Justice Committee on May 30th, 2019

[Ali Ehsassi, Liberal, Willowdale, ON]

But you don't know what you do with that information or with the investigation?

[Supt Kimberly Taplin]

I'm sorry. I don't understand your question.

[Ali Ehsassi, Liberal, Willowdale, ON]

You say you investigate these and look into them, but is there anything actionable that happens after you've had an opportunity to focus on an individual who is spewing hate?

[Supt Kimberly Taplin]

We work within the Criminal Code. When sufficient evidence is presented, a full investigation is undertaken, and then obviously if there's sufficient evidence to support charges, charges will be pursued.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay. Do you ever self-initiate, then, or do people actually have to bring disturbing comments to your attention?

[Supt Kimberly Taplin]

Again, there are two sorts of areas that I'd like to speak to. One is the federal lens, which is federal policing. The second one is with provinces and territories through our contract policing role. We receive information in two ways. One is that we do rely on the public to report suspected or actual hate-motivated crimes to the police. Two, we do monitor publicly available social media.

[Ali Ehsassi, Liberal, Willowdale, ON]

Yes, but my question was, do you monitor it even if someone doesn't flag it to your attention?

[Supt Kimberly Taplin]

Absolutely.

[Ali Ehsassi, Liberal, Willowdale, ON]

Okay. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

While we have the Department of Justice here, colleagues, I just want to ask this since we have our subject matter experts here.

Mr. Gilmour, Mr. Cooper raised the matter of section 320.1. It's been raised frequently as to why it's so rarely used. As the subject matter expert from the Department of Justice, why do you believe section 320.1 is so rarely used in Canada?

[Glenn Gilmour]

I'm afraid I'd have to speculate on why it's not being used. It may be, perhaps, as was mentioned, that lack of resources might be an issue.

It has been mentioned that section 320.1.... Maybe I'll just set out the parameters of it. Section 320.1 is a specific provision in the Criminal Code that was created by the Anti-terrorism Act back in 2001. It allows a judge to order the deletion of hate propaganda that's made publicly available on a computer system that is within the jurisdiction of the court. There are safeguards built into that particular procedure, whereby the person who has put the material on the computer, for example, can come before the court and argue as to why it should not be deleted.

To my knowledge, I'm not aware that this provision has ever been used. I can't speculate, really, as to why, other than maybe a lack of resources or perhaps the need for more education. It also has been mentioned on occasion in these hearings, I believe, that for this provision there's a requirement to obtain the consent of the appropriate attorney general as well.

There has been discussion here about hate speech and the hate speech provisions in the Criminal Code. I thought I would just mention that what's probably most relevant in this context are the hate propaganda provisions in the Criminal Code. There are three of them: advocating or promoting genocide against an identifiable group; inciting hatred in a public place that is likely to lead to a breach of the peace where it's directed against an identifiable group; and, wilful promotion of hatred against an identifiable group.

It has been mentioned that intention is needed for the hate speech crimes. In fact, intention is needed for two of the three hate speech crimes: advocating or promoting genocide and the wilful promotion of hatred. The one that requires inciting hatred in a public place likely to lead to a breach of the peace has a lesser mens rea component—probably recklessness—and that's because of the imminent danger to the public peace.

[The Chair, Liberal, Anthony Housefather]

Am I correct that section 320.1 has no mens rea component?

[Glenn Gilmour]

It's an in rem procedure. No one need be charged with the crime. There's also section 320, which was originally put in the Criminal Code when the offences were created back in 1970—a different time, of course—which allowed for a judge to order the seizure and forfeiture of hate propaganda kept on premises for distribution or sale. Section 320.1 was meant to update and modernize that particular procedure to take into account the Internet.

[The Chair, Liberal, Anthony Housefather]

Thank you so much to all of the different groups that presented today. Your testimony has been enormously helpful to us. It's really appreciated. Also, as Ms. Ramsey mentioned, if anybody has anything to follow up with, if you would, that would be very much appreciated. The Human Rights Commission mentioned that they were going to send us some documents.

