clearly have applied to Mr. Taylor.

In a memorandum to cabinet presented by the then Liberal Justice Minister Ron Basford, described Section 13 as clearly remedial in nature.  “However, this amendment would not expose anyone to prosecution, would not involve penalties, and no coercive action would be taken unless the ‘good offices’ of the Commission failed to dissuade the person responsible”.[2]

On July 14, 1977, Bill C-25 “Canadian Human Rights Act,” was passed by the House of Commons and went on to receive Royal Assent.[3] Only a few years after the law was enacted, Mr. Callaghan finally got his wish and John Ross Taylor became its first victim, with the Canadian Human Rights Commission itself and several professional Jewish groups[4] as the complainants.

Since the law was first enacted, two major changes were made to Section 13.  These changes fundamentally shifted the original intent of the legislation, and turned Section 13 into an instrument to financially and morally punish those with politically incorrect views.

The first change to the legislation occurred on May 15, 1998, when Royal Accent was given to Bill S-5 (1998), which added a new penalty provision to the Canadian Human Rights Act. Bill S-5 added Section 54 to the Canadian Human Rights Act, and allows the Human Rights Tribunal to impose a financial penalty of up to $10,000.  On top of the fines, Section 54 also gave the fanatical Tribunal the ability to impose penalties of up to $20,000 as so-called “special compensation.” 

According to the background section of Bill S-5, these penalties were added “as a response to the rising incidence of hate crimes around the world. The government believes that stronger measures are needed to deter individuals and organizations from establishing hate lines. It hopes to accomplish this by allowing victims of such lines to apply for compensation and subjecting offenders to financial penalty.” [5]

 The second change occurred in the aftermath of the terrorist attacks of September 11th 2001.  Sadly, this legislation equated non-violent politically incorrect words – which are covered by Section 13 – with terrorism and concerns of national security.  Under the guise of Bill C-36 - Canada’s Anti-Terrorism Act,[6] Section 13 was expanded to cover “a group of interconnected or related computers, including the Internet.” This change, gave the power to Canadian Human Rights Commission to censor the internet and harass Canadians with views that the Rights Fanatics disagree with.

 This change was made according to Preamble of Bill C-36 to allegedly “combat terrorism.”[7] 

 The Preamble of C-36 states:

“WHEREAS acts of terrorism constitute a substantial threat to both domestic and international peace and security;

 WHEREAS acts of terrorism threaten Canada’s political institutions, the stability of the economy and the general welfare of the nation

 WHEREAS the challenge of eradicating terrorism, with its sophisticated and trans-border nature, requires enhanced international cooperation and a strengthening of Canada’s capacity to suppress, investigate and incapacitate terrorist activity;

AND WHEREAS these comprehensive measures must include legislation to prevent and suppress the financing, preparation, and commission of acts of terrorism, as well as to protect the political, social and economic security of Canada and Canada’s relations with its allies;” [8]

 With these changes, fanatical tribunal members now have the ability to both assess hefty fines and a “Cease and Desist” order.  These orders include a permanent lifetime speech ban, which were designed to permanently gag a victim for his entire life.  The “Cease and Desist” orders are registered with the Federal Court of Canada and become an enforceable order of the Court.   If the victim still doesn’t shut up, he could face up to 5 years in jail for contempt of court.[9]  Several victims of Section 13 have been jailed for violating the highly vague and subjective “Cease and Desist” orders.  These include John Ross Taylor,[10] Wolfgang Droege, Kenneth Barker, Gary Schipper and Tomasz Winnicki.[11] 

 In 1990 the Supreme Court of Canada ruled in the Taylor case[12] that Section 13 of the Canadian Human Rights Act was constitutional, but by the slimmest of margins, with a 4-3 split decision.  To date, this has been the only constitutional test of Section 13 to ever reach the Supreme Court. It should be noted that Madame Justice McLachlin delivered the dissenting opinion, saying that Section 13 was a violation of freedom of speech and should be wiped from our law books.  On January 7, 2000, Madame Justice McLachlin was appointed as the Chief Justice of Canada. [13]

 In the Supreme Court ruling delivered by Chief Justice Dickson, the legislation was upheld because it was never meant to assign any “moral blameworthiness” but rather directs its attention to redress and mediation.  The decision is replete with numerous references to “remedial” (8x), and “conciliatory” (5x).

 Chief Justice Dickson held in Taylor that:

 "The chill upon open expression in such a context [of a human rights statute] will ordinarily be less severe than that occasioned where criminal legislation is involved, for attached to a criminal conviction is a significant degree of stigma and punishment, whereas the extent of opprobrium connected with the finding of discrimination is much diminished and the aim of remedial measures is more upon compensation and protection of the victim. As was stated in Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at p. 1134, under a human rights regime: "It is the [discriminatory] practice itself which is sought to be precluded. The purpose of the Act is not to punish wrongdoing but to prevent discrimination. The last point is an important one and it deserves to be underscored. There is no indication that the purpose of the Canadian Human Rights Act is to assign or to punish moral blameworthiness."

