05 Aug 2021 Cash rewards for identifying hate speech? More restrictions on Canadians’ freedom of expression proposed in Bill C-36
“Freedom is the freedom to say that two plus two make four. If that is granted, all else follows.” – George Orwell, 1984
In George Orwell’s famous dystopian novel ‘1984’, the Ministry of Love – a government entity of the fictional country Oceania – controls every aspect of people’s lives. They control what citizens are permitted to say, do, and even think. To achieve this level of control, the Ministry pursues practices of intense intelligence gathering and monitors every moment of their citizens’ lives.
It seems the Canadian federal government has taken a page out of the playbook of the Ministry of Love with Bill C-36, a bill purporting to address ‘hate speech’ in Canada. On June 23rd, right before the House of Commons rose for the summer, the Justice Minister introduced the Liberal government’s long-awaited ‘hate speech’ bill. Its introduction did not come as a surprise since the government had been discussing plans to introduce legislation like this for months. What comes as a surprise is the date of introduction. Why introduce the bill on the very last sitting day of the House of Commons, right before a summer recess during which, it is widely believed, an election will be called? It certainly seems like political posturing, rather than a sincere desire to effectively address an actual problem.
The federal government has raised eyebrows with their trio of ongoing and highly politicized bills which all tread on the fundamental freedoms of conscience and free expression: Bill C-6 banning so-called ‘conversion therapy’, Bill C-10 regulating online content, and now Bill C-36 targeting expression vaguely described as ‘hate.’ It does so by making amendments to both the Criminal Code and the Canadian Human Rights Act.
Using legislation that restricts fundamental freedoms as a partisan political tool puts Canadians at risk.
Using legislation that restricts fundamental freedoms as a partisan political tool puts Canadians at risk. We risk passing laws that undermine the foundation upon which Canadians of all backgrounds can pursue a life of freedom and true human flourishing. The ‘we know better’ attitude of the Canadian government is concerning and is reflected in Bill C-36 as well.
Amendments to the Canadian Human Rights Act
Bill C-36, if passed, will make amendments to the Canadian Human Rights Act, most notably by bringing back the Section 13’s controversial prohibition of hate speech, which has fueled much public debate in the past, and the removal of which was considered a significant victory for free speech in the Harper era.
ARPA Canada’s now inactive campaign of abolishing the Human Rights Commissions was partially based on the high-profile abuse of Section 13, such as with Ezra Levant and the publishing of the ‘Danish Cartoons.’
One concern with the application of the Canadian Human Rights Act is that the Human Rights Tribunal – which exists to adjudicate complaints made under the Act – operates in an extra-judicial manner. Simply put, it is not a court and is not subject to the same requirements of due process. Engaging on the issue of hate speech in front of the Tribunal instead of the courts allows for a lower standard of legal rigour to be applied when dealing with something so fundamental to democracy as freedom of expression. ARPA Canada has long argued and continues to hold that Canada should move away from the use of the Human Rights Tribunals as quasi-judicial means for settling disputes or allegations of discrimination. Instead, Bill C-36 gives the Canadian Human Rights Tribunal more jurisdiction and oversight.
Here is the proposed wording of Section 13(1), (9), and (10) which are the most important:
13 (1) Communication of hate speech – It is a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.
13(9) Definition of hate speech – In this section, hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.
13 (10) Clarification hate speech – For greater certainty, the content of a communication does not express detestation or vilification, for the purposes of subsection (9), solely because it expresses mere dislike or disdain or it discredits, humiliates, hurts or offends.
As I’ve confirmed with ARPA’s legal counsel, there is an intent here by the drafters to narrow the definition of “hatred” from the old Section 13 (repealed in 2014) and to conform to the Supreme Court of Canada’s decision in Whatcott v. Saskatchewan Human Rights Commission, in which the Court ruled that hate speech had to rise to the level of “detestation and vilification” (see paragraphs 41, 59 and 109). This change is a small mercy in that it does, at least, set a higher bar for online content to qualify as ‘hate speech.’
Even so, due to the subjective nature of interpretation of hatred (the Criminal Code amendment in this same bill describes “hatred” as an emotion, and emotions are in their essence subjective), it is difficult to say whether this would increase protection against false accusations or petty grievances. It could be that Canadians may find themselves wrapped up in a human rights complaint for a poorly worded social media post that someone found deeply offensive.
