Contents: expression 1

Hate Propaganda cases

R. v. Andrews [1990] 3 S.C.R. 870: Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1

Present: Dickson C.J. and Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and McLachlin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Freedom of expression -- Hate propaganda -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(2) of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.

Constitutional law -- Charter of Rights -- Presumption of innocence -- Reverse onus provision -- Criminal Code prohibiting wilful promotion of hatred against identifiable groups (s. 319(2)) -- Defence of truth to be established by accused on balance of probabilities (s. 319(3)(a)) -- Whether s. 319(3)(a) of Code infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter.

The accused were charged with the wilful promotion of hatred against an identifiable group under s. 319(2) of the Criminal Code. A was the leader and S the secretary of the Nationalist Party of Canada, a white nationalist political organization. Both were members of the party's central committee, the organization responsible for the publication of the Nationalist Reporter, which promoted the theory of white supremacy. The accused were convicted and their convictions upheld by the Court of Appeal. This appeal is to determine whether ss. 319(2) and 319(3)(a) of the Code are constitutionally valid.

Held (La Forest, Sopinka and McLachlin JJ. dissenting): The appeal should be dismissed. Sections 319(2) and 319(3)(a) of the Code are constitutional.

Per Dickson C.J. and Wilson, L'Heureux-Dubé and Gonthier JJ.: For the reasons given by the majority in Keegstra, s. 319(2) of the Code infringes the freedom of expression guaranteed in s. 2(b) of the Canadian Charter of Rights and Freedoms, and s. 319(3)(a) of the Code infringes the presumption of innocence entrenched in s. 11(d) of the Charter. Sections 319(2) and 319(3)(a) are both justifiable, however, under s. 1 of the Charter.

Per La Forest, Sopinka and McLachlin JJ. (dissenting): For the reasons given by the minority in Keegstra, s. 319(2) of the Code is an unjustifiable limit on the guarantee of freedom of expression in s. 2(b) of the Charter.

Per Sopinka and McLachlin JJ. (dissenting): For the reasons given by McLachlin J. in Keegstra, s. 319(3)(a) of the Code is an unjustifiable limit on the right to be presumed innocent in s. 11(d) of the Charter.

Per La Forest J. (dissenting): It is unnecessary to consider the issues respecting the right to be presumed innocent in s. 11(d) of the Charter.

Canada (Human Rights Comm.) v. Taylor (1990), 13 C.H.R.R. D/435 (S.C.C.) [Eng./Fr. 53 pp.] Communication of Hate Messages by Telephone Prohibited -- Canadian Human Rights Act, which prohibits the communication of hate messages by telephone, does not violate the Canadian Charter

BOARDS OF INQUIRY / TRIBUNALS -- HUMAN RIGHTS COMMISSIONS -- appointment process and independence of Board members -- bias -- CANADIAN BILL OF RIGHTS -- application of s. 2(e) (right to a fair hearing) -- JURISDICTION -- waiver of right to challenge jurisdiction

Section 13(1) of the Canadian Human Rights Act prohibits the communication of messages by telephone which are likely to expose a group to hatred or contempt because of, inter alia, their race or religion. In 1979 complaints were filed with the Canadian Human Rights Commission alleging that John Ross Taylor and the Western Guard Party were repeatedly communicating messages by telephone which were likely to expose Jewish people to hatred and contempt. Taylor and the Western Guard Party produced recorded messages which played to those who called a number listed under "White Power Message" in the Toronto telephone book.

Taylor and the Western Guard Party were finds to have contravened s. 13(1) of the Act, and a Canadian Human Rights Tribunal issued a cease and desist order. When Taylor and the Western Guard Party continued to communicate hate messages by telephone, the Canadian Human Rights Commission filed its order in Federal Court. Taylor and the Western Guard Party were subsequently finds guilty of contempt of court because they failed to obey the order. Taylor was sentenced to one year's imprisonment and the Western Guard Party was fined $5,000.

In 1983, the Canadian Human Rights Commission filed a new application in Federal Court alleging that Taylor and the Western Guard Party were still communicating hate messages and were again in contempt of the cease and desist order.

