Justice Committee on May 16th, 2019

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

When it comes to that “more”, it seems to me there are really two avenues of attack here. One is large social media companies. Google made $9 billion in Q4 of 2018 and Facebook made $7 billion. They're 75% of digital ad revenue in Canada combined, so let's take those two as an example.

One answer is to say, where there's obviously illegal content and we don't want you to be the final arbiter in any way, there is going to be judicial appeal as far as it goes, but you're going to be accountable and we're going to restrict safe harbour for hate speech in the same way we do for terrorism and child porn. We have to strike the right balance, but that's one avenue.

In regard to the other answer, you highlighted the issue of usefulness. You said you didn't know about section 13, because you didn't know how useful or effective that was, but you did highlight the need for a non-criminal administrative law remedy. By that, presumably, I take what you mean is it's not just about holding social media companies and platforms to account as the broadcasters or publisher hosts, as it were, it's also about holding the people themselves accountable in some fashion who are posting this hateful content. Is that right?

[Jennifer Klinck]

Yes. There needs to be recourse against the platforms and the individuals responsible for the speech.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

On the platforms piece, I generally understand the answer to that. There is financial accountability in the form of some type of sanction if they don't take down obviously illegal content, and there's basically a duty of care and some type of negligence there.

What I struggle to understand is that we have hate speech laws under the Criminal Code and we have laws against threats and laws against harassment, but it's a very cumbersome process to apply those laws. We tend to apply those laws in extreme cases.

I have a local case where a paper called Your Ward News was being delivered to thousands of households. It was shut down through Canada Post, and rightfully so. Then there was a criminal prosecution and a judge recently found that the publishers had broken the hate speech laws, and now there will be a sentence and punishment doled out. So it is with someone with egregious behaviour or with a Whatcott case.

Egregious behaviour deserves a more appropriate and significant punishment, yet if someone makes a hateful remark online, posts a comment that is harassing toward a female, for example, whether a politician or not, the Criminal Code is not an effective instrument. I don't even think section 13 was a particularly effective instrument.

Do you have any suggestions about what would be a more effective instrument?

[Jennifer Klinck]

One of the issues on that is that there does need to be more study on how we can actually address this modern context. There are many distinctions and different types of approaches that can be adopted to different contexts, so distinctions need to be drawn between speech whose character is difficult to determine or is maybe on the line.

Targeted harassment and privacy violations might have a stronger claim based on an individual. In situations where one person is the subject of an avalanche of attacks, there might be a need to act far more quickly and reactively to remove that content, although that might not be about personal responsibility. Again, these are all complex issues that have to be targeted to the different types of harms that exist.

Another thing I would highlight about non-criminal administrative law fora is that they can allow for alternative dispute resolution mechanisms as well. We don't need to be talking about harsh penalties on individuals who post content that is perhaps on the line. We can actually look at more constructive models.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

One alternative model has occurred to me and I'd be interested in your feedback. If someone is at the extreme level of a Whatcott or Your Ward News, we bring to bear the criminal law or some more appropriate financial sanction through the Canadian Human Rights Act, if section 13 in some fashion were to be revisited. However, for someone who just posts a hateful comment online once, wouldn't it be more appropriate and efficient to have an administrative system that is flexible and efficient, that would say there's going to be a $30 to $50 fine and don't do it again?

I hear about the education piece and I want to stop the big hate speech, obviously, but it's the people in their basements who post a one-off comment on Twitter in reply and there's no way to hold that person accountable. How do we effectively hold that person accountable?

[Jennifer Klinck]

Again, I think that does need to be looked at, but examining the lower-level, administrative law, non-criminal approaches is certainly an important part of the tool kit.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Has anyone considered a ticketing offence?

[Jennifer Klinck]

I haven't considered that particular possibility, but it may be an appropriate response; I'm not sure. Again, I think it depends on what we are looking at in terms of the type of speech and how we're making these determinations. I don't think we want a situation where people are automatically receiving fines, but it's important to take into account a variety of tools in the tool box with lower forms of response than criminal sanction.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I'm out of time, but I'll say one last thing. The problem is not about creating new laws that restrict speech. That's where we get sidetracked. We already have hate speech laws, and we have defamation laws, harassment laws and laws against threats. It's about making sure these laws are properly enforceable in an online context.

Thanks very much.

