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4. Refocusing Hate Speech Law

(a) Focusing on Extreme or Hateful Expression

Expression that stereotypes or defames the members of an identifiable group is offensive, insulting and harmful to the group’s members. Nevertheless, censorship of this expression is not a viable option. Because discriminatory views or assumptions are so widely held and circulate generally in society, they cannot be eradicated through censorship. Any attempt to exclude all racial or other prejudice from public discourse would require extraordinary intervention by the state. Because discriminatory speech is so commonplace, it is impossible to establish clear and effective rules for its identification and exclusion. Because discriminatory attitudes and assumptions are so pervasive, it is vital that they be confronted rather than censored. They are often spread or reinforced without a clear intent by the speaker or conscious acceptance by the audience. The only effective response, then, is to expose the prejudiced character of commonplace assumptions and bring it to clearer, and hopefully more critical, consciousness. We must develop ways other than censorship to respond to expression that stereotypes and defames the members of an identifiable group and to hold institutions, such as the media, accountable when they advance such views.

The goal of ending prejudice in the community cannot be accomplished through censorship. The purpose of hate speech law must be more narrowly defined as the protection of the members of an identifiable group from the risk of violence that results from expression that threatens, advocates or justifies violence. While it is unrealistic to imagine that more familiar forms of discriminatory expression can be censored out of public discourse, the failure to ban the extreme or radical edge of prejudiced speech – that which threatens, justifies or advocates violence – carries too many risks, particularly when it is directed at the members of a racist subculture or occurs in a context in which there is little opportunity for response. This narrower purpose offers a better account of the actual practice of hate speech law in Canada, which focuses on the most extreme and hateful instances of expression. The small number of section 13 cases that have been sent by the CHRC to the Tribunal, and in which the Tribunal has found a breach of the section, have all (or almost all) involved expression that is so extreme and hateful that it may be seen as advocating violence against the members of an identifiable group.

This understanding of hate speech law has several advantages. First, as noted, it may provide a rationale for the narrow focus on extreme expression that has been adopted by the CHRC and the CHRT. Second, it offers a more practical standard for drawing the line between prohibited hate speech and other forms of discriminatory expression. While the line will sometimes be difficult to draw (for reasons discussed later in this section of the report), it is possible to identify factors that characterize extreme hate speech, such as the "hallmarks of hate" (or at least in combination), and to make a reasoned judgment about whether a particular instance of speech is, or amounts to, a call for violence. In contrast, it is impossible to know where, or even how, to draw a line separating group defamation from ordinary public discourse, given the pervasiveness of racial and other forms of prejudice. Third, it provides a clearer justification for limiting freedom of expression: to prevent the risk of violence against the members of an identifiable group. Understood in this way, the ban on hate speech may be seen as an extension of the criminal law prohibition on the advocacy and threat of violence.

(i) Threats

Threats of violence against an identifiable group, even if there is little prospect that they will be carried out, contribute to a climate of fear and insecurity. A march with swastikas and SS uniforms in a Jewish neighbourhood is experienced as threatening because it evokes the history of Nazi persecution of Jews.⁵⁴ Even if this threat does not seem realistic or immediate to an outside observer, it must be viewed from the perspective of the target group member, who experiences it as part of a continuing practice of violence against his or her group. Even if the members of the target group know that the threat cannot be carried out (although it is not clear why they would feel confident about this), it is so closely linked to a larger practice of violent oppression that it is bound to cause significant anxiety.

