Detailed discussion of section 3 of the Alberta Human Rights Act
Section 3 of the Alberta Human Rights Act prohibits the publication, issuing or display before the public of a representation that indicates discrimination or an intention to discriminate, or that is likely to expose a person or class of persons to hatred or contempt based on the following protected grounds:
- place of origin
- religious beliefs
- gender (including pregnancy, sexual harassment, and gender identity)
- physical disability
- mental disability
- marital status
- family status
- source of income
- sexual orientation
Section 3 of the AHR Act consists of three subsections that:
- prohibit discrimination;
- balance freedom of expression and the elimination of discrimination; and
- provide defences and justifications for certain types of statements.
1. Who could be responsible for discrimination in the area of statements?
Those responsible for discrimination in the area of statements could include:
- the entity responsible for publishing the material;
- the author of the material;
- people such as the director, officer or board member of the publishing company;
- those otherwise linked to the publication of the material;
- person or business displaying a sign; or
- those who caused the matter to be published, issued or displayed.
In order to be accountable under human rights law, an individual, group of individuals or an organization must have instigated or promoted a statement to be displayed in front of the public. Under human rights law, it is not necessary for the parties to have been directly involved in the publication of the statement. Justice Rooke in Re: Kane noted that a party ".does not need to be involved in the publication, issuance or display of the representation in a 'hands on' sense to be liable under the Act." The degree to which indirect involvement will make a party liable for publication will be considered in the context of each individual case.
2. Prohibition against discrimination
Section 3(1) of the AHR Act can be summarized as follows:
No person shall put before the public a statement, publication, notice, sign, symbol, emblem or other representation that indicates discrimination or the intention to discriminate, or is likely to expose a person or class of persons to hatred or contempt based on the protected grounds.
How is the phrase "indicates discrimination or the intention to discriminate" applied in human rights cases?
Section 3(1)(a) of the AHR Act prohibits any statement that "indicates discrimination or an intention to discriminate" based on the grounds protected in the Act. The following excerpt from the human rights panel* decision in Harvey Kane and the Jewish Defence League of Canada v. Milan Papez, Sr., Milan Papez Jr. and the Silver Bullet (June 13, 2002) discusses three other human rights cases in which the decision maker found that statements made by the respondents indicated discrimination or an intention to discriminate:
In the first case, Singer v. Iwasyk, unreported, (November 5, 1976), the Saskatchewan Human Rights Commission determined that a stereotypical caricature indicated discrimination because of its impact or effect on the targeted group. The complaint was [about] a caricature of a "small person with black or brown skin colour wearing a chef's hat and grass skirt and bearing the words 'Sambo's Pepperpot.'" This caricature was used in advertising for the respondent restaurant.
"The Commission feels it is proper to ask the following question: "Would the representation of Blacks as childish, funny, emasculated, inferior, as described by the witnesses, indicate discrimination?
To put it another way, it is not only a question of whether a Black person would feel humiliated or be insulted by this representation, but the question of whether or not such a person's rights to equal employment opportunities and even to non-discriminatory treatment in housing and public accommodations would be affected.
It seems to us that to ask the question is to answer it. If a stereotypical image of a certain class of persons as incompetent, childish and funny is allowed to be displayed, the opportunities of members of the class for responsible jobs and to obtain rights on an equal footing with the majority class groupings are endangered.
The effect of such a caricature is to reinforce prejudice against Blacks and as a consequence to prolong the existence of hangovers of prejudice against non-White minority groups in Canada.
In the above sense the representation in question indicates discrimination against Blacks within the meaning of s.4(1)."
In the second case, Hameed Rasheed, Executive Director of the Black United Front of Nova Scotia v. Barry Bramhill, (1981) C.H.R.R. D/249, a Board of Inquiry considered buttons which displayed a picture of a Black singer surrounded by the words, "I'm a Big Mouth Cape Bretoner - So Kiss Me." The Board found discrimination despite finding there was no intention to discriminate.
The Board said:
"At the hearing, testimony was provided by many members of the Black community clearly stating that the uniform reaction of Blacks to the button was one of anger, shock, disgust, outrage and indignation. All felt that the button portrayed a negative image of a Black person as being loud-mouthed with few brains. Concern was expressed for the effect upon Black youth and the fact that the button would reinforce existing feelings of inferiority. Dr. Hill, presently a human rights consultant and former Chairman and Director of the Ontario Human Rights Commission for nine years from 1962 to 1971, expressed the view that the button had the effect of promoting latent discrimination, as well as active discrimination. In his opinion, the button could have an effect upon opportunities for employment."