Thank you again for your testimony.

We will ask the members of the next panel to come up. We're briefly going to suspend.

[The Chair, Liberal, Anthony Housefather]

We now have with us Mr. Anver Emon, Professor of Law and Canada Research Chair in Religion, Pluralism and the Rule of Law, from the University of Toronto. I don't know.... The video seems to have disappeared.

We are joined here in Ottawa by Ms. Naseem Mithoowani, a Partner at Waldman & Associates in Toronto.

Welcome.

We're also joined by Ms. Heidi Tworek, Assistant Professor at the University of British Columbia, who is joining us by video conference from Washington.

Welcome, Ms. Tworek.

Because we now have two people on video conference and I don't want to lose anybody, we're going to start with the folks on video conference.

Mr. Emon, are you able to hear me?

Since I see you on the screen, Ms. Tworek, and I don't see Mr. Emon right now, perhaps we will start with you. You have eight minutes. We really appreciate you joining us.

[Dr. Heidi Tworek, Assistant Professor, University of British Columbia, As an Individual]

Thank you, Mr. Chair, and thank you to the committee for the invitation to appear before you today.

It is frankly disturbing that we live in a world where online hate is rising, where what Whitney Phillips has called “the oxygen of amplification” has elevated extremist views and where in several cases online hate speech has directly led to offline violence, so I very much welcome the committee's careful consideration of how Canada can address these troubling developments.

I've personally examined European and North American approaches to hate speech, extremism and disinformation. Today, I will briefly outline some of the other approaches democracies are taking, which I talk about more in my brief that I've submitted and, second, how the German example in particular raises some questions for the reconsideration of introducing section 13 again. Finally, I'll discuss some measures that could be taken to address a broader category of harmful speech, which is a non-legal category, but I can try to address some of the broader questions that have been raised.

Let me first state the very sobering fact that hate speech is not a problem that can be solved. It will be a continual, evolving and ongoing threat. Still, levels of hate speech can ebb and flow. This depends upon the architecture of online ecosystems and the type of speech they promote, as well as the broader political, economic and cultural factors. This can facilitate more hate speech and hate-related crime, but it can also do the reverse.

First, this is an international problem, as I've mentioned. Democracies around the world are trying to find ways to address this issue. Let me name a couple of the examples that we can discuss in questions.

First, the U.K. has suggested an approach to regulate through a “duty of care” framework that requires social media companies to have a design that prevents online harms. France has suggested a regulation that would mandate transparency and “accountability by design” from the social media companies. Finally, Germany has taken a legal approach, creating a law that requires social media companies with more than two million unique users in Germany to address and enforce 22 statutes of speech law that already exist in Germany.

There's a range of things, from the legal to the co-regulatory to self-regulatory and codes of conduct.

In the case of what we're discussing today, the German Netzwerkdurchsetzungsgesetz, or NetzDG, is particularly instructive. Passed in 2017 and in force since 2018, this is technically a German mouthful word that is literally translated as “network enforcement law”, so it doesn't introduce new statutes of speech law. Rather, it requires social media companies to enforce law that already exists and to actually attend to complaints that are posted within 24 hours or face up to 50 million euros of fine per post.

Let me then talk about some considerations this raised. First, this was not about introducing new law but enforcing existing law. It has been a major problem in the German case to get Facebook and company to comply. Second, it raises questions about how we get social media companies to actually comply with and enforce existing law. It also raised the question of the scale. To give you a sense, YouTube and Twitter, in a six-month period, were receiving more than 200,000 complaints, so there's a question of the scale of the enforceability and potential backlogs. There's also the question of whether things would be enforced nationally or globally. We've seen that mostly what falls under it is actually being taken down under a company's global terms of service.

This law also only deals with pieces of content, so it doesn't deal with other ways in which hate can be propagated or funded online through ecosystems. Let me give a Canadian example here.

