New Bill to Regulate Online Hate Sparks Debate, Worries Free-Speech Advocates

Justice Minister David Lametti responds to a question during a news conference in Ottawa on May 7, 2021. (THE CANADIAN PRESS/Adrian Wyld)

The Liberal government introduced legislation to combat online hate speech the day before Parliament rose for the summer, causing alarm for free-speech advocates and sparking new political debate as a potential election looms.

Bill C-36 seeks to amend the Canadian Human Rights Act (CHRA) to address hate speech posted online, defined as that which “expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination,” such as race, religion, or sex. Speech that “expresses mere dislike or disdain” or that “discredits, humiliates, hurts, or offends” wouldn’t be affected by C-36.

The bill also proposes to amend the Criminal Code such that someone who reasonably fears being a target of a hate crime or hate propaganda offence could apply to the court for a peace bond to deter that criminal conduct. If breached, the peace bond would carry a maximum penalty of four years’ imprisonment.

Cara Zwibel, a director with the Canadian Civil Liberties Association, says she is not hopeful the peace bond will work or be used very much “because it does still require the attorney general’s consent.”

“Unless the government has some good evidence that this is a tool that’s been tried elsewhere that’s been successful, I don’t know what would make them think this is a good experiment,” Zwibel said in an interview.

“There’s some vulnerabilities there in terms of the constitutionality, because the peace bond is really a preventative measure. It’s a prior restraint on expression. I think the courts will be quite concerned about making sure that something does really rise to the level of criminal hate speech to use that power.”

The legislation would also amend the CHRA to restore the ability for individuals and groups to file complaints to the Canadian Human Rights Commission, an ability that used to be contained in a controversial hate speech provision—Section 13—in that act. The section was repealed in 2013 due to longstanding criticism that it violated free-speech rights.

The former section 13 defined hate speech as any communication “likely to expose a person or persons to hatred or contempt … on the basis of a prohibited ground of discrimination.”

Bill C-36, with its narrower hate speech definition, would also improve CHRA complaint procedures so that the commission can quickly screen out complaints that don’t meet the definition.

Definition, Ambiguities, and Scope

Zwibel pointed out a flip side. “If you’re a body that is supposed to be responsive to marginalized and vulnerable populations coming to you with complaints about discrimination, and you turn around and say, ‘Sorry, this isn’t that bad because it doesn’t rise to that level,’ then I think it puts the commissioner in a difficult situation,” she said.

The ambiguities in what constitutes hate could also curtail legitimate speech, Zwibel noted.

“Some people have a different understanding of what hate speech is and what the law says it is, so people may bring complaints about things that don’t rise to the level of hate speech. And even if the commission does a great job of screening those things out, there’s going to be a process and a time of investigating that can do real harm to people, and that can have a chilling effect on people in terms of what they’re willing to say,” she explained.

According to Justice Canada’s backgrounder on the bill, “These amendments would apply to public communications by individual users on the Internet, including on social media, on personal websites, and in mass emails. ... They would also apply to operators of websites that primarily publish their own content but also publish comments by users and visitors, including in articles on online newspapers and in user comment sections.”

Zwibel says if C-36 applies to comment sections on websites, those sections might disappear altogether.

“You just won’t be able to comment on things because it’s not worth someone having to vet everything and be responsible for what other people have written. So that’s the place where dialogue and debate might be shut down just to avoid these regulatory mechanisms.”

‘Political Posturing’

The federal government will consult Canadians on the legislation this summer. In a press release, Conservative MP and Justice Critic Rob Moore said the timing of the bill’s introduction suggested “political posturing ahead of the next election.”

“Conservatives condemn all hate speech and speech that incites violence. But this bill will not target hate speech—just ensure bureaucrats in Ottawa are bogged down with frivolous complaints about tweets. The Minister responsible for the first censorship bill and the Trudeau Liberals are empowering a bureaucracy to subjectively restrict the rights of Canadians,” Moore said.

University of Lethbridge political science professor Geoffrey Hale says that public response will depend on how the opposition voices its criticism of the bill, and how the issue is covered by the media.

He thinks most will be unaware of any shortcomings of the bill until it becomes law.

“I suspect that public backlash on this bill will have to await actual abuses of power, many of which can be explained away by those who have no objections to the rationing of speech to those who think like themselves,” Hale said.