(ii) Advocacy

In On Liberty J.S. Mill thought that the authorities would be justified in preventing a fiery speech given near the home of a corn merchant to a crowd of farmers angry about crop prices.⁵⁵ When speech calling for violence occurs under conditions that limit the audience’s ability to make a reasoned and independent judgment, the speaker may be seen as responsible for, or as a participant in, any violence that occurs. Criminal restrictions on advocacy or incitement to violence generally apply only to speech that is clearly and closely tied to ensuing violence. Indeed, the prohibition against incitement of hatred against an identifiable group, in section 319(1) of the Criminal Code, is breached only when "the incitement is likely to lead to a breach of the peace." The likelihood of the peace being breached will depend on the character of the expression but also on the context in which it occurs.⁵⁶ Similarly, the United States Supreme Court in Brandenburg v. Ohio held that the First Amendment of the US Bill of Rights forbids the government to restrict the advocacy of violence "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."⁵⁷

A commitment to freedom of expression means that we cannot hold the speaker responsible for the actions her/his audience may take in response to her/his speech. This position, however, depends on two things: first, that the listener is in a position to make an independent judgment and, second, that the state is in a position to prevent the actions of the listener and hold her/him accountable. The state is justified in prohibiting the advocacy of violence in circumstances in which the audience is likely to respond immediately by taking violent action. But what about calls for violence against an identifiable group that are in the circumstances unlikely to lead immediately to violence? Should we take the risk that speech that calls for violence will not encourage or lead someone at some point in the future to take violent action?⁵⁸

The extreme speech that is caught by section 13 of the CHRA plays to fears and frustrations (e.g., of moral decay or terrorism) and draws on the social background of prejudice and stereotyping. The audience may be uncritical of this speech because it provides a channel for fear and resentment and because it resonates with widely shared assumptions. Significantly, extremist speech is often directed at the members of a relatively insular racist subculture. When directed at such an audience, extremist speech may reinforce and extend bigoted views without being exposed to public criticism. While most members of the community will dismiss the extreme claims of hate-mongers like Keegstra and Taylor as bizarre and irrational, some individuals, already weighed down by prejudice or susceptible to manipulation or already part of an extremist subculture, will see in these claims a plausible account of their social and economic difficulties and a justification for violent action. The call to violence may be either explicit or implicit. Any individual who accepts these views would also have to conclude that violent action was necessary.⁵⁹ The advocacy of violence may be a concern because, in the words of the Cohen Committee, "in times of stress such ‘hate’ could mushroom into a real and monstrous threat to our way of life"⁶⁰ or more likely because it may encourage "isolated" acts of violence against members of an identifiable group, acts such as "gay-bashing." Hate crimes occur frequently. They are committed most often not by organized groups but by individuals who have immersed themselves in the extremist subculture that operates principally on the Internet.

A narrowly drawn ban that prohibits speech that threatens, advocates or justifies violence against the members of an identifiable group may be seen as inadequate by those who are concerned about the persistence of prejudice and inequality in the community. This narrow ban will not prevent the circulation in the community of unfair depictions and false or misleading claims.⁶¹ It is arguable that more moderate or mainstream forms of discriminatory speech are more harmful because their audience is larger and their discriminatory message more insidious (for example the claim or assumption that there are genetically based differences in intelligence between "racial" groups). Indeed, once we recognize that extreme speech has an impact only because it builds on more common stereotypes and assumptions, it may be argued that less extreme forms of speech should be treated as part of the problem, as contributing to discrimination and violence. Yet, as earlier argued, any attempt to exclude all prejudiced expression from public discourse would require extraordinary intervention by the state and would dramatically compromise the public commitment to freedom of expression. At the same time, a "laissez-faire" approach to discriminatory speech fails the groups that are victimized and implicates the larger society in that victimization, because communicative power is inequitably distributed in society. If "more speech" rather than censorship is the only viable response to mainstream forms of discriminatory expression, then we must ensure that there are effective opportunities to respond to this expression and that institutions with significant communicative power are held accountable when they defame or stereotype identifiable groups. I will return to this in section 5.

A court or tribunal must decide whether the speech at issue is so extreme in content and tone that it can be understood as justifying or advocating violence. However, the line between speech that advocates or justifies violence and less extreme forms of discriminatory speech will sometimes be difficult to draw. A decision-maker may find it easier to see a violent purpose behind speech that is directed at a group that has in recent history been the target of an organized campaign of violence. Because phrases such as "the solution to the Jewish problem" or symbols such as the swastika evoke the Holocaust, it is easy to attribute a violent purpose to the individual who employs them. Because the act of burning a cross evokes the violent oppression of blacks in North America, it is easily understood as a call to violence. Yet in the case of harsh, vitriolic statements made about other identifiable groups that do not have the same recent history of organized violent persecution, it may be harder to discern a violent purpose.

