Guest Post: Hate speech laws in Canada: one step back, two steps forward?

18 Jul 13 | Americas, Canada, Politics and Society

This year has seen significant developments in Canada’s hate speech legislation, say attorneys Ryder Gilliland and Adam Lazier.

(Wikipedia)

(Wikipedia)

In February, the Supreme Court released its decision Whatcott v. Saskatchewan (Human Rights Commission), largely upholding the constitutionality of the hate speech provision in the province of Saskatchewan’s human rights statute.

Bill Whatcott is a conservative Christian campaigner who was fined $17,500 dollars in 2005 for distributing hate materials. His case rumbled through the courts until February, when the Supreme Court ruled against him.

In June, however, Parliament voted to repeal a hate speech provision in the federal human rights legislation. This is a significant legislative change, but whether provincial legislatures and courts will follow suit is very much an open question.

The regulation of hate speech in Canada

Hate speech in Canada is regulated in two ways. Section 319 of the Criminal Code makes it an offence to wilfully promote or publicly incite hatred. A violation of Section 319 carries serious consequences, including imprisonment for up to two years. Someone charged criminally under Section 319 has a number of defences available, including “truth”, and that the statements were in the public interest and the accused reasonably believed them to be true.

Hate speech is also prohibited by human rights legislation at both the federal and provincial levels. Human rights legislation carries less serious consequences than the criminal law provisions, but a respondent to a human rights claim has far fewer defences available. Human rights complaints are decided by administrative tribunals rather than courts.

Both types of hate speech legislation have been challenged in court as violations of Canada’s constitutional protection for freedom of expression. These challenges have not met with much success. Although the Supreme Court struck down an antiquated “false news” law used to prosecute holocaust denier Ernst Zundel (R. v. Zundel, [1992] 2 S.C.R. 731), it has upheld the constitutionality of the criminal offence of wilfully promoting hatred (R. v. Keegstra, [1990] 3 S.C.R. 697).

In Whatcott, the Supreme Court largely upheld a hate-speech prohibition in Saskatchewan’s human rights legislation, despite that the provision does not even allow a defence of truth (2013 SCC 11).

The repeal of section 13 of the Canadian Human Rights Act

 Just four months after the Whatcott decision parliament voted to repeal section 13 of the Canadian Human Rights Act (the “CHRA”), the federal equivalent to the Saskatchewan law at issue in Whatcott. The repeal comes into effect after one year.

Section 13, which was upheld by the Supreme Court of Canada in 1990, prohibits anyone from repeatedly communicating hate speech over the telephone or internet. The Tribunal can punish contraventions by ordering that the speaker financially compensate the victim. (A provision allowing the Tribunal to also order a $10,000 “penalty” as well was struck down by a 2012 Federal Court decision).

Human Rights Laws: A blunt instrument for regulating speech

Canada’s criminal hate speech laws arguably have a minimal impact on freedom of expression rights, as there is a high burden of proof and there are numerous defences available, including the defence of “truth”. It seems unlikely that mainstream media will be prosecuted, much less prosecuted successfully, under Section 319 of the Criminal Code.

Human rights hate speech laws are different. There are far fewer protections for respondents in human rights cases and the mainstream media has recently had to defend against human rights complaints. Thus, they appear to be a potentially dangerous incursion into free speech territory.

Hate speech laws in human rights legislation rest on a tenuous and sometimes artificial distinction between hate speech and other speech. In the context of libel law, for instance, a speaker has a constitutional right to defences for truth, fair comment, and responsible communication in the public interest. Once statements are classified as “hate speech” in the context of a human rights complaint, however, they lose that protection – a human rights tribunal may order compensation even if the statement is true, and even if it was made in good faith on a matter of public interest.

The line between hate speech and the merely offensive is slippery at best. Whatcott and earlier Supreme Court decisions define hate speech as statements that tend to expose people to “unusually strong and deep-felt emotions of detestation and vilification” on the basis of a prohibited ground of discrimination, which includes things like race, religion, and sexual orientation. However, human rights legislation doesn’t require that anyone prove the statements at issue actually caused hatred. This leaves tribunals and courts guessing about whether the statements at issue could have that effect, or whether they are just “offensive comments or expressions of dislike”.

This combination of strict laws with a slippery definition of hate speech puts everyone’s expression at risk, not just that of extremists. In a recent British Columbia case, the Human Rights Tribunal found that a stand-up comic had engaged in “discriminatory” speech by insulting audience members based on their sexual orientation. The decision was recently upheld by on judicial review (Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079).

Media organisations have successfully defended against hate speech complaints brought before human rights tribunals, but have incurred significant legal expenses along the way. The imprecise definition of hate speech makes it difficult for the media to assess its risk before publication, and therefore risks chilling debate.

