The House of Commons Justice Committee has recommended reinstating Section 13 of the Canadian Human Rights Act (CHRA) and requiring online platforms to police and remove hateful content, a move that troubles free speech advocates.
Section 13 was a controversial section the CHRA that made it an act of discrimination to communicate anything “likely” to expose an enumerated group to contempt or hatred.
Truth was not a defense, nor did usual standards of evidence apply; complainants had their legal fees covered, but defendants had to cover their own expenses, making the process the punishment. Tribunals could impose hefty fines and require those found in breach of the Act to no longer communicate their ideas.
In a report entitled Taking Action Against Online Hate tabled June 17, the Committee urged the establishment of a “civil remedy for those who assert their human rights have been violated under” the CHRA, and suggested reinstating Section 13 or something “analogous” to cover violations.
The Committee also called for the Canadian government to “establish requirements for online platforms
and Internet service providers with regards to how they monitor and address incidents of hate speech, and the need to remove all posts that would constitute online hatred in a timely manner.”
“We argued then that Section 13 had been used to penalize the expression of opinions based on religious beliefs, especially when columns or articles may be written on matters of gender ideology or sexual morality,” said League president and constitutional lawyer Phil Horgan. “We recall the case brought against Catholic Insight magazine, which was forced to incur substantial defence costs in having a spurious complaint dismissed, while the complainant faced little if any expense.”
“The League believes that human rights tribunals are not the appropriate forum for testing claims of hate speech,” Horgan said. “Criminal Code provisions regarding hate speech, as well as libel and slander laws, with charges tried in court, help ensure that complainant and defendant meet certain thresholds, are on a level playing field whether by engagement of the Crown or with respect to costs, and that rules of evidence and procedure are followed.”
“The previous regime merely established a cottage industry for complainants, with the resulting threats to free speech,” he said.
“We are witnessing the government’s intentional and continued erosion of the right of freedom of expression as enshrined in the Constitution, which is the foundation for all that Canada is,” said Jay Cameron, the litigation manager for the Justice Centre for Constitutional Freedoms (JCCF), who was among the witnesses who testified in the Committee’s hearings into online hate that began in April.
“The foreseeable result of the Committee’s recommendations, if adopted, is the censoring not of hate, but of disagreement, and the punishment of those who peacefully express views which differ from majoritarian views, but which are not criminal in nature.”
Cameron called the report “very one-sided.”
“It has largely or entirely ignored the voices raised in opposition and warning, and made almost no mention or response to the concerns those persons raised in their testimonies,” Cameron said.
“It’s predictable from this Liberal-dominated committee,” said Gwen Landolt, a former Crown Prosecutor and National Vice President of REAL Women of Canada. “The only good thing about it is we’re having an election.”
But given the NDP Committee members supported these recommendations and added more, Landolt said she worried about a possible coalition of Liberal, NDP and Green MPs as the next government.
“We know these provisions are disastrous to free speech,” she said. “We saw this under Section 13.”
“Everyone is vulnerable to the opinion of these tribunals,” said Landolt. “They do not follow any legal structure; they can use any information they want; and the people who sit on these tribunals are extraordinarily biased and progressive. Anyone who says anything the least politically –incorrect was immediately violating Section 13.”
“Giving power to the absolutely biased and bigoted tribunal is the most extraordinarily dangerous thing that can happen,” she said.
Landolt also warned about the dangers of giving the people who own online platforms “to determine what you can and can’t say.”
“We already have the experience of Google and Twitter shutting down pro-life and conservative expressions of opinion,” she said. “Giving this enormous power to these platforms would be devastating to free speech.”
“It takes strong political spine to campaign for the rights enshrined in section 2 of the Charter,” said Cameron. “It means standing for the right of people to speak, believe, and associate on views which the majority may disagree with.”
“That is constitutionalism. It means standing for the unpopular,” he said. “Many politicians are more interested in eroding fundamental rights than protecting them simply because that is more popular.”
Section 13 was repealed in 2013 under the Harper Conservatives by former Conservative MP Brian Storseth’s private member’s bill that was supported by the Catholic Women’s League, the Catholic Civil Rights League, Real Women of Canada, the JCCF and an array of other groups.
In a dissenting Justice Committee report, the Conservative MPs warned against the implementation of the recommendations that would “have the dual impact of stifling free speech of those acting in good faith, while also serving to further radicalize bad actors by driving their communication out of the public square.”
Instead, “reprehensible ideas” need to be “debated and debunked,” because “sunlight is the best disinfectant,” they said.
The Conservatives recommended section 13 not be re-introduced; that any online sanctions be dealt with under the Criminal Code; that the Attorney General work with his or her provincial counterparts to use Criminal Code section 320.1 to remove online hate propaganda; that the definition of ‘hate’ be limited to “where a threat of violence or incitement to violence, is directed against an identifiable group.”
“Rather than attempting to control speech and ideas, the Government explore appropriate security measure to address all three elements of a threat: intent, capability and opportunity,” the Conservatives said.
The NDP called for a standardized definition of hate speech and a national strategy, including a national database, for tracking online hatred.
“Given that Canadians have witnessed an increase in hate crimes since 2009, including a 47% increase between 2016 and 2017, government action is required in combatting online hate speech,” the NDP said. “Recently, non-violent crimes, such as public incitement of hatred, played a greater role in the increase than violent hate crimes, and the NDP recognizes the need to protect citizens from online hate.”
The NDP also stressed the need to combat misinformation online as well as hatred.