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Part V: The Way Forward

Two alternatives have been suggested for the future:

• Complete reliance on the Criminal Code to deal with hateful expression. This was Professor Moon’s main recommendation.
• Continuation of the dual approach with both the CHRA and the Criminal Code being applied as appropriate.

These two broad alternatives have been the main focus of public debate, editorial comment and submissions made to the Commission. With regard to both, useful suggestions have been made for legislative amendments and administrative improvements to ensure greater effectiveness.

The Commission has concluded that the dual approach, although certainly not perfect, has worked well and can continue to do so in the future.

The dual approach ensures that there are two distinct tools that can be used to deal with hate on the Internet:

• First, the criminal law, to deal with situations where the person posting hate does so with criminal intent and therefore is deserving of punishment by way of fines or incarceration. The Criminal Code is the most severe mechanism that can be used to deal with any problem in society. Its necessity is undeniable. However, the prosecution, incarceration and stigma that can flow from the criminal justice system are not necessary to deal with every situation.
• Second, human rights law, to deal with situations where the intent of the person posting the messages may not be as clear, but where the extreme nature of the hate messages and their impact warrant an order that the messages be removed irrespective of the moral blameworthiness of the person posting them.

The Commission is mindful of the changing nature of hate activity, especially with regard to hate on the Internet. The Commission is also aware of the criticism by some of how the Commission deals with section 13 cases. Both the Criminal Code and the CHRA could be amended to better deal with current realities. This section reviews the Commission’s observations and recommendations.

In the submissions made to the Commission and in the broad public debate, constructive suggestions have been made on how section 13 might be amended to ensure its continued effectiveness in dealing with extreme hate messages.

Following is a discussion of some of the key issues raised and the Commission’s recommendation on how to proceed.

The CHRA does not include definitions of "hatred" or "contempt." It has been argued that this vagueness has resulted in the filing and investigation of unfounded claims under section 13.

As discussed previously, the Supreme Court has adopted a restrictive definition of these terms that limits the application of section 13 to the most extreme forms of hate messages. However, this information is not readily available to individuals reading the CHRA. To be effective, legislation should be clear on its face. The CHRA should be amended to clearly state that section 13 applies only to ardent and extreme messages suggesting a given race, sex, religion or other protected group is devoid of any redeeming qualities as human beings.

In providing his second option (retention of section 13), Professor Moon recommends that the Act be amended to include a definition of hate that is the same as the one he proposes for the Criminal Code, that is, requiring a direct link to violence. In the Commission’s view, the requirement for a link to violence would risk imposing an overly narrow scope to both the CHRA and the Criminal Code (see discussion under "Observations Regarding the Criminal Code — Definition of Hatred").

Pending possible amendments, the Commission intends to issue a plain language policy or guideline detailing how the Commission interprets and applies the operative words in section 13 in the screening of complaints.

Concerns have been raised that the lack of an intent provision in section 13 may result in complaints against people who had no intention of promoting hatred and, in some cases, may have been trying to combat it. In the Commission’s view, this concern has been overstated. For example, it has been argued that someone writing an academic article on Holocaust denial that includes examples of Holocaust denial writings could be subject to a complaint. While intent is not a factor in human rights law, the context of an alleged hateful message is always relevant. The Commission routinely considers the context of an alleged hate message; a complaint such as that described here would be dismissed.

Concerns have been expressed that there is an undue financial burden on respondents when complaints are filed against them. Even if a complaint is dismissed, respondents must bear their own costs. The CHRA does not allow for the awarding of costs.

At the Commission level, neither respondents nor complainants are required to have legal counsel to represent them. The process is simple. The CHRA requires the Commission to designate investigators to investigate each complaint with which it deals. The investigation process comprises an exchange of documents, and interviews with witnesses and parties. When the investigation is completed, the parties are informed of the findings. Parties can make written submissions. The investigation report and any submissions in the case file are given to Commissioners for a decision. The decision is based entirely on documentary evidence; no hearings are held and the Commission can make no finding of liability.

At the Tribunal, many parties feel a need for legal representation although there is no statutory requirement for it. As with many administrative tribunals and courts, unrepresented litigants are provided guidance by the Tribunal to ensure their cases are properly presented.

The 2000 report of the Canadian Human Rights Act Review Panel, chaired by retired Supreme Court Justice Gérard La Forest, considered the issue of the awarding of costs and recommended that costs be awarded, but only in special situations where there has been misconduct by a party:

We considered the issue of whether the Act should specifically empower the Tribunal to award costs. We do not think that costs of legal proceedings are generally appropriate in human rights cases under the Act.

However, we do think that costs should be awarded against a party that has intentionally delayed the hearing of a case or is guilty of misconduct in the proceedings.⁴⁸

The Commission agrees with this recommendation.

