Resources

Publications

Reports

Executive Summary

The Canadian Human Rights Commission presents this Special Report to Parliament by its authority under section 61(2) of the Canadian Human Rights Act (CHRA). The purpose of the Report is to provide a comprehensive analysis of a current debate: what is the most effective way to prevent the harm caused by hate messages on the Internet, while respecting freedom of expression?

Freedom of expression is a fundamental right of Canadian democracy. So too is the right of all citizens to be treated with equality, dignity and respect, and to be protected from the harm that can be caused by hate messages. In Canada, for matters under federal jurisdiction, there are two main legal mechanisms for doing this – the Criminal Code of Canada and the CHRA.

Section 13 of the CHRA prohibits the repeated electronic transmission of messages that are likely to expose an individual or a group of individuals to hatred or contempt based on a prohibited ground of discrimination. Section 13 has always been controversial, but particularly so since it was amended in 2001 to include hate on the Internet.

The Internet is a remarkably valuable, powerful and potentially dangerous medium. It defies international borders and conventional concepts related to the creation and ownership of content. Users can readily post and instantly disseminate content to virtual communities worldwide. Regrettably, the Internet is also used to disseminate hate messages and other potentially harmful content.

The core matter at issue is what legal mechanisms should be used to deal with extreme forms of hateful expression that fall under federal jurisdiction. Some have argued that this should be dealt with solely under the Criminal Code and that the Commission’s mandate under section 13 should be ended. Others favour maintenance of the current dual approach that allows for human rights law or the criminal law to be applied depending on the circumstances. With either scenario, people speak about the need to correct shortcomings.

Freedom of expression is a fundamental right in Canada enshrined in the Canadian Charter of Rights and Freedoms. However, no right is absolute. The modern concept of rights is that of a matrix with different rights and freedoms mutually reinforcing each other to build a strong and durable human rights system. There is no hierarchy of rights with some rights of more importance than others.

Words and ideas have power. That power, while overwhelmingly positive, can also be used to undermine democracy, freedom and equality. It is for this reason that Canada, and many other nations, have enacted laws to limit forms of extreme hateful expression that have very minimal value in the free exchange of ideas, but do great harm to our fellow citizens.

Both the Criminal Code and the CHRA have been challenged before the Supreme Court of Canada as being inconsistent with the Charter’s guarantee of freedom of expression. The Court determined that, while the laws did impinge on freedom of expression, the limitations imposed were necessary and justified in order to ensure the preservation of other Charter values such as equality and multiculturalism. Further, the Supreme Court decisions defined the type of extreme expression targeted by these two laws very narrowly. In the case of section 13, it specified that "hatred" and "contempt," the operative words in the section, refer only to "unusually strong and deep-felt emotions of detestation, calumny and vilification . . ." which are "ardent and extreme" in nature.

The CHRA does not regulate offensive speech, nor should it. While civility is to be desired, in the rough and tumble of democratic debate, offence will be given and feelings will be hurt. However, freedom of expression is not a licence to hate.

Narrow limits on extreme speech have long been accepted by many democratic states. Moreover, such limits are consistent with international human rights law that gives equal place to freedom of expression with the right of all citizens to live in dignity and equality.

The Criminal Code and the CHRA address the issue of hateful expression in different ways. The Criminal Code is punitive. Conviction can result in imprisonment. Consequently, the burden of proof is the criminal standard of beyond a reasonable doubt.

The CHRA, as a human rights law, is remedial in nature. The objective of the law is to remedy the situation – in this case the removal of the hateful messages – and not to punish the respondents. The burden of proof is a balance of probabilities.

Professor Richard Moon, a legal expert on freedom of expression, was engaged by the Commission to provide his advice and analysis on how to proceed as part of the Commission’s overall review of section 13. His primary recommendation was to repeal section 13 and leave the prosecution of extreme speech to the Criminal Code.

The Commission has considered Professor Moon’s recommendations and the submissions made to the Commission by various organizations and members of the public. The Commission has concluded that both the Criminal Code and the CHRA, each with its own purpose, are effective in dealing with hate messages on the Internet.

