Evidence of meeting #152 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was groups.
A recording is available from Parliament.
Liberal
The Chair Liberal Anthony Housefather
Welcome to this meeting of the Standing Committee on Justice and Human Rights, as we resume our study on online hate.
We have quite an illustrious group of witnesses with us today.
From the Canadian Human Rights Commission, we have Madam Marie-Claude Landry, who is the Chief Commissioner.
I want to welcome you, Ms. Landry. It's a pleasure to have you here.
Liberal
The Chair Liberal Anthony Housefather
We're also joined by Monette Maillet.
She is the Deputy Executive Director and Senior General Counsel, Human Rights Promotion. Welcome.
From the Department of Canadian Heritage, we have Ms. Lisa-Marie Inman, who is the Director General of Multiculturalism. Welcome, Ms. Inman.
From the Department of Justice, which is here only to offer technical expertise on our questions, we have Mr. Glenn Gilmour, Counsel, Criminal Law Policy Section. Welcome, Mr. Gilmour.
Liberal
The Chair Liberal Anthony Housefather
We also have Mr. Eric Nielsen, Counsel, Human Rights Law Section. Welcome, Mr. Nielsen.
Mr. Gilmour will answer any questions about the Criminal Code provisions on online hate, and Mr. Nielsen will answer questions about the Canadian Human Rights Act.
From the Royal Canadian Mounted Police, we have Ms. Kimberly Taplin, who is the National Crime Prevention and Indigenous Policing Services Superintendent. Welcome, Ms. Taplin. Thank you for coming.
From the Saskatchewan Human Rights Commission, by video conference, we have Mr. David Arnot, who is the Chief Commissioner. Welcome, Mr. Arnot.
Liberal
The Chair Liberal Anthony Housefather
Good morning.
All of the different groups have eight minutes.
Because you are on video conference, Mr. Arnot, and we don't want to lose you, we're going to start with you, sir.
The floor is yours.
Chief Commissioner, Saskatchewan Human Rights Commission
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—
Liberal
The Chair Liberal Anthony Housefather
Mr. Arnot, I'm sorry, but you have exceeded your time limit by a little bit. Could I ask you to wrap up, please.
Chief Commissioner, Saskatchewan Human Rights Commission
I would say that Heritage Canada should pay attention to these issues, and that Heritage Canada should look to ensure that digital literacy is available to all students in Canada from grades K to 12 on a coast-to-coast basis.
I had other things to say, Chair; however, I'll close with that.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much. That's very helpful and appreciated.
We'll now move on to the Canadian Human Rights Commission.
Ms. Landry, you have the floor.
Chief Commissioner, Canadian Human Rights Commission
Good morning.
My remarks will be offered in both official languages.
Thank you for inviting the Canadian Human Rights Commission to participate in this discussion today on online hate. I am joined by my colleague Monette Maillet, Deputy Executive Director and Senior General Counsel.
The proliferation of online hate is a clear and present danger. In recent years it has become painfully clear that allowing online hate to fester can result in horrific consequences. We are therefore encouraged that the justice committee is conducting this important study. We are pleased to see that you are hearing from several witnesses representing the people and communities most often targeted by hate.
Hate speech, and particularly online hate, is both an urgent public safety issue and a fundamental human rights issue. Hate speech violates a person's most basic human rights and freedoms: the right to equality and the right to live free from discrimination.
I will focus my remarks on three key points. First, online hate causes harm. Second, there is a gap in the law when it comes to protecting people from online hate. Third, a comprehensive strategy is needed.
The Internet has given everyone the power to have their own platform and to be a broadcaster. People can be louder than ever before and influence more people than ever before. In many ways, this is a major step forward. However, the Internet has made it possible to amplify and spread hate speech.
Far too often, people are victimized by online hate because of their race, religion, gender, sexual orientation or where they're from. Online hate has been found to cause fear and serious psychological harm. It shuts down debate and it promotes conflict, division and social tension. At its most serious, online hate incites violence, and too often, far too often, leads to tragic situations.
If Canadians targeted by online hate are expected to live their lives in a toxic atmosphere, we're basically failing them. Canada has a responsibility under international and domestic laws to promote equality and to protect all Canadians from discrimination.
This brings me to my second point. There is a gap in the law when it comes to protecting people from online hate. The now repealed section 13 of the Canadian Human Rights Act has given the commission an informed perspective on addressing online hate in Canada.