Very recently, a member of the Canadian far right tried to use the GoFundMe platform to raise money for an appeal against a libel suit he had lost for defaming a Muslim Canadian. Ontario Supreme Court Justice Jane Ferguson called the far right man's words “hate speech at its worst”, but only after complaints from a journalist and members of the public did the GoFundMe platform actually take down this man's appeal for funds, even though it violated their terms of service. This is just one illustration of how this is broader than actual pieces of content.

Finally, let me talk about the way in which we might address a broader category of harmful speech, which is a non-legal category of speech but speech that may undermine free, full and fair democratic discourse online. I've written a report with Chris Tenove and Fenwick McKelvey, two fellow academics, about how we can address this problem of harmful speech without infringing on our democratic right to free expression. Let me give three suggestions.

First, we have suggested the creation of a social media council. This would mandate regular meetings of social media companies and civil society, particularly marginalized groups that are disproportionately affected by hate and harmful speech online. This social media council could be explicitly created through the framework of human rights. The idea is supported by, amongst others, the UN special rapporteur on freedom of expression and opinion. By linking to international human rights, this would also ensure that Canada doesn't inadvertently provide justifications for liberal regimes to censor speech in ways that could deny basic human rights elsewhere around the world.

Second, we should firmly consider what kinds of transparency we might mandate from social media and online companies. There's so much that we don't know about the way the algorithms work and whether they promote bias in various kinds of ways. We should contemplate whether to, along the lines of algorithmic impact assessments, require audits and transparency from the companies to understand if their algorithms are themselves facilitating discrimination or promoting hate speech.

Third, we need to remember that civil society is an important part of this question. This is not something to solely be addressed by governments and platforms. Civil society plays a key role here. We often see that platforms only take down certain types of content after it has been flagged and raised by civil society organizations or journalists. We need to support those civil society organizations and journalists who are working on this, and also who are supporting those who are deeply affected by hate and harmful speech.

Finally, we also need to support the research that thinks through the sort of positive element of this, that is to say, how do we encourage more constructive engagement online?

As you can see from this short testimony, there's much to be done, on all sides.

Thank you for inviting me to be part of this conversation.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor Tworek.

Now we will go to Professor Emon.

Professor Emon, the floor is yours.

[Dr. Anver Emon, Professor of Law and Canada Research Chair in Religion, Pluralism, and the Rule of Law, University of Toronto, As an Individual]

I want to begin by thanking you for inviting me to address the committee today. I'm sorry I can't be there in person, but I'm here virtually, in the capacity of director of the Institute of Islamic Studies at the University of Toronto where I am also professor of law and history.

At the Institute of Islamic Studies, I oversee a collaborative research project that we call the study of Islam and Muslims in Canada, or SIMiC for short. SIMiC is a collaborative project that partners with six Canadian universities and six community partner organizations. SIMiC blends research with a public responsibility for recalibrating the conversation on Islam and Muslims today.

I do not need to tell you that the existence of Islamophobia in our country is real and extremely concerning; you know this. I'm here because there are things we can do. Drawing on the work of SIMiC, I can identify three specific things you may want to consider as part of a whole-of-government approach, particularly as they relate to Canada's Muslim community as a target of online hate.

The first concerns a reliable data architecture that provides disaggregated data on those communities most targeted. One core feature of SIMiC is to identify gaps in Canadian data architecture to chart the demography of Canada's Muslim communities. Comprising a team of academic researchers, settlement agencies and community organizations, the big data group at the institute is interested in determining what sorts of measures might be put in place to gain a better understanding of who Canada's Muslim communities are as well as their values, their hopes and their aspirations in Canada for themselves and their families.

This summer, one of our research fellows will examine the extent to which existing datasets across the country, including raw datasets from StatsCan research data centres, can tell us something about Canadian Muslims in terms of gender, ethnic or racial category, educational achievement, employment status, income levels and so on. We plan to launch the report in September 2019, and I will share that report with this committee if it so desires.

One key issue concerns the fact that StatsCan asks about religious identity only decennially rather than quinquennially. This approach is fundamentally counterproductive given that the current state of online hate quite often targets groups based on their religious identity. If we are to combat hate that targets people because of their religion—and let's be clear that's exactly what is happening with regard to Muslim Canadians—then we cannot continue to embrace an outdated data architecture that leaves us blind to the terrain in which we much now do our work.