This is an appeal by Taylor and the Western Guard Party against the Canadian Human Rights Commission's action to have the Tribunal order enforced for a second time. The appellants argue that s. 13(1) of the Canadian Human Rights Act is now of no force and effect because it violates s. 2(b), the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms. The Federal Court Trial Division, and the Federal Court of Appeal rejected this claim. In the Supreme Court of Canada this case was heard with R. v. Keegstra and R. v. Andrews which challenged the hate propaganda provisions of the Criminal Code.

The issues in this appeal are: 1) whether s. 13(1) of the Canadian Human Rights Act and the Tribunal's cease and desist order violate the Charter and 2) whether the Tribunal's order is invalid because of bias.

For the majority, Dickson C.J. (as he then was) (Wilson, L'Heureux-Dubé. and Gonthier JJ. concurring) finds that s. 13(1) violates the s. 2(b) guarantee of freedom of expression. The hate messages communicated by Taylor and the Western Guard Party constitute "expression" and s. 2(b) protects expression no matter what the content, as long as it is not communicated in violent forms.

However, the majority finds s. 13(1) is a justifiable limit on freedom of expression within the meaning of s. 1 of the Charter. Hate propaganda undermines the dignity and self-worth of minority racial and religious groups and erodes the tolerance and open-mindedness which are essential in a multicultural society. The purpose of s. 13(1) is to promote equality and to prevent the harm which hate propaganda causes to targeted groups. This is a pressing and substantial concern. It is of heightened importance because it is supported by other sections of the Charter, namely ss. 15 and 27, and by international human rights instruments to which Canada is signatory.

Having determined that the objective of s. 13(1) is of sufficient importance to warrant overriding a fundamental freedom, the majority considered whether the means are proportionate. To meet the Oakes test of proportionality, the state must show that 1) there is a rational connection between the impugned measure and the objective; 2) the measure impairs the Charter right as little as possible; and 3) the effects of the measure are not so severe as to represent an unacceptable abridgment of the right.

The majority finds that hate propaganda produces effects that are deleterious to the objective of equality of opportunity. Thus, there is clearly a rational connection between the restriction on communicating hate messages and the objective of promoting equality for racial and religious minorities. The majority rejects the argument that there is no rational connection because s. 13(1) does not, in fact, reduce hate propaganda. In combatting discrimination, legislative efforts to suppress hate propaganda are not the only means available but they are considered an important weapon against intolerance by the international community.

Considering whether s. 13(1) impairs the right to freedom of expression as little as possible, the majority rejects a number of arguments advanced by the appellants and the intervener, the Canadian Civil Liberties Association. The Canadian Civil Liberties Association argued that the right is not impaired as little as possible because the words "hatred" and "contempt" are inherently vague and do not precisely define the scope of the discriminatory practices. Because of this, expression which does not contribute to discrimination may be caught. However, the majority finds that these terms are sufficiently precise, when read in light of the objects of the Act, to prevent unacceptable chilling of expressive activity.

The majority also rejects the argument that the absence of a requirement to show that there was an intent to expose a group to hatred makes it a serious and unnecessary impairment of the right to freedom of expression. The Canadian Civil Liberties Association argued that individuals who are oblivious of the consequences of their communications, or who intend to reduce discrimination, may be caught by s. 13(1) because it is only effects which need be considered. In answer, the majority rules that the important objective of s. 13(1) can only be achieved by ignoring intent and therefore the minimal impairment requirement of the Oakes test is satisfied.

In addition, the majority rejects the argument that s. 13(1) does not impair the right as little as possible because it interferes with telephone communication which is generally considered private. The majority of the Court finds that telephonic communication is a particularly effective means of conveying hate messages since the message is subject to no counter-argument in that particular communications context. Also, the Court finds that it is repeated communication of hate messages which is prohibited.

The majority concludes that the effect of s. 13(1) on the right to freedom of expression is not needlessly severe. The chill placed upon expression by a human rights statute is not the same as that caused by criminal law. A criminal conviction carries a degree of stigma and punishment, whereas the emphasis of human rights laws is on protection of the victim.