As many of you may know, section 13 was originally written into the CHRA to prevent harm from prohibited hate messages, based on anti-Semitism being communicated by telephone in the 1970s. Following the attacks of September 11, section 13 was broadened to include messages communicated over the Internet. For many years, it was effective in shutting down a number of extreme neo-Nazi websites. However, this approach is not well suited to respond to today's rapidly evolving technology. As you know, section 13 was deemed to be a constitutionally sound provision.
As well, the Supreme Court of Canada has confirmed that some limits to free speech are justifiable in a free and democratic society. We have noted that previous witnesses have spoken of the need for a definition of “hate”. To this end, we encourage this committee to look at the definitions put forward by the Supreme Court of Canada, as well as the hallmarks of hate developed by the Canadian Human Rights Tribunal.
In the discussion around freedom of expression and hate speech, we must not forget the fundamental right to equality and to be free from discrimination. There is no hierarchy of rights, and rights sometimes compete. The commission believes there needs to be an appropriate balance. That is going to require meaningful participation and accountability of all involved parties.
What we can say for certain is that something must be done quickly to address the proliferation of online hate. It threatens public safety, violates human rights and undermines democracy. As other witnesses have said, addressing online hate will require a proactive approach that involves tracking, intervention and prevention.
This brings me to my third point. A comprehensive strategy is needed. It will take a concerted and coordinated long-term effort that is proactive, multipronged and multi-faceted. It will take innovative thinking, technical expertise, proper resourcing, coordination and co-operation.
The strategy will need to bring together all levels of government, telecommunication and Internet providers, social media platforms, civil society, academia and, most importantly, victims of hate.
These efforts must be led by the government. The government has a duty to meet its domestic and international human rights obligations. This includes protecting citizens from hateful speech.
In conclusion, the Canadian Human Rights Commission is committed to fighting against hate and to participating in a broader, coordinated solution.
In response to evidence heard by the committee, the CHRC finds that a simple amendment to the Canadian Human Rights Act to include provisions similar to the former section 13 would be insufficient. In this modern era, this legal change alone could neither provide the scope nor the level of protection or remedies necessary to prevent online harassment or to effectively reduce hate propaganda.
If the committee or the government explores possible amendments to the Canadian Human Rights Act or to other legislation as part of a broader response to hate propaganda issues, the CHRC would be happy to contribute its expertise.
In the coming days, the CHRC will submit a number of documents, including a summary report of a recent jointly organized event to discuss online hate.
Thank you. My colleague Monette Maillet and I would be pleased to answer your questions.
Liberal
The Chair Liberal Anthony Housefather
Thank you, Ms. Landry.
We're going to move to the Department of Canadian Heritage now.
Ms. Inman.
Lisa-Marie Inman Director General, Multiculturalism, Department of Canadian Heritage
Thank you very much for inviting me to address the committee today. I'd like to speak to you about the work the department is undertaking related to racism and religious discrimination.
Evidence is clear that racism and discrimination continue to exist in Canada. Addressing them is part of the federal government's responsibility to sustain a society that values all its members and treats them with dignity and respect.
One way that is achieved is through Canada's multiculturalism policy, which was designed to create a climate in which the multicultural heritage of each of us is valued and to contribute to building a society where all can participate in the economic, social, cultural and political life of Canada.
The multiculturalism program works toward these objectives by focusing its efforts on building an integrated and socially cohesive society; improving the responsiveness of federal institutions to the needs of a diverse population; and engaging in discussions on multiculturalism, inclusion and diversity at the domestic and international levels.
There are four key activities that the multicultural program undertakes. First is grants and contributions via the community support, multiculturalism and anti-racism initiatives program. Second is public outreach and promotion through public events and key outreach initiatives such as Asian Heritage Month and Black History Month. Third is support of federal and public institutions to help them meet their obligations under the Canadian Multiculturalism Act. Fourth is international engagement through providing support for Canada's membership in the International Holocaust Remembrance Alliance and ensuring Canada meets its obligations as a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination.
In budget 2018, new funding in the amount of $23 million over two years was allocated to the program: $21 million to support events and projects that target racism and discrimination with a particular focus on indigenous peoples and racialized women and girls, and $2 million to support cross-country consultations on a new national anti-racism and anti-discrimination approach.