More broadly, freedom of expression relies on courts and legislatures accepting the importance of the “marketplace of ideas”; the notion that society is best served when ideas, even hateful ideas, are disproven through public debate. The “marketplace of ideas” concept formed part of the reasoning behind the Supreme Court’s decision to recognize the responsible communication defence in libel law in 2009 (Grant v. Torstar Corp, 2009 SCC 61). “In the course of debate,” the Court wrote then, “misconceptions and errors are exposed. What withstands testing emerges as truth”.

Hate speech laws in the human rights context, and court decisions that uphold them, are inconsistent with concept of a marketplace of ideas. They threaten free speech. It is encouraging to see parliament repealing section 13 of the CHRA. The question now is who will follow.

Ryder Gilliland is a Toronto-based attorney at Blake, Cassels & Graydon LLP and an executive member of Ad IDEM, the Canadian Media Lawyers Association.

Adam Lazier is an attorney with Blake, Cassels & Graydon LLP.

Canada: All's fair in blogs on war

20 Sep 11 | Uncategorized

This is a guest post by Catherine Tsalikis

The advent of the world wide web has necessitated a shift in legal thinking with regards to cases of libel. In Baglow v. Smith, 2011, an Ontario Superior Court justice has issued a decision with significant effects for Canadian free speech rights pertaining to blogs and other internet forums which host political debate and discussion.

Justice Peter Annis has dismissed a defamation claim brought by Ottawa’s John Baglow, former executive with the Public Service Alliance of Canada and left-wing commentator (known in the blogosphere as  “Dr Dawg”). Baglow’s action was brought against Connie and Mark Fournier, operators of right-wing blog FreeDominion, and right-wing blogger Roger Smith (aka “Peter O’Donnell”).

In a manner common to exchanges between ideologically-opposed commentators, Baglow v. Smith arose from an escalation of online quips and jabs, during which Smith ultimately described Baglow as “one of the Taliban’s more vocal supporters”. The basis for this assertion stems from Baglow having previously argued in support of the repatriation of Omar Khadr from Guantanamo Bay to Canada, and having criticised the Canadian government for failing to uphold international law through the United Nations Convention of the Rights of the Child.

Of course, it is a long leap from Baglow’s criticism of Khadr’s treatment to the conclusion that the blogger is an adamant supporter of terrorist groups.  Nonetheless, Annis J found in his summary action that there was no issue for trial, noting that, even accepting the low threshold standard for libelous statements, “declaring someone a supporter of the Taliban is at the absolute borderline of a comment that could be said to diminish the esteem of the plaintiff in the minds of readers of a political blog where insults are regularly treated as part of the debate.”

Furthermore, Smith’s words were not intending to state a known fact, but rather his own view – opinion comments are considered to be less serious in defamation cases. Annis J concluded that “the opinion expressed by the defendant lies at the heart of the debate between the factions represented by the parties and whether the underlying facts are true or not, readers following the blog would understand the comment as being one side of the debate”.

Significantly, followers of defamation law are touting this case as groundbreaking in the realm of online free speech, gleaning that Annis J’s decision points to a different standard of defamation between statements made on blog forums and those made in other, more permanent print material. Indeed, the decision suggests that the contemporaneous nature of online debate allows recipients of written attacks to “take the sting” out of potentially libelous comments by responding quickly. Baglow could have responded to Smith’s “Taliban supporter” label by defending himself as the online community would usually expect bloggers to do in these heated, back-and-forth exchanges, but instead chose to resort to legal means.

More generally, Canada has indeed seen advancements in free speech guarantees. Following a Supreme Court decision in 2009, journalists and bloggers are now able to use the defence of “responsible communication on matters of public interest” as a defence against libel. Of course, in this case, Smith’s statement wasn’t found to be libelous in the first place, so one would perhaps be too quick to claim that this decision unequivocally means that anything — or at least more — goes in the blogosphere. Crude, vulgar and boorish commentary is a staple of many online forums, but we would have to wait for a case involving a truly libelous statement to better judge whether the Canadian standard of defamation has been lowered for cyber-speak.

In the meantime, John Baglow has announced on his blog his intention to appeal the decision to the Ontario Court of Appeal.

Catherine Tsalikis is an editorial assistant for The World Today magazine at Chatham House

Canada: Activist charged with criminal defamation

14 Sep 11 | Index Index, minipost

Ontario Provincial Police have charged an activist with two counts of defamatory libel for online comments he made regarding undercover police officers. Using fake names, Dan Kellar outed two officers who had infiltrated activist networks. Upon learning that one of them was spotted in Toronto, he put out a “community alert’’ on the website of an activist group he was involved with. Police claim the comments were likely to injure the reputation of the officers by exposing them to hatred, contempt or ridicule. Kellar says the charges are an attempt to stifle dissent. He will appear in court in Toronto on 20 September.