Sayer v. Burns, 2024 BCHRT 348
Date Issued: December 19, 2024
File: CS-008804
Indexed as: Sayer v. Burns, 2024 BCHRT 348
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
William Sayer
COMPLAINANT
AND:
David Burns
RESPONDENT
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
SECTION 22
Tribunal Member: Steven Adamson
Counsel for the Complainant: Jacob Henderson
Law Student for the Respondent: Theo Terry
I. Introduction
[1] On January 17, 2023, William Sayer filed a complaint based on sex, gender identity or expression, sexual orientation and family status under s. 7 of the Human Rights Code [ Code ], against his neighbour, David Burns.
[2] The issue before me is whether to accept the Complaint against Mr. Burns under the time limit provision of the Code . I make no findings of fact regarding the merits of this complaint.
[3] For the reasons that follow, the complaint is not accepted for filing against Mr. Burns as it does not allege any arguable contraventions of the Code : s. 22(1).
II. BACKGROUND
[4] On a date that was not provided in the spring of 2021, Mr. Sayer alleges that Mr. Burns came onto his property during a memorial for his recently deceased father and called out to him that he was a “fucking transvestite faggot” in front of many attendees who were witnesses.
[5] On June 10, 2022, Mr. Sayer alleges Mr. Burns confronted him, in the company of a female friend, while he was walking on the sidewalk outside his home and stated the following:
· “Your father deserved to die and he should have taken you with him”
· “I am more afraid of your girlfriend than you, she’s twice your size”
- “[you are a] faggot”
· “[your] dad raised a faggot, how does it feel”.
Mr. Sayer alleges Mr. Burns proceeded to physically assault him after saying these things. He further alleges that his mother came out and overheard Mr. Burns calling him various homophobic slurs and other “brutal names”.
III. ANALYSIS AND DECISION
[6] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62 , 2003 BCHRT 39.
[7] As part of the Tribunal’s screening process in deciding a s. 22 of the Code matter, it must be satisfied there are allegations which, if proven, could contravene the Code : Chen v. Surrey (City) , 2015 BCCA 57. In this case, Mr. Sayer must allege facts in the Complaint that could arguably constitute a contravention if they were proven under s. 7 of the Code . In my view, this has not occurred in this case. Mr. Sayer alleges several offensive statements made in public. However, even if proven, these statements would not be a contravention of s. 7 of the Code .
[8] Section 7 targets publications whose effects are to perpetrate discrimination and hatred against protected groups: British Columbia (Human Rights Tribunal) v. Schrenk, 2017 SCC 62 [ Schrenk ] at para. 48. Its two subsections address different ways that publications can exclude, marginalize, and harm people based on their connection with a historically disadvantaged group: Oger v. Whatcott (No. 7) , 2019 BCHRT 58 [ Oger ] at para. 51.
[9] Section 7(1)(a) of the Code prohibits publications that indicate discrimination or an intention to discriminate. It is not necessary that the discrimination relate to an area otherwise protected by the Code , like employment or tenancy: Carson v. Knucwentwecw Society , 2006 BCSC 1779 at paras. 21-22.
[10] Under s. 7(1)(a), the complainant must show that the publication had a discriminatory effect, or likely effect, or was intended to do so: Palmer v. BCTF and others , 2008 BCHRT 322 at para. 43; Oger at para. 104. The publication must include “more than a mere statement of opinion”: Stacey v. Choose Life Canada (No. 2) , 2002 BCHRT 35 at para. 51; Palmer at para. 43. It is not enough for the publication – in this case, public statements – to be offensive or for a complainant to disagree with its contents or its purpose: Palmer at paras. 51-58; Oger at para. 134.
[11] Section 7(1)(b) of the Code prohibits hate speech.
[12] The test for hate speech is “whether, in the view of a reasonable person aware of the context and circumstances, the representation exposes or tends to expose any person or class of persons to detestation and vilification on the basis of a prohibited ground of discrimination”: Saskatchewan (Human Rights Commission) v. Whatcott , 2013 SCC 11 [ Whatcott ] at para. 95. It is an objective test, targeted to extreme manifestations of hatred or contempt, and focused on the effect of the expression at issue: Whatcott at paras. 56–58; Oger at para. 144.
[13] “Detestation and vilification” give meaning to the statutory language of “hatred or contempt”. They exclude expression which “while repugnant and offensive, does not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects”: Whatcott at para. 57; Oger at para. 152. In Whatcott , the Court explained:
In my view, “detestation” and “vilification” aptly describe the harmful effect that the Code seeks to eliminate. Representations that expose a target group to detestation tend to inspire enmity and extreme ill-will against them, which goes beyond mere disdain or dislike. Representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims.