Budget 2018 also provided $9 million over three years to the Department of Canadian Heritage and $10 million over five years to the Public Health Agency of Canada to address the challenges faced by Black Canadians.
In 2018, the Minister of Canadian Heritage and Multiculturalism was asked by the Prime Minister to develop a new federal anti-racism approach to combat racism and discrimination. In support of this mandate, we carried out engagement sessions from October 2018 to March 2019 to gather input from Canadians, including experts, faith and community leaders, and those with lived experiences of racism and discrimination.
In total, 22 in-person sessions were held, involving over 600 participants from some 443 organizations. Over 1,000 online submissions were received.
A further $45 million over three years was allocated in budget 2019 for the multiculturalism program to develop and implement a federal anti-racism strategy. In the budget announcement, the strategy was described as finding ways to counter racism in its various forms, with a strong focus on community-based projects. The announcement also highlighted an anti-racism secretariat that would work across government to identify opportunities, coordinate activities and engage with Canada's diverse communities.
Increasingly intolerant and racist language—hate speech—is available online. It isn't just flourishing in private conversations on social media platforms such as Facebook or Instagram. It's also on the rise on more public sites such as YouTube, and in comments sections, web forums and blogs.
Participants in our engagement sessions told us that online hate is an underlying factor that contributes to or causes racism. It is a serious phenomenon that exists in many forms and significantly impacts young people. People told us that social media can play a significant role both in spreading hate and also in combatting it.
Canadian Heritage plays a vital role in the cultural, civic and economic life of all Canadians. We'll continue to use the levers available to us to work towards addressing hate online, together with our federal partners and with communities.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
We'll now go to the RCMP.
Superintendent Taplin, the floor is yours.
Superintendent Kimberly Taplin National Crime Prevention and Indigenous Policing Services, Royal Canadian Mounted Police
Thank you very much.
Good morning, Mr. Chair, members of the committee and ladies and gentlemen.
Thank you for inviting me here to speak with you today.
I am Superintendent Kim Taplin, and as you know, I am the officer in charge of National Crime Prevention and Indigenous Policing Services.
The RCMP takes hate-motivated crimes and incidents very seriously and is committed to continuing to provide services that are focused on the safety of our communities.
Canadians are increasingly active online, with some using multiple communication devices and a wide variety of tools, such as instant messaging and various social media applications, which provide enormous benefits for Canadian society, but also present unintended opportunities to spread hatred.
A hate-motived crime, whether online or not, is any criminal offence motivated by the offender's hate, bias or prejudice towards a group or individual, based on colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression and mental or physical disability. This would include a physical attack against someone because of their disability or sexual orientation, or hate-motivated vandalism, such as hate graffiti at a religious institution.
A hate or bias incident may be motivated by the same factors as those of a hate-motivated crime, but does not reach the threshold of being a criminal offence. Such incidents may include name-calling or racial insults.
If not addressed, you've heard here today that both hate-motivated crimes and incidents can be a warning sign and even a catalyst for more serious violence in communities. They also have negative impacts on communities' well-being and safety.
The RCMP proactively works with communities to identify, prioritize and solve problems. This collaborative approach is based on the philosophy that prevention is a core responsibility of policing, where decisions are evidence-based and responses should be community-led, police-supported, sustainable and flexible.
The RCMP has several consultative committees through which communities' interests become reflected in our work, such as the commissioner’s advisory committee on visible minorities, the commissioner's national indigenous advisory committee and the national youth advisory committee. The RCMP also participates in external committees, such as Public Safety Canada's cross-cultural round table on security, and Canada's anti-racism strategy, led by the Department of Canadian Heritage.
Statistics Canada estimates that two out of three victims of hate-motivated crime do not report to police. The RCMP is focused on increasing the reporting by building trust with community members. The RCMP also has a national operational policy to assist investigators dealing with hate-motivated crimes and is committed to monitoring threats to public safety. This includes intelligence gathering and ongoing assessment, in collaboration with law enforcement partners, to determine the severity of the threat level posed by any particular actor or group.
To properly investigate incidents of online hate, law enforcement must be able to work as effectively in the digital world as in the physical. Rapid technological advancements continue to underlie the complexity of police investigations, including online hate.
It is important to note that investigating hate-motivated crimes falls under the mandate of the local police of jurisdiction. Furthermore, the RCMP has deemed it a priority to recruit qualified applicants from a wide range of backgrounds to better reflect the diverse population of Canada. The RCMP also ensures that all employment policies, practices and standards are fully inclusive and provide all Canadians with equal and fair opportunities within the spirit of employment equity policies and legislation.