A different line-drawing issue is raised by hate speech that targets a religious group. Because religious commitment is deeply rooted and shapes the individual’s world view and because it represents a significant connection with others, the individual may experience attacks on her or his belief system or faith community very deeply and personally. At the same time, religious adherence involves a belief in, or commitment to, the rightness of certain values or the truth of a particular conception of the supernatural and its connection to the natural world, even if that truth cannot be finally and fully proved and must to some degree be accepted on faith. Moreover, religious values often have public implications. Most religions have something to say about how we should act towards others and the kind of community we should work to create. For these reasons, religious beliefs or values cannot be insulated from debate and criticism, even that which is harsh and uncivil. The criticism of religious belief cannot be restricted without undermining our commitment to freedom of expression.⁶² To count as hate speech against a religious group, the communication must target the members of the group, attribute to them certain dangerous or undesirable traits, and call on others to take violent action against them. However, the line between an attack on the group, which may sometimes amount to hate speech, and an attack on their beliefs, which cannot be restricted, may not always be easy to draw.⁶³

(b) The Repeal of Section 13 and Reliance on the Criminal Code Hate Speech Provisions

The principal recommendation of this report is that section 13 be repealed so that the censorship of Internet hate speech is dealt with exclusively by the criminal law.⁶⁴ A narrowly drawn ban on hate speech that focuses on expression that is tied to violence does not fit easily or simply into a human rights law that takes an expansive view of discrimination and seeks to advance the goal of social equality through education and conciliation. For reasons discussed in the next part of this section, the process established in the CHRA for receiving and investigating complaints of discrimination is poorly suited to section 13 complaints.⁶⁵ More generally, there is a tension between the general purpose or ethos of the CHRA and the narrow definition of hate speech adopted by the CHRT and, with some refinement, supported in this report.

As an alternative to the repeal of section 13, I have set out in the next section of the report a series of changes to section 13. The effect of these changes (most notably the inclusion of an intention requirement and the amendment of the process to reduce or remove the role of the complainant) would be to reshape section 13 so that it more closely resembles the Criminal Code ban on the wilful promotion of hatred.

The restriction of hate speech that threatens, advocates or justifies violence is appropriately dealt with under the criminal law. In the words of the Cohen Committee, "No civil statute can create a moral standard equivalent to that of criminal law."⁶⁶ Hate speech is a serious matter that should be investigated by the police and prosecuted in the courts and should carry a significant penalty. There are, of course, some potential drawbacks to an exclusive reliance on the Criminal Code hate speech provisions. These include the higher burden of proof, the requirement that the Attorney General of the particular province consent to prosecution and the lack of experience on the part of police and prosecutors in pursuing hate speech cases.

Conviction under the Criminal Code requires proof according to the more onerous standard of "beyond a reasonable doubt" rather than "on a balance of probabilities," the civil standard that is applied in section 13 cases. However, there are several reasons why this may not be a significant hurdle. First, this difference in standard of proof is significant only when the facts are in dispute. In most hate speech cases the principal issue is whether or not the communication is sufficiently hateful in tone and content that it may be seen as promoting hatred in the community. It must also be demonstrated that the individual "wilfully" promoted hatred, but this factual issue is ordinarily determined on the basis of the communication’s content and context. Second, whether it is made under section 319(2) of the Criminal Code or section 13 of the CHRA, an allegation that an individual has engaged in hate speech is a serious matter. It may be appropriate that the standard of proof be higher when deciding whether an individual has committed such an act. Third, the less demanding civil standard of proof applies to hearings under sections 320 and 320.1, the in rem provisions dealing with hate propaganda. Perhaps more significantly, these provisions do not require any proof of intention. Section 320.1 of the Criminal Code enables the authorities to shut down an Internet hate site without having to establish that the individual responsible for the site intended to promote hatred. Indeed, an order may be issued under the section, even if it cannot be determined who is in control of the site. A judge will order the deletion of material from a computer system if she/he determines on a balance of probabilities that the material promotes hatred. Section 320.1 provides:

(1) If a judge is satisfied by information on oath that there are reasonable grounds for believing that there is material that is hate propaganda within the meaning of subsection 320(8) or data within the meaning of subsection 342.1(2) that makes hate propaganda available, that is stored on and made available to the public through a computer system within the meaning of subsection 342.1(2) that is within the jurisdiction of the court, the judge may order the custodian of the computer system to

(a) give an electronic copy of the material to the court;

(b) ensure that the material is no longer stored on and made available through the computer system; and

(c) provide the information necessary to identify and locate the person who posted the material.

Myron Claridge, formerly of the BC Hate Crime Team, offers the following description of the section 320.1 procedure:

The new section 320.1 provides a procedure for the police to go before a superior court judge with information on oath providing reasonable grounds to believe that there is hate propaganda available on a computer system within the jurisdiction. ... [I]t is a procedure that has as its aim to remove the material from public distribution. It is not a criminal charge against an individual but a hearing to determine if the material is hate propaganda. If it is, the court orders its deletion. The section can serve both the public and the telecommunications industry in identifying what is hate propaganda giving the latter a legal basis for the removal and also in removing hate propaganda.⁶⁷

It appears that this section has been used on only one occasion.⁶⁸ Nevertheless, it would seem to offer a useful alternative to section 319(2) of the Code in cases in which the identity of the hate promoter is difficult to determine and the object is simply to shut down the hate site quickly. If police and prosecutors are prepared to make greater use of section 320.1 of the Code, it could become an important mechanism for dealing with Internet hate speech.

Another possible drawback to reliance on section 319(2) is the requirement that the provincial Attorney General consent to prosecution. This requirement was included in the Criminal Code presumably as a means of preventing frivolous or vexatious private prosecutions. The consent requirement may serve a useful filtering function. However, concern has been expressed that, at least in some provinces, consent has been refused not because the Attorney General decided that the case was weak but because she/he did not regard hate speech as a significant problem or was concerned that the hate-monger might use the prosecution to publicize his or her views. While consent to prosecution under section 319(2) should only be given when the case has a substantial likelihood of success, it should not be withheld for political reasons, and certainly not as a way of nullifying the law. At present there seems to be little information about when and why consent to prosecution is given or refused by the provincial Attorneys General. I would recommend that this matter be the subject of study. If it appears that the consent requirement is a barrier to the prosecution of serious hate speech cases, then section 319 should be amended to remove this requirement. The Crown, of course, may take carriage of any private prosecution and stay the proceedings if it believes that continuation of the prosecution is not in the public interest. In this way the Crown would retain the ability to prevent frivolous or vexatious proceedings under section 319(2).⁶⁹

The final difficulty relates to the experience and initiative of the police in investigating hate speech cases. While a number of police forces have established hate crimes units, the police in smaller communities have little experience investigating hate speech complaints and are often reluctant to put resources into such investigations. I would propose that each province do what has been done in British Columbia and establish a provincial Hate Crime Team composed of both police and Crown law officers with experience in the area to deal with the investigation and prosecution of hate crimes including hate speech under the Criminal Code. The effectiveness of the Criminal Code provisions dealing with the promotion of hatred would be significantly enhanced by the establishment in each province of such a unit.⁷⁰

As noted earlier, the scope of section 319(2) of the Criminal Code (the prohibition on the wilful promotion of hatred) has been narrowly defined by the courts. However, neither the language of the section nor the reasoning of the courts ties the section’ s application explicitly to the threat, advocacy or justification of violence. There remains some risk, then, that the section may be applied to a broader category of expression, although this does not seem to have been a problem in practice. The defences available under section 319(7) to a charge of hate promotion are for the most part redundant; however, for the reasons set out below in the discussion of proposed changes to section 13 of the CHRA, I think the ‘truth defence’ should be removed.