The year of imprisonment imposed on John Ross Taylor was not the result of the order of the Tribunal, but the result of the Federal Court's ruling that Taylor was in contempt of court when he ignored the order and continued to communicate hate messages. A cease and desist order which must necessarily precede a contempt order brings to the attention of the person the fact that his messages are likely to have a harmful effect. Continuing such messages, after such a ruling, cannot be said to occur without intent regarding the effect of the message.

The majority concludes that s. 13(1) is a reasonable limit on the right to freedom of expression within the meaning of s. 1.

The majority also rejects the appellants' argument that the cease and desist order violated the right to freedom of expression because it was too vague to allow the appellants to determine what expressive activity was prohibited. The order was a part of a lengthy decision which allowed for no doubt as to the subject matter which Taylor and the Western Guard Party were enjoined from communicating.

Finally, the appellants argue that the Tribunal was biased because it was appointed by the Canadian Human Rights Commission which investigated the complaints. This position relied on the 1985 decision of the Federal Court of Appeal in MacBain v. Canada (Human Rights Comm.) which decided that ss. 39(1) and 39(5) of the Canadian Human Rights Act were of no effect to the extent that they allowed the Commission to appoint the tribunal before which it appeared as the prosecuting party. In the present case, the issue of bias was not raised by the appellants until 1987, about eight years after the Tribunal's decision was released. The majority agreed with the reasoning of the Federal Court of Appeal on this question. The Federal Court of Appeal finds that since the appellants had made no effort to raise allegations of a reasonable apprehension of bias over a period of years, their inaction constituted a waiver.

Section 13(1) and the order of the Tribunal are upheld. The appeal is dismissed.

Writing for the minority, McLachlin J. (Sopinka and La Forest JJ. concurring) finds that s. 13(1) violates s. 2(b) for reasons similar to those given by the majority of the Court.

However, the minority concludes that s. 13(1) is not a reasonable limit on freedom of expression within the meaning of s. 1. McLachlin J. agrees that the objective of s. 13(1) is a substantial and pressing concern: to discourage discrimination against groups traditionally discriminated against.

But the minority takes issue with the means used by s. 13(1) to pursue this objective. Section 13(1) is broad and vague, the minority finds. It prohibits a great deal of defensible speech without accommodating the important right to freedom of expression.

To establish whether there is a rational connection between a law and its purpose the minority considers not just the intention of the legislators but whether the law is likely to achieve its ends, and whether it may have an effect contrary to its objective. Rational connection may also be absent when the law goes beyond what can be justified by its objects. The minority concludes that s. 13(1) fails the rational connection test because it is not closely tailored to its objectives and because it infringes freedom of speech in unjustified and essentially irrational ways.

The terms "hatred" and "contempt" are vague and subjective; they will catch much expression which presents little threat of fostering discrimination against protected groups. Also, the breadth of the section is widened by the absence of any requirement of intent. While the absence of a requirement to show intent is consistent with human rights laws, it has the effect of extending the section's application. In addition, no proof of harmful effect is required. This means, the minority finds, that the section is capable of catching expression which clearly goes beyond the scope of its objects. It is no answer to the absence of rational connection to say that, in practice, Commissions and members of Tribunals may choose not to enforce the overbroad aspects of s. 13(1).

In addition to finding a lack of rational connection between the measure and its objects, the minority also concludes that s. 13(1) does not impair the right to freedom of expression as little as possible. It interferes with strictly private communication of ideas. Also no defence of truth is provided and therefore true statements can be prohibited by s. 13(1).

In conclusion, the minority of the Court finds that s. 13(1) intrudes on the fundamental freedom of expression in ways that cannot be justified by the objectives it seeks to promote. It catches speech which is neither intended nor calculated to foster discrimination, which may be accurate and truthful, and which merely communicates information by telephone to a single person. In short, s. 13(1) seriously overshoots the mark.

The minority agrees with the conclusion of the majority with regard to the issue of bias.

The minority would strike down s. 13(1) of the Canadian Human Rights Act. They would quash the order of the Tribunal, but affirm the convictions registered against the appellants in 1984 for contempt. They would vary the sentence imposed on John Ross Taylor by reducing it to three months' imprisonment.

Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 1) (1992), 26 C.H.R.R. D/194 (F.C.T.D.) [Eng./Fr. 26 pp.]: Injunction issued to stop telephonic messages -- -- exposure to hatred on the basis of race or religion

INJUNCTION -- application for injunction by human rights commission -- injunction restraining telephonic messages -- survey of the law -- COURTS -- JURISDICTION -- court of competent jurisdiction to order injunction

The issues before the Court are: (1) can the Court issue an injunction in these circumstances, and (2) should the Court do so?

The Commission argues that ss. 25 and 44 of the Federal Court Act gives the Federal Court authority to issue the injunction requested. Section 25 provides that the Federal Court Trial Division has original jurisdiction between subject and subject in any case for which a claim for relief or remedy is made by virtue of the laws of Canada if no other court has jurisdiction in respect of that claim or remedy. Section 44 provides that in addition to other relief, the Court may grant an injunction in all cases in which it appears to be just or convenient to do so.

The Federal Court Trial Division finds that it was given these powers pursuant to s. 101 of the Constitution Act, 1867 which allows the Parliament of Canada to establish courts "for the better administration of the laws of Canada." The Court finds that in order to have jurisdiction there must be a statutory grant of authority and an existing body of federal law. The Court finds that ss. 25 and 44 are a statutory grant of authority, and the Canadian Human Rights Act is a federal law which nourishes the grant of jurisdiction to the Court.

The Canadian Human Rights Act discourages discriminatory practices and can ultimately enjoin a party from committing such a practice by the order of a Canadian Human Rights Tribunal. The Court notes that it has no jurisdiction to hear and decide a human rights complaint and issue a final cease and desist order, because this is exclusively within the jurisdiction of a Canadian Human Rights Tribunal. It also notes that Tribunals, however, have no jurisdiction to issue interlocutory injunctions as the Act provides them with no such power.

The Court concludes that it has jurisdiction to grant an interlocutory injunction in these circumstances, since this Court is established to provide for the better administration of the laws of Canada, including the Canadian Human Rights Act.

The Court also concludes that it should grant the injunction. It rejects the respondents' argument that enjoining them from playing the messages on the Canadian Liberty Net line violates their freedom of speech and expression. The Court finds that Canadian Liberty Net's messages disparage and ridicule Jews and non-whites as sub-human and make light of the lethal fury of the Nazis' Holocaust. The Charter does not guarantee the right to disseminate such messages. There is an inherent limitation on freedom of speech and expression when they conflict with rights articulated in ss. 7, 12, 15, 27, and 28 of the Charter. Also, the limits on freedom of speech are prescribed by law in the Canadian Human Rights Act.

The Court issues an interlocutory injunction enjoining the respondents by themselves or by their servants, agents, volunteers, or co-operants from continuing to play the impugned messages until such time as the human rights complaint filed against them is heard and decided.

Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 2) (1996), 26 C.H.R.R. D/242 (F.C.A.) [Eng./Fr. 18 pp.] Authority to Issue Injunction
Before Tribunal Ruling -- exposure to hatred on the basis of race or religion -- survey of the law

APPEALS AND JUDICIAL REVIEW -- appeal of injunction -- INJUNCTIONS -- injunction restraining telephonic messages -- survey of the law -- JURISDICTION -- court of competent jurisdiction to order injunction -- COURTS -- authority of court to order injunction -- BOARDS OF INQUIRY / TRIBUNALS -- authority to award remedy for respondent to cease discriminatory action

This is an appeal from an interlocutory injunction that was issued by the Federal Court Trial Division in March 1992 to enjoin Canadian Liberty Net (CLN) and Tony McAleer from communicating by telephone messages that would expose Jewish and non-white persons to hatred until such time as a Canadian Human Rights Tribunal could hear and decide on a complaint alleging that CLN and Tony McAleer were contravening s. 13(1) of the Canadian Human Rights Act.

