Internet Hate Speech on the Rise; Canada’s Legal Protections on the Decline: The Need for Civil Hate Speech Legislation

The Canadian Charter of Rights and Freedoms¹ is a profoundly empowering document. It grants Canadian citizens rights and freedoms which are coveted, respected, and seen as a model of excellence across the world.² The rights and freedoms enumerated in the Charter make a statement about the kind of society Canadians seek to be a part of. While all Canadians enjoy the rights guaranteed by the Charter, they are not absolute. All Charter rights are subject to limitations—limitations that exemplify the corresponding responsibility to respect the Charter rights enjoyed by other citizens.

A particularly fundamental right under the Charter is the right to freely express oneself, without restraint. The enumeration of s. 2(b) under the Charter represents Canada’s commitment to the fundamental value of free expression in our democratic nation. This freedom is regarded as enabling the discovery of truth and is seen as an instrument to achieve personal fulfillment, encourage a healthy and accountable government, and help us live with diversity.³ The freedom to exchange ideas, express religious beliefs, and speak out against government action is an integral factor enabling citizens to be active participants in a healthy and vibrant democracy.

Despite the critical importance and value of ensuring citizens in a democracy have the right to express themselves, the right found under s. 2(b) of the Charter is not, and cannot be, an absolute right. Pursuant to s. 1 of the Charter, s. 2(b) is subject to those reasonable limitations that can be demonstrably justified in a free and democratic society. Canada’s federal and provincial governments, the Supreme Court of Canada, and courts across the nation have continually recognized justifiable limitations on freedom of expression under s. 2(b). One such limitation is the restriction on hate speech.

In 2013, the Supreme Court of Canada reaffirmed the constitutionality and the societal importance of civil hate speech restrictions in Saskatchewan (Human Rights Commission) v. Whatcott.⁴ In a rare unanimous decision in a contentious area of the law, the Court upheld the constitutional validity of s. 14(b) of The Saskatchewan Human Rights Code⁵ and explained that the right to free speech under s. 2(b) of the Charter is limited by a corresponding responsibility to respect the “equality and respect for group identity and the inherent dignity owed to all human beings.”⁶

Unfortunately, despite a clear and unequivocal message from the highest court in Canada in Whatcott, Stephen Harper’s Conservative federal government repealed Canada’s only civil hate speech provision. A swift four months after the Supreme Court’s unanimous decision in Whatcott, it quietly passed Bill C-304,⁷ abolishing s. 13 from the Canadian Human Rights Act.⁸

The repeal of s. 13 flies in the face of the Supreme Court’s jurisprudence and exemplifies an unbalanced prioritization of the right to free speech over the responsibility to respect and protect the equality and dignity owed to all human beings.

As Liberal Senator Jim Munson pertinently recognized, the passage of Bill C-304 represents “a source of national regret and shame.”⁹ Not only does it stand in stark contrast to years of Supreme Court jurisprudence, it contradicts historical Canadian values. More disturbingly, the repeal of s. 13 of the CHRA has exposed those citizens most vulnerable in Canadian society to the most threatening platform for hate speech in the twenty-first century—the internet.

The absence of s. 13 in the current CHRA should be of concern to every Canadian citizen. Without it, there are no civil restrictions on the dissemination of hate communicated over the internet—the most widespread and easily accessible mechanism of public communication. Section 13 of the CHRA was the only civil hate speech provision in Canada that specifically protected Canadians from the dissemination of hate speech on the internet and over the telephone. While every province and territory has enacted provincial human rights codes, only three provinces and one territory have enacted hate speech provisions within their codes: Saskatchewan,¹⁰ Alberta,¹¹ British Columbia,¹² and the Northwest Territories.¹³ Furthermore, given the intra-provincial nature of the internet and telecommunications, it is (most likely) within the federal government’s jurisdiction to legislate on the dissemination of hate speech on the internet or over the telephone.¹⁴ Therefore, hate speech provisions under the four mentioned human rights codes do not specifically prohibit the dissemination of hate on the internet or telephone.

