The Office of the Prime Minister has forwarded to me a copy of your correspondence concerning section 13 of the Canadian Human Rights Act and hate crimes on the Internet.
As you may be aware, the Canadian Human Rights Commission (CHRC) is an independent agency that administers the Canadian Human Rights Act (CHRA) according to procedures specified by law, without interference from the Government.
You may be interested to know that the CHRC launched a comprehensive policy review on how best to deal with hate messages on the Internet, which also included an independent review of section 13 of the CHRA and the role of the CHRC by Professor Richard Moon of the University of Windsor. The CHRC released Professor Moon’s final report, and subsequently tabled a special report to Parliament entitled Freedom of Expression and Freedom from Hate in the Internet Age. I am in receipt of these reports and am considering their recommendations.
I note your concerns regarding a proposed amendment to the Criminal Code. Based on your correspondence, I assume you are referring to clause 5 of former Bill C-51, the Investigative Powers for the 21st Century Act. As you may know, the Government of Canada is committed to ensuring that law enforcement and national security agencies have the tools they need to fight crime in today’s high-tech environment. For this reason, on November 1, 2010, I introduced Bill C-51 in the House of Commons. This bill died on the Order Paper when Parliament was dissolved on March 26, 2011; however, our government intends to reintroduce this legislation in due course.
In addition to having created new production orders, preservation orders, and warrants to address today’s computer and telecommunications environment, former Bill C-51 proposed to update certain existing offences that are facilitated by the Internet. Some of these updates were included in order to enable the ratification of the Council of Europe’s Convention on Cybercrime, and its Additional Protocol to the Convention on Cybercrime, concerning the Criminalisation of Acts of a Racist and Xenophobic Nature committed through Computer Systems. The amendment to clause 5 in former Bill C-51 was included for that purpose.
I would like to take this opportunity to address a few of your concerns. This former clause proposed amending section 319 of the Criminal Code, which creates two offences under the heading of hate propaganda that involve the act of communicating. Specifically, subsection 319(1) makes it an offence to communicate statements that incite hatred against any identifiable group in any public place, where such incitement is likely to lead to a breach of the peace. Subsection 319(2) makes it an offence to communicate statements, other than in a private conversation, which wilfully promote hatred against any identifiable group. Identifiable group is defined by subsection 318(4) to mean any section of the public distinguishable by colour, race, religion, ethnic origin, or sexual orientation. Subsection 319(7) currently defines communicating for the purposes of these sections as communicating by telephone, broadcasting, or other audible or visible means.
Clause 5 proposed to update this definition to state that communicating means communicating by any means and includes making available. While it is true that providing a hyperlink would fall under this definition in certain circumstances—as it would under the current definition of communicating in subsection 319(7)—providing a hyperlink alone is not enough to commit either of these two hate propaganda offences. As the previous paragraph shows, many other elements must be proven before a person can be found guilty. The amendment merely described the manner in which a prohibited statement could have been made. It would not have determined whether a statement was of a prohibited nature, or whether a communicator had the necessary guilty mind to commit the offence. The necessity to prove beyond a reasonable doubt the existence of a guilty mind for these crimes is an important safeguard that protects freedom of expression. For example, in the case of R. v. Keegstra, the Supreme Court of Canada held that the crime of “wilfully” promoting hatred against an identifiable group means “intentionally” promoting hatred. This excludes the reckless or negligent promotion of hatred from the scope of this crime. These stringent requirements already exist in the Criminal Code and would not have been changed by the amendments proposed in former Bill C-51.
It is also worth noting that the crime of wilfully promoting hatred against an identifiable group contains several defences found in subsection 319(3) of the Criminal Code, which further limit the scope of this crime. For instance, the fact that a statement is true is a defence. So too is the communication of statements that are relevant to any subject of public interest, the discussion of which is for the public benefit, where the person reasonably believed them to be true. None of the defences would have been affected by the amendments proposed in former Bill C-51.
Please be assured that the Government of Canada carefully considered input provided by a broad range of stakeholders in developing former Bill C-51, including civil liberties groups, the telecommunications industry, victims’ advocates, police associations, and provincial and territorial justice officials. As a result, I believe this proposed legislation struck an appropriate balance between the need to protect the safety and security of Canada and the rights of Canadians.
I appreciate having had your comments brought to my attention.
The Honourable Rob Nicholson
Bill C-51 misses mark on hate crimesBy Alan Shanoff ,Toronto Sun
That seems to be the case when you read Bill C-51, a federal bill called Investigative Powers for the 21st Century Act.
The stated purpose of Bill C-51 is the modernization of certain criminal offences. One of the offences to be modernized is the offence of public promotion of hatred against an identifiable group. I wasn’t aware of the pressing need to modernize this rarely prosecuted offence, but I may be wrong.
Bill C-51’s amendment to modernize the promotion of hatred offence would see the definition of “communication” revised from the currently vague “includes communication by telephone, broadcasting or other audible or visible means” to the very broad “making available” of a statement.
The new and improved modernized definition makes it crystal clear that hyperlinking is a form of communication. After all, what better way to make something available than providing a link to it, a link you can access with the click of a mouse?
So with this so-called attempt at modernization, search engines like Google will be at risk of prosecution for making available all sorts of subjectively hateful sites currently available to anybody in Canada, as would be anybody who provides a link to them.
Yes, many of these sites contain hurtful language, but should anybody linking to such sites for any reason be at risk of prosecution?
Placing people at risk of prosecution for linking to sites that may be deemed to promote hatred against an identifiable group encourages censorship, is anti-democratic and will create more conspiracy theory adherents.
We already have enough people who think certain groups control the media and government. Why feed into their absurd notions by expanding the offence of public incitement of hatred?
Instead, I’d advocate getting rid of this offence in its entirety and focusing attention on the real form of hate speech we ought to be policing: Speech that threatens, advocates or attempts to justify violence against members of identifiable groups.
That’s what law professor Richard Moon advocated in his 2008 report on the regulation of hate speech on the Internet, where he also expressed the sensible view, “religious beliefs or values cannot be insulated from debate and criticism, even that which is harsh and uncivil. The criticism of religious belief cannot be restricted without undermining our commitment to freedom of expression.”
Yes, hate speech can be harmful, but who gets to make the decision on what is and isn’t hurtful? It’s too subjective.
Threatening, advocating or justifying violence, however, presents a much easier line to draw. So let’s beef up that offence and its prosecution, but at the same time let’s rescind the much more vague and subjective promotion of hatred offence.
Instead, Bill C-51 would also “modernize” the hate speech offence by expanding the list of identifiable groups by including people distinguished by “national origin” to the current identifiers of colour, race, religion, ethnic origin or sexual orientation.
I may be paranoid, but I can already see the bigoted outcry claiming this is but a means of making criticism of Israel illegal. Yes, there is a gap in the current definition, but is there a pressing need to fill the gap right now? Is there a need to protect people from hurtful speech based on their country of origin, as opposed to the other identifiers?
Of course, freedom of expression comes with limits, but the extent of the limits determines what sort of country we live in.
The modernization in Bill C-51 seems to be a backward step.