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Annex A

Moon Report: Summary of Recommendations

Excerpted from: 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, by Professor Richard Moon, page 1

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 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.

Annex B

Criminal Code Provisions Dealing with Hate

Hate Propaganda

Advocating genocide

318(1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Definition of "genocide"

(2) In this section, "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,

(a) killing members of the group; or

(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.

Consent

(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.

Definition of "identifiable group"

(4) In this section, "identifiable group" means any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.
R.S., 1985, c. C-46, s. 318; 2004, c. 14, s. 1.

Public incitement of hatred

319(1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Wilful promotion of hatred

(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

Defences

(3) No person shall be convicted of an offence under subsection (2)

(a) if he establishes that the statements communicated were true;

(b) if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text;

(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or

(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred toward an identifiable group in Canada.

Forfeiture

(4) Where a person is convicted of an offence under section 318 or subsection (1) or (2) of this section, anything by means of or in relation to which the offence was committed, on such conviction, may, in addition to any other punishment imposed, be ordered by the presiding provincial court judge or judge to be forfeited to Her Majesty in right of the province in which that person is convicted, for disposal as the Attorney General may direct.

Exemption from seizure of communication facilities

(5) Subsections 199(6) and (7) apply with such modifications as the circumstances require to section 318 or subsection (1) or (2) of this section.

Consent

(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.

Definitions

(7) In this section,

"communicating"
« communiquer »

"communicating" includes communicating by telephone, broadcasting or other audible or visible means;

"identifiable group"
«groupe identifiable »

"identifiable group" has the same meaning as in section 318;

"public place"
«endroit public »

"public place" includes any place to which the public have access as of right or by invitation, express or implied;

"statements"
«déclarations »

"statements" includes words spoken or written or recorded electronically or electro-magnetically or otherwise, and gestures, signs or other visible representations.
R.S., 1985, c. C-46, s. 319; R.S., 1985, c. 27 (1st Supp.), s. 203; 2004, c. 14, s. 2.

Warrant of seizure

320.1(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.

Notice to person who posted the material

(2) Within a reasonable time after receiving the information referred to in paragraph (1)(c), the judge shall cause notice to be given to the person who posted the material, giving that person the opportunity to appear and be represented before the court and show cause why the material should not be deleted. If the person cannot be identified or located or does not reside in Canada, the judge may order the custodian of the computer system to post the text of the notice at the location where the material was previously stored and made available, until the time set for the appearance.

Person who posted the material may appear

(3) The person who posted the material may appear and be represented in the proceedings in order to oppose the making of an order under subsection (5).

Non-appearance

(4) If the person who posted the material does not appear for the proceedings, the court may proceed ex parte to hear and determine the proceedings in the absence of the person as fully and effectually as if the person had appeared.

Order

(5) If the court is satisfied, on a balance of probabilities, that the material is available to the public and 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, it may order the custodian of the computer system to delete the material.

Destruction of copy

(6) When the court makes the order for the deletion of the material, it may order the destruction of the electronic copy in the court’s possession.

Return of material

(7) If the court is not satisfied that the material i s available to the public and 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, the court shall order that the electronic copy be returned to the custodian and terminate the order under paragraph (1)(b).

Other provisions to apply

(8) Subsections 320(6) to (8) apply, with any modifications that the circumstances require, to this section.

When order takes effect

(9) No order made under subsections (5) to (7) takes effect until the time for final appeal has expired.
2001, c. 41, s. 10.

Annex C

Excerpts from Tribunal Decisions

The quotations below are examples of online hate messages that were found to breach Section 13 of the Canadian Human Rights Act.

The fact is that the Jewish Lobby — or the Israeli Lobby, as some like to call it — have long had a deliberate policy of lying to non-Jewish Americans. They lied to us about Hitler and about National Socialist Germany, because they wanted America to go to war with Hitler to destroy this threat to their schemes. They have lied to us about their own role in setting up the Communist conspiracy, which spread out of London and New York to Russia and from there to other countries until it engulfed half the earth and consumed tens of millions of human lives. And they have lied to us about a great number of other things, too — including their most infamous lie and the most lucrative and crooked scheme: the so-called "Holocaust."

Quotation from Tribunal decision:

[32] This leads to the thesis of the article’s third segment, Euthanasia and Race, which asserts that "severely retarded and brain damaged" do not qualify as "net contributors to society, but [are] a tragic drain" on their families and society as a whole. Advocates for the disabled are criticized for equating rights of "even the most severely retarded person with those of the cognitive elite." Such disabled persons should be euthanized, it is argued, and this in turn will have an impact on the "racial issue" because white couples who are "enslaved " by severely disabled children are less likely to have more white children. The article condemns the fact that "contemporary abortion laws allow the premeditated murder [of] a potentially healthy productive White foetus," while it is illegal and punishable by life sentence "to kill a severely retarded or brain damaged person who needs constant care at taxpayers’ expense for the duration of their pointless lives." In addition, the article posits that if the funds currently "misappropriated" to care for the severely disabled were spent providing "tax breaks to large families," White people would be encouraged to have more, healthy children. In making its points on this issue, the article refers to the "severely" disabled as "parasites," "incognizant primates," and "genetic throwbacks."

"no we should not be on the hook for them .it was a good idea at the time [Referring to residential schools] and most indians were for it .i wish my ancestors had killed them all so they wouldn’t be whinning today."

"i saw a film clip on the holohoax were a kid and his mother were separated in the camps! imagine how more worse the world would be if hitler hadnt fried all those jews! i wish i could have been in charge of the gas chambers!"

"i call on all my white brothers to rise up and kill non whites because god gave Canada to the white man."

"i told you the only good french man is a dead french man."

"the indian heathens should all be killed says i. a message from gods chosen one."

"if you are not white than you are not allowed in halton hills. If you come here god has told me to kill you."

"god says rise up and kill all whites who date blacks."

"GOD says tot take your guns to jane and finch (nigger town) and open fire on the heathens .you will have 20 virgins waiting for you in the after life."

"if i ever see any niggers or chinks dealing in my town[i represent g-town] i will kill them and anybody who dares testify."

"it s okay to not like someone because they look different. no matter what the french scum in Ottawa say. GO BACK TO FRANCE NOBODY CONSIDERS YOU CANADIANS ANYWAY."

(sic throughout)

"What those idiots are actually saying is that North York and Scarborough are infested with lazy, savage and totally worthless negroids and other muds of unidentified kind. It took my family less than a year to become productive members of the Canadian society. How long does it take for a 3rd world shit-skin to become a productive member of a white society? That’s right, forever. … For every one of those shit-skin businessmen, whose businesses are infected with white tax dollars, there are thousands of worthless sub-human scum."

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