Ottawa outlines new legislation to define and crack down on online hate speech
The Trudeau government is proposing legal changes intended to curb online hate speech and make it easier for the victims of hate speech to launch complaints. The proposed Bill C-36 includes an addition to the Canadian Human Rights Act that the government says will clarify the definition of online hate speech and list it as a form of discrimination.
Some background
There are currently two major types of prohibited hate speech in Canada. The first falls under the Criminal Code, while the second falls under the Canadian Human Rights Act (an important fact I'll get to later).
The first is hate propaganda, which means inciting hatred, promoting hatred, or advocating genocide. Incitement has to be likely to lead to a breach of the peace. Incitement and promotion of hatred only cover public statements and they have a few of defences, including that the statements are true, that they are on a religious subject, or that they are relevant to the public interest and reasonably believed by the accused to be true. The maximum sentence is two years in prison.
Advocating genocide is always illegal without exception and carries a maximum sentence of five years.
The second type of hate speech is the prohibition of discriminatory notices, which falls under the Canadian Human Rights Act. This statute prohibits discrimination by the federal government and federally regulated businesses (e.g. banks and telecommunications companies). Provincial governments also have their own versions of this legislation which prohibits discrimination pretty much everywhere else.
It was the addition of gender identity and gender expression to this statute which launched Jordan Peterson to fame when he argued (almost certainly correctly, despite what many have claimed) it made misgendering illegal.
Regarding speech, the federal legislation only prohibits discriminatory notices, but before it was repealed, section 13 also prohibited any telecommunication which was likely to expose a person to hatred or contempt on the basis of a prohibited ground of discrimination. Most provinces still have similar legislation, while others have applied blanket prohibitions on discrimination to people's speech, such as when a comedian in Quebec was made to pay $35,000 to a disabled boy for making fun of him in his act.
What makes offences under the Canadian Human Rights Act different is that, instead of being investigated by the police and judged by the courts, they are investigated by the Human Rights Commission and judged by the Human Rights Tribunal, which has a nearly 100% conviction rate and has been described as a kangaroo court.
The are a number of difference between a Human Rights Tribunal and a regular court.
- There are no standards of evidence. The judges may accept whatever evidence they want.
- There is no right to cross-examine or confront one's accusers.
- The government funds the plaintiff, while the defendant gets nothing even if he wins.
- Third parties with no standing can file complaints even if they have nothing to do with the case.
- The tribunal can dispense with any rule in the interest of time or efficiency.
What is new?
The federal government has introduced legislation which expands hate speech prohibitions and gives courts more powers to prevent hate speech.
Amendment to the Criminal Code
If someone convinces a judge that he has reasonable grounds to fear that another person will commit hate speech as defined under the criminal code, that judge can "order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period of not more than 12 months" or two years if he's already been convicted of hate speech. If he fails or refuses, he can be sent to prison for up to a year.
Among the conditions the judge can order are
- The defendant must wear an electronic monitoring device.
- The defendant must be at home at certain times.
- The defendant must not consume drugs or alcohol.
- If a person (it's not clear who this refers to) reasonably believes the defendant is breaching a condition or if the defendant is required to abstain from drugs or alcohol, the defendant is to provide bodily substances.
- The defendant must not communicate with any specified person.
- The defendant must not go to any specified place.
The defendant can also be prohibited from possessing "any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance". The judge must justify any decision not to add this condition.
Amendment to the Canadian Human Rights Act
The second major change is that it brings back section 13, but with a narrower definition such that it prohibits hate speech over a means of telecommunication which is likely to foment detestation or vilification and it only applies to public communications.
Hate speech is defined as "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", and they clarify that "the content of a communication does not express detestation or vilification ... solely because it expresses mere dislike or disdain or it discredits, humiliates, hurts or offends".
The Human Rights Commission (the body that investigates the complaint) may choose not to reveal to anyone, including the accused, the identities of the person who made the complaint, the alleged victim, or anyone who has given evidence or helped the commission in any way, if the commission thinks that they may be threatened, intimidated, or discriminated against. It can also order anyone who discovers these identities not to reveal them.
The Human Rights Tribunal (which conducts the trial) already has the power to hide the identities of such persons during the trial under certain conditions. This amendment would add the possibility of threats, intimidation, and discrimination as allowed grounds for hiding those identities.
If found guilty (which has only ever not happened once for section 13 complaints which made it to the tribunal, with section 13 having been in force from 2001 to 2014), the tribunal may order, among other things that:
- The defendant must compensate the victim with up to $20,000 or
- The defendant must pay a fine of up to $50,000.
This legislation is just the latest in the government's current project to radically transform Canada's regulation of the internet. The House of Commons has already passed legislation giving the Canadian Radio-television and Telecommunications Commission broad powers to regulate the internet, including the imposition of Canadian content quotas on websites. Future legislation is expected that would give the government the power to give 24 hour take down notices to websites hosting hate speech. There has also long been a push by the major telecommunications companies to give the government the power to block websites that facilitate the sharing of copyright infringing material.