In support of our collective effort to counter hate-motivated crimes and incidents, I encourage all communities to become educated on, and speak out against, hate; to enhance situational awareness of related issues in their communities; to practise emergency procedures; to be vigilant; and to contribute to community resilience. The RCMP has been part of these efforts in many communities across Canada, and will continue to reach out with professionalism and compassion to enhance trust with the communities we serve.
I would be happy to respond to any of your questions.
Thank you.
Liberal
The Chair Liberal Anthony Housefather
Superintendent, thank you very much.
Now we will move to questions.
Mr. Cooper.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Mr. Chair, and thank you to the witnesses.
I'll begin with Mr. Arnot.
Mr. Arnot, you made reference to the Ahenakew case. That particular case was based on a complex set of facts, including whether the conversation was a private one, which it was ultimately determined not to be, and also, whether Mr. Ahenakew was prodded by a journalist, which went to the question of intent.
In light of that, would you characterize the actions of Mr. Warman to have been ethical and appropriate?
Chief Commissioner, Saskatchewan Human Rights Commission
I don't know who you're referring to, sir. I can't hear you.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
I was speaking of Richard Warman.
Just to clarify, I'm not trying to conflate the Ahenakew facts with the facts of Mr. Warman. I just noted that in Ahenakew there was an issue of intent and the question of whether someone was prodded, so the court went through and made findings of fact applying the law.
I'm now shifting, in the context of prodding, to whether, in your opinion, the actions of Mr. Warman are ethical.
Chief Commissioner, Saskatchewan Human Rights Commission
Okay.
I don't want to give an opinion on Mr. Warman and whether his actions are ethical, but my fundamental point is that the Criminal Code is a very high standard. Proving intent beyond a reasonable doubt is almost impossible. Look at the Supreme Court of Canada, which says the best place to deal with these issues is in the Canadian Human Rights Act or human rights commissions, because it's a civil process, which is much more amenable. It focuses on the effects of the hate speech rather than the intent.
It's almost an impossible burden to prove hate speech cases or hate under the Criminal Code, and the focus of the committee should be on human rights legislation. That's really a fundamental point and I think that's the point of the Supreme Court of Canada.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Right. I thank you for that, and I take your point and appreciate that you might not want to give an opinion on Mr. Warman.
I will read into the record that the Canadian Human Rights Tribunal did characterize his actions as “disappointing and disturbing”.
Mr. Arnot, you just stated, as you did in your earlier testimony, and Madam Landry, you did as well, that when section 13 of the Canadian Human Rights Act was repealed, that took away an important tool. What about section 320.1 of the Criminal Code, which seems to be a section that could be used but isn't utilized?
I'd be interested in comments from both of you on section 320.1.
Monette Maillet Deputy Executive Director and Senior General Counsel, Human Rights Promotion, Canadian Human Rights Commission
What I'll do to answer is just share our experience. Some 99% of the complaints that we received and that we referred to the tribunal under the Canadian Human Rights Act were extreme, hateful and based on neo-Nazi ideology.
In the conversations we've had with police during the course of the time that we were responsible for section 13, many shared with me that it was too difficult to get a charge laid under the Criminal Code for hate. They were actually interested in how they could use section 13 of the Canadian Human Rights Act.
I'm not an expert in criminal law. We haven't done research on how effective that is. I know there haven't been many convictions or charges laid under the Criminal Code, but that has been our experience with the Criminal Code.
Chief Commissioner, Saskatchewan Human Rights Commission
I have experience in criminal courts and I would say this. Human rights transgressions fit much better under human rights legislation, with the proper tools for human rights commissions to deal with them, than hate being dealt with in the Criminal Code. I agree with Ms. Maillet's observation.
Really, I again focus on the Supreme Court of Canada finding very much the same thing, saying that, in effect, it's too difficult to deal with these transgressions in Criminal Code situations. They should be funnelled to human rights commissions and using a civil process for their determination, and perhaps using other methods such as a restorative justice approach that focuses on solutions rather than prosecutions and a myopic prosecution model.
You cannot prosecute your way into social change; that's the fundamental point. We need to use the human rights commissions in a much more effective way, which was exactly the point of Rothstein and the unanimous judgment of the Supreme Court of Canada.