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Acknowledgements
While preparing this report over the summer, I met or spoke with a number of individuals and organizations. I wish to thank those who took the time to speak with me. I benefited enormously from their insights. I wish also to thank Harvey Goldberg and the other members of the "Anti-Hate Team" at the CHRC for sharing with me their knowledge of the system, both its strengths and weaknesses. I was impressed by their integrity and commitment to public service. I would also like to thank Jane Bailey, Bill Bogart, Audrey Macklin, Luke McNamara, David Schneiderman, Martin Townsend and Kent Roach for their comments on an earlier version of this report.
Introduction
In June of this year I was asked by the Canadian Human Rights Commission (CHRC) to consider, and to make recommendations concerning, "the most appropriate mechanisms to address hate messages and more particularly those on the Internet, with specific emphasis on the role of section 13 of the CHRA [Canadian Human Rights Act] and the role of the Commission."1 I was asked to "take into consideration: existing statutory/regulatory mechanisms; whether they are appropriate and/or in any manner, require further precision; the mandates of human rights commissions and tribunals, as well as other government institutions presently engaged in addressing hate messages on the Internet; whether other governmental or non-governmental organizations might have a role to play and if so, what that role might be; Canadian human rights principles, including but not limited to, those contained in the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms ; Canada’s international human rights obligations; and comparable international mechanisms." I was asked to provide a final report to the Commission on or before October 17, 2008.
In formulating my recommendations I have drawn on academic, public policy and popular writing dealing with Internet hate speech and human rights code regulation. I have also benefited from discussions with individuals and organizations representing different interests and offering a wide range of perspectives. I also received a number of solicited and unsolicited submissions, which I read with care and which in general I found to be thoughtful and helpful. Time and resource constraints, however, made it impractical for me to consult more broadly within the community. These constraints also prevented me from straying very far beyond an examination of the legal regulation of hate speech. While I have made several recommendations concerning the role of non-state actors in the fight against hate speech, time has prevented me from developing these recommendations as fully as I would have liked.
(b) Summary of Recommendations
The use of censorship by the government should be confined to a narrow category of extreme expression – that which threatens, advocates or justifies violence against the members of an identifiable group, even if the violence that is supported or threatened is not imminent. The failure to ban the extreme or radical edge of discriminatory expression carries too many risks, particularly when it circulates within the racist subculture that subsists on the Internet. Less extreme forms of discriminatory expression, although harmful, cannot simply be censored out of public discourse. Any attempt to exclude from public discourse speech that stereotypes or defames the members of an identifiable group would require extraordinary intervention by the state and would dramatically compromise the public commitment to freedom of expression. Because these less extreme forms of discriminatory expression are so commonplace, it is impossible to establish clear and effective rules for their identification and exclusion. But because they are so pervasive, it is also vital that they be addressed or confronted. 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 engage in these forms of discriminatory expression.
This understanding of the purpose of hate speech law, as the protection of the members of identifiable groups from the risk of violence generated by hate speech, is narrower than the more familiar justification which emphasizes the protection of the individual’s dignity and his/her right to equal respect within the community. It may, however, offer 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 few 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 almost all involved expression that is so extreme and hateful that it may be seen as advocating or justifying violence against the members of an identifiable group. However, 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, emphasizes the effect of the action on the victim rather than the intention or misconduct of the actor and employs a process that is designed to engage the parties and facilitate a non-adjudicative resolution of the "dispute" between them.
My recommendations, which are developed in sections 4 and 5 of the report, may be divided into three parts:
1. The first recommendation is that section 13 of the CHRA be repealed, so that the CHRC and the Canadian Human Rights Tribunal (CHRT) no longer deal with hate speech, and in particular hate speech on the Internet. Hate speech should continue to be prohibited under the Criminal Code2 but this prohibition should be confined to expression that advocates, justifies or threatens violence. In the fight against hate on the Internet, police and prosecutors should make greater use of section 320.1 of the Criminal Code, which gives a judge power to order an Internet service provider (ISP) to remove "hate propaganda" from its system. Each province should 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.
2. The second part of my recommendations concerns changes that should be made to section 13 of the CHRA if it is not repealed. These changes would reshape section 13 so that it more closely resembles a criminal restriction on hate speech. They include: (i) changes to the language of section 13(1) to make clear that the section prohibits only the most extreme instances of discriminatory expression, and more particularly expression that threatens, advocates or justifies violence against the members of an identifiable group; (ii) the amendment of section 13(1) to include an intention requirement; and (iii) the amendment of the CHRA to establish a distinct process for the investigation of section 13 complaints by the CHRC. Under the amended process, the CHRC would receive inquiries and information from individuals or community groups but would no longer investigate and assess formal complaints from private parties. Instead, the CHRC would have the exclusive right to initiate an investigation in section 13 cases. If, following an investigation, the CHRC recommends that the case be sent to the CHRT for adjudication, the Commission would have carriage of the case before the Tribunal. This would remove the significant burden that under the existing system falls on the complainant. It would also enable the CHRC to dismiss (decide not to pursue) a "complaint" earlier in the process when it finds that the communication at issue does not breach the section 13(1) standard and the complaint is unlikely to succeed at the CHRT.
3. The third set of recommendations concerns the role of non-state actors in the prevention of expression that is hateful or discriminatory in character. First, the major Internet service providers (ISPs) should consider the creation of a hate speech complaint line and an advisory body, composed of individuals with expertise in hate speech law, that would give its opinion as to whether a particular website hosted by an ISP has violated section 13 of the CHRA or the "hate propaganda" provisions of the Criminal Code. If this body were to decide that the complaint is well-founded, the ISP would then shut down the site on the basis of its user agreement with customers. Second, newspapers and news magazines should seek to revitalize the provincial/regional press councils (which in some provinces or regions have become nearly moribund) and ensure that identifiable groups in the community are able to pursue complaints that they have been unfairly represented in the mainstream print media. If this does not happen, consideration should be given to the statutory creation of a national press council with compulsory membership. This national press council would have the authority to determine whether a newspaper or magazine has breached professional standards and to order the particular newspaper or magazine to publish the press council’s decision. A newspaper is not simply a private participant in public discourse; it is an important part of the public sphere, where discussion about the affairs of the community takes place. As such it carries a responsibility to portray fairly and without discrimination the different groups that make up the Canadian community.
