Canadian Human Rights Commission

Canadian Human Rights Commission

June 11, 2009 10:08 ET

Canadian Human Rights Commission Releases a Special Report to Parliament

"Freedom of Expression and Freedom from Hate in the Internet Age"

OTTAWA, ONTARIO--(Marketwire - June 11, 2009) - Today, the Canadian Human Rights Commission recommended to Parliament that the Canadian Human Rights Act continue to be used to protect Canadians from the harm caused by extreme hate messages on the Internet, and proposed changes to make the system more effective.

"The Canadian Human Rights Act is remedial in nature and focuses on the removal of extreme hate messages. On the other hand, the Criminal Code is the most severe mechanism and aims at punishing criminal intent," CHRC Chief Commissioner Jennifer Lynch, Q.C. said upon releasing the Report. "Both serve useful purposes in protecting Canadians from discrimination in today's society."

The Commission's Report also proposes improvements to the Canadian Human Rights Act to address shortcomings that were identified through its consultations. These include providing a statutory definition of hatred and contempt, repealing the penalty provision, and including a provision to allow the Commission to summarily dismiss complaints where the messages do not constitute hatred.

As the Report points out, discrimination still exists in Canada despite the important progress made. Human rights commissions and tribunals have a key role to play in safeguarding equality and in protecting and promoting the human rights that are fundamental to Canadian society.

"The dissemination of hate messages undermines equality and the right of individuals to be free from discrimination," said Ms. Lynch. "Canada does not recognize a hierarchy of rights; no single right is more important than any other. As a progressive, modern nation, Canada must navigate the conflict and find an appropriate balance between the right to freedom of expression and the right to freedom from hate."

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. The Report is now available on the Commission's website at www.chrc-ccdp.gc.ca



BACKGROUNDER

Executive Summary - Special Report to Parliament: Freedom of Expression and Freedom from Hate in the Internet Age

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 debate

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.

No hierarchy of rights

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 Commission's analysis

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.

The Report is available on the Commission's Internet site at: www.chrc-ccdp.gc.ca.

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