Hate speech penalty in proposed online harms law exposes Canadians to costly legal fees and up to $50,000 in fines
Proceedings at the Canadian Parliament are beginning to feel like a zombie film: a monster was killed, it came back, was killed again and yet returns a third time. But this isn’t your typical horror flick. This one involves a group of government bureaucrats investigating complaints about your speech, prosecuting you at their own tribunal and ordering you to pay tens of thousands of dollars to people who don’t like what you say or write. The undead antagonist at the centre of it all is the civil penalty for hate speech, proposed last week in Prime Minister Justin Trudeau’s newly tabled Bill C-63.
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Hate speech is punishable under criminal law, but in the past, it could also be met with a civil penalty under Section 13 of the Canadian Human Rights Act. In 2014, the penalty was killed by Stephen Harper’s government after being badly abused. In 2021, the Trudeau government tried to resurrect Section 13 in Bill C-36, but the bill died when an election was called. Now, it’s back for a third time as Bill C-63, and is as dangerous as ever to freedom of speech and the free press.
The civil penalty for hate speech will result in self-censorship, intrude into press freedom and result in frivolous complaints arising from online flame wars where the process becomes the punishment. These frivolous complaints will clog up the already overburdened Canadian Human Rights Commission (CHRC) which is supposed to deal with complex societal problems, such as discrimination in transportation or by government agencies. All are supported by a taxpayer-funded bureaucracy.
We’ve already seen this story play out.
In 2007, the CHRC launched an investigation into Maclean’s magazine based on complaints brought by the Canadian Islamic Congress alleging violations of Section 13 the Canadian Human Rights Act (CHRA). The complaints were about articles published by the magazine between 2005 and 2007, including a book excerpt from “America Alone” by author Mark Steyn.
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In 2008, the CHRC began an investigation into Fr. Alphonse de Valk, a Basilian priest and pro-life activist who publishes in the monthly magazine Catholic Insight. De Valk’s impugned speech involved opposition to same-sex marriage and quoting the Bible, the Catechism of the Catholic Church and Pope John Paul II’s encyclicals. Like the complaint against Steyn, this complaint was made by a member of the public to the CHRC under Section 13 of the Act.
There was widespread opprobrium from the public over the abuse of the hate speech complaint process, which up until the early aughts had largely been uncontroversial because it had almost exclusively been used against skinheads, neo-Nazis and white supremacists. But suddenly, human rights commissions were investigating complaints about speech that were much closer to mainstream views: concerns about Islamist violence, immigration, demographics and same-sex marriage. Further, complaints were now being made against mainstream publications, like Maclean’s, the Western Standard and Catholic Insight.
It was in this context in June 2008 that Prof. Richard Moon was asked by the CHRC to write a report on the regulation of hate speech on the internet, focusing specifically on Section 13 of the governing act. Moon recommended that Section 13 be repealed, finding that the prohibition of this narrow category of extreme expression fits awkwardly into a human rights law that is concerned with the eradication of discrimination. He concluded that the Criminal Code’s prohibitions on hate speech were sufficient, and that state censorship of hatred should be confined to a narrow category of extreme expression, which threatens, advocates or justifies violence against members of an identifiable group.
In 2008, the complaints against de Valk and Steyn were ultimately dismissed, but not before they incurred huge costs; $20,000 in legal fees in de Valk’s case, undoubtedly more in Steyn’s. The process becomes the punishment even if the case does not proceed past an investigation.
Individuals who complain bear no costs in bringing a complaint — not even the costs of a lawyer. Under the previous Section 13, if a complaint was dismissed as frivolous by the CHRC, the defendant could not ask for costs as is possible in civil court. Under the new version of Section 13, defendants can ask for costs if the tribunal finds there has been an abuse of process. But that doesn’t save the defendant costs associated with a commission investigation that doesn’t proceed to the tribunal. And if it does proceed, abuse of process is guarded by such a high legal bar it is essentially useless.
If the Canadian Human Rights Tribunal were to find a hate speech violation under the proposed C-63, defendants could face fines of up to $50,000, and could be made to pay up to $20,000 to complainants. The process financially incentivizes complaints at essentially zero cost.
There should be real concerns that there will be big penalties under Trudeau’s new online harms law. The Overton window has shifted since 2007, and the definition of hatred, while theoretically narrow in scope, is inherently and unavoidably subjective. What the CHRC called “hyperbole” or “polemical, colourful and emphatic” when describing Steyn’s writing in 2008 could be viewed very differently by the government bureaucrats who staff the CHRC today.
The proposed remedies for hatred are located within a law and bureaucracy that is broadly concerned with the advancement of social equality. As Moon pointed out in a law journal in 2010, placing hate speech awkwardly within the human rights framework will always make it vulnerable to a more expansive interpretation, especially at the initial screening stage.
Despite its fatal flaws, this zombie law refuses to die. Canadians should take the opportunity now to write to their members of Parliament and explain why Bill C-63’s plan to recreate a civil penalty for hate speech is as bad an idea today as it was a decade ago.
National Post
Christine Van Geyn is the litigation director for the Canadian Constitutional Foundation.
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