Justice Committee recommends prosecuting “online hate” under human rights law

For background on section 13 and the justice committee’s online hate study, read this article of mine from earlier in June. To get a sense of how farcical the committee’s antics got during its proceedings, you may wish to read this piece.

After hearing from nearly five dozen witnesses over two months of meetings, the Canadian Parliament’s Standing Committee on Justice and Human Rights has tabled its report in the House of Commons.

The report from the Liberal-dominated committee lays out nine recommendations for Members of Parliament to adopt. Most notable is the implementation of a “civil remedy” to combat online hate, which the report acknowledges must first be defined in law.

The Conservatives have already taken aim at the report, charging its recommendations call for an “unacceptable violation” of free speech.

Recommendation 7 of the report:

That the Government of Canada develop a working group comprised of relevant stakeholders to establish a civil remedy for those who assert that their human rights have been violated under the Canadian Human Rights Act, irrespective of whether that violation happens online, in person, or in traditional print format. This remedy could take the form of reinstating the former section 13 of the Canadian Human Rights Act, or implementing a provision analogous to the previous section 13 within the Canadian Human Rights Act, which accounts for the prevalence of hatred on social media.

Only four of the dozens of witnesses who testified before the committee made preserving and protecting free speech a priority in their remarks, with a majority advocating a restoration of section 13, or a super-charged version of it that holds social media companies culpable for content posted online, as well as the people posting it.

Section 13 of the Canadian Human Rights Act, repealed during Stephen Harper’s government, allowed for the Canadian human rights commission and tribunal to prosecute online postings, though defendants did not have the same protections or rights afforded to them as those defending themselves in the criminal justice system.

The high standard Canadian criminal law sets for hate speech has caused activists on the left to seek a prosecutorial tool with a lower threshold, prompting the desire for the “civil remedy” sought by the committee’s report.

The report also calls on the government to “establish requirements for online platforms
and Internet service providers with regards to how they monitor and address
incidents of hate speech, and the need to remove all posts that would
constitute online hatred in a timely manner.”

This recommendation is particularly timely, given Canada’s democratic institutions minister, Karina Gould, said last week that the government was not averse to shutting down social media companies who don’t comply with government’s expectations when it comes to political content during the election.

The Conservative members of the committee pushed back against the report, with Conservative MP Michael Barrett arguing these recommendations do “not strike an appropriate balance” between dealing with extremism and protecting free speech.

“Measures like the restoration of section 13 of the Canadian Human Rights Act are an unacceptable violation of the freedom of speech rights of Canadians,” Barrett said.

Report embedded below:

Taking Action to End Online Hate by Andrew Lawton on Scribd

The fight for free speech is never over

It was a big victory against state censorship when section 13 of the Canadian Human Rights Act was repealed in 2013.

The repeal, accomplished through a private member’s bill by Conservative member of parliament Brian Storseth, eliminated the CHRA provision allowing for prosecution of online “hate” speech.

Yet not even a decade has passed and a parliamentary committee is weighing whether to bring back section 13 or an amended version of it.

The Standing Committee on Justice and Human Rights has heard from nearly five dozen witnesses since April as part of its study of “online hate.”

“The Canadian Human Rights Act does not include any mention of telecommunications and the internet since section 13 of the Act was repealed in 2013,” the scope of the body’s study says. “The Committee is particularly interested in how potential amendments to the Canadian Human Rights Act, the Criminal Code, or any other Act, could help stem the propagation of hateful acts and the enticement of hate such as racism, sexism, antisemitism, islamophobia, or homophobia, through online platforms.”

Shamefully, yet unsurprisingly, most of the witnesses testifying–including the chief commissioners of the Saskatchewan and Canadian human rights commissions–have advocated a restoration of section 13.

While the Liberal government may wish to pretend there’s a gap in the law regarding the internet, there isn’t. Anything that’s illegal in Canada–as criminal hate speech is–is prohibited on the internet.

I suspect what censors are actually pining for is the murky and reprehensibly broad interpretation “hate” that the Canadian Human Rights Commission embraced during the lifespan of section 13.

This week the committee will hear from Mark Steyn, Lindsay Shepherd and John Robson. Their voices will be important after weeks of dozens of witnesses wanting government to not only clamp down on online hate speech, but also social media companies that allow it.

(Only a couple of witnesses to date have made preserving free speech a priority in their recommendations.)

There’s nothing wrong with opposing offensive and hateful speech. Wanting government to do so with the force of the law is a different story. Especially when the umpteen hours spent investigating “online hate” have not yielded a definition of it.

Even so, that Canadian Human Rights Commission’s chief commissioner testified that it poses a “clear and present danger.”

The missing definition is critical here, especially if the Left gets its way and social media postings do become subject to government regulation, as a supercharged section 13 would allow.

