Finding the balance between freedom and hate

  • October 26, 2020

My right to express myself can’t trump your right not to be the target of hate speech, and vice versa. Finding the balance between the two is a delicate operation, and enacting it in legislation is trickier still.

“In Canada, we have had the misfortune of getting this balance wrong both in the civil and criminal law,” the Constitutional and Human Rights, Criminal Justice and Sexual Orientation and Gender Identity Community sections say in their comments on a Justice Canada consultation paper released earlier this year.

“The CBA Sections are pleased that the Government of Canada is taking a fresh look at these laws and has a renewed chance to get the balance right.”

Focusing their comments on online hate, the Sections offer 17 recommendations to right the imbalance in past laws, including revising the former section 13 of the Canadian Human Rights Act, which they say was “substantively sound but procedurally defective,” in that it led to an undue limitation on freedom of expression.

“How do we prevent the easily offended from shutting down legitimate expression? How do we stop perpetrators from purporting to be victims and attempting to use the law to silence criticisms of their incitement by claiming that the criticism is incitement?” the Sections ask. “Our answer is to reenact the substance of the former section 13 of the CHRA with additional procedural safeguards, so the law does not become a vehicle to harass legitimate expression as the previous section 13 had been.”

Those safeguards include setting out principles for awarding costs in proceedings before the Canadian Human Rights Tribunal “so that meritorious complaints addressing matters of public interest are not inhibited, but the procedure does not itself become a form of harassment.”

Other safeguards include:

  • Creating a gatekeeper: the Attorney General of Canada must consent to criminal action for hate speech; the Human Rights Commission should screen for civil actions.
  • Ending the ability to pursue the same complaint against the same respondent in several jurisdictions
  • Giving the Commission and the Tribunal the power to remove parties from a complaint
  • Preventing the pursuit of anonymous complaints, subject to specific exceptions
  • Creating a general principle of disclosure and outline any exceptions to it

The Sections also recommend adding a civil remedy for hate speech specific to the internet, “directed not only against inciters, but also against publishers, including internet platforms. Internet providers should not have civil immunity for the material on their platforms.”

The Sections recommend giving the Tribunal power to make legally binding orders on internet providers. ‘While the terms of service of the major internet providers explicitly prohibit incitement to hatred, effort should be made to turn this stated policy into prohibition in practice,” the Sections say. While acknowledging there would be major obstacles to doing so, the Sections note that the European Commission has addressed these obstacles and provided a template to follow.

“Internet providers need not have the final word on what hate speech is,” the Sections say.

“If the Tribunal determines that an internet communication is hate speech, major internet providers will respect that determination for Canada, because they commit to respecting local laws.”

The Sections also say the Criminal Code prohibitions against incitement to hatred are not as effective as they could be. They suggest that Attorneys General or Directors of Public Prosecution adopt clear public criteria for denial of consent to action, and give reasons for that denial explaining how the complaint failed to meet those criteria.

Other recommendations include:

  • Formulating definitions of hate
  • Ratifying the Council of Europe Additional Protocol to the Convention on Cybercrime, which Canada signed in 2005
  • Encouraging communication from the public, particularly when it comes to the internet: “It takes many eyes to see the high volume of content on the internet. To instill confidence that the Commission is capturing abuse on the internet, there should be an active public education campaign encouraging members of the public to report online hate to the Commission.”