Combatting hate speech and hate crimes: Proposed legislative changes to the Canadian Human Rights Act and the Criminal Code

On June 23, 2021, the Minister of Justice and Attorney General of Canada introduced a bill to better combat hate speech and hate crimes, provide improved remedies for victims, and hold individuals accountable for the harms of the hatred they spread. The bill proposes to amend the Canadian Human Rights Act and the Criminal Code, and make related amendments to the Youth Criminal Justice Act.

Canadian Human Rights Act (CHRA)

What are the proposed changes to the CHRA?

The bill proposes to amend the Canadian Human Rights Act to define a new discriminatory practice of communicating hate speech online. Proposed amendments include re-instating an amended section 13, improvement to the hate speech complaints process, and additional remedies to address communication of hate speech.

As part of the proposed amendments, “hate speech” would be defined based on Supreme Court of Canada decisions. The definition would clearly set out both what hate speech is and what it is not. These provisions would focus on truly harmful content and would not impose criminal consequences — their purpose would be to remedy acts of hate speech and to redress their harms.

How would “hate speech” be defined in the CHRA?

The definition would focus on both the content of the speech and its likely effects, in line with Supreme Court of Canada decisions.

The bill defines “hate speech” as the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.

These grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.

In addition, the hate speech would need to be communicated in a context where it is likely to foment detestation or vilification of an individual or group on any of these prohibited grounds.

Speech that expresses dislike or disdain, or that discredits, humiliates, hurts or offends would not fall within the definition of hate speech. This distinction is intended to reflect the extreme nature of hate speech captured by the proposed amendments.

To whom would the proposed amendments to the CHRA apply and not apply?

These amendments would apply to public communications by individual users on the Internet, including on social media, on personal websites, and in mass emails. For example, they would apply to an individual publishing a blog or posting on a social media platform. They would also apply to operators of websites that primarily publish their own content but also publish comments by users and visitors, including in articles on online newspapers and in user comment sections.

These amendments would not apply to operators of social media platforms, the primary purpose of which is to enable users of the service to communicate with other users of the service interprovincially and internationally over the Internet. Operators of these social media platforms are the subject of upcoming engagement by Canadian Heritage, which will outline a proposed approach to regulating social media and harmful content, including hate speech, online.

These amendments would also not apply to intermediaries who supply hosting, caching, and other technical infrastructure. Nor would they apply to telecommunication service providers or licensed broadcasters, who are regulated by other means, or to private communications (e.g. private emails and direct messages).

Who would be able to file hate speech complaints with the Canadian Human Rights Commission?

Individuals and groups would be able to file hate speech complaints with the Canadian Human Rights Commission. The Commission would then screen complaints and determine whether they warrant referral to the Canadian Human Rights Tribunal for a hearing in accordance with Canadian Human Rights Act procedures. The Tribunal would be empowered to order the respondent to cease the communication and, in certain circumstances, to pay monetary compensation and penalties.

How would the amendments to the CHRA improve the procedures for hate speech complaints?

The CHRA complaint procedures would be improved by:

• including a definition of “hate speech” in the CHRA to allow the Canadian Human Rights Commission to rapidly screen out complaints that do not meet the definition;
• empowering the Canadian Human Rights Tribunal to ensure fair and efficient hearings by awarding litigation costs against parties who abuse the process;
• providing the Commission and the Tribunal with increased resources to help it process complaints more quickly; and
• empowering the Commission and the Tribunal throughout the process to take measures to protect the confidentiality of complainants, victims, and witnesses if there is a risk of reprisals, while ensuring that fully open proceedings is the default approach.

How do the proposed changes to the CHRA affect rights and freedoms?

With more of our lives taking place online, the importance of fostering an online environment where all Canadians are able to participate cannot be overstated. We must also recognize and address the potential of online hate speech to translate into offline harm. In short, an inclusive and properly functioning online environment is increasingly essential for safeguarding the ability of all Canadians to participate in all aspects of our democracy.

Hate speech is being carefully defined to target only an extreme and marginal type of expression that is likely to foment detestation or vilification. Quoting hate speech in a critical context to study it or to refute it, for example, would not be a discriminatory practice. In addition, private communications, such as personal emails and direct messages, would be excluded.

How will the new complaints system ensure procedural fairness?

The CHRA allows both the complainant and the respondent the opportunity to present their views to the Canadian Human Rights Commission. If the complaint is referred to the Canadian Human Rights Tribunal for adjudication, an independent panel will hear the views of both parties before a final decision is made. Both the Commission and the Tribunal are bound to provide procedural fairness and to respect the Canadian Charter of Rights and Freedoms. Their decisions may be reviewed by the Federal Court.

Could a complaint be filed against social media platforms under the CHRA?

The bill would allow for complaints to be filed against individual users for content posted on social media platforms and empower individuals by giving them additional remedies to address hate speech online.

While operators of social media platforms could not be the subject of complaints under the CHRA, they are the focus of upcoming engagement by Canadian Heritage, which will outline a proposed approach to regulating social media and harmful content, including hate speech, online.

Could a complaint be filed against broadcasters under the CHRA?

The proposed amendments would not apply to licensees regulated by the Broadcasting Act. As per the Broadcasting Act, the Canadian Radio-television and Telecommunications Commission is responsible for regulating the Canadian broadcasting system, including regulating anyone licensed under that Act. Regulations under that Act prohibit certain programming content, for example an abusive comment that could expose a group or community to hatred.

Criminal Code

What are the proposed changes to the Criminal Code?

Definition of hatred: the bill proposes to define the term “hatred” for the two hate propaganda offences in section 319 of the Criminal Code. The proposed definition is based on Supreme Court of Canada jurisprudence about what “hatred” means and what it does not mean.

The definition of “hatred” would apply to the offences of:

• inciting hatred against an identifiable group in a public place that is likely to cause a breach of the peace; and
• wilfully promoting hatred against an identifiable group.

Creation of a new peace bond: the bill also proposes to create a new peace bond to help prevent hate propaganda offences and hate crimes. A peace bond is a court order that seeks to prevent criminal conduct by allowing a court to impose tailored conditions designed to prevent a crime from occurring. Someone who reasonably fears they could be a target of a hate crime or hate propaganda offence could apply for a peace bond to be imposed on an individual to deter that person from committing the crime.

A breach of the proposed peace bond would carry a maximum penalty of four years’ imprisonment, the same penalty that exists for breaches of other peace bonds. Consent by the appropriate Attorney General would be required before the peace bond could be used, as is the case with some existing peace bonds.