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Free speech is foundational to democracy. In Canada, it is one of our fundamental freedoms under section 2 of the Charter. Attempts to curtail speech in any way are often seen as an assault on liberty. Bill C-63 would amend the Criminal Code and the Canadian Human Rights Act to combat hate speech online. But the bill gives too much discretion to government actors to decide what constitutes hate speech.  

Harsher penalties for “hate speech” crimes 

The Criminal Code has several offences that fall under the colloquial term “hate speech.” The Code prohibits advocating genocide, publicly inciting hatred that is likely to lead to a breach of the peace, or wilfully promoting hatred or antisemitism. The latter offence is potentially broader, but it also provides several defences, including (a) the statement was true, (b) the statement was a good faith attempt to argue a religious view, and (c) the statement was about an important public issue meriting discussion and the person reasonably believed the statement was true. 

Bill C-63 would increase the maximum penalties for advocating genocide and inciting or promoting hatred or antisemitism. The maximum penalty for advocating genocide would increase to life in prison instead of five years. The bill would also raise the penalty for publicly inciting hatred or promoting hatred or antisemitism to five years instead of the current two.  

Bill C-63 defines ‘hatred’ as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike.” It also clarifies that a statement does not incite or promote hatred “solely because it discredits, humiliates, hurts or offends.” This clarification is better than nothing, but it inevitably relies on judges to determine the line between statements that are merely offensive or humiliating and those that generate emotions of vilification and detestation. 

ARPA Canada recently intervened in a criminal hate speech case involving Bill Whatcott. Whatcott was charged with criminal hate speech for handing out flyers at a pride parade warning about the health risks of engaging in homosexual relations. Prosecutors argued that Whatcott was promoting hatred against an identifiable group by condemning homosexual conduct. This is an example of a person being accused of hate speech for expressing his beliefs – his manner of expressing those beliefs, but also the content of his beliefs. 

A new stand-alone hate crime offence 

The Criminal Code already makes hatred a factor in sentencing. So, for example, if you assault someone and there is conclusive evidence that your assault was motivated by racial hatred, that “aggravating factor” will likely mean a harsher sentence for you. But the offence is still assault, and the maximum penalties for assault still apply.  

Bill C-63, however, would add a new hate crime offence – any offence motivated by hatred – to the Criminal Code, may bepunishable by life in prison. It would mean that any crime found to be motivated by hatred would count as two crimes. Consider an act of vandalism, for example. The crime of mischief (which includes damaging property) has a maximum penalty of 10 years. But, if you damaged property because of hatred toward a group defined by race, religion, or sexuality, you could face an additional criminal charge and potentially life in prison. 

Anticipatory hate crimes? 

Bill C-63 would permit a person to bring evidence before a court based on fear that someone will commit hate speech or a hate crime in the future. The court may then order the accused to “keep the peace and be of good behaviour” for up to 12 months and subject that person to conditions including wearing an electronic monitoring device, curfews, house arrest, or abstaining from consuming drugs or alcohol.  

There are other circumstances in which people can go to court for fear that a crime will be committed – for example, if you have reason to believe that someone will damage your property, or cause you injury, or commit terrorism. However, challenges with unclear or subjective definitions of hatred will only be accentuated when determining if someone will commit hate speech or a hate crime. 

Canadian Human Rights Act – Bringing back section 13 

The former section 13 of the Canada Human Rights Act prohibited online communications that were “likely to expose a person or persons to hatred or contempt” on the basis of their race, religion, sexuality, etc. As noted by Joseph Brean in the National Post, section 13 was passed in 1977, mainly in response to telephone hotlines that played racist messages. From there, the restrictions around hate speech were extended to the internet (telecommunications, including internet, falls under federal jurisdiction) until Parliament repealed section 13 in 2013. Joseph Brean writes that section 13 “was basically only ever used by one complainant, a lawyer named Richard Warman, who targeted white supremacists and neo-Nazis and never lost.” In fact, Warman brought forward 16 hate speech cases and won them all.  

A catalyst for the controversy over human rights hate speech provisions was a case involving journalist Ezra Levant. Levant faced a human rights complaint for publishing Danish cartoons of Muhammad in 2006. In response, Levant published a video of an interview with an investigator from the Alberta Human Rights Commission. In 2007, a complaint was brought against Maclean’s magazine for publishing an article critical of Islam by Mark Steyn. Such stories brought section 13 to public attention and revealed how human rights law was being used to quash officially disapproved political views.  

Bill C-63 would bring back a slightly revised section 13. The new section 13 states, “(1) It is a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or any other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.” A few exceptions apply. For example, this section would not apply to private communication or to social media services that are simply hosting content posted and shared by users. So, for example, if someone wanted to bring a complaint about an ARPA post on Facebook, that complaint could be brought against ARPA, but not against Facebook. 

If a person is found guilty of hate speech, the Human Rights Tribunal may order the offender to pay up to $20,000 to the victim, and up to $50,000 to the government. The possibility of financial benefit may incentivize people to bring forward hate speech complaints.  

British Columbia has a similar hate speech provision in its Human Rights Code. ARPA wrote about how that provision was interpreted and enforced to punish someone for saying that a “trans woman” is really a man. The Tribunal condemned a flyer in that case for “communicat[ing] rejection of diversity in the individual self-fulfillment of living in accordance with one’s own gender identity.” The Tribunal went on to reject the argument that the flyer was not intended to promote hatred or discrimination, “but only to ‘bring attention to what [the defendant] views as immoral behaviour, based on his religious belief as a Christian’.” Ultimately, the Tribunal argued that there was no difference between promoting hatred and bringing attention to what the defendant viewed as immoral behaviour.  