Whatcott at para 41
[14] Mr. Sayer argues Mr. Burns uttered words that engage the hallmarks of hate speech. He states that he knows that this hate speech would be published because his neighbours will share the event amongst themselves. He argues that this incident, like other past incidents involving Mr. Burns’ directed at other people in the neighbourhood, will be disseminated and become well known to the community. Mr. Sayer argues the Mr. Burns’ comments were intended to injure his dignity. He believes that such dissemination increased the likelihood that he will be exposed to hatred or contempt because the incident makes it more acceptable to participate in such hate incidents against him and others like him without any fear of consequence.
[15] Mr. Burns argues neither the Spring 2021 nor June 10, 2022, incidents allege an arguable contravention of the Code . He argues that the allegations relate to other community members’ actions and not his actions. It was not Mr. Burns’ actions but the actions of others, including a person who possibly videotaped the incident and people in the neighbourhood sharing details of the events, that resulted in the publication.
[16] I have first considered whether Mr. Sayer’s allegations constitute arguable contraventions of the Code under s. 7(1)(a).
[17] Mr. Sayer alleges Mr. Burns uttered offensive slurs on two occasions in public. From my review, these statements do not include an invidious distinction intended to have adverse consequences, within the meaning of s. 7(1)(a). While Mr. Sayer argues that he believes there is an increased likelihood that he will be exposed to hatred or contempt because of the incident, this belief alone cannot amount to the kind of a real-world, discriminatory effect that s. 7(1)(a) seeks to protect against. The test was met in Oger because the flyer at issue advocated a specific adverse outcome, in an area of public life, for Ms. Oger – because of her gender identity – and the political party she was running for: do not vote for them: para. 135.
[18] Without doubting the offensive nature of the comments, in my view they do not disclose the real-world discriminatory effect necessary to ground an arguable contravention of s. 7(1)(a) of the Code .
[19] I have next considered whether Mr. Sayer alleges an arguable contravention of the Code under s. 7(1)(b). This requires me to consider whether the comments in question were likely to expose him to hatred or contempt because of his protected characteristics. As noted above, Mr. Sayer argues Mr. Burns’ slurs contain the hallmarks of hate speech as discussed in Canada (Human Rights Commission) v. Warman , [2014] 1 FCR 608, at paras. 125 (g)(i)(j)(k). Mr. Sayer provided a footnote to these paragraphs, which states as follows.
(g) The messages communicate the idea that nothing but the banishment, segregation or eradication of this group of people will save others from the harm being done by this group
(i) Highly inflammatory and derogatory language is used in the messages to create a tone of extreme hatred and contempt
(j) The messages trivialize or celebrate past persecution or tragedy involving members of the targeted group [and]
…
(k) The messages contain calls to take violent action against the targeted group. [Emphasis in original.]
[20] With reference to Mr. Burns’ propensity to make racist and sexist remarks to those he comes into contact within the neighbourhood, Mr. Sayer argues such dissemination increases the likelihood that he will be exposed to hatred or contempt because the incidents in question make it more acceptable to participate in such hate incidents directed at people like himself by those who do not fear any consequences. In response to Mr. Burns’ argument that third parties are the actual vehicles of the publication and not him, Mr. Sayer submits that s. 7(b) applies to both those who publish hate speech, or cause hate speech to be published. It appears that Mr. Sayer is arguing the words allegedly uttered by Mr. Burns on their face are sufficient to allege the hallmarks of hate speech under s. 7(1)(b) of the Code .
[21] After reviewing Mr. Sayer’s allegations, I conclude that he has not alleged an arguable contravention of s. 7(1)(b) of the Code . I disagree with Mr. Sayer that Mr. Burns’ slurs allege an arguable contravention because they include the hallmarks of hate speech. In my view, the comments do not arguably expose or tend to expose him to detestation and vilification based on his sex, gender identity or expression, sexual orientation or family status contrary to s. 7(1)(b). This is not an easy threshold to meet. The Supreme Court of Canada has been clear that provisions like s. 7(1)(b) are intended to capture speech that goes “far beyond merely discrediting, humiliating or offending the victims”: Whatcott at para. 41. While certainly distasteful and offensive, the expression alleged in this case does not arguably inspire detestation and vilification. Even if proven, the slurs in this case, while repugnant and offensive, do not incite the level of abhorrence, delegitimization and rejection that risks causing discrimination or other harmful effects as those terms are understood in human rights case law.
[22] In reaching this decision I have also specifically contemplated the allegation that Mr. Burns commented when they met on the street on June 10, 2022, that Mr. Sayer should have also died along with his father. While appreciating this is a particularly repugnant and offensive comment, in the context of this dispute there is no indication that it incites harmful effects beyond a dispute between two private parties necessary to arguably expose or tend to expose him to detestation and vilification based on his sex, gender identity or expression, sexual orientation or family status contrary to s. 7(1)(b).
[23] Having not found any alleged arguable contraventions of the Code in this complaint, it is not necessary for me to engage in a continuing contravention or public interest analysis: s. 22(2) and 22(3).
IV. CONCLUSION
[24] For these reasons, the Complaint is not accepted for filing as it does not allege any arguable contraventions of the Code : s. 22(1).
Steven Adamson
Tribunal Member