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Queen's University
 

The Western Guard Party Case (1979)

What is a hate message?

Facts:

From 1973 to 1979, the Toronto Yellow Pages listed a number under the notation "White Power Message".  Callers were presented with a menu of messages that equated Jewish persons with sexual perversion,  drug and alcohol addiction, racial impurity, communism and global domination and that promoted their expulsion from Canada. The service was also advertised by the distribution of cards which did not indicate the nature of the pre-recorded messages. To determine whether or not the messages offended s. 13 of the Canadian Human Rights Act, the Tribunal addressed a number of issues raised by s. 13(1) of the Canadian Human Rights Act.  (Smith et al. vs the Western Guard Party, C.H.R.T. 1979).

Issues

  1. Is it necessary to establish the intent of the person who communicates the message?

  2. Is truth a defense?

  3. Is it necessary to establish whether the messages have caused callers to feel hate or contempt?

  4. When assessing the effect of the message, should one bear in mind the potential reaction of a "reasonable" person ?

  5. Is hatred different from contempt?

  6. Is there a difference between exposure to hatred and incitement of hatred?

  7. Are the messages in this case likely to expose an identifiable group to hatred or contempt?

  8. In light of these issues, did John Taylor and the Western Guard Party contravene s. 13 of the Canadian Human Rights Act?

Rulings:

  1. No

  2. No

  3. No

  4. No

  5. Yes

  6. Yes

  7. Yes

  8. Yes

Reasoning of the Tribunal

  1. The meaning of a message is not located in the intention of the speaker but in the interpretation by the receiver.

  2. Unlike criminal hate, where the truthfulness of the message is a defense, "the sole issue [...] is whether the telephonic communications of the Respondents are likely to expose a person or persons to hatred or contempt".

  3. Unlike criminal hate, the actual effect of messages in a human rights case is irrelevant. At issue here is whether the messages have the potential to expose groups to hatred or contempt.

  4. Since a reasonable person would likely be repulsed by such hate propaganda, the "reasonable person" test is not appropriate. Indeed, the best test for this kind of message is the "any person test". In other words, the question to ask is "Would anybody, even the most unreasonable person, likely be swayed by the message [...] We are not concerned with the reaction of a reasonable person, rather with the potential reaction of an unreasonable person reacting to "hysterical, emotional appeals: "We know that under strain and pressure in times of irritation and frustration, the individual is swayed and even swept away by hysterical, emotional appeals. We act irresponsibility if we ignore the way in which emotion can drive reason from the field."

  5. The Tribunal applied the definition of hatred in the Oxford English Dictionary (1971 Edition) which reads "active dislike, detestation, enmity, ill will, malevolence." It drew on the same source for the definition of "contempt" which reads "the condition of being condemned or despised; dishonour or disgrace." (p. 28). You can hate a group of person without feeling contempt for them and vice versa.

  6. The tribunal distinguished between the criminal act of "incitement of hatred" and the human rights violation of "exposing to hatred or contempt":  "Incite means to stir up; promote means to support actively. Expose is a more passive word, which seems to indicate that an active effort or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged. To expose to hatred also indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. "Expose" means: to leave a person or thing open (to danger, ridicule, censure, etc.). In other words, if one is creating the right conditions for hatred to flourish, leaving the identifiable group open or vulnerable to ill-feelings or hostility, if one is putting them at risk of being hated, in a situation where hatred or contempt are inevitable, one then falls within the compass of s.13 (1) of the Human Rights Act."

  7. The tribunal ruled that the messages in this case were similar in theme and tone to Nazi propaganda that led to the extermination of six million Jews. Indeed, "diatribes like the ones before us eventually gave rise to the most extreme form of hatred and contempt for Jews in Germany in the 1930's and 1940's. We need no other crucible for us to be satisfied that the themes of the respondent's telephone utterances, which bear a marked resemblance to the propaganda of Goebbels and Hitler, are likely to expose Jews to hatred or contempt".

  8. The complaints are substantiated. John Ross Taylor, acting in concert with the Western Guard Party, used a federally regulated telecommunication system (a phone line) to communicate hateful messages that were likely to expose individuals to hatred and contempt on the basis of their religion.

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