The Tribunal was appointed to hear and decide complaints against CLN and McAleer in March 1992 (Khaki v. Canadian Liberty Net), but its decision was not issued until September 1993. In the meantime, the Canadian Human Rights Commission applied for an interlocutory injunction enjoining the appellants from communicating or causing to be communicated messages that would expose Jewish and non-white persons to hatred until a final order was rendered by the Tribunal. The injunction was issued in March 1992. In June 1992 the Commission applied for a show cause order on the grounds that the appellants were disobeying the injunction. They were finds guilty of contempt of court in July 1992 and sentence was imposed on August 26, 1992. That decision and sentence were appealed, and the appeal was heard at the same time as this appeal from the interlocutory injunction.

The issue in this appeal is whether the Federal Court has the authority to issue an injunction in these circumstances. There is no express authority in the Canadian Human Rights Act to issue an injunction. The Act specifically precludes a Tribunal from ordering compensation in s. 13(1) cases and Tribunals cannot impose penalties in any case. The issue is, in spite of these carefully limited sanctions, should it be assumed that Parliament has authorized interlocutory measures to stop the communication of messages before a Tribunal has determined that they are in violation of s. 13(1)?

The Federal Court of Appeal concludes that the Canadian Human Rights Act sets out a measured, deliberate approach to the regulation of hate messages communicated telephonically, including investigations, mediation, and possible disposition by a Tribunal. While this regime does not require proof of intent to expose a group to hatred, it provides sanctions which can only be imposed after a Tribunal has determined that s. 13(1) has been contravened, and which include no penalty and no compensation, but only a cease and desist order. No prior restraint of hate communications is specifically provided for.

It is apparent that this measured approach was thought necessary in order to support as fully as possible freedom of speech. The cautious approach taken by the Parliament in structuring the Canadian Human Rights Act, and by the Supreme Court of Canada in its decision in Canada (Human Rights Comm.) v. Taylor militates against there being an implied authority for the courts to issue interlocutory injunctions to stop communications prior to their being finds to contravene the Act.

The Federal Court of Appeal concludes that the Federal Court does not have the authority to issue interlocutory injunctions to restrain hate communications prior to their being finds to violate s. 13(1) of the Canadian Human Rights Act. If Tribunals cannot act more quickly in these cases, then the Act should be amended to explicitly authorize the Tribunal or the Court to issue interlocutory injunctions. Whether such measures would be considered justifiable under s. 1 of the Charter might require further judicial consideration. In any case, the authority to issue injunctions does not currently exist.

The appeal was allowed and the appellants were entitled to their costs. However, the Court notes that the appellants have not paid the fines ordered against them for violating the injunction, and it orders that no costs be paid until the fines owing are paid by the appellants.

Canada (Human Rights Comm.) v. Canadian Liberty Net (No. 3) (1996), 26 C.H.R.R. D/260 (F.C.A.) [Eng./Fr. 11 pp.] Contempt order upheld despite lack of authority to issue injunction before tribunal ruling

In March 1992 the Federal Court Trial Division issued an injunction prohibiting CLN and Tony McAleer from communicating messages telephonically which would be likely to expose Jewish and non-white persons to hatred pending the resolution of a complaint which alleged that they had violated s. 13(1) of the Canadian Human Rights Act. In July 1992, the appellants were finds guilty of contempt of court for disobeying that injunction. The Federal Court Trial Division finds that CLN and Tony McAleer had placed a message on the CLN telephone line in Canada referring callers to a new telephone number for CLN "in exile". By telephoning the new number, located in Blaine, Washington, callers could hear hate messages of the same type that they were enjoined from communicating by the interlocutory injunction. The Federal Court Trial Division finds CLN and McAleer had deliberately circumvented the order of the court. It rules that they were in contempt of court, and sentenced McAleer to two months in prison. He was also fined $2,500 and CLN was fined $5,000.

In this appeal, the issues are: (1) was the Trial Judge correct in finding that there was a breach of the injunction; (2) if the injunction was invalid could it be the basis for a contempt order; and (3) was the sentence appropriate?

The Federal Court of Appeal finds that there was a breach of the injunction. The injunction specifically enjoined the appellants from "causing to be communicated" certain types of hate messages. The fact that the messages were conveyed from an American-based telephone line is not sufficient to evade the injunction. If the appellants had not placed a message on the CLN line in Canada, the messages could not have been communicated. Consequently, the appellants breached the injunction by giving callers the CLN number "in exile" and continuing to provide hate messages.