With the repeal of s. 13 of the CHRA, the only legislative mechanism in place to counteract the dissemination of hate transmitted on the internet is s. 319(2) of the Criminal Code.¹⁵ To many free speech advocates, this is regarded as a victory. To them, the Criminal Code is the only constitutionally legitimate way to restrain free speech in the name of curtailing hate speech. The frightening reality, however, is that the repeal of s. 13 is far from a victory for Canadian society. It has left those most vulnerable in society subject to the proven harms associated with hate speech,¹⁶ without providing a viable mechanism for recourse. Unless hate speech communicated over the internet reaches the high evidentiary burden required to secure a conviction under s. 319(2) of the Criminal Code,¹⁷ it is permitted and an individual’s right to freely express himself or herself is effectively unfettered.¹⁸

With the continuing expansion of the internet, we need s. 13 more than ever.¹⁹ The internet is becoming the primary medium used to spread messages of hate because it can quickly and affordably reach a vast audience relatively easily, without much personal risk.²⁰ It is notable that in Whatcott, the Supreme Court highlighted the threat of the internet with regard to hate speech. After discussing the experiences of hate speech in Fascist Italy and Nazi Germany, Justice Rothstein made the following statement:

Almost 50 years later, I cannot say that those examples have proven to be isolated and unrepeated at our current point in history. One need only look to the former Yugoslavia, Cambodia, Rwanda, Darfur, or Uganda to see more recent examples of attempted cleansing or genocide on the basis of religion, ethnicity or sexual orientation. In terms of the effects of disseminating hateful messages, there is today the added impact of the Internet.²¹

The knowledgeable Supreme Court justices are not naive about the added threat of the internet when it comes to legislatively curtailing detrimental expression of hate in Canada. In today’s world, in comparison to the world our parents grew up in, there is an added element of globalization and increased interconnectedness, making it much more difficult to monitor what is said by whom and to what audience. The real threat of an unmonitored internet, coupled with the Supreme Court’s recognition that the harms associated with hate speech are not merely fictions of the past (in fact, hate speech seems to be on the rise in the new Trump era), raises the pertinent question as to why the Harper government felt it was appropriate, or even necessary, to repeal the only piece of civil legislation available in Canada that protected Canadians from hate speech conveyed over the internet.

While the decision to repeal s. 13 of the CHRA is of concern in of itself, perhaps even more concerning is that at the time the House of Commons was debating Bill C-304, the government was aware that the Supreme Court was hearing the Whatcott appeal and would be releasing a decision on the constitutional validity of civil hate speech provisions. Instead of waiting for the highest court in the nation to render its verdict on the critical legal issue under debate in the House, the government sought to quickly pass the bill before the Court released its decision. To add more salt to the wound, those in favor of Bill C-304 advocated for its passing by arguing s. 13 was an unjustifiable restriction of freedom of expression—a position that is contradictory to the Supreme Court’s jurisprudence. Despite this, Bill C-304 was passed by the House and was sent to the Senate for review.

By the time Bill C-304 reached the Senate, the Supreme Court had released its unanimous decision in Whatcott, declaring the constitutional validity of civil hate speech legislation. Despite having the benefit of the Supreme Court’s decision, and even though numerous Senators cited the Court’s decision in an attempt to challenge Bill C-304, the bill passed Senate review and received royal assent, four months after the release of Whatcott.

The power of party affiliation in the House of Commons and the Senate with regard to the passage of Bill C-304 is simply too prominent to overlook. On June 6, 2012, Parliament passed Bill C-304 by a vote of 153 to 136. Of the 153 MPs in the House of Commons that voted in favor of the bill, 152 were Conservatives.²² Of the 136 MPs that voted “no,” every vote was cast by a Liberal, New Democrat, Bloc Quebecois or Green Party MP. Not a single Conservative MP sitting in the House of Commons in the forty-first Parliament opposed Bill C-304. The power of party affiliation was no less notable in the Senate. On June 26, 2013, the Senate passed the bill by a vote of 49 to 32. All 49 Senators who voted in favor of the bill were Conservative and 45 of the 49 were appointed by Stephen Harper. While 3 Conservative Senators opposed the bill, they were not appointed by Stephen Harper.²³ The remaining 29 Senators who voted to oppose Bill C-304 were Liberal-appointed Senators.

The repeal of s. 13 of the CHRA should concern every Canadian citizen. The reality is this: the Criminal Code provision does not provide adequate protection to Canadian citizens from the very real harms associated with hate speech. A society where hate speech is permitted, subject only to the high threshold required under the Criminal Code, does not represent the effective balance of rights and responsibilities that must be present in a tolerant, respectful, and vibrant democracy. While the right to freely express oneself is fundamental to a functional democracy, so is the protection of minorities from the real harms associated with hate speech. It is only when all Canadian citizens feel secure and respected within society that Canada can flourish and advance as a democracy.

