Last year, on the final day that the House of Commons sat before rising for the summer, the Trudeau government tabled a bill that would have allowed the Canadian Human Rights Commission to investigate complaints of alleged hate speech on the internet.
The Liberals knew full well that they would be calling an election less than two months later, and that their last-minute bill would die on the order paper. But tabling it gave them an opening to boast at the start of the pre-electoral summer of 2021 that their government had taken “action to protect Canadians against hate speech and hate crimes” online, even though they had taken no such action. And still have not. And, as we will explain in a moment, probably should not.
The Liberals have not reintroduced the bill to date, as they implied they would in their election platform. Nor have they kept a campaign promise that, if re-elected, their government would introduce separate “legislation within its first 100 days to combat serious forms of harmful online content.”
This is not to say they won’t do these things, eventually. But the fact that 100 days have come and gone without the promised legislation is evidence the Trudeau Liberals have discovered a simple truth: that sloganeering about online harms is easy and attracts votes, while actually following through is hard, and may attract (and deserve) criticism.
Any attempt by Ottawa to regulate who says what on the internet is a minefield, because doing so necessarily impinges on the most fundamental democratic freedom – freedom of speech.
The Trudeau government’s plan to go after digital hate speech under the Canadian Human Rights Act, and giving the power to investigate and regulate it to the Canadian Human Rights Commission, is fraught with problems.
A previous Liberal government tried it in 2001, when it specifically amended the act to make it a discriminatory practice to subject anyone online to “hatred or contempt” based on a prohibited ground of discrimination, such as religion, race or sexual orientation. The clause was repealed in a Conservative private member’s bill in 2013 because of fears it was having a chilling effect on free speech.
Those fears were well founded. In one famous case, the Canadian Human Rights Commission investigated a complaint about a 2006 Maclean’s magazine article titled The Future Belongs to Islam.
The commission ultimately dismissed the claim that the article exposed Muslims to hatred or contempt, on the grounds that ruling otherwise would be an unreasonable impairment of free expression. But that didn’t prevent Maclean’s and the article’s author from having to go through a long, expensive and difficult CHRC process.
Subsequent reports commissioned by the CHRC suggested fixes, such as allowing the commission to quickly dismiss unfounded complaints, and to assign costs for abuses. Better yet was the recommendation to leave the prosecution of hate crimes to the criminal justice system – Crown prosecutors, judges and real courts. That is what ultimately happened, and that is what the Liberals now want to change.
The 2021 Liberal bill aimed to once again make alleged hate speech something the CHRC could investigate, under the rubric of discrimination law, while also modestly shortening the CRTC’s leash compared with the 2001 legislation. Notably, it put a high bar on hate speech, categorizing it as something that “is likely to foment detestation or vilification of an individual or group” – a definition in line with Supreme Court rulings. It also added that a communication doesn’t constitute hate speech “solely because it expresses mere dislike or disdain or it discredits, humiliates, hurts or offends.”
But classifying hate speech as a legally discriminatory act, to be dealt with by a human-rights apparatus rather than a court, remains as problematic a move as ever. Freedom of expression is not absolute in Canada – no right is – but the bar for overriding it has always been extremely high, and must remain so. What’s more, the bar for hate speech ought to remain in the criminal realm, where it is an offence that is only applicable to the most rare and extreme cases. Allowing it to be turned into a human-rights complaint was a mistake then, and it’s a mistake now.
The Trudeau government’s plan to introduce sweeping legislation to limit online harms, and to force social-media companies and search engines to take down flagged content, is equally fraught. We will look at that later this week.
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