Also, the Federal Court of Appeal finds that even though it has decided in a companion decision, that the Federal Court Trial Division had no authority to issue its 1992 injunction, while the injunction was in effect it was a valid order of the court and breaching it can be the basis for a contempt of court order. Injunctions, as well as any other orders, must be complied with until reversed or stayed, even if they are not valid.

Finally, the Federal Court of Appeal decides that the prison sentence given to Mr. McAleer should be reduced to the two days he has already served, in light of the finding of the Court that the injunction was not valid. The fines, however, are affirmed.

McAleer v. Canada (Human Rights Comm.) (1996), 26 C.H.R.R. D/280 (F.C.T.D.) [Eng./Fr. 15 pp.]: exposure to hatred on the basis of sexual orientation -- Tribunal decision upheld in hate messages case

CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 1 (reasonable limits) and application of Oakes test -- s. 2(a) (freedom of conscience and religion) -- s. 2(b) (freedom of expression) -- s. 7 (security of the person) -- CONSTITUTIONAL LAW -- constitutional validity of human rights legislation -- FREEDOM OF EXPRESSION -- freedom of speech and communication of hate messages -- JURISDICTION -- federal/provincial jurisdiction over telecommunications services

The applicants argue that: (1) s. 13(1) of the Canadian Human Rights Act which prohibits transmission of telephonic messages which expose a group of persons to hatred or contempt represents an interference in the province's exclusive jurisdiction over property and civil rights; (2) s. 13(1) of the Canadian Human Rights Act contravenes ss. 2(a) and (b) and s. 7 of the Charter of Rights and Freedoms which guarantee freedom of speech and liberty; (3) the Tribunal's interpretation of "sexual orientation" was vague and overly broad and therefore infringes ss. 2(a) and (b) and s. 7 of the Charter; and (4) the Canadian Human Rights Commission failed to show that s. 13(1) should be saved under s. 1 because there is no "pressing social ill" at stake.

The Federal Court Trial Division rules that there is no jurisdictional issue here. Telecommunications falls under federal jurisdiction and the messages at issue here were relayed through telecommunications. It also finds that Counsel for Tony McAleer has already unsuccessfully challenged the constitutionality of s. 13(1) of the Canadian Human Rights Act in the Canada (Human Rights Comm.) v. Taylor case. The Supreme Court of Canada ruled in that case that freedom of expression was breached by s. 13(1) of the Canadian Human Rights Act, but it upheld the infringement under s. 1 of the Charter. Section 13(1) of the Canadian Human Rights Act was held to constitute a reasonable limit upon freedom of expression.

Given the similarity of the issues in this case, the Federal Court Trial Division adopts certain aspects of the Supreme Court's analysis in Taylor. The Court acknowledges that s. 13(1) infringes s. 2 of the Charter and proceeds to determine whether the infringement may be justified as a reasonable limit under s. 1. The parties invoking s. 1, in this case the Canadian Human Rights Commission and John Payzant, must show that the objective of s. 13(1) is sufficiently important to warrant overriding the right to freedom of expression, and in addition that it does it in a way that meets the proportionality test set out in R. v. Oakes.

The Supreme Court of Canada in Taylor found that Parliament's objective of promoting equal opportunity, free of discriminatory penalties, was of sufficient importance to warrant overriding the rights set out in s. 2, and the Court finds that this ruling should be respected.

With regard to the minimal impairment test, the Court notes that the applicants argue that the expression "sexual orientation" is vague and overly broad and may be interpreted as including practices such as bestiality and pedophilia. The Court finds, however, that s. 13(1) is not vague or overly broad, as it offers sufficient guidance for legal debate. The Court also finds that the effects of s. 13(1) are not so deleterious as to make its existence intolerable in a free and democratic society.

Regarding the issue of sexual orientation, CLN and Tony McAleer argue that s. 13(1) might be applied "whenever political correctness says so." However, the Court finds that while this might be a concern, the application of s. 13(1) has not reached an abusive state. Furthermore, the Court finds that the argument that the inclusion of sexual orientation is tantamount to legitimizing or legalizing bestiality and pedophilia has little merit. Pedophilia is a sexual desire directed towards children. Bestiality refers to copulation between a human being and an animal. Sexual orientation refers to an individual's preference with respect to gender. It is not vague or overly broad, and has been found to be an analogous ground under s. 15 of the Charter.