Instead of promoting the appropriate balance between rights and responsibilities, the federal government’s repeal of s. 13 sends a message that the right to freedom of speech is superior to the responsibility of respecting other citizens’ rights to live in a society where they have dignity and feel protected from harm.

World history provides too many examples of the profound harm words can cause when unregulated. The use of hate propaganda in Nazi Germany is a clear demonstration of how even citizens of advanced, tolerant, liberal societies can be persuaded by messages of hate.²⁴ As the Honourable Irwin Cotler reminds us, “the Holocaust did not begin in the gas chambers, it began with words.”²⁵ While the atrocities of the Holocaust took place over seventy years ago, we, as a civilization, have not yet progressed past the need to have restrictions in place that monitor the public dissemination of hate. As Rothstein J. remarked in Whatcott, the atrocities of the Holocaust are not merely a history lesson that is “isolated and unrepeated at our current point in history.”²⁶

One need only look to our neighbors to the south to realize that there is a lot of work left to be done to ensure that all people, of all religions, races, ethnicities, and sexual orientations feel safe, respected, and worthy. Until that day comes, it is vital that Canada, as one of the most respected countries in the world and a country looked upon as an example to others for its Charter of Rights and Freedoms, has legislation in place that provides adequate protection to those most vulnerable to the harms associated with hate speech. Without such protections in place, I fear that one day we will see history repeat itself.

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^* JD (University of Saskatchewan).

¹ Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

² David S Law & Mila Versteeg, “The Declining Influence of the United States Constitution” (2012) 87:3 NYUL Rev 762 at 810-13.

³ Timothy Garton Ash, Free Speech: Ten Principles for a Connected World (New Haven: Yale University Press, 2016) at 75-79.

⁴ 2013 SCC 11, [2013] 1 SCR 467 [Whatcott].

⁵ SS 1979, c S-24.1 [SHRC]. Section 14(1)(b) of the SHRC at the time of the hearing read as follows:

No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation…(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

⁶ Whatcott, supra note 4 at para 66. See also Charter, supra note 1, s 15.

⁷ An Act to amend the Canadian Human Rights Act (protecting freedom), 1st Sess, 41st Parl, 2013 (assented to 26 June 2013), SC 2013, c 37.

⁸ RSC 1985, c H-6 [CHRA]. Prior to repeal, s. 13 of the CHRA read as follows:

13(1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

⁹ Debates of the Senate, 41st Parl, 1st Sess, No 110 (23 October 2012) at 2649 [October Debates].

¹⁰ SHRC, supra note 5, s 14(1)(b).

¹¹ Alberta Human Rights Act, RSA 2000, c A-25.5, s 3(1)(b). 

¹² Human Rights Code, RSBC 1996, c 210, s 7(1)(b).

¹³ Human Rights Act, SNWT 2002, c 18, s 13(1)(c).

¹⁴ See e.g. Toronto Corporation v Bell Telephone Company of Canada, [1905] AC 52; Re Regulation & Control of Radio Communication, [1932] 2 DLR 81, [1932] AC 304. At the time this comment was written, the question of legislative jurisdiction to regulate the internet—either in whole or in part—had not been addressed by a superior court in Canada. Given the fact that the internet was not conceivable at the time the Constitution and ss. 91 and 92 were drafted, it is likely that the internet would be treated in a similar fashion as radio broadcasting and telecommunications. It would most likely be considered interprovincial and fall under federal jurisdiction via a combination of the trade and commerce (s. 91(2)); criminal law (s. 91(27)); peace, order, and good government (“POGG”) (s. 91); and/or transportation and communication (s. 92(10)) powers. The internet could also be considered to fall under provincial jurisdiction over property and civil rights (s. 92(13)). According to Perry Cheung, the internet will most likely be deemed to be within federal jurisdiction under the POGG power:

Just as international cooperation is important, Internet regulation is something that must also be enforced consistently across the country if it is to be effective. Because of the borderless nature of the Internet, an Internet regulator must face as few jurisdictional problems as possible to be effective. In Canada, failure to enforce spam regulations in one province would create a safe haven situation, where spammers could continue to target recipients outside the safe haven province. Thus, it can be said that spam is a matter that is indivisible in nature. Accordingly, spam is a matter of national concern, bringing it under the s. 1 Charter POGG power of the federal government.