[The Chair, Liberal, Anthony Housefather]

To all of the witnesses, thank you very much. You were all really helpful today. I very much appreciate your contributions to the committee.

We're going to take a brief recess as the next panel comes up.

[The Chair, Liberal, Anthony Housefather]

We are now going to convene our second panel of the day.

It is a pleasure to be joined by Ms. Cara Zwibel, the Director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association.

Welcome, Ms. Zwibel.

[Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association]

Thank you.

[The Chair, Liberal, Anthony Housefather]

From the Justice Centre for Constitutional Freedoms, we have Mr. Jay Cameron, barrister and solicitor.

Welcome back, Mr. Cameron.

[Jay Cameron, Barrister and Solicitor, Justice Centre for Constitutional Freedoms]

Thank you very much, sir.

[The Chair, Liberal, Anthony Housefather]

You have both appeared before the committee as witnesses before, so you know exactly what we expect. You have about eight minutes, and then we're going to ask questions.

Ms. Zwibel, I'm going to ask you to go first. We don't want to lose the video conference when we have it working properly.

[Cara Zwibel]

Thank you to the committee for inviting the Canadian Civil Liberties Association to participate in its study on online hate.

As you all know, the CCLA is a national, non-profit and non-partisan public interest organization with over 50 years of experience in promoting respect for and observance of fundamental human rights and civil liberties. CCLA is deeply committed to protecting equality rights for all and has campaigned against discrimination in its many forms. Freedom of expression has also been a cornerstone of our work since the organization's inception.

Any attempts to regulate online hate will inevitably bump against freedom of expression, because contrary to what some say, the precise contours of hate speech are not easily discerned. As a result, we have argued that the Criminal Code prohibition on the wilful promotion of hatred, and prohibitions on hate speech contained in human rights codes, are vague and unreasonably restrict freedom of expression. In our view, a mature democracy like Canada does not achieve equality by limiting freedom of expression.

I'd like to start by addressing what was formerly section 13 of the Canadian Human Rights Act, as I understand it is a subject that the committee has a great deal of interest in.

CCLA appeared before the Senate committee on the bill that ultimately repealed section 13. We supported the repeal, and continue to believe that asking human rights tribunals to play the role of censor does not fit well with the functions of tribunals.

Human rights tribunals are focused on dealing with discriminatory acts in a variety of areas. In order to address issues of systemic discrimination and to help achieve substantive equality, they need to interpret human rights statutes liberally. However, when it comes to hate speech provisions, our Supreme Court has made clear that only a very narrow interpretation is appropriate, in recognition of the fact that a broad restriction on hateful content would unduly or unreasonably limit freedom of expression.

As a result, only the very worst and most extreme forms of speech are caught, even though we know that many more subtle forms of offensive messaging may have harmful impacts.

A human rights commission or tribunal charged with prosecuting hate speech is put in a situation of conflict. In their core anti-discrimination work, they seek to protect minority groups, but in addressing hate speech complaints, they may often have to tell such groups that a very offensive expression simply doesn't rise to the level of hate speech for the purposes of the act.

In our view, section 13 was not an efficient or effective way of dealing with online hate. I'm aware that some witnesses you've heard from have suggested that section 13 should be reinstated in either its original form or modified in some way, but for the reasons I've just outlined, CCLA disagrees with this approach.

More broadly, I want to emphasize that while the committee may be considering how the Canadian Human Rights Act or the Criminal Code can be amended to deal with the problem of online hate, it should consider that these and other strictly legislative tools may not be well suited to addressing the very complex issue of hatred, because, of course, underlying the issue of online hate is the issue of hatred more broadly.

Canada's experience with prosecuting those who are alleged to promote hatred shows that these individuals often use their prosecution as a way to further promote their message and to cast themselves as martyrs for free speech and gain a wider audience. Pursuing haters through our legal system can have counterproductive effects.

CCLA believes that the government does have a role to play. The government should focus efforts on education and counter-speech. The Canadian Human Rights Commission currently has a relatively narrow public education mandate. That body or another entity could engage in much more robust education efforts, including programs that bring people from diverse communities and backgrounds together in ways that can help to address the root causes of hatred.

There's also a need for education around digital literacy. We need to be focusing on ensuring that young people understand that content on the Internet can come from anywhere and everywhere, that not all sources are credible and that information can be easily manipulated. Organizations like MediaSmarts are already doing excellent work in this area, and I understand that some of their work on online hate is being done with support provided by Public Safety Canada. More work like this, and more support from the government on work like this, is what we recommend.

