On July 22, 2020, civil liberties associations were invited by the Minister of Justice and Attorney General of Canada (MJAG) to participate in a roundtable discussion as part of consultations to “inform the development of legal remedies for victims of online hate.”
This consultation document was attached to the MJAG’s email, and is intended to “guide” the roundtable discussion.
The consultation document, which refers to the June 2019 report of the Standing Committee on Justice and Human Rights entitled “Taking Action to End Online Hate”, proposes three potential “legal remedies for victims of online hate”. These three items are as follows, with our brief explanation added in parentheses for each one:
I. Consideration of civil remedy to combat online hate (reviving section 13 of the Canadian Human Rights Act)
II. Amending section 319 of the Criminal Code (to remove the requirement for Attorney General consent prior to proceeding with a “hate speech” prosecution)
III. Adding a peace bond to the Criminal Code (imposing pre-conditions on individual freedoms, in anticipation of future violations of the “hate speech” Criminal Code provisions)
The OCLA has previously communicated its reasoned arguments that the “hate speech” provisions of Canada’s Criminal Code are unconstitutional, in contravention of the International Covenant on Civil and Political Rights (ratified by Canada in 1976), and therefore must be repealed.
In particular, we expressed this position in our July 24, 2018 letter to the Attorney General of Ontario about Criminal Code censorship prosecutions in Ontario. We have sent our 2018 letter to the MJAG and asked for it to be shared with roundtable participants in the current consultations.
Regarding the items I-III listed above, OCLA opposes reviving the repealed section 13 of the Canadian Human Rights Act; section 13 was broadly recognized as a censorious law used to attack individuals’ freedom of expression, and was rightly repealed in 2013.
Item III in the MJAG’s consultation document would give authorities the extreme power to:
“… prevent criminal conduct before it occurs by allowing a person to apply to a court when they have reasonable grounds to fear that another person will commit certain conduct. … (e.g. conditions could include electronic monitoring, restrictions on the use of computers and/or the internet, restrictions on access to weapons, reporting to police). A failure to follow those conditions can result in criminal charges.” (MJAG consultation document, pg. 2)
This is an astounding proposal to extend the reach of an unjust law. We note that the anticipated future “criminal conduct” in this case is speech in which no actual harm to any specific person needs to be proven by the State; nor does the anticipated “criminal” speech involve incitement of a crime, but rather incitement of “hatred” (an emotion which is not in itself a crime) in unspecified persons at large. For example, could the simple act of reading a controversial text or document constitute “reasonable grounds to fear” that the reader will repeat or comment on “hateful” material therein?
We make no comment on Item II since it would be nonsensical to discuss tweaking the parameters of a law that grossly violates the fundamental human right of freedom of expression and that is harmful to democracy.
We urge all lawmakers in Parliament to repeal the “hate speech” provisions of Canada’s Criminal Code and to resist further damaging freedom of expression in Canada.
Update 2021-06-23: Email from MJAG announcing introduction of Bill C-36, An Act to amend the Criminal Code and the Canadian Human RightsAct and to make related amendments to another Act (hatepropaganda, hate crimes and hate speech)