Potential chilling effect and the complaints-handling process

Professor Moon and others raise the concern that the mere filing of a complaint, even if it is ultimately dismissed, can have a chilling effect on freedom of expression; that is, that people may refrain from posting something on the Internet out of concern that someone might file a complaint. Whether such a chill actually exists cannot be proven. Nonetheless, the Commission does recognize that there is potential for a "chill" scenario to arise.⁴⁹

The potential for a chilling effect may be heightened by a lack of understanding of the Commission’s screening role and the remedial focus of the Tribunal. An example is the often-quoted description of the human rights process as a "prosecution" and its outcome as a "conviction." The use of these inaccurate words contributes to the misperception that the human rights process is quasi-criminal. The Commission has a responsibility to better inform the public about its role and processes.

In addition, the time taken to complete the screening function can contribute to a sense of chill. With the need for due process, and with modern approaches that encourage opportunities for dialogue and settlement, it can take several months or longer to process a complaint. This is typical for all cases brought to administrative tribunals or courts.

The Commission’s new triage process ensures that all complaints, including those under section 13, are dealt with as expeditiously as possible by identifying immediately the most appropriate mechanism to deal with the complaint (summary dismissal under section 41, mediation, investigation, etc.). Overall improvements in the case-handling system have reduced to nine months the average time for the Commission to deal with complaints. Many complaints are often processed more quickly, some in a matter of weeks.

Complaints filed under section 13 generally do not require the same degree of investigation as other complaints, although identifying the source of an Internet message can be difficult and may cause delays. Most often, the main issue to be determined is whether the messages constitute hatred or contempt as defined in Taylor (Taylor Test). This is usually apparent on its face from a review of the messages. Section 13 cases can therefore be processed in a more expedited manner than other complaints.

Sections 41 and 44 of the CHRA allow the Commission to dismiss or refuse to deal with certain complaints at an early stage without investigation. However, there is no clear provision under section 41 to dismiss section 13 complaints that do not meet the narrow definition in Taylor. If the CHRA is amended by adding the statutory definition of hatred and contempt, as proposed in Recommendation 2, it would be possible for the Commission to quickly dismiss complaints that do not meet this definition, as these would fall outside the Commission’s jurisdiction under section 41(1)(c). Alternatively, since it is important to minimize any chilling effect on freedom of expression, it may be in the public interest for the Commission to have an explicit provision under section 41 to dismiss complaints that do not meet the Taylor Test.

Carriage of cases

Professor Moon recommends that the Commission be given the exclusive authority to initiate and pursue hate messages complaints, meaning that the right of individuals to file hate messages complaints would be removed, as would the burden on complainants to pursue and prove the complaint.

The Commission already has the power to file complaints on its own initiative. In fact, the Commission and other parties initiated the Taylor complaint. Although this power has not been exercised in recent years, the Commission would exercise it when circumstances require.

On balance, the Commission supports the right of individuals to file complaints under section 13.

The filing of the same substantive complaint in more than one jurisdiction, sometimes referred to as "forum shopping," is an extremely rare occurrence. This type of overlapping of complaints is inherent in a federal system such as ours in Canada where there are 14 jurisdictions dealing with human rights complaints (10 provincial, 3 territorial and 1 federal).

The Commission agrees that it is not productive or fair for a respondent to be required to respond to the same substantive complaint in different jurisdictions.

Section 27(c) of the CHRA already provides that the Commission:

… shall maintain close liaison with similar bodies or authorities in the provinces in order to foster common policies and practices and to avoid conflicts respecting the handling of complaints in cases of overlapping jurisdiction;

Pursuant to this mandate, the Commission has initiated discussions with our counterpart provincial and territorial agencies through our collective organization, the Canadian Association of Statutory Human Rights Agencies. The purpose of this initiative is to work toward avoiding duplication of proceedings in the future.

Section 54(1) of the CHRA allows for fines of up to $10,000 being assessed against those who violate section 13. Since 2001, the Tribunal has ordered the payment of penalties in 11 cases. There are no other fine provisions for discriminatory practices in the CHRA. This is because human rights law is intended to be remedial and not punitive. Some respondents have challenged the penalty provision as being inconsistent with the purpose of human rights law. The Commission agrees that the provision does not fit easily within the human rights system and that it should be removed.

Observations Regarding the Criminal Code

The effective functioning of the Criminal Code is essential to the dual-track approach recommended in this report. Professor Moon and others have suggested ways the Criminal Code might be changed to make it more effective. The Criminal Code falls outside the Commission’s jurisdiction, hence, the Commission will not make specific recommendations for change. However, since the Criminal Code’s hate provisions impact on human rights, the Commission offers observations on some of the important issues.

The requirement for proof beyond a reasonable doubt is a basic principle in criminal law. The requirement is particularly difficult in prosecuting charges under the hate provisions of the Criminal Code.