The big data group at SIMiC exists in part to illustrate exactly why we need to rethink data architecture policies at a national scale, starting with a religious identity question in StatsCan's quinquennial census.

My second suggestion for something you may want to consider comes from the work we are doing on global anti-terrorism programs. The institute is part of a consortium of universities around the world examining the extent to which government programs on countering violent extremism have a disproportionate effect on certain communities and, in doing so, ignore others that need to be part of any inquiry.

While we're at the beginning stages of this work, our research has turned up a glaring issue in Canada that may fall within the ambit of this committee. In 1989, Canada was a founding member of the Financial Action Task Force, or FATF, which at the time was charged with combatting money laundering as part of the war on drugs.

After 9/11, the FATF issued a new set of special recommendations to track and combat terrorism financing. FATF guidelines recommend that each state party adopt what it calls a risk-based assessment model, or RBA, to prioritize its targets and allocate its limited resources.

In 2015 Finance Canada issued a self-assessment to FATF. In that self-assessment, Finance Canada outlined Canada's RBA in relation to anti-terrorism financing. It identified 10 groups that posed the greatest threat of terrorism financing in Canada. Eight of them are Muslim-identified groups; one is Tamil and the other is Sikh. In other words, as far as the Government of Canada is concerned, 100% of terrorism financing risk comes from racialized groups and 80% comes from Muslim-identified groups. Nowhere in the 2015 document is there reference to white supremacist groups, white extremist groups and so on, despite the fact that such groups are no less prone to violence, as we have sadly seen.

What does this have to do with online hate? While you will no doubt hear many arguments about freedom of expression as you attempt to regulate online hate, you already have a mechanism in place to track the financial funding of such hate, namely, FATF special recommendation number 8, which identifies charities and other not-for-profit organizations as being vulnerable to terrorist financing.

The aim here in my suggestion is to go after those philanthropic organizations that fund the cacophony of hate. The U.S. is already ahead of the game on this. Think tanks and sociologists have issued reports identifying the principal funders of hate.

While any given instance of online hate is relatively cheap, my suggestion is that you revisit Canada's RBA to use existing financial monitoring regimes to turn off the spigot of funding across the board.

My third and final suggestion concerns not so much combatting online hate as promoting new storytelling opportunities to enhance and improve on gaps in Canada's cultural heritage. Alongside our big data group is a second group that is working to create an archive that documents the history of Muslims in Canada. lt is an archive that will be created through collaboration among researchers at the university, community organizations and those individuals who hold records that capture this history.

Our environmental scan of Canada' s major archival institutions shows that there is little if any representation of the various communities, in particular racialized minorities and Muslims, that constitute the fabric of our national mosaic. Whereas other jurisdictions, such as the U.K. and the U.S., have a growing culture of community archiving projects, this phenomenon is mostly unsupported by the government in Canada.

We are beginning to see some movement in this regard with respect to Canada's indigenous communities, thanks in part to the work of the TRC and new funding schemes allocated to preserving indigenous knowledge. The archive project we are creating is a joint project in which the University of Toronto will serve as a core institutional partner. We have the digitization technology to create an open-access digital archive. Robarts Library has a storage facility for any and all analog copies that we obtain. Thomas Fisher Rare Book Library will provide future researchers with a venue to access those hard copies.

By the end of the summer, the institute will publicly launch its acquisition policy in consultation with our community partners. Moreover, colleagues have expressed an interest in tying their course work to the archive whereby students can help us identify records while they also achieve course credit. Such archives not only foster education and community but also create opportunities for people to tell new stories about themselves and their communities in an academically rigorous way, with thick description. In short, our archive not only promises more speech, but it will deliver better speech.