The government also has a role to play in countering hateful content online with its own counter-speech that focuses on messages of inclusion and equality, and that provides resources and support to groups that engage in counter-speech.

Because it would be more interesting to try to answer your questions, I'm going to stop there. Thank you again for inviting us to appear.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Cameron.

[Jay Cameron]

Thank you very much.

Honourable members, thank you very much for the invite to appear here today.

I'm with the Justice Centre for Constitutional Freedoms. We're a not-for-profit, non-political, non-religious organization. We're dedicated to the protection of the fundamental freedoms and constitutional rights of Canadians.

I'm going to talk about three things this morning: first, the problem with setting out to censor hate without proper parameters; second, the reality on the ground with human rights tribunals in the context of this study; and third, the dangers of state censorship and big tech combined. I will then provide you with four recommendations.

Like the Canadian Civil Liberties Association, the starting point for this conversation should properly be the Constitution of this country. That is Canada's foundational document, but it is not mentioned anywhere in the outline for this committee study and most of the witnesses before the committee made no mention of it except to urge you to infringe it as fast as possible.

Set out in paragraph 2(b) of the Canadian Charter of Rights and Freedoms is the fundamental right to have an opinion and to express it. This committee is studying online hate and preventing online hate, but it has not established parameters or definitions as to what constitutes hate. It behooves the committee to ask, what is hate and what is the enticement of hate? The reality is that crying hate has become one of the favourite tools in some circles to prevent dialogue and discredit disagreement.

You disagree with my religion, that's hate. You disagree with my politics, that's hate. You disagree with my gender identity, that's hate. You have concerns about immigration, resources and security, that's hate. If you're a single woman working out of your house as an aesthetician and you aren't comfortable waxing a pair of testicles, that's hate. You want to peacefully express your opinions on a university campus regarding abortion, you can't, because that's hate.

You just heard from a previous witness who said Meghan Murphy is hate, Feminist Current is hate and The Post Millennial is hate, all without any examples whatsoever. Therein lies the problem.

The same witness demonstrated in front of the Vancouver Public Library and compared the feminist talk going on inside to a Holocaust denial party, because the women were talking about the interests and rights of biological women.

Lastly, but not least, U.S. Senator Elizabeth Warren, within the last couple of days, described all of Fox News as hate.

None of this is hate. It's a disagreement and it's a dialogue, but it's not hate. It's protected speech under the Constitution and it is entirely legal.

I alluded to the woman in the waxing case. You've heard about this case. It made international news. The Justice Centre represented this woman. She's a single woman. She works out of her home. She has a small child and she provides aesthetician services to the community. She advertises on the Internet and tells the world that she provides waxing services to women.

She's trying to make ends meet. She doesn't have the supplies to wax somebody's scrotum. She doesn't really want to work on somebody's scrotum. She didn't start out intending to work on somebody's penis. It was irrelevant to her whether that person thought they were a man or a woman, because it was about physiology.

She had a human rights complaint made against her, which terrified her, and she told me that she went to 26 different lawyers first before she found the Justice Centre. Every single one of the 26 lawyers refused to take her case. Why? Well, they gave a variety of different reasons, according to my client. Some of them were afraid of activists; some were afraid of the different procedures at the Human Rights Tribunal. Some were afraid of representing somebody who had allegedly engaged in discrimination and they didn't want the stigma attached to representing somebody like that in that context.

There's also not much money in these cases, so they aren't particularly attractive to lawyers. That creates a significant access-to-justice problem that this committee needs to consider. It needs to consider people, like my client, who have a complaint made against them despite the fact they didn't do anything wrong.

A lot of people who have complaints against them are common people. Many have limited means and are facing a bewildering process, and even worse, they're facing the stigma of a human rights complaint. In this day and age of hypersensitivity and social media, where gossip travels around the world in an instant, being accused of discrimination in many cases is worse than a criminal accusation. It's enough to destroy your reputation. Even the lawyers don't want to be involved in it because they're afraid of stigma. They don't want to hear that you represented that bigot, that racist, that misogynist, that homophobe, that Islamophobe. How could you, in good conscience, represent these disgusting, filthy human beings?