The Commission is also proposing improvements to the CHRA to address shortcomings that were identified through its consultations:

• add a statutory definition of "hatred" and "contempt" in accordance with that applied by the Supreme Court of Canada in Canada v. Taylor, 1990;
• allow for an award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process;
• include a provision under section 41 to allow the early dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt; and
• repeal the provision that allows for the assessment of fines against those who violate section 13.

Further, the Commission makes observations with respect to improving the effectiveness of the Criminal Code, including that:

• the requirement for consent of an Attorney General be reviewed as a possible barrier to prosecutions; and
• jurisdictions consider the benefits of better coordination between Crown prosecutors and police services in their efforts to protect Canadians from hate propaganda.

Section 13 cannot be viewed in isolation. Hate on the Internet is part of a broader pattern of hatred, prejudice and discrimination in Canada. While Canada is one of the most tolerant of nations, discrimination continues to exist. All levels of government, civil society, telecommunication companies, and many other stakeholders have roles to play.

Navigating the conflict and finding an appropriate balance between the right to freedom of expression and the right to live free from discrimination and free from harm caused by hate messages is vital to Canada’s continued growth as a diverse, inclusive and progressive nation that values equality for all. The Commission’s Special Report, which is based on consultation and expert opinion, is intended to inform the public and Parliamentary debate on this important issue.

Introduction

Freedom of expression is a fundamental right of Canadian democracy. So too is the right of all citizens to be treated with equality, dignity and respect, and to be protected from the harm that can be caused by hate messages. Finding the appropriate balance between these rights is a challenge for all democratic societies.

Section 13 of the CHRA prohibits the repeated electronic transmission of messages that are likely to expose an individual or a group of individuals to hatred or contempt based on a prohibited ground of discrimination.¹ Section 13 has always been controversial. A particularly vigorous debate has arisen since 2007 when a complaint against a mainstream news magazine was filed (In June 2008, the Commission dismissed the complaint).

The core matter at issue is what legal mechanisms should be used to deal with extreme forms of hateful expression that fall under federal jurisdiction. Some have argued that this should be dealt with solely under the Criminal Code and that the Commission’s mandate under section 13 should be ended. Others favour maintenance of the current dual approach that allows for human rights law or the criminal law to be applied depending on the circumstances. With either scenario, people speak about the need to correct shortcomings.

This Special Report to Parliament analyzes the current situation and provides advice to Parliament on options for the future. By tabling this Report, the Commission aims to further the public interest by ensuring that discussions are well informed and grounded in fact. The Commission recognizes that public discussions play an important role in ensuring that legislation and policies continue to be effective.²

In June 2008, Chief Commissioner, Jennifer Lynch, Q.C., announced that the Commission would be conducting a comprehensive policy review of section 13. In announcing the review, the Chief Commissioner stated:

As human rights bodies, we must recognize, adapt and respond to change. Our progress is measured by our ability to be an effective influence within our rapidly-changing society.

[…]

The Commission is dedicated to ensuring that the Canadian Human Rights Act remains effective. Legislation must evolve — when necessary — to respond [to] and reflect changes in our society . . .

The first phase of the review was the development of an independent report by Professor Richard Moon, an expert on freedom of expression and member of the Law Faculty, University of Windsor. Professor Moon’s terms of reference asked him to conduct legal and policy research and analysis, and then to make recommendations on the most appropriate mechanisms for addressing hate messages, particularly those on the Internet. Emphasis was to be given to section 13 of the CHRA and the role of the Commission.

The Commission released Professor Moon’s Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet in November 2008. The public was invited to submit comments on the Report. The Commission, in the preparation of this Special Report, has considered the public’s comments and Professor Moon’s recommendations. For a summary of Professor Moon’s recommendations, please see Annex A.

1. Under the CHRA, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, or conviction for which a pardon has been granted.
2. The Commission is tabling this report in Parliament pursuant to section 61(2): The Commission may, at any time, prepare and submit to Parliament a Special Report referring to and commenting on any matter within the scope of its powers, duties and functions if, in its opinion, the matter is of such urgency or importance that a report on it should not be deferred until the time provided for submission of its next annual report under subsection (1).

Previous Page Table of Contents Next Page