There have been very few cases brought under section 319(2). To what extent this is because of the onerous standards for criminal conviction or the consent requirement is difficult to know. But before we regard this as an indication of the inadequacy of the criminal response to hate speech, we should recall that the number of section 13 hate speech cases that proceed to the CHRT is also very small.

(c) The Amendment of Section 13

In this section I have proposed a series of changes to the language of section 13 and to the section 13 complaint process. These changes are offered as an alternative to repeal. They are meant to refine and reinforce the narrow interpretation of the scope of section 13 adopted by the courts and the CHRT and to ensure that the CHRC process for investigating section 13 complaints is conducted in a way that minimizes interference with freedom of expression interests. If implemented, their effect would be to reshape section 13 so that it more closely resembles a criminal restriction on hate speech.

(i) The Scope of Section 13

(a) Narrowing the Scope of Section 13

The CHRC and the CHRT have interpreted section 13 as a ban on expression that is hateful in content and tone. Yet there is a perception that the scope of section 13 is broader than this – that it extends to offensive speech or speech that injures a group’s social standing. This perception stems from two things. First, it is encouraged by the language of section 13, which is open to a broader reading than that adopted by the courts and the CHRT, and by the general purpose and overall character of the CHRA. Because section 13 is located in a law that is broadly concerned with the advancement of social equality, it is always open to an interpretation that extends its application to more commonplace forms of discriminatory expression. Second, the CHRC investigative process contributes to this perception of section 13 because complaints that have little likelihood of succeeding at adjudication must nevertheless be accepted and even investigated by the CHRC. (I will examine the investigative process in part ii of this section of the report.)

In its current form section 13 provides as follows:

(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 person or those persons are identifiable on the basis of a prohibited ground of discrimination.[...]

The phrase "likely to expose a person or persons to hatred or contempt" is borrowed from the common law of defamation. Its inclusion in section 13 suggests that the section was intended to be a ban on group defamation. The courts and the CHRT, however, have interpreted the ban more narrowly. They assume that only extreme or hateful expression is likely to generate hate or contempt in the community. But it is difficult to prove the impact of expression on the attitudes and actions of its audience. And, as I argued above in section 3, a wide range of discriminatory representations may contribute to hateful attitudes and discriminatory actions in the community. Less extreme, more commonplace instances of discriminatory speech may provide the groundwork necessary for the spread of hateful attitudes and so might be caught by section 13 on an ordinary reading of its terms.

The language of section 13 should be amended to strengthen its focus on extreme expression. The reference to "contempt" should be dropped from the section and the term "hatred" should be linked to the threat, justification or advocacy of violence against the members of an identifiable group. The reference in section 13 to the likely impact of the expression should also be dropped. This component of the test suggests that communication should be restricted only when the spread of hatred (or the occurrence of violence) is a possible or likely consequence. But as noted earlier, the consequences of hate speech are unpredictable. As a result, the phrase has been used in judicial and tribunal decisions simply to support an interpretation of section 13 that limits its scope to extreme expression. Speech that threatens, justifies or advocates violence against an identifiable group should be proscribed whether or not violence is an immediate or likely consequence. The section 13 test should focus on the content of the communication – on its extreme character. The threat, justification or advocacy of violence may be either explicit or implicit in the communication. Both the tone and content of the communication should be taken into account when determining whether it is sufficiently extreme to breach section 13.

Section 13 should also be amended to include an intention requirement. A requirement that the communicator intended to threaten, advocate or justify violent action against the members of an identifiable group, or recognized that her or his communication would reasonably be understood by its audience as threatening, advocating or justifying violence, would reinforce the section’s focus on extreme expression. The relevant intention would relate to her/his conduct (i.e., his/her expression), and not to the possibility or likelihood that violence would result from her/his expression. Whether the individual intended to threaten, advocate or justify violence would be determined by examining her/his words – whether they are extreme in tone, whether they invoke established or historical practices of violence and whether they are characterized by certain of the "hallmarks of hate." In all of the cases in which the CHRT has found a breach of section 13, the expression was so extreme that it is difficult to imagine that the inclusion of an intention requirement would have led to a different result. In many of these cases the call for violence was explicit.⁷¹ Intention, however, may be more difficult to prove in cases where the alleged hate speech is linked to the respondent’s website or has been posted by a visitor to the site. It is possible in these cases that the respondent would not have full knowledge of the content of the material. However, if she/he is "wilfully blind" or "reckless" to the presence of this material, she/he ought to be liable under the section.

