Thank you very much for the invitation and the opportunity.
There's been a proliferation of hate speech online, propaganda, radicalism and obscenity. In 2016, Cision documented a 600% increase in the amount of hate speech in social media postings between November 2015 and November 2016. In 2019, Léger Marketing indicated that 60% of Canadians report having seen hate speech on social media.
These statistics should not come as a surprise to anyone. When the federal government repealed section 13 of the Canadian Human Rights Act in 2013, we lost the capacity to protect against this. For the past six years Canadian citizens have had little ability to protect themselves against online hate speech and discrimination.
The fundamental problem is that Criminal Code provisions are often ineffective; prosecutions are few; proof of intent to promote hatred against a group beyond a reasonable doubt is almost impossible to meet. The 2008 Saskatchewan Provincial Court case of Crown v. Ahenakew demonstrates that clearly.
In the case of Saskatchewan Human Rights Commission v. Whatcott, the Supreme Court of Canada, in a unanimous decision, stated that an effective way to curb hate speech is not within the Criminal Code, but in a civil process through human rights commissions. The commission argued that the Criminal Code provisions regulate only the most extreme forms of hate speech, advocating genocide or inciting a breach of the peace. The Supreme Court specifically and narrowly defined hate speech to ensure that human rights legislation does not unreasonably infringe on freedom of expression. This is the most important contribution the Saskatchewan Human Rights Commission has made to Canadian jurisprudence. I put forward the idea that this case provides a blueprint for the work of this committee.
Judge Rothstein made the following salient points for the court.
The court described nine indicia of hate in paragraph 44 which are clear, concise and unambiguous. The argument for free speech is not a shield to be used to protect against hate speech. The courts have consistently used the hate speech definition from the 1990 Taylor case in the Supreme Court of Canada. This analysis excludes merely offensive or very hurtful, obnoxious expressions.
Expression which debates the merits of reducing the rights of some Canadian citizens who are vulnerable is not a prohibition. It restricts the use of the expression that exposes the members to hatred. Ideas are not the target; rather the mode of expression of the idea is the target.
Ironically, hate speech arises in public debates and can be very restrictive and exclusionary. Legitimate debate in our democracy that is expressed in a civil manner encourages the exchange of opposing views. Hate speech is antithetical to that objective. It shuts down dialogue by making it difficult or impossible for members of a vulnerable group to respond, thereby stifling discourse. Hate speech that shuts down public debate cannot dodge prohibition on the basis that it promotes debate.
Preventative measures in human rights legislation reasonably centre on the effects rather than the intent of the hatemonger. The evil of hate propaganda is beyond doubt. Hate expression causes real harm to real people. Hate speech demeans, denigrates and dehumanizes the citizens it targets. Through hate speech individuals are told they are entitled to less than other Canadians because of the characteristics they possess.
With the advent of instant unfettered electronic communication, the opportunity for dissemination is nearly unlimited and largely uncontrolled. A realistic view of modern society must inform free speech, discourse, and the limits thereon.
The Whatcott judgment was rendered in February 2013. Later that same year, section 13 of the Canadian Human Rights Act was officially repealed. The repeal was based on the argument that it unduly fettered free speech. Opponents to the section provided only anecdotal examples that justify their position. There is no empirical evidence that human rights legislation unduly fetters legal speech. Contrary to the arguments of the free speech advocates, Canada has no democratic tradition of unbridled free speech. Freedom of speech in Canada has always been freedom governed by limits recognized in law.
Principles of freedom of speech were originally derived through common law principles showing up in the Constitution Act, 1867. Freedom of speech was expressly declared in the Canadian Bill of Rights, 1960. A Canadian citizen's right to freedom of expression was not given express constitutional protection until the enactment of the charter in 1982.
Despite the charter protection of freedom of expression, there are numerous limits to free expression that are justifiable in a free and democratic society. Reasonable limits to expression protect against greater harms that flow from unfettered speech.
Some of those limitations include defamation, libel, slander, perjury, child pornography, court ordered publication ban, limits on tobacco, alcohol and drug advertising, insider trading, fraud in the business sector, copyrights, trademarks, and hate speech. There are literally hundreds of legally justified limitations on freedom of expression in Canada.
However, let's remain focused on hate speech. Here are the recommendations of the Saskatchewan Human Rights Commission to this committee:
First, the Saskatchewan Human Rights Commission supports the reintroduction of prohibitions in the Canadian Human Rights Act against hateful expression, and the inclusion of telecommunications and the Internet in that act and that re-inclusion.
The provision could be more effective if the Canadian Human Rights Commission is permitted to commence a complaint on its own initiative on behalf of an affected group, such as a class action type of model. The Saskatchewan Human Rights Commission has that ability. Proceeds of a successful complaint could be paid to a community organization that supports the targeted group and/or fights against hate speech.
We must enact meaningful legislation that allows human rights commissions to do their job effectively and to hold those who spread online hate responsible for their actions.
Second, create legislation that holds companies financially accountable for hosting, spreading or creating content that foments online hate. Germany passed the “Facebook act”, which requires social media networks with more than two million users to take down hateful content within 24 hours or face a very significant financial penalty.
In the United Kingdom, the “Online Harms White Paper” has proposed establishing an independent regulator that would write a code of practice for social networks and Internet companies and have the ability to fine companies that don't enforce those rules. In Canada, we must follow suit.
Recently, giant tech companies such as Microsoft, Twitter, Facebook and Google came together to condemn online hate and agreed to a nine-point plan on how to curb hate. That is a very good thing. However, we cannot rely on commercial entities to determine what type of behaviour and content is acceptable. That would be a fundamental abdication of the legislative responsibility of Parliament. Instead, we need to develop a “made in Canada for Canada” plan, a plan created by governments after thorough consultations with industry stakeholders, a plan that publicly sets out rules, that monitors platform compliance and that penalizes when necessary.
Third, Canadian agencies must be given the means and mandate to monitor and investigate online hate, extremism and radicalized influences. In a time when hate and misinformation spread like wildfire online, data collection and intelligence gathering are paramount. That is why part of a “made in Canada for Canada” plan should include a partnership between federal security agencies, social media companies and Internet providers. We have arrived at a moment in our history in which words and well-intentioned platitudes no longer suffice.
The digital revolution, which has transformed society for both good and ill, has begun to disrupt our democracy. Individuals and groups, foreign and domestic, are using online misinformation, hate and extremist recruitment to erode democratic discourse and to drive a wedge between Canadian citizens.
We cannot let that happen. We need to take action. Our leaders must have the authority and the moral courage to do what is right. They must choose unity over division, understanding over ignorance, and respect over hate. They must make decisions that work towards the greater good, that respect the rule of law, reflect the charter, and in turn, make the difficult decisions that protect what it means to be a Canadian citizen.
This starts by enacting meaningful legislation that will allow governments, human rights commissions, industry, regulatory agencies and the public to effectively combat online hate and misinformation. That's where it starts, but that's not where it ends.
Fourth, we must also invest in education so that youth of tomorrow no longer—