Friday, June 12, 2009

Canadian Human Rights Commission Releases Report on Section 13 Hate Provision

The Canadian Human Rights Commission has tabled a report to Parliament on the nation's hate laws.

Section 13 is the provision of the federal Act that addresses publication of extreme hate speech online and elsewhere:
The Commission is mindful of the changing nature of hate activity, especially with regard to hate on the Internet. The Commission is also aware of the criticism by some of how the Commission deals with section 13 cases. Both the Criminal Code and the CHRA could be amended to better deal with current realities. This section reviews the Commission’s observations and recommendations.
The current text of Section 13 is as follows:

Hate messages

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.


(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.


(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

R.S., 1985, c. H-6, s. 13; 2001, c. 41, s. 88.

The proposed amendments seek to clarify the definitions of "hatred" and "contempt" under the CHRA and the nation's Criminal Code.

As well, procedural safeguards are suggested, including changes allowing the Commission to summarily dismiss groundless complaints at an early stage and to make awards of costs against a complainants who file frivolous complaints that abuse the Tribunal process:

It is recommended that both the Criminal Code of Canada and the Canadian Human Rights Act continue to contain provisions to deal with hate on the Internet.


It is recommended that the Canadian Human Rights Act be amended to provide a statutory definition of "hatred" and "contempt" in accordance with the definition applied by the Supreme Court of Canada in Taylor.


It is recommended that the Canadian Human Rights Act be amended to allow for an award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process.


It is recommended that section 41 of the Canadian Human Rights Act be amended to include a provision that allows the dismissal of section 13 complaints when messages do not meet the narrow definition of hatred or contempt.


It is recommended that the penalty provision in section 54(1)(c) of the Canadian Human Rights Act be repealed..

The proposed amendments will likely do little to satisfy the more extreme and vocal critics of the nation's human rights commissions, who view all provincial and federal human rights legislation as an egregious affront to freedom of speech in Canada.

Our regular readers will recall that I've never shared that opinion - I've simply not been of the view that the CHRA was ever particularly flawed or broken.

If accepted by the Harper government, however, the proposed changes will go a long way toward addressing many of the critics' most commonly stated concerns, by bringing additional balance, certainty and procedural fairness to the federal tribunal process.

I have no difficulty acknowledging that the proposed changes will improve what is already a reasonably good system - the good news is the proposed changes seek to do so without threatening our legislation framework for addressing the most extreme examples of online hatred.

More on this from the Ottawa Citizen - see: Rights commission rejects call to quit policing online hate.

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