Thank you so much.
My name is Kendra Milne, and I'm the director of law reform at West Coast LEAF. As was announced, I'm here in Vancouver. I'd just like to acknowledge that I'm on the traditional unceded territory of Coast Salish peoples, and particularly the Squamish, Musqueam, and Tsleil-Waututh peoples.
West Coast LEAF is a non-profit organization here in Vancouver that seeks to achieve equality for women and change historic patterns of discrimination against them through litigation, law reform, and public legal education. Some of our recent work is particularly relevant to the committee's current study.
First, in 2014 we published a report entitled “#CyberMisogyny: Using and strengthening Canadian legal responses to gendered hate and harassment online”. That report laid out provincial and federal law reform recommendations in order to better address online harassment, exploitation of youth, cyberstalking, and hate speech. From that project, we also developed a workshop called TrendShift, aimed at youth in grades 8 to 12, which focuses on asking young people to think about what violence and discrimination might look like in online spaces.
Before jumping into some specific law reform recommendations for discussion today, I first want to reiterate that online violence is simply part of a larger spectrum of violence. For example, our office often hears about cases involving abusive spouses or dating partners. After separation or relationship breakdown, when they may not be able to use physical violence that depends on physical proximity, they simply switch to the online realm in order to continue the same form of abuse. That can take the form of sharing intimate images or information, spreading lies as revenge, or even using necessary forms of communication like email and texts that might be required for co-parenting, in order to basically continue abuse and turn those communications into threats and harassment. It's important to note that this kind of behaviour is simply a continuation of the same kind of abuse as physical violence. It has the same goals—to exert power and control over the victim.
With respect to federal law reform to protect women and girls online, justice looks different for every woman. Some may want to pursue legal remedies and others may not. Setting that aside, though, legal recourse is something that should be open to women to pursue, and it should provide them with meaningful protection when they feel it is the right path for them. With that in mind, I will outline two key suggestions for law reform, one that will offer a new, or rather renewed, legal remedy for women, and one that will improve an existing remedy in order to better deal with online behaviour specifically.
The first thing I want to talk about is the Canadian Human Rights Act. In 2013 the federal government repealed section 13 of the act, which mandated that communications, including telecommunications and online communications, that were likely to expose a person to hatred on the basis of a protected ground amounted to discrimination. It's no coincidence that women, racialized people, people with disabilities, and members of the LGBTQ communities experience disproportionate rates of online violence and harassment. That behaviour is often rooted in sexism, racism, ableism, homophobia, transphobia, and otherwise discriminatory attitudes, which are the same attitudes that led to those groups being protected in human rights legislation in the first place. The Internet and online spaces are simply new and unfortunately very effective tools to continue these historic and systemic patterns of discrimination.
The human rights system offers an important remedy outside of the criminal system for women, because its purpose is not about penalizing the perpetrator. Instead, it is about making the victim whole. The process is also fully within the victim's control and doesn't depend on police and the crown to approve charges and pursue. Human rights legislation has a very powerful place in our legal system. It is considered to be quasi-constitutional, and it also plays an important role in Canada's obligations under both the charter and international human rights provisions that require Canada to take action to end discrimination. By removing this protection from the Canadian Human Rights Act, the government sent a very clear message. That message was that free speech, and even overtly hateful speech, automatically trumps the safety and dignity of those in need of human rights protections, including women. In our view, the federal government should reverse that message and introduce hate speech again as an area of discrimination under the act to give women an added tool to seek justice when they experience online violence.
The second amendment I'd like to speak to will strengthen the criminal harassment offence provisions in the Criminal Code. It will do that by providing interpretive guidance about how to respond to online harassment. The Criminal Code harassment provision, section 264, is silent on when harassment will cause a person to “reasonably” fear for their safety. That's really important, because what might be viewed as reasonably causing fear will be different based on gender, ethnicity, indigeneity, and ability. In particular, women's experiences of violence and navigating the risks of violence in their everyday lives must be reflected when we're talking about what constitutes a reasonable fear.
Online violence takes a massive emotional and psychological toll. As Mr. Adam commented, online violence is particularly rife when parties are not particularly close to each other. In fact, there's often great physical distance.
It's really important that parties, including the judiciary and police, when they come to interpret the Criminal Code, know that it covers behaviours that cause a person to fear for their psychological safety and integrity. There are court cases interpreting the provision that way, but, unfortunately, it is not uniformly applied.
For example, there is the case of Patrick Fox, a man in B.C. who said that he “wanted to destroy his ex-wife” who was residing in the United States. He created a website using her full name, with vulgar content, demeaning images of her, and which purported to describe details of her sex life. He said publicly that nothing short of his death, or making his ex-wife destitute and homeless, would make him stop the harassment. He was arrested in early 2016 for this behaviour, and the crown initially declined to charge him. Speaking of Mr. Fox's actions, a crown representative said, “We couldn't conclude that that would cause the complainant to have an objective fear for their personal safety”.The fact that people lived in different countries played a part in that assessment.
Mr. Fox was eventually charged five months later because of additional evidence, but the crown's comments about physical proximity are troubling and show a really outdated understanding of what can constitute a reasonable fear for safety. In that case, there was clear evidence there was ongoing psychological harm as a result of the online harassment.
In order to remedy situations like this, we suggest that Canada amend section 264 of the Criminal Code to provide assistance to those tasked with applying it, including the police, crown, and the judiciary. Such an amendment could include a non-exhaustive list of what might constitute a reasonable fear for safety, and it could use a definition that takes into account women's experiences of violence in particular. It could also include as an express direction that a reasonable fear for psychological safety will meet the threshold, to ensure that all points in the justice system understand that the psychological impacts of online harassment—the most common impacts—are captured.
These are just two amendments that will provide additional and strengthened legal remedies for women and girls who've experienced online violence.
Thank you.