While we have the infrastructure and overhead to make this possible, our greatest challenge, and the challenge to any such archival project, is to identify funding sources to support archival review processes which involve human capital. The Department of Canadian Heritage certainly offers some funding for such projects, but the envelopes are limited. Its mandate is not narrowly focused on groups targeted by hate. Moreover, many of its grants expressly disqualify university-affiliated projects like ours, despite the fact that universities are well positioned with infrastructure to carry out such projects.

It has been our experience that the Social Science and Humanities Research Council does not fund such projects, in part because they do not fall within prevailing views of what counts as formal research.

While we remain committed to this project, our environmental scan suggests that supporting digital archival projects in participation with targeted communities can create a counterbalance to the online hate that we see proliferating. Consequently, this committee may wish to recommend jump-starting the creation of participatory digital archives, with a specific focus on those minority groups subjected to online hate.

Thank you very much, and I welcome your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now go to Ms. Mithoowani.

The floor is yours.

[Naseem Mithoowani, Partner, Waldman & Associates, As an Individual]

Thank you very much for the invitation to speak today.

My name is Naseem Mithoowani. I am a lawyer practising in Toronto, Ontario.

As some of you may know, I am also one of the individuals who initiated human rights complaints in 2008 against Maclean's magazine for having published a feature article entitled “The future belongs to Islam”, authored by Mark Steyn. Maclean's, at that time, was our only national news magazine in an era when social media hadn't yet taken off. The article, therefore, garnered a fair amount of attention.

lt described Muslims as being engaged in a nefarious plot to take over western democracy as we know it. lt insinuated that all Muslims were guilty either by being directly involved in violence or by supporting the goal silently. Muslims living in the west were demonized as “hot for jihad” and as breeding like “mosquitoes” for the sole aim of supplanting the western populations where we lived but with whom we shared no allegiance. Muslims were portrayed as inherently violent and deceitful.

The Muslim community felt the harm of these words in their bones. This was a call to action for the west to wake up to the threat of Muslims living among them. lt was, in essence, asking Canadians to view their Muslim neighbours with suspicion.

We also found 21 articles printed in the previous two years in Maclean's that contained the same anti-Muslim themes, referring to Muslims as “sheep-shaggers”, “global security threats”, “barbarians” and prone to frenzy. One memorable piece even suggested that the CBC comedy Little Mosque on the Prairiewas part of a conspiracy to distract the watching public from the security threat that Muslims posed by instead promoting them and portraying them as good and friendly community members.

We found exactly zero counter articles or critical analysis in response.

We sought a meeting with Maclean's to propose that they consider running a counter piece to address the allegations made in Mr. Steyn's article. More and better speech, we reasoned, was a win for all parties involved. It was only when we were completely shut out by Maclean's that we filed human rights complaints. The very fact that we had done so, in and of itself regardless of the outcome, was seen as proof of abuse, justifying the repeal of section 13 by the Conservative government at the time.

With the benefit of hindsight, I think there are very few people who would today believe that we had no reason to be alarmed over the content of the publication in question.

Those who peddle the rhetoric of a Muslim takeover don't care that the claim contains no truth. Suspicion and fear of Muslims sells. The idea that Muslims are actively trying to subvert western democracy is a warning that people heed, sometimes with horrific consequences. ln fact, we now know that the claims of western demographic decline and supposedly astronomical birth rates of Muslims are a staple in the modern white nationalist movement, usually framed in terms of an invasion, cultural replacement or white genocide.

Indeed, shortly after our complaints were dismissed, the very article that we alleged was hateful was specifically quoted in the manifesto of a white supremacist, who then went on to kill 77 people in Norway in 2011. He justified his actions and his violence as a form of resistance against the inevitable Muslim takeover that Steyn and others were warning against.

This idea of a Muslim takeover of the west has also played prominently in the motivations of the killing of Muslims in Quebec and New Zealand.

Particularly after the deadly attack in New Zealand, even those who were most ardently in support of repealing section 13 following our complaints have paused to reconsider. Professor Richard Moon, for example, was a thought leader in the call for the repeal of section 13. He was commissioned by the government to write a report regarding section 13, and in that report he recommended repeal.