Given how readily the Left accuses anyone it disagrees with of “hateful” rhetoric with labels like “racist” and “Islamophobe” and the like, I’m not optimistic a Liberal definition of hate speech will hew to Canadian criminal law’s high threshold.

That this committee’s study exists in the first place is evidence of victory’s impermanence. I joined the chorus of celebration when section 13 was repealed in 2013.

The climate of free speech has changed a lot in these last six years, however. Conservative commentators had allies in liberal journalists on the question of censorship and free speech back then. Columnists and even some politicians on the Left understood that a liberal democracy must uphold free speech.

Now, defending free speech is somehow synonymous with defending bigotry to the Left, which is more focused on pinpointing where free speech’s limits are than with preserving the overall right.

Groups like PEN, Amnesty and Canadian Journalists for Free Expression care far more about identity politics than upholding freedom of expression.

Amnesty Canada, for example, testified in support of online hate speech regulation, arguing the “right to free expression” carries “special duties and responsibilities and may therefore be subject to restrictions.”

Government bureaucracies don’t even pretend to care about freedom of speech. Case in point was Saskatchewan human rights commissioner David Arnot’s testimony before the justice committee last week.

Arnot said human rights commissions are the best way to curb hate, rather than criminal law, saying criticism of human rights commissions justifying censorship was merely “anecdotal.”

Except it wasn’t.

Steyn had to defend his right to publish a column about Islam before British Columbia’s human rights tribunal. The complaint against Maclean’s that sparked that trial was also put to the human rights bodies of Canada and Ontario, which declined to pursue only for lack of jurisdiction, not lack of support.

But Arnot, who I suspect is representative of the broader government-appointed human rights industry in Canada, rejects the premise that free speech is even a right in Canada, let alone one to be protected.

“Canada has no democratic tradition of unbridled free speech,” he said. “Freedom of speech in Canada has always been freedom governed by limits recognized in law.”

He argued there are “numerous limits to free expression that are justifiable in a free and democratic society.”

This is true when talking about threats, advocacy of genocide, and so on. Though Arnot said any protection against the “greater harm that flows from unfettered speech” is justified.

Anyone thinking the Conservatives will be reliable allies in this fight need only look at Andrew Scheer’s treatment of one of his own party’s members of parliament, Michael Cooper.

Until last weekend, Cooper was the vice-chair of the justice committee. Now he’s been booted by Scheer for the crime of being “insensitive” after pushing back against a witness’ erroneous claim that “conservative commentators” influence anti-Muslim attackers.

Cooper read from the Christchurch shooter’s manifesto to illustrate how the murderer actually disavowed conservatism. After the media falsely crafted a narrative of a Conservative MP beating up on a Muslim, Scheer capitulated, throwing his own caucus member under the bus for his “insensitive and unacceptable” comments, “especially when directed at a Muslim witness.”

This is one of the reasons I’m less optimistic about this renewed fight for free speech. A decade ago, Conservatives and even some Liberals were unified in their support for free speech. Now, Liberals and some Conservatives are united in the other direction.

Victory should never be taken for granted. The fight is the same as it was a decade ago, though the opposition is much larger.

Notwithstanding clause a much-needed tool to fight judicial activism

When judges overstep their bounds, elected governments need to fight back. That’s exactly what Premier Doug Ford did by deploying the notwithstanding clause, as I discuss in this week’s Loonie Politics column.

As always, an excerpt is below, but please pick up a subscription (only $40 a year using the promo code ‘Lawton’) to read the full piece and the stellar work of my colleagues.

What started as a deflation of a bloated Toronto city council has now become a weapon against judicial activism.

Premier Doug Ford has thrown down the gauntlet to the courts based on a very simple premise: he was elected to govern Ontario, and they weren’t.

That a bill about one city’s municipal election has ignited a national constitutional conversation is proof that the process by which a law comes to be is often more important than the specific law in question.

As a non-Torontonian, my life wasn’t changed with the passage of Bill 5, the Better Local Government Act, last month.

But for the 509 declared candidates and the two or three Toronto voters paying attention to municipal politics in August, the bill was undeniably disruptive.

But there’s a difference between something being a disruption and it being unconstitutional.  That distinction was lost on Judge Edward Belobaba of the Ontario Superior Court of Justice, who ruled on Monday that Ontario government “has clearly crossed a line” with its decision to cut Toronto’s council from 47 wards to 25 just a couple of months before the election.

Hours after the decision, Ford responded with a historic vow to reintroduce the legislation with the notwithstanding clause, which his government did on Wednesday.

It’s a tactic never before employed by an Ontario government.  The lack of precedent notwithstanding (sorry), the clause in question is still a valid tool afforded to premiers, and has been for nearly four decades.

I can’t help but laugh at the left’s accusation that Ford has trampled on the Charter of Rights and Freedoms when it’s that very charter that contains the notwithstanding clause.  It was specifically carved into the document so provinces could maintain autonomy and protect themselves against overzealous interpretations of Charter freedoms.