Within the Armpit, er, Ambit of Section 13, Part II

I’m still having a bit of a chuckle over Jennifer Lynch’s new guidelines on Section 13. Last time, we dealt with everything under her heading, ‘The Law’, and now we move to ‘Policy’.

So what definition of hatred and contempt does Lynch propose to use? She says, of course, that she wants to use the “definitions” provided in the Taylor case, but we now know that no universal definitions were laid down in that decision. Lynch’s definitions are:

This means that in order to come within the ambit of section 13, the communication that is the subject of the complaint must be so excessive and extreme in nature that it suggests that a given race, sex, religion or other group identifiable in relation to one or more grounds in the CHRA is devoid of any redeeming qualities as human beings.

Replacing a subjective definition with another subjective definition is nothing more than a bait-and-switch exercise in semantics. Tribunal members only need to “read in” their own criteria into the definition, and we are back at square one – the willy-nilly application of duct tape.

Moving on, Lynch discusses how the CHRC might screen out complaints:

The Commission may decide not to deal with a complaint filed under section 13 where it is clear on its face without an investigation that the allegations cannot meet the Taylor test for hate messages.

Lynch neglects to mention that the “Taylor Test” wasn’t intended to be applied in a vacuum. It is a specific usage of the “Oakes Test” of proportionality. That is, a limit on freedom of expression that is broader than that found in the Criminal Code is only acceptable because of the conciliatory application of the human rights statute. From Taylor:

To the extent that the section may impose a slightly broader limit upon freedom of expression than does s. 319(2) of the Criminal Code, however, I am of the view that the conciliatory bent of a human rights statute renders such a limit more acceptable than would be the case with a criminal provision.

So, the Taylor Test would include the Commission’s own conduct in the processing of the complaint, something that the CHRC is applying to federal court to exclude.

I just want to finish this segment by quoting the three dissenting justices in Taylor. Remember, these are Supreme Court Justices here, and they say:

I conclude that s. 13(1) of the Canadian Human Rights Act infringes s. 2(b) of the Charter, and that the Crown has not discharged the burden on it of showing that the measure is reasonable and demonstrably justified in a free and democratic society. The section is too broad and too invasive; it overreaches its objectives and ultimately cannot be justified by them.

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