He has since had the opportunity to revisit the Maclean's complaints in a very recent blog. In it, Professor Moon expressly acknowledges that the outcry over our complaints was unwarranted. He states that in light of the rising tide of violence against Muslims, it is not surprising that Steyn's rhetoric has been cited by those who wish to cause Muslims harm.

The truth, then, of the Maclean's complaints, and the controversy surrounding them, is that the Muslim community attempted to use section 13 to call out, 12 years ago, the very same hateful propaganda of a mass Muslim conspiracy theory that we are seeing as influencing mass murder today. The unfortunate lesson that I take out of my experience with the Maclean's case is that we, as a society, were not able to get ahead of the rhetoric at that time and call it out for what it is.

Section 13 does not unduly restrict freedom of expression. It creates a tool to identify and address speech which harm far outweighs any potential benefit. This is in line with our societal values. In Canada, as opposed to other jurisdictions, we simply do not recognize an unlimited right of free expression. Rather, we recognize that legitimate restrictions may be placed on all rights and freedoms, including freedom of expression in a free and democratic society. Hate propaganda is a harm that needs to be confronted, since it shuts down dialogue by making it difficult or impossible for members of vulnerable groups to respond, thereby stifling discourse.

Since the repeal of section 13, communities have been left open to attack. It is my first recommendation to this committee, therefore, that section 13 be reinstated.

However, my experience with the Maclean's complaint leaves me to believe that section 13 alone is insufficient. Section 13 requires individuals to do the heavy lifting of making and carrying complaints. In addition to the financial and time commitment in making and carrying on complaints, those who initiate complaints are vulnerable to personalized targeting. When we made our complaints, for example, as law students just beginning our careers, we were called "legal jihadists", "terrorists", "sock puppets", and accused of using the tools of western democracy to dismantle it.

Instead of seeing Steyn's portrayal of Muslims in the west bent on subverting democracy as the dangerous trope that it is, our actions and complaints as Muslims were viewed through this very lens. We were accused of using democratic tools, including section 13, to subvert western values.

Confronting hate speech is in everyone's interest. That burden should not be placed on the shoulders of a few. It aligns with a better democratic system by ensuring that all voices are included. We cannot afford to download the entirety of the financial and emotional burden of standing up to hate onto vulnerable groups.

My second recommendation is therefore that the committee considers the creation of a body which could intake complaints and carry them forward. I want to be clear that such a body should not disallow individuals and communities from taking personal carriage of complaints where they elect to do so, but should be seen instead as an alternative and complementary channel.

I wish to conclude my remarks by stressing that reinstating section 13 is a vital first step towards combatting online hatred, but it is insufficient in and of itself. We need more tools and partnership amongst all industries, communities and civil society in order to address the problem effectively. The technology and reach of the Internet makes Canada a far different place from when we initiated complaints against the printed Maclean's magazine in 2008. We need creative solutions in response, which should include but not be limited to the reintroduction of section 13.

I thank you for your attention, and I look forward to answering your questions in our next segment.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We will now move to questions.

Mr. Cooper.

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

Thank you, Mr. Chair.

First of all, not to diminish the very good work of Brian Storseth, the former member of Parliament for Westlock—St. Paul, who did introduce Bill C-304 and was supported in the Senate by the late Senator Doug Finley, but it was the Liberal member of Parliament Keith Martin who first called for repeal of section 13 in 2008, and we thank him for that.

Ms. Mithoowani, I would be interested in your thoughts on whether you consider BDS to constitute hate.

[Naseem Mithoowani]

My expertise, of course, is with section 13 of the human rights code federally. I fail to see how your question fits into my area of expertise.

What I will note is that there is a myth that section 13 targets all types of hatred. In fact, section 13, the test and the legal analysis around section 13 out of sociological—

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

Ms. Mithoowani, I'm just asking you whether you consider the BDS to constitute hate. I think it's relevant, because when we talk about hate, the definitional plurality is important, and I'm asking you that question directly.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Perhaps the witness should be allowed to answer the question. She isn't really being allowed.