Minister of Justice and Attorney General of Canada Arif Virani speaks about the Online Harms Act during a press conference on Parliament Hill in Ottawa on Feb. 26.BLAIR GABLE/Reuters
Changing the law to allow people to file complaints to the Canadian Human Rights Commission over what they perceive as hate speech online – including, for example, off-colour jokes by comedians – could inundate the system and have a chilling effect on free speech, experts warn.
The online harms bill, introduced on Monday, would change the Human Rights Act to make posting hate speech online a form of discrimination and empower people to file complaints to the commission about such posts. People found guilty of posting hate speech could have to pay victims up to $20,000 in compensation.
But experts say the ability to make such a civil complaint – with a lower burden of proof than a court of law – could have a chilling effect on free speech.
Josh Dehaas, a lawyer with the Canadian Constitution Foundation, warned the bill could silence people, from comedians to commentators, who fear being reported to the Human Rights Commission and the prospect of huge fines.
He told The Globe and Mail it would be hard to tell where the line is between commentary and hate speech. “We’re very concerned that comedians, and even people just trying to have difficult conversations about things like gender or immigration or religion, are going to be faced with complaints,” he said.
“Even if the complaints don’t go anywhere, they’ll be able to be threatened – ‘if you don’t take that tweet down, or if you don’t stop with that comedy routine, I’m going to take you to the Human Rights Tribunal’ – and that threat alone is going to cause a lot of damage.”
He said most speech wouldn’t cross the line from constitutionally protected expression to hate speech – but most people would be unsure where that line is.
“Allowing people to seek compensation at a human rights tribunal for their online speech will chill a huge amount of protected expression and prevent the kinds of raucous debates that are sometimes necessary in a democracy,” he added in a statement.
Michael Geist, the University of Ottawa’s Canada Research Chair in internet law, said there is a risk that changes to the Human Rights Act in the online harms bill could “open the door to this massive influx of complaints” and even lead people “to weaponize” them.
“There is a danger, a risk of a chilling effect,” he said.
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The online harms bill effectively reinstates a provision in the Human Rights Act that was repealed by Stephen Harper’s government in 2013, imposing restrictions on communicating online in a way that could expose a person to hatred. The provision, which has been updated, was scrapped after a number of controversies, including one involving an article in Maclean’s magazine.
The Canadian Human Rights Commission dismissed a complaint filed by the Canadian Islamic Congress about an article written by Mark Steyn, titled The Future Belongs to Islam, posted on the Maclean’s website in October, 2006. The Congress argued that the article made statements and assertions likely to expose Muslims to hatred or contempt.
Bernie Farber, a member of the expert Task Force on Online Harms set up by the government to advise on the creation of the bill, argued for reinstating the provision, saying its repeal by the Harper government was a “travesty.”
He said that since then, six people were murdered in a Quebec mosque and four members of a Muslim family were killed on the streets of London, Ont., by a driver of a pickup.
“All of the perpetrators admit that they were radicalized online,” he said.
“I believe the creation of these new amendments to the Canadian Human Rights Commission … will save lives, and protect Canadians against the worst forms of hatred.”
However, Dax D’Orazio, a postdoctoral fellow in political studies at Queen’s University, said “re-animating a previously repealed section of the Canadian Human Rights Act, which was the only hate speech prohibition in Canadian law applying specifically to the internet” is controversial. But he said comedians are not likely to be affected.
“The problem with applying human-rights legislation to the context of comedy is that intent and also context matter, incredibly. It’s really hard to argue that somebody who is being deliberately provocative, perhaps even deliberately offensive, would be doing the same thing as discriminating against someone, say, in employment contexts or a housing context,” he said.
The online harms bill also creates a new standalone hate-crime offence, carrying penalties of up to life imprisonment, for people who commit a hate-motivated crime. It defines a hate crime as an offence motivated by hatred including based on race, gender identity or expression, religion, national or ethnic origin, colour, mental or physical disability, sex, age or sexual orientation.
The bill also raises the maximum punishment from five years to life imprisonment for advocating genocide.
Stephen Camp, a retired Edmonton police officer and member of the Alberta hate crimes committee, said these provisions would not only make it easier to prosecute crimes motivated by hate, but they would also mean that hate crimes could be logged and statistics gathered more accurately.
He said he was happy with the balance struck by the bill, adding that when assessing what counts as hate speech or hate propaganda, the context and the motivation of the person, and what they are trying to say, is important.
“It can’t be arbitrary. And it can’t be something that the officer or the person in charge takes offence to,” he said.
Conservative Leader Pierre Poilievre said in a statement that his party did not believe in “censoring opinions.”
“We do not believe that the government should be banning opinions that contradict the Prime Minister’s radical ideology,” he said.