The third case is the Church of Jesus Christ Christian Aryan Nations case where the Board of Inquiry considered the activities of an "Aryan Fest." The Board found that the burning cross and swastika were symbols and that a "KKK White Power" sign were discriminatory. The Board heard evidence that the reaction of the witnesses clearly indicated that the sign and symbols "produced a powerful and adverse effect in the witnesses." They conveyed anti-Semitic messages that reminded the witnesses of Hitler's Nazi regime and the oppression and annihilation of Jews. The witnesses further felt fearful for Jews and Blacks, hatred and revulsion.
The Board found that "the sign and symbols communicated intense racial hatred and threat of violence against Jews and non-White persons. We find these messages were obvious and easily understood by ordinary people. They mean: "Join us in discriminating against Jews and non-White people."
Therefore, in that case, the Board heard expert evidence that the sign and symbols went beyond an indication of discrimination and also conveyed an intention to discriminate against the identified groups. Dr. Frances Henry testified that the Black swastika "is today nearly always associated with the Nazi regime and its philosophy of annihilation of non-Aryan peoples." Further, she said that such symbols promote latent discrimination in the denial of access to employment, accommodation, education and social services.
The citation for the Aryan Nations case discussed above is Kane v. Church of Jesus Christ Aryan Nations, No. 3, 1992, 18 C.H.R.R. D/1268.
In the Harvey Kane and the Jewish Defence League of Canada v. Milan Papez, Sr., Milan Papez Jr. and the Silver Bullet case, the panel found that the respondents had contravened the Act by publishing and/or displaying messages that indicate discrimination and an intention to discriminate. The panel stated:
"To identify a class of persons protected under our legislation, such as the respondents did with respect to Asian people, particularly those of Chinese descent, and to suggest that they face annihilation and persecution in "Hitler's Personal Solution," and that "all unborn babies be aborted," is blatantly racist and discriminatory.
The respondents have published and/or displayed powerful indications of discrimination. The words and symbols they have chosen embody past and present religious and racial discrimination.
Furthermore, the respondents have gone beyond simply expressing their own discriminatory views by offering an invitation to discriminate against others. It was the intention of the respondents to expose persons and classes of persons. The repetitive messages are designed to encourage others to join them in their discrimination of Jews and Asians. In the Church of Jesus Christ Christian Aryan Nations case, Dr. Henry talked about how the displays in that case, "lead to, and exacerbate, already existing discrimination in access to services." Another expert witness, Dr. Ben Barkow, testified that such displays induce others to discriminate.
Therefore, it is the finding of the panel that the respondents have contravened Section 2(1) of the Act by publishing and/or displaying messages that indicate discrimination and an intention to discriminate."
How are hatred and contempt defined?
The Court of Queen's Bench gave an opinion on how to analyse Section 3 of the AHR Act in Re: Kane (2001), 94 Alta.L.R. (3d) 87, Alberta Court of Queen's Bench. In this opinion, Justice Rooke made the following findings regarding three terms or phrases found in section 3(1)(b): "hatred," "contempt," and "likely to expose."
Hatred means "active dislike, detestation, enmity, ill-will, malevolence." (Re: Kane)
Justice Rooke in Re: Kane expanded this definition and stated that hatred is:
a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power.
Contempt means "the condition of being condemned or despised; dishonour or disgrace."
Justice Rooke said that contempt "suggests a mental process of 'looking down' upon or treating as inferior the object of one's feelings."
How do you show that a statement is "likely to expose" a person to hatred or contempt?
Courts and human rights tribunals have set up an analytical framework to examine whether a statement is likely to expose a person to hatred or contempt. Justice Rooke summarized these in the opinion for Re: Kane. The following questions will be considered within the context of each case:
- Does the communication itself express hatred or contempt of a person or group on a basis of one or more of the listed grounds?
- Would a reasonable person, informed about the context, understand the message as expressing hatred or contempt?
- Assessed in its context, is the likely effect of the communication to make it more acceptable to others to manifest hatred or contempt against the person or group concerned?
- Would a reasonable person consider it more likely than not to expose the target group members to hatred and contempt?