For example, in the recent case of Her Majesty the Queen v. David Ahenakew,⁵⁰ the Court found that although the accused had made public statements about Jewish people that were "revolting, disgusting, and untrue," he could not be convicted because it was not proven beyond a reasonable doubt that he intended to promote hatred against Jews.

The difficulty in proving intent may explain why so few cases have been prosecuted and even fewer have resulted in convictions.

On the other hand, intent is not relevant in the human rights law context where the focus is on the messages themselves and their impact on their targets. Pairing the CHRA with the Criminal Code allows the flexibility to deal with cases where intent does not exist or cannot be proven beyond a reasonable doubt.

Professor Moon recommends narrowing the meaning of "hatred" in the Criminal Code. The report states that hate speech " . . . should be confined to expression that advocates, justifies or threatens violence."⁵¹

In the Keegstra decision, as in Taylor, the Supreme Court adopted a narrow definition of hatred:

... in my opinion the term "hatred" connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation . . .

Hatred is not a word of casual connotation. To promote hatred is to instil detestation, enmity, ill-will and malevolence in another. Clearly an expression must go a long way before it qualifies within the definition in [s. 319(2)].(Quoting Andrews)

Hatred is predicated on destruction, and hatred against identifiable groups therefore thrives on insensitivity, bigotry and destruction of both the target group and of the values of our society. Hatred in this sense is a most extreme emotion that belies reason; an emotion that, if exercised against members of an identifiable group, implies that those individuals are to be despised, scorned, denied respect and made subject to ill-treatment on the basis of group affiliation.⁵²

The new definition proposed by Professor Moon is narrower than the current Supreme Court definition, as it would apply only to messages that have a clear link to violence. How this narrower definition might have applied to the Keegstra case is instructive. As noted previously, Keegstra taught his students that a vile, demonic Jewish conspiracy was ruling the world. However, the Court found that Mr. Keegstra did not threaten or intend to provoke violence against Jews. Under the proposed narrower definition, Keegstra may not have been convicted.

The Commission is concerned that narrowing the definition to the extent proposed by Professor Moon would unduly limit the possibility of prosecuting very extreme forms of expression such as those of Mr. Keegstra.

The requirement for the consent of an Attorney General was likely included in the law as a safeguard against frivolous prosecutions. However, some police and Crown prosecutors are concerned that this requirement unduly hampers prosecutions. Professor Moon also expressed concerns in this regard.

Professor Moon recommends that this matter be considered further and that if it appears that the consent requirement is a barrier to the prosecution of serious hate propaganda cases, the Criminal Code be amended to remove this requirement. The Commission concurs with this approach.

Under the Criminal Code, the offence of hate propaganda includes a defence of truth. Professor Moon recommends the removal of this defence on the basis that a hate message suggesting that a given race, sex or religion is devoid of any redeeming qualities as human beings can never be true and therefore the justice system should not give hate-mongers a platform to make this argument in a criminal trial. In this, Professor Moon agrees with Mark Freiman, former Deputy Attorney General of Ontario, who explained why the propagation of hatred against an entire group could never be true:

Individuals may well be deserving of hatred or contempt, but that is always based 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 well be deserving of hatred or contempt no matter what that person’s race, religion, creed, gender or sexual orientation. The defamatory words are therefore, in the language of the law of defamation, "justified."

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 (emphasis added).⁵³

As this issue has resurfaced since the original drafting of the legislation, Parliament may wish to include considerations about the defence of truth in its deliberations.

Professor Moon makes recommendations as to the manner in which provincial police and Crown prosecutors could coordinate their efforts to protect Canadians from hate propaganda. Relatively few jurisdictions have special police hate crime units and/or Crown prosecutors with specialized knowledge in this area of the law. Where they do exist, particularly in British Columbia, they have been beneficial.⁵⁴ Professor Moon also recommends more frequent use of section 320 of the Criminal Code that allows the issuance of an order to remove hate propaganda material from a computer.

The Commission commends these ideas for consideration by the appropriate jurisdiction.

48. Promoting Equality: A New Vision, Final Report of the Canadian Human Rights Act Review Panel, 2000, page 71
49. This potential is less in a human rights complaint than in a criminal prosecution: “…the chilling effect of prohibitions on expression is at its most severe where they are effected by means of the criminal law. It is this branch of the law more than any other which the ordinary, law-abiding citizen seeks to avoid.” Keegstra Per Justice McLachlin.
50. Saskatchewan Provincial Court, February 23, 2009.
51. Moon Report.
52. Keegstra.
53. Mark Freiman article, “Litigating Hate on the Internet”, in Hate on the Net, Canadian Issues, Spring 2006.
54. Myron Claridge article: The Criminal Code and Hate: A Criminal Law Approach to Combating Hate, in Hate on the Net, Canadian Issues, Spring 2006

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