The activity banned by section 13 is very different from the other forms of discrimination covered by the CHRA. Despite the familiar claim that human rights codes are about harmful effects rather than wrongful intentions, the courts and the CHRT have not attempted to measure the effects of hate speech. In determining whether the communication at issue breaches section 13, the CHRT looks not at its actual impact but instead at the content and tone of the communication – its hateful or contemptuous character.⁷² It is difficult to describe the wrong to which section 13 is a response without referring to the meaning or intention of the communicator. Indeed, the language of intention frequently appears in the section 13 decisions of the CHRT. The communication is prohibited because it is intended to spread hatred and encourage violence and we are unwilling to take the risk that it might be effective.

An intention requirement may also be appropriate given the serious nature of the hate speech offence. It is often said that the CHRA, like other human rights codes, is not intended to punish wrongdoing. It is concerned instead with protecting individuals from discrimination or with compensating those who have been injured by acts of discrimination. It focuses on the effects of the action (communication) rather than the intention behind it. But while the courts and the CHRT have interpreted the scope of the other forms of discrimination broadly to include "effects" or "constructive" discrimination, they have adopted a narrow reading of the scope of section 13 and limited it to expression that is hateful in character. The section may not be punitive in form, but a finding that it has been breached will be understood in the community as a declaration that the respondent is a hate-monger and, if the section is reformulated in the way I have proposed, an advocate of violence. Moreover, because a ban on hate speech has a significant impact on freedom of expression interests, it should apply only when the speaker understands the hateful nature of her or his communication.

It has been argued that section 13 should also include a truth defence similar to that available to the charge of "wilful promotion of hatred" under the Criminal Code. The inclusion of such a defence would allow the respondent to argue that his or her communication , even if hateful, is true and so does not breach the section. The Cohen Committee thought it "necessary to provide the unqualified defence of truth in order adequately to protect all legitimate dialogue from legal restraints" since "there will almost always, if not always, be a public benefit to be derived from true statements about groups."⁷³

When confronted with the argument that section 13 is unconstitutional because it does not provide a truth defence, Chief Justice Dickson in Taylor responded that "the Charter does not mandate an exception for truthful statements in the context of section 13(1)." In reaching this conclusion, he relied on a statement he had made in Keegstra:

In Keegstra, I dealt in considerable detail with hate propaganda and the defence of truth, though in relation to the criminal offence of wilfully promoting hatred against an identifiable group. It was not strictly necessary in that appeal to decide whether or not this defence was essential to the constitutional validity of the impugned criminal provision, but I nevertheless offered an opinion on the matter, stating [...]

The way in which I have defined the s. 319(2) offence, in the context of the objective sought by society and the value of the prohibited expression, gives me some doubt as to whether the Charter mandates that truthful statements communicated with an intention to promote hatred need be excepted from criminal condemnation. Truth may be used for widely disparate ends, and I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred against a racial or religious group. It would seem to follow that there is no reason why the individual who intentionally employs such statements to achieve harmful ends must under the Charter be protected from criminal censure. [Emphasis in original.]⁷⁴

His response, in effect, is that it is beside the point whether the claim is true, because it is intended to promote hatred – or, in the case of expression caught by section 13, it has the effect of spreading hatred.⁷⁵

I would offer a different response to the argument that section 13 should include a truth defence. In my view, a truth defence is not required because hate speech is necessarily untrue. Hate speech makes the claim that the members of an identifiable group share a dangerous or undesirable trait – that they are by nature violent or corrupt or dishonest – and must be stopped by violent means if necessary. Our commitment to equality entails a rejection of any view that the members of a racial or other identifiable group are inherently inferior or dangerous. The point is well-made by Mark Freiman:

Individuals may well be deserving of hatred and contempt, but that is based always on what they, as individuals, do. That’s why defamation needs a defence of truth. If the allegations against an individual are in fact true, that individual may be deserving of hatred.[...] But hate propaganda assigns blame for real or imagined misdeeds, not to individuals but to one or more identifiable groups that individuals may belong to.⁷⁶

On its own the claim that six million did not die in the Holocaust is not hate speech. It is untrue and it is hurtful. What may be hateful, however, is the claim that often accompanies or underlies Holocaust denial – that the Holocaust was fabricated by the Jews as part of their "grand plan".

The problem with adding a truth defence is not simply that it will be redundant. A truth defence will enable a respondent in a section 13 case to repeat her or his odious claims and make them the subject of legal contest. The focus of the case will shift to historical, sociological or psychological claims that are simply window dressing for more basic assertions about the dangerous or dishonest nature of the members of certain groups. While these claims will ultimately be repudiated by the tribunal, during the hearing they will be presented as debatable interpretations of events and actions.

(ii) The CHRC Complaint Process

The CHRA establishes a general framework for the processing and investigation of discrimination complaints, including section 13 complaints. This process is designed to engage the parties and encourage them to resolve their dispute without resort to adjudication before the CHRT. It is a process that reflects the CHRA’s general orientation towards education and reconciliation and its broad, effects-based conception of discrimination. It is, however, ill-suited to the processing of hate speech complaints. I will focus on two problems that arise with the current process.

First, under the current system the CHRC is bound to investigate any complaint that is not excluded as trivial, frivolous, vexatious or made in bad faith or otherwise falls outside the CHRC’ s jurisdiction. The investigation of a complaint that meets this relatively low threshold must be conducted in accordance with the principles of procedural fairness. This requires that the respondent be informed of the complaint made against her or him and given the opportunity to respond to it. The complainant must also be given the opportunity to reply to the respondent’s submissions. Both the complainant and the respondent must again be given the opportunity to comment on the investigator’s report prior to any decision made by the CHRC. The investigation process is unavoidably time-consuming.⁷⁷ The problem with this is that complaints that have little likelihood of succeeding at the tribunal stage must nevertheless be investigated by the CHRC. Any time a hate speech complaint is investigated, the respondent’s freedom of expression right is compromised, even if the complaint is dismissed by the CHRC at the end of the investigation process. In addition, the operation of section 13 may have what is sometimes called a "chilling effect" on freedom of expression. An individual may be reluctant to publish material that should not and probably would not be caught by section 13 because she or he fears becoming entangled in the section 13 process.⁷⁸

The second problem with the current system is the significant burden it places on the complainant. Hate speech is most often directed at a receptive, or at least interested, audience and is only known to the complainant because she or he has looked for it or stumbled across it. Moreover, hate speech necessarily targets a group rather than an individual. Even if in some cases a particular individual is referred to in the attack, she/he is used by the hate-monger simply to illustrate a claim that is being made about the entire group.⁷⁹ The complainant makes the section 13 complaint on behalf of the group or society in general. She/he may not even be a member of the group targeted by the speech but has simply taken the initiative to bring a complaint. It is not accidental, then, that particular individuals have played a leading role in the initiation of complaints. According to Andrea Slane, "those few individuals who have filed section 13 complaints and have gone through the process can be considered activists in the area of online hate, since a high degree of personal commitment is required to see a complaint through to its conclusion."⁸⁰ Without the initiative of these individuals, section 13 might have no operation at all. The complainant carries responsibility for the complaint throughout the process, at both the investigation and adjudication stages. While the CHRC has the legislative authority to initiate complaints under section 13, it has generally not acted on this. The CHRC is not required to appear at the CHRT adjudication, but may do so as representative of the public interest (and as noted in section 2 of this report, the CHRC has to this point appeared in all but one of the section 13 adjudications). In addition to the burden of time and money that a complainant must bear, particularly if the complaint proceeds to adjudication before the CHRT, a complainant may be subjected to threats of violence. Because the communication that is caught by section 13 is so extreme in character, the respondents in serious cases are themselves often extreme and irrational in their behaviour. It is not surprising then that some complainants have been subjected to death threats. We should not expect complainants to bear such a burden. Hate speech harms the group and the community. It is a public wrong. The state, not private citizens, should be responsible for the enforcement of the law.

