Canada’s new hate speech legislation soon to be tabled by the federal government may include a new statutory definition of hate and could revive a controversial law previously repealed for infringing on rights.
Repealed in 2013, Section 13 of the Canadian Human Rights Act had made it an act of discrimination to communicate anything online or by telephone that was “likely to expose” a person to hatred or contempt, as long as they were “identifiable on the basis of a prohibited ground of discrimination.”
The controversial law was widely criticized for being overly broad with weak safeguards to protect speech rights.
Ian McLeod, a spokesperson with the Justice Department, says that “the mandates given to the minister of justice and his colleagues would require a broader approach than a simple re-enactment of Section 13,” adding that a “civil remedy” is needed for victims to seek recourse.
“The Minister of Justice has heard from many individuals, organizations, and experts that a civil remedy for victims of online hate should be part of any comprehensive strategy to combat online hate speech, and we are considering that option,” McLeod told The Epoch Times.
In contrast to criminal laws, a civil remedy typically has a lower standard of proof and usually aims to stop or prevent the misconduct or compensate the victim rather than laying criminal charges.
Before Section 13 was repealed, civil liberties groups had voiced concerns about the use of a quasi-judicial human rights tribunal to hear complaints under the law, instead of the more-rigorous criminal court system. The tribunal had the authority to impose fines of up to $10,000 or issue cease-and-desist orders in response to complaints of hatred.
The government’s current push to legislate hate speech, including the potential revival of Section 13 in any form, is problematic and prone to abuse, says Joseph Hickey, executive director of the Ontario Civil Liberties Association (OCLA).
“The government should not ‘combat’ any type of speech. Rather, the government is bound by the Constitution to protect and not interfere with the freedom of speech of its citizens,” Hickey said in an interview.
“All legal provisions that censor or otherwise punish individuals for expressing opinions or views must be repealed, whether criminal or civil.”
Attempts to legislate hate “or any other human emotion” becomes a slippery slope for free speech rights because hate is fundamentally subjective and vulnerable to partisanship, says Hickey. The OCLA has previously described Section 13 as “a censorious law used to attack individuals’ freedom of expression.”
McLeod said any statutory definition of hate will also be informed by how the Supreme Court of Canada has defined hate in previous rulings, in particular its 2013 decision in the case of the Saskatchewan Human Rights Commission v. William Whatcott, a Christain activist who campaigned against homosexuality and abortion.
“In that decision, the Court defined hate speech in a specific and narrow way in order to minimize impacts on freedom of expression,” McLeod said.
Section 13 Repealed
Calls to repeal Section 13 came to a head nearly 15 years ago after a case was brought before the British Columbia Human Rights Commission involving an article published in Maclean’s magazine by conservative commentator and author Mark Steyn.
A group of Muslim law students and the Canadian Islamic Congress made a complaint against Steyn in 2007, saying he exposed Muslims to hatred and contempt when he argued that high birth rates and the spread of radical ideology in Muslim countries represent a threat to Western values and ways of life.
The case was eventually dismissed, but it sparked criticism that Section 13 could be abused to censor opinions and threaten public discourse.
In recent years, the Liberals have hinted at their interest in reviving the law, including in recommendations from the Liberal-dominated justice committee studying online hate.
In 2019, Prime Minister Justin Trudeau announced Canada would be launching a “digital charter” that would govern how the country fights hate speech and disinformation online. It was sparked by the shootings targeting Muslims at two mosques in Christchurch, New Zealand, in which 51 people were killed and the attack live-streamed online.
In his mandate letter to Heritage Minister Steven Guilbeault, Trudeau said regulations for social media platforms, including hate speech, should be a top priority.
The regulations, the letter stated, should start with the requirement that “all platforms” remove “illegal content, including hate speech, within 24 hours or face significant penalties.” This would also include other “online harms” such as “radicalization, incitement to violence, exploitation of children, or creation or distribution of terrorist propaganda.”
Guilbeault indicated that his government will be introducing such legislation in the next few weeks, which will include a new regulator that will “implement the new rules and monitor hate speech.”
Critics have noted the Criminal Code already has provisions addressing hate speech relating to incitement to violence and uttering death threats, promotion of genocide, and distribution of hate propaganda.
Amending Broadcasting Act
On March 8, Guilbeault was asked to defend another bill the Liberals are pursuing that has drawn allegations of censorship. Bill C-10, currently being studied at committee, seeks to revamp Canada’s Broadcasting Act, including social media regulations.
During a House of Commons committee meeting on March 8, Liberal MP Tim Louis asked Guilbeault to clarify rules around user-generated content on social media, “for the people who are saying we’re out to censor social media.”
“[It’s] clearly not what we’re doing. There’s no censorship in Canadian broadcasting right now. There’s different types of stations, different types of TV, radio stations that will have different angles on the political spectrum. This is totally normal in a democracy,” Guilbeault answered.
“What we’re trying to do is apply that regulatory framework to online broadcasters.”
“Of special concern is the power to regulate the type of content Canadians can and cannot see online,” she says on her website.