Canadian Human Rights Tribunal Declares Internet Hate Speech Law Unconstitutional

from the common-sense-is-better-late-than-never dept

The Canadian Human Rights Tribunal has refused to enforce a controversial internet hate speech law, claiming that it's unconstitutional. The tribunal adjudicator, Athanasios Hadjis, expressed worry back in March about the "chilling effects" that Section 13 of the Canada Human Rights Act would have on the internet. In his ruling Wednesday, he decided that the restriction imposed by Section 13 "is not a reasonable limit" within the meaning of the Canadian Charter of Rights and Freedoms, and thus, unconstitutional. Since the tribunal isn't a real court, it can't actually strike down the law, so Hadjis just refused to impose any penalty.

Section 13 prohibits the repeated communication of "any matter that is likely to expose a person or persons to hatred or contempt" via telephone or -- since 2001 anti-terrorism measures -- the internet. The section is quite controversial; neither truth nor intent are a defense, and it's not part of the criminal code, so it tends to become a vehicle for cases that wouldn't stand a chance in a real court. Last fall, an independent review commissioned by the Canadian Human Rights Commission itself called for Section 13 to be repealed (an epic whitewash fail), and some politicians have begun to ask for the same. For serious issues, there are other hate speech provisions in the criminal code with real defenses, handled in real courts. Section 13 makes it too easy for someone to be "dragged through the process," as Hadjis puts it.

Not only is the section controversial, but its application to the web has been clumsy at best. Hadjis said, when applied to speech online, "suddenly, the chilling effect catches not only individuals who set up telephone messages... but just about everyone who posts anything on the internet." Hadjis notes that telephone hate messages tend to be overt, while opinions