In conclusion, the Court finds that the Tribunal did not err with respect to jurisdiction or otherwise, and consequently there are no grounds for intervention.

Ross v. New Brunswick School Dist. No. 15 (1996), 25 C.H.R.R. D/175 (S.C.C.) [Eng./Fr. 38 pp.] Supreme Court of Canada upholds the decision of a Board of Inquiry which ruled that a Board of School Trustees discriminated with respect to a public service because it failed to take appropriate action against a teacher who made repeated public attacks on Jewish people.

ADMINISTRATIVE TRIBUNALS -- BOARDS OF INQUIRY / TRIBUNALS -- COURTS -- standard of review of court over administrative tribunals -- privative clause -- APPEALS AND JUDICIAL REVIEW -- findings of fact are patently unreasonable -- LIABILITY -- employer liability for teacher -- REMEDIES -- leave without pay from employment -- employment termination

CANADIAN CHARTER OF RIGHTS AND FREEDOMS -- s. 1 (reasonable limits) and application of Oakes test -- s. 2(a) (freedom of conscience and religion) -- s. 2(b) (freedom of expression) -- FREEDOM OF EXPRESSION -- freedom of speech and the right to freely express opinion on any subject -- HUMAN RIGHTS -- nature and purpose of human rights legislation

Summary: In a unanimous ruling the Supreme Court of Canada upholds the decision of a Board of Inquiry which ruled that the Board of School Trustees, District No. 15 discriminated with respect to a public service because it failed to take appropriate action against a teacher, Malcolm Ross, who made repeated public attacks on Jewish people.

David Attis, a Jewish parent, complained in 1988 that Malcolm Ross, a teacher in School District No. 15, publicly made racist and discriminatory comments about Jewish people during his off-duty time, and that this created a "poisoned environment" in the school district, negatively affecting the Jewish children and other minority students. Mr. Ross抯 writings and statements communicating his anti-Semitic views included books, letters and interviews with local media. The Board of Inquiry found that, despite mounting complaints about Mr. Ross抯 activities between 1978 and 1987, the School Board reprimanded Mr. Ross ineffectively, and, by its almost indifferent response to the complaints and by continuing his employment, it endorsed his out-of-school activities and writings. This resulted in an atmosphere in the school district where anti-Jewish sentiments flourished, where students engaged in anti-Semitic acts, and where Jewish students were subject to a "poisoned environment."

The Board of Inquiry issued a two part order. Clause 1 of the order required the Department of Education to take a number of steps to prevent discriminatory treatment in the schools. In clause 2 the Board of Inquiry ordered the School Board to (a) immediately place Malcolm Ross on a leave of absence without pay for a period of eighteen months; (b) appoint Mr. Ross to a non-teaching position if one came available for which he was qualified during this period; (c) terminate his employment at the end of eighteen months if he had not been offered and accepted a non-teaching position; and (d) terminate his employment with the School Board immediately if at any time he published or wrote about a Jewish conspiracy or attacked followers of the Jewish religion, or published, sold or distributed Web of Deceit, The Real Holocaust, Spectre of Power, or Christianity vs. Judeo-Christianity (The Battle for Truth).

The New Brunswick Court of Queen's Bench quashed clause 1 of the Board of Inquiry's order on the grounds that it was beyond the jurisdiction of the Board of Inquiry. The complaint was against the School Board, and no investigation was made with respect to the practices of the Department of Education. It also ruled that the Board of Inquiry had no jurisdiction to make the order contained in clause 2(d) which placed restrictions on Malcolm Ross抯 activities outside the classroom when he was no longer a classroom teacher. The remaining parts of the order were upheld.

Malcolm Ross appealed this decision to the New Brunswick Court of Appeal. There the majority found that the Board of Inquiry's order could not stand because it was the respondent's activities outside the school that attracted the complaint. In these circumstances, it ruled that the remedy did not meet a specific purpose so pressing and substantial as to override the Mr. Ross抯 constitutional right of freedom of expression.