Is the state going to appoint counsel and pay for it if people can't? In the woman's complaint, the complainant's name was withheld by the tribunal and kept private, but my client's name was publicized for the whole world to see. As a single mom, my client didn't need the complaint. She was trying to make ends meet. It caused her months of terror. Life was hard enough, and she told me that she wept when the complaint was withdrawn. I'm going to say that again: The complaint was withdrawn. It never made it to a hearing. There was never any vindication for her, simply the accusation that she had discriminated on the basis of gender identity or gender expression.

There are 14 other cases before the BC Human Rights Tribunal from the same complainant. Every single one of them, to my knowledge, requests damages against the people who refused to wax the complainant. None of them has a lawyer, to my knowledge, so there's lots of pressure to settle. Indeed, some of them have. Only the tribunal knows who the parties are until a hearing date is set, and then the parties are publicized three months in advance.

The Justice Centre offered to represent these respondents for free. We asked the BC Human Rights Tribunal, given the fact that there's an access-to-justice problem, to pass along that offer to all of the respondents. The BC Human Rights Tribunal refused to do so. That's something you need to consider, as well. Human rights tribunals are not the saviours in these case. Often they create more problems than they fix.

I want to say a little bit about the fine under former section 13 of the Canadian Human Rights Act. It was $10,000. That fine was found to be unconstitutional at the first stage of hearings. It was overturned by the Federal Court of Appeal—it never made it to the Supreme Court of Canada. The fine for a conviction of drunk driving is $1,000. That is a crime under the Criminal Code, which is a grave social evil. What you have heard this morning is that people should be punished for the vague crime—no specifics, like the case of Meghan Murphy, who is not here to defend herself—of transphobia or misgendering. That's part of the problem you need to think about.

How much time do I have left?

[The Chair, Liberal, Anthony Housefather]

You're at nine minutes, so you're approaching the point where you might want to get to your recommendations.

[Jay Cameron]

We recommend four things.

First, we recommended that the Canadian Human Rights Act, if it is to be amended, be amended to define what is and is not hate speech. Pursuant to the Supreme Court of Canada's decision in Saskatchewan v. Whatcott, 2013, 1 SCR 467 at paragraphs 90 and 91, the Supreme Court of Canada sets out what is hate speech. Most of what you've heard from the witnesses who are telling you something is hate speech doesn't even come close to hate speech.

Second, if there is any new legislation to be implemented, we say there ought to be defences to a complaint of hate speech mirroring the defences in subsection 319(3) of the Criminal Code, specifically that:

No person shall be convicted of an offence under subsection (2) [of 319]

(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;

I'll pause here to note that the Bible, under the parameters that you've been asked to consider, and the Koran and other religious books could be considered hate speech just because verses from them are posted online saying things like, “God created male and female”. That's not hate; that's a statement and it's entirely permissible, but it would be protected under the defences that I'm outlining here.

Subsection 319(3) continues:

(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.

Third, we recommended that the maximum fine for any finding of hate be capped at no worse than the Criminal Code fine for drunk driving, at $1,000.

Fourth, we recommended that Parliament launch an initiative to encourage people to come forward with their big-tech censorship stories so that it can understand the extent of that problem, which is significant, and not embark on a mission of censorship without all of the facts.

Those are my submissions. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Cameron.

We'll go to Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much to the witnesses.

Mr. Cameron, your client, who endured a complaint through the Human Rights Commission that was ultimately withdrawn and who was subject to enormous cost in her life, would not be entitled to costs. Is that right?

[Jay Cameron]

She applied for costs. Because the complaint was withdrawn precipitously once counsel became involved and submissions and evidence were filed, we applied for costs based on a number of misrepresentations that we said the complainant made. The fact the complaint was started put this woman through a terrible time of crisis for five months and then it was withdrawn. But what is she supposed to do? There's no recourse for her.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

To that end, could you confirm that under the framework of the Canadian Human Rights Act, if there were a frivolous and vexatious complaint made, a respondent would be statutorily barred from suing? Is that right?

[Jay Cameron]

That's my understanding, and that's a problem because there's no disincentive for launching multiple complaints.

The person involved in the waxing case made 16 of these complaints. Some of them are in various stages of settlement and some of them are proceeding to a hearing, I understand. But the point is that there's obviously a problem when people can just destroy somebody's reputation by a charge of discrimination and then nothing happens to them when it was done maliciously.