I would recommend that the CHRA be amended so that the CHRC process for dealing with section 13 "complaints" would cease to be "complainant driven." An individual (or group) may bring to the attention of the CHRC a website or posting that she/he believes breaches section 13, but her/his role should end at that point. Once this information or allegation is received by the CHRC, responsibility for the investigation and assessment of the allegation, and, if the case is sent to the Tribunal for adjudication, carriage of the case, should lie entirely with the CHRC, acting in the public interest. While the CHRC should consider carefully allegations that section 13 has been breached, it should have the power to dispose of a "complaint," even one that is not excluded on the grounds that it is trivial, frivolous, vexatious or made in bad faith, without obtaining the input of (and exchange between) the parties, if it believes that the case is unlikely to succeed before the CHRT.

I should add that this modification of the CHRC’s role strengthens the argument that (at least in the case of section 13 complaints) the Commission should be designated as an investigative body under the Privacy Act and its regulations.⁸¹ The Privacy Act requires that federal departments and agencies respect the privacy rights of Canadians by limiting the disclosure of personal information. The Act also gives individuals the right to access information relating to them that has been collected by a government department or agency. However, under section 22 of the Act, an investigative body may refuse to disclose personal information gathered in the course of an investigation, without having to demonstrate that injury may result from the disclosure.⁸² If the CHRC were designated an investigative body, it would no longer be required to release personal information gathered during its investigation – at least in advance of a recommendation or determination – and would no longer be subjected to a delay technique employed by some respondents.⁸³

This transformation of the CHRC’s role in processing or investigating section 13 "complaints" would have two important advantages. First, it would allow the CHRC to deal more quickly with claims that do not appear to breach section 13 and are unlikely to succeed at the adjudicative stage. This in turn would reduce the negative impact of section 13, and the complaint process, on the freedom of expression interests of respondents and the general public. Second, this change in the process would reduce or remove the burden on private citizens and community organizations, who would no longer carry significant responsibility for the enforcement of section 13 and the removal of hate speech from the Internet. The principal disadvantage of this change would be to put greater demands on the CHRC and its limited resources.

I am not recommending that the CHRC play a greater role in monitoring hate speech on the Internet, since this would require a considerable increase in resources and would involve the CHRC in a police-like role that it is not designed to perform. The CHRC should instead take action on the basis of information provided by individuals and community organizations. The Commission would, of course, still have to confirm the information provided and gather additional information to determine whether there is a substantial case. Provided the process is well-publicized, the CHRC phone line or e-mail address would serve as a "tip line" – a place where individuals could pass on information about hate speech sites. At the moment the burden placed on complainants almost certainly has the effect of limiting the number of complaints made to the CHRC. If the role of the complainant were simply to inform the CHRC of a possible breach of section 13, and it then fell to the CHRC to investigate and assess the complaint, the number of investigated cases might rise significantly. The CHRC’s workload may also be greater because it would play a larger role in substantiating these "complaints" or claims. It is worth noting, however, that under the current system, the CHRC already investigates all complaints that are not excluded under section 41 and either confirms or supplements the information presented by the complainant. Moreover, the CHRC, to this point, has appeared in all but one of the CHRT adjudications. If the CHRC were to become the "complainant" in every section 13 case that comes before the CHRT, then the case for some form of legal assistance to respondents would become stronger. The principal remedy for breach of section 13 should continue to be a cease and desist order. While an order of compensation may no longer be appropriate, the CHRT should continue to have the power to impose fines.

At present the complaint process relies heavily on the initiative of individuals and groups. The changes to the process I have proposed would put a greater burden on the CHRC. However, if hate speech on the Internet is so harmful that it ought to be banned, then we should be prepared to devote the resources needed to enforce its ban.

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