Hate Speech 

As noted above, when it comes to the Criminal Code’s hate speech offences, there are several defences available (truth, expressing a religious belief, and advancing public debate). These are important defences that allow Canadians to say what they believe to be true and to express sincere religious beliefs.  

But the Canadian Human Rights Act offers no defences. And complaints of hate speech in human rights law are far easier to bring and to prosecute than criminal charges. Criminal law requires proof beyond reasonable doubt. But under the Human Rights Act, statements that are likely (i.e. 51% chance, in Tribunal’s view) to cause detestation or vilification will be punishable. So, hate speech would be regulated in two different places, the Criminal Code and the Human Rights Act, the latter offering fewer procedural rights and a lower standard of proof. 

Bill C-63 clarifies that a statement is not detestation or vilification “solely because it expresses disdain or dislike or it discredits, humiliates, hurts or offends.” But again, the line between dislike and detestation is unclear. Human rights complaints are commonly submitted because of humiliation or offence, rather than any clear connection to detestation or vilification.  

Section 13 leaves too much room for subjective and ideologically motivated interpretations of what constitutes hate speech. The ideological bias that often manifests is a critical theory lens, which sees “privileged” groups like Christians as capable only of being oppressors/haters, while others are seen as “equity-seeking” groups. 

For example, in a 2003 case called Johnson v. Music World Ltd., a complaint was made against the writer of a song called “Kill the Christian.” A sample: 

Armies of darkness unite 

Destroy their temples and churches with fire 

Where in this world will you hide 

Sentenced to death, the anointment of christ  

Put you out of your misery 

The death of prediction 

Kill the christian 

Kill the christian…dead! 

The Tribunal noted that the content and tone appeared to be hateful. However, because the Tribunal thought Christians were not a vulnerable group, it decided this was not hate speech.  

By contrast, in a 2008 case called Lund v. Boissoin, a panel deemed a letter to the editor of a newspaper that was critical of homosexuality to be hate speech. The chair of the panel was the same person in both Johnson and Lund.  

Hate speech provisions are potentially problematic for Christians who seek to speak truth about various issues in our society. Think about conversion therapy laws that ban talking about biblical gender and sexuality in some settings, or bubble zone laws that prevent pro-life expression in designated areas. But beyond that, freedom of speech is also important for those with whom we may disagree. It is important to be able to have public dialogue on various public issues.  

Government’s Role in Regulating Speech 

This all raises serious questions about whether the government should be regulating “hate speech” at all. After all, hate speech provisions in the Human Rights Act or the Criminal Code have led and could lead to inappropriate censorship. But government also has a legitimate role to play in protecting citizens from harm.  

Reputational harm and safety from threats of violence 

Arguably the government’s role in protecting citizens from harm includes reputational harm. Imagine someone was spreading accusations in your town that everyone in your church practices child abuse, for example. That is an attack on your reputation as a group and as individual members of the group – which is damaging and could lead to other harms, possibly even violence. Speech can do real damage.

Jeremy Waldron, a prominent legal philosopher and a Christian, suggests that the best way to think about and enforce “hate speech” laws is as a prohibition on defaming or libeling a group, similar to how our law has long punished defaming or libeling an individual. Such a conception may help to rein in the scope of what we call “hate speech”, placing the focus on demonstrably false and damaging accusations, rather than on controversial points of view on matters relating to religion or sexuality, for example. 

Hatred is a sin against the 6^th commandment, but the government cannot regulate or criminalize emotions per se or expressions of them, except insofar as they are expressed in and through criminal acts or by encouraging others to commit criminal acts. That’s why we rightly have provisions against advocating or inciting terrorism or genocide, or counselling or encouraging someone to commit assault, murder, or any other crime. 

When the law fails to set an objective standard, however, it is open to abuse – for example, by finding a biblical view of gender and sexuality to constitute hate speech. Regrettably, Bill C-63 opens up more room for subjectivity and ideologically based restrictions on speech. It does nothing to address the troubling interpretations of “hate speech” that we’ve seen in many cases in the past. And, by putting hate speech back into the Human Rights Act, the bill makes many more such abuses possible. We suspect it will result in restricting speech that is culturally unacceptable rather than objectively harmful. 

The harm of pornography 

As discussed in Part 1 of our analysis on this bill, Bill C-63 does introduce some good restrictions when it comes to online pornography. In our view, laws restricting pornography are categorically different from laws restricting “hate speech”, because the former laws are not designed to or in danger of being applied to censor beliefs, opinions, or arguments. Restricting illegal pornography prevents objectively demonstrable harm. Pornography takes acts that ought to express love and marital union and displays them for consumption and the gratification of others. Much of it depicts degrading or violent behaviour. Pornography’s harms, especially to children, are well documented.

The argument is often made that pornography laws risk censoring artistic expression involving sexuality or nudity. But Canada is very far, both culturally and legally, from censoring art for that reason – and Bill C-63 wouldn’t do so. Its objectives as it relates to pornography are mainly to reduce the amount of child pornography and non-consensual pornography easily available online.

Conclusion 

While the Online Harms Act contains some good elements aimed at combatting online pornography, its proposed hate speech provisions are problematic. Unfortunately, the federal government chose to deal with both issues in one piece of legislation; legislation that ought to have been two separate bills. As Bill C-63 begins to progress through the House of Commons, we can continue to support Bills S-210 and C-270, private members’ bills which combat the online harms of pornography. Meanwhile, stay tuned for further action items related to the Online Harms Act.  

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