On January 31, 2014, the Federal Court of Appeal held in Lemire v Canadian Human Rights Commission that the hate speech prohibition in the Canadian Human Rights Act is constitutional. This decision comes on the heels of the Supreme Court of Canada’s decision upholding a similar provision in The Saskatchewan Human Rights Code. That decision seemed to decide the outcome inLemire. But the Canadian Human Rights Tribunal had declared the provision unconstitutional and, in July, Parliament repealed the hate speech provision, leaving some doubt as to the final outcome.
The decision turned on two issues: (a) whether 2001 amendments to the Act, which expanded the application of the provisions from telephonic communications to include the Internet, made the hate speech prohibition overly broad; and (b) whether the imposition of a $10,000 penalty for breach of the provision made it punitive. The Federal Court of Appeal didn’t think so in either case. It held that the Internet may have an added impact on the dissemination of hate speech. Further, the “penalty” is intended to promote compliance and, therefore, not punitive. As such, even though the hate speech prohibition violates the freedom of expression (as all hate speech laws do), it is “saved” by section 1 of the Canadian Charter of Rights and Freedoms.
Given that the Supreme Court of Canada grappled with the same issue in early 2013 and the provision has been repealed, it seems unlikely that Lemire would be granted leave to appeal the decision.