“A Call for Action: The Need for Canadian Spam Legislation” (2007) 7 Asper Rev of Intl Business and Trade L 227 at 246.

The Supreme Court of Canada’s jurisprudence on technology that has an interprovincial nature suggests that the internet would fall under federal jurisdiction. Once that jurisdiction is established, there is strong authority to support the federal government’s regulation of the content of communication on the internet (see Re C.F.R.B. and Attorney-General for Canada, 38 DLR (3d) 335, [1973] 3 OR 819 (CA)). For a more detailed discussion, see Karen Ng, “Spam Legislation in Canada: Federalism, Freedom of Expression and the Regulation of the Internet” (2005) 2:2 U Ottawa L & Technology J 447 at 469-78.

¹⁵ RSC 1985, c C-46. The possibility remains of a double aspect argument, which would permit the provinces with hate speech provisions in their codes to regulate the dissemination of hate transmitted over the internet or telephone within the provinces, now that s. 13 of the CHRA is repealed.

¹⁶ For a discussion of the harms caused by hate speech see Canada, Report to the Minister of Justice of the Special Committee on Hate Propaganda in Canada (Ottawa: Queen’s Printer, 1966) [Hate Propaganda Report]; Whatcott, supra note 4 at paras 71-75.

¹⁷ The criminal hate speech provision found under s. 319 of the Criminal Code requires, and rightfully so, a high threshold to secure a conviction. It requires the most stringent mens rea component of intent. In R. v. Keegstra, ([1990] 3 SCR 697, 117 NR 1 [Keegstra]), the Supreme Court explained how the high threshold under s. 319(2) of the Criminal Code is required to uphold the provision’s constitutional validity because the criminal law is the most severe prohibition that can be imposed on Canadian citizens. Therefore, it cannot be invoked lightly. The focus of the criminal hate speech provision is primarily on intent, not on the speech’s effects, which starkly contrasts with the focus of civil hate speech legislation. The Supreme Court explained the different purposes of the civil and criminal legislation in Canada (Human Rights Commission) v. Taylor ([1990] 3 SCR 892, 75 DLR (4th) 577 [Taylor]). The Court stated that the distinction is attributable to the distinct purposes and consequences of civil human rights legislation and criminal hate speech restrictions. Unlike the criminal sanctions available under the Criminal Code, the purpose of civil human rights legislation is not to stigmatize and punish those who discriminate. Civil human rights legislation is concerned with the prevention of discriminatory conduct and its fundamental purpose is the protection of the victim. The Court further explained that because systemic discrimination is more widespread than intentional discrimination, importing a subjective intent requirement would contradict the primary goals of civil human rights anti-discrimination statutes (Taylor, ibid at 931-33). In Keegstra (ibid), the Supreme Court proclaimed the importance of having both criminal and civil hate speech legislation in place to effectively curtail the harms associated with public dissemination of hate. Chief Justice Dickson stated that the “fostering of tolerant attitudes among Canadians will be best achieved through a combination of diverse measures” (Keegstra, ibid at 785). He explained that the more confrontational approach of the criminal law is best suited to the “recalcitrant hate-monger,” whereas the remedial approach of civil human rights legislation is the preferable approach in less severe circumstances (Keegstra, ibid at 785). Chief Justice Dickson stated the following: “It is important, in my opinion, not to hold any illusions about the ability of this one provision to rid our society of hate propaganda and its associated harms” (Keegstra, ibid at 784).

¹⁸ Hate speech is effectively unfettered due to the high evidentiary burden required for conviction under s. 319(2) (see Keegstra, ibid at 775). Since the Supreme Court confirmed the high evidentiary requirements in Keegstra, only fourteen proceedings have been launched under s. 319(2). Of the fourteen, only four have resulted in conviction.

¹⁹ October Debates, supra note 9 at 2647.

²⁰ Ibid.

²¹ Whatcott, supra note 4 at para 72 [emphasis added].

²² Scott Simms was the only Liberal supporter of Bill C-304.

²³ They were appointed by Prime Ministers Brian Mulroney and Paul Martin.

²⁴ Hate Propaganda Report, supra note 16 at 9.

²⁵ Debates of the Senate, 41st Parl, 1st Sess, No 181 (26 June 2013) at 4522.

²⁶ Whatcott, supra note 4 at para 72.