This is an appeal by David Attis from that decision. The issues in this appeal are (1) whether a school board, which employs a teacher who publicly makes invidiously discriminatory statements, discriminates with respect to services it offers to the public pursuant to s. 5(1) of the New Brunswick Human Rights Act, and (2) whether an order to rectify the discrimination which seeks to remove the teacher from his teaching position, infringes upon the teacher's freedom of expression and freedom of religion guaranteed under ss. 2(a) and 2(b) of the Charter.

The Court finds that two standards of review are in play in this case -- an administrative law standard and a Charter standard. The administrative law standard applies to the Board's finding of discrimination and to its order. The Charter standard applies to the Board's order only.

In the administrative law context, and in light of the wording of the privative clause in the New Brunswick Human Rights Act, the Court rules that it is appropriate to exercise a degree of deference to the findings of fact of a human rights Board of Inquiry. Also, the Court finds that the Board of Inquiry clearly had the discretionary power to issue the order that it did. However, the Court finds that an administrative tribunal exceeds its jurisdiction if it makes an order that infringes the Charter.

The Court upholds the Board of Inquiry's finding that although there was no evidence that students engaging in anti-Jewish behaviour were directly influenced by Malcolm Ross抯 teachings, it was reasonable to anticipate that, given the high degree of publicity surrounding his publications and media interviews, his off-duty conduct was a factor influencing discriminatory conduct by the students.

The Court finds that teachers are inextricably linked to the integrity of the school system. They occupy positions of trust and confidence and exert considerable influence over their students as a result of their positions. Where a "poisoned environment" within the school system is traceable to the off-duty conduct of a teacher, that is likely to produce a loss of confidence in the teacher and in the system as a whole. A reasonable inference concerning the effect of Mr. Ross抯 conduct is sufficient in this case to support a finding that his continued employment impaired the educational environment generally, by creating an environment characterized by a lack of equality and tolerance.

The Court also upholds the Board of Inquiry's conclusion that the School Board had a duty to maintain a positive school environment for all persons served by it, and that it failed to maintain that positive environment.

Regarding the order of the Board of Inquiry, the Court finds that the order infringed Malcolm Ross抯 rights to freedom of expression and freedom of religion. The purpose of the order is to restrict the respondent's expression, including the expression of his religious beliefs.

The Court considers whether the order can be saved by s. 1 of the Charter as a reasonable limit on these rights by considering the educational context, the employment context, and the context of anti-Semitism. The Court finds that the educational context here is the education of young children who are less likely to make an intellectual distinction between comments a teacher makes in the school and those the teacher makes outside the school. Children are also more likely to feel threatened and isolated by a teacher who makes comments that denigrate personal characteristics of a group to which they belong. The children have the right to be educated in a school system that is free from bias, prejudice and intolerance. It is this right that must be balanced against the respondent's right to make discriminatory statements.

Regarding the employment context, the Court finds that the state, as employer, has a duty to ensure that the fulfilment of public functions is undertaken in a manner that does not undermine public trust and confidence.

It also finds, considering the context of anti-Semitism, that Malcolm Ross must not be permitted to use the Charter to roll back advances made by Jewish persons to combat discrimination against them.

The Court concludes that the Board's order asserts a commitment to the eradication of discrimination in the provision of educational services to the public, and that this is a pressing and substantial objective which justifies overriding Mr. Ross抯 rights to freedom of expression and religion.

The Court also finds that there is a rational connection between Mr. Ross抯 conduct and the harm -- the poisoned educational environment -- when he was in a teaching position. Clauses 2(a),(b) and (c) which remove Mr. Ross from his teaching position are rationally connected to the objective of the order. However, the Court rules that clause 2(d), which restricts Mr. Ross off-duty conduct when he is not in a teaching position, does not meet the minimal impairment test; it impairs the right to freedom of expression more than is necessary. The evidence does not support the conclusion that the residual poisoned effect would last indefinitely once Ross was placed in a non-teaching role. Clause 2(d) of the order is not justified under s. 1.

The appeal is allowed, and clauses 2(a), (b) and (c) of the Board of Inquiry's order are restored. Costs are awarded to the appellant Attis.