Two other proposed amendments are worth noting:
Subsections 40 (8) and (9) relate to the ‘non-disclosure of identity’ of alleged victims, complainants (who don’t have to be victims at all) or even witnesses. This proposed addition to the Act raises serious concern. At the discretion of the Human Rights Commissions, the accused and the public may be barred from knowing any information about their accuser or alleged victim. This is particularly problematic in that the original section 13, repealed by the Harper government, was abused by a serial complainant who was using the section for personal enrichment and to pursue his own vendettas. If these proposed subsections are included, the exposure of that type of abuse of the system would be very difficult to expose.
Subsection 53.1, titled ‘complaint substantiated,’ relates specifically to Section 13 and indicates that if the accused is found to have engaged in ‘hate speech’ the Tribunal may award “compensation” to “any victim” up to $20,000 and may order a penalty (to be paid to the federal government) of up to $50,000. The $20,000 compensation to victims has a dark side to it: such awards (above and beyond measurable and objective losses like lost wages due to discrimination for example) have the potential to incentivize Canadians to spy on each other, searching out offences, or to submit complaints frequently in the hopes of being awarded some amount for being personally impacted by offensive online content.
Perhaps another small mercy is found in subsection 53.2, which does allow for costs to be awarded against a complainant who engages in an abuse of process, though that standard is very high, and is not likely to ever be used as a deterrent against frivolous uses of the hate speech mechanisms in the Canadian Human Rights Act.
Amendments to the Criminal Code
The amendments to the Criminal Code are as concerning because they extend the application of the ‘peace bond’ in criminal law. This is similar to a restraining order which can be brought against someone if an individual’s safety is at risk (e.g. an abusive husband). In the legislation, this is referred to as a ‘recognizance.’
If Bill C-36 passes, anyone could bring an information before a provincial court to claim that an accused individual could or might commit hate speech in the future.
If Bill C-36 passes, anyone could bring an ‘information’ (a particular document in criminal proceedings) before a provincial court to claim that an accused individual could or might commit hate speech in the future. This does not require proof of something having been committed already, but rather that an individual fears that hate speech might be committed.
The court could then decide to place the accused under a period of ‘recognizance to keep the peace and be of good behaviour for a period of not more than 12 months.’ The list of possible requirements the court could place on the accused during the ‘recognizance’ are alarming, to say the least. It includes things like electronic monitoring devices, geographical limitations or curfews that could amount to house arrest, limiting consumption of alcohol and drugs, participation in a treatment program, and/or prohibiting the accused from communicating directly or indirectly with named individuals. Refusal to submit to the requirements of the recognizance could result in jail time.
What does this mean for Canadians?
On its own, it is not unreasonable that a government should seek to reduce speech that encourages harm to any group or individual. There are many types of speech that we can all agree are hateful and can cause measurable harm. Most of these are already illegal – slander, libel, and defamation, as well as incitement to commit a crime, particularly violent crimes like genocide. However, there are many issues or ideas which are hotly contested by some people – issues such as transgenderism, for example – and certain perspectives about that issue some describe as hateful.
It is not unreasonable that a government should seek to reduce speech that encourages harm to any group or individual… The challenge of Bill C-36 is that the civil government itself will define what kind of speech is acceptable and what is not.
The challenge of Bill C-36 is that the civil government itself will define what kind of speech is acceptable and what is not. If a strong disagreement about truth and values can be misinterpreted as hate speech, or if pro-life or pro-family ideas or the Christian sexual ethic can be described as hateful, then Bill C-36 may become a dangerous hindrance to freedom of expression. If certain ideas or arguments are construed as ‘violent’ in and of themselves, as some would argue, this legislation has the potential to do much worse than might be perceived at first glance.
Freedom of expression is a fundamental freedom enumerated in the Charter, protected in Canadian law long before the Charter, and valued by citizens throughout Canadian history. It allows for an open society in which the government does not control the thoughts, ideas or opinions of its citizens on any given issue. Bill C-36 brings that into question and will create a level of apprehension amongst Canadians to speak their voice freely on issues they believe in.
Colin Postma is the Federal Issues Manager for ARPA Canada
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