 Thanks to the vindictive social engineers that staff the Human Rights Commission, Section 13 has become the complete opposite of remedial.  The law is now used by special interests to silence Canadians through a series of impact prosecutions which have a direct and chilling effect on freedom of speech and thought.

 

Section 13(1) of the Act infringes the guarantee of freedom of expression in s. 2(b) of the Charter.  Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non-violent form of expression, this activity falls within the sphere of the conduct protected by s. 2(b).

 

Dissenting Opinion on Section 13

Supreme Court of Canada – Taylor Case


 

 

On September 2, 2009, the Canadian Human Rights Tribunal found that Section 13 and 54 of the Canadian Human Rights Act was unconstitutional.   As a result the Tribunal Chair, Mr. Hadjis, refuses to apply the Human Rights Act against Marc Lemire.

The ruling stated:

[279] This question, however, is not what is relevant to the present discussion. The point is that, when assessed against the characteristics of the penalty provisions enumerated in these decisions, it is evident that s. 13(1) has become more penal in nature (irrespective of whether s. 11 Charter rights are necessarily triggered). The provision can no longer be considered exclusively remedial, preventative and conciliatory in nature, which was at the core of the Court’s finding in Taylor that s. 13(1)’s limitation of freedom of expression is demonstrably justifiable in a free and democratic society, and thereby “saved” under s. 1 of the Charter.

...

[290] Thus, following the reasoning of Justice Dickson, at 933,one can no longer say that the absence of intent in s. 13(1) “raises no problem of minimal impairment” and “does not impinge so deleteriously upon the s. 2(b) freedom of expression so as to make intolerable” the provision’s existence in a free and democratic society. On this basis, I find that the Oakes minimum impairment test has not been satisfied, and that s. 13(1) goes beyond what can be defended as a reasonable limit on free expression under s. 1 of the Charter.
 
 
c) Conclusions with respect to the claim of infringement on the freedom of expression
 
[295] For all the above reasons, I find that s. 13(1) infringes on Mr. Lemire’s freedom of expression guaranteed under s. 2(b) of the Charter, and that this infringement is not demonstrably justified under s. 1 of the Charter.

...

V. CONCLUSION
I have determined that Mr. Lemire contravened s. 13 of the Act in only one of the instances alleged by Mr. Warman, namely the AIDS Secrets article. However, I have also concluded that s. 13(1) in conjunction with ss. 54(1) and (1.1) are inconsistent with s. 2(b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter. Since a formal declaration of invalidity is not a remedy available to the Tribunal (see Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5), I will simply refuse to apply these provisions for the purposes of the complaint against Mr. Lemire and I will not issue any remedial order against him (see Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 at paras. 26-7).
 

On January 25, 2010, the Lemire decision was appealed by the Canadian Human Rights Commission to the Federal Court of Canada.

 


[1] Letter from F.W. Callaghan, Ontario Deputy Attorney General to D.H. Christie, Assistant Deputy Attorney General, Federal Department of Justice. November 13, 1975.

[2] Confidential Memorandum to Cabinet.  Cabinet Document 156/76.  March 12, 1976 on Bill C-72 “Canadian Human Rights Act”

[3] Canadian Human Rights Commission publication. “Hate messages and Section 13 of the Canadian Human Rights Act - Legal Milestones”  http://www.chrc-ccdp.ca/proactive_initiatives/legal_milestones-en.asp

[4] Canadian Holocaust Remembrance Association and the Toronto Zionist Council were listed complainants.  CHRC v Taylor, Canadian Human Rights Tribunal.  T.D. 1/79.

[5] Bill S-5: An Act to amend the Canada Evidence Act, the Criminal Code, and the Canadian Human Rights Act. (1998)  Section: Background.  http://dsp-psd.tpsgc.gc.ca/Collection-R/LoPBdP/LS/s5-e.htm#BACKGROUND

[6] Bill C-36. Anti-terrorism Act.  Subsection 88.

[7] Bill C-36. Anti-terrorism Act.  Summary – Part 5.

[8] Bill C-36. Anti-terrorism Act.  Preamble.

[9] Federal Court of Canada – Sections 466 and 467.  [See Winnicki Contempt case,  2006 FC 873 , Para 9  http://decisions.fct-cf.gc.ca/en/2006/2006fc873/2006fc873.html]

[10] Canadian Human Rights Commission publication. “Hate messages and Section 13 of the Canadian Human Rights Act - Legal Milestones” Under Section: “Case Law”

[12] Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892

[13] Judges of the Court. The Right Honourable Beverley McLachlin, P.C. Chief Justice of Canada. http://www.scc-csc.gc.ca/court-cour/ju/mclachlin/index-eng.asp

 

 

Section 13 Backgrounders:

 

 

 

 

 

 

 

 

 

 

 

 
 

  "During times of universal deceit, telling the truth is a revolutionary act" - George Orwell 

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