Some of the factors that courts and human rights tribunals examine to answer the above questions are the:
- content of the communication;
- tone of the communication;
- image conveyed, including whether the use of quotations, references and sources give the message more credibility;
- vulnerability of the target group;
- degree to which the expression reinforces existing stereotypes;
- circumstances surrounding the message, including whether the message appeals to well publicized issues;
- medium used to convey the message;
- circulation of the publication;
- credibility to be accorded to the communication; and
- context of publication, for example, whether it is part of a debate or whether it is presented as news, or as a purportedly authoritative analysis.
The main focus of this analysis is not the intent of the person distributing the statement, but rather the nature of the message and the effect the statement has on another individual or group. Indeed, discrimination may be found even when the person publishing or distributing the statement had no intention to discriminate. It is whether a reasonable person would be persuaded that individuals or groups are more likely to be exposed to hatred or contempt based on the protected grounds because of the distributed statement.
3. Freedom of expression
Section 3(2) of the AHR Act states:
Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.
In Re: Kane, the Court of Queen's Bench found that the freedom of expression section is not an absolute or automatic defence to making a statement that is discriminatory or likely to expose a person to hatred or contempt. In other words, authors cannot justify discriminatory or hateful statements merely by arguing that the statements are a freely expressed opinion.
In Re: Kane, Justice Rooke states:
"The harm caused by discriminatory and hate/contempt-based expression is well recognized. The Supreme Court of Canada affirmed in R. v. Keegstra,  3 S.C.R. 697; Ross v. New Brunswick School District No. 15,  1 S.C.R. 825; and Taylor, that protection from discriminatory and hate/contempt-based expression is a pressing and substantial objective, and is justified in a free and democratic society. The Preamble of the Act speaks of the inherent dignity and inalienable rights of all persons, of the importance of multiculturalism as a fundamental principle and a matter of public policy. Such guarantees and eloquent statements would be hollow if s. 2(2) [now section 3(2)] is interpreted as an absolute defence, with the respondent merely having to establish that his or her expression was opinion."
Justice Rooke goes on to say that the freedom of expression section provides direction to courts and human rights tribunals to balance the two competing objectives of freedom of expression and the elimination of discrimination.
See Defences and justifications for information on the defences and justifications provided in the AHR Act.
What will courts and human rights tribunals look at to balance the elimination of discrimination and freedom of expression?
Re: Kane affirmed that there is a two-part test that courts and human rights tribunals use when analyzing the statements section of the AHR Act:
Step 1: First, the decision maker analyzes all of the evidence to determine whether the statement in question indicates discrimination or an intention to discriminate, or is likely to expose a person or class of persons to hatred or contempt.
Step 2: If the answer is "yes," the decision maker does further analysis to ensure that the decision they have made in step one properly balances the right to freedom of expression with the objective of eliminating discrimination. The decision maker will consider the:
- nature of the statement, given the facts of the case;
- nature and context of the expression;
- degree of protection this type of expression is afforded; and
- sections of the Canadian Charter of Rights and Freedoms that may come into play, such as the sections about equality rights, aboriginal rights, multicultural rights, sexual equality and freedom of religion.
4. Defences and justifications
Section 3(3) of the AHR Act says that section 3(1) of the AHR Act does not apply to any statement in the following list that is not derogatory, offensive or improper:
- to identify a sign that exists to identify male or female facilities, such as washrooms;
- a display for a non-profit organization that is primarily made up of people with the same ancestry, place of origin, political or religious beliefs-and is published to indicate the organization's purpose or membership qualifications; or
- an application or advertisement for employment (These are covered under section 8 of the AHR Act. See Human rights in the workplace for information about employment-related discrimination).
In addition, people against whom a human rights complaint has been made may argue that their statement was reasonable and justifiable in the circumstances, as allowed by section 11 of the AHR Act. For further information on when discrimination might be reasonable and justifiable, see the Commission interpretive bulletin When is discrimination not a contravention of the law?
5. AHR Act does not apply to all statements
The protection provided by the AHR Act does not apply to numerous statements that people might personally find to be insulting, upsetting, in bad taste, contrary to their own beliefs and so on. In order to engage the protection of the Act the statements must be linked to the grounds protected under the Act and must meet the tests described in this section for determining whether a statement indicates discrimination, an intention to discriminate or is likely to expose a person or class of persons to hatred or contempt.
*Effective October 1, 2009 human rights panels are called human rights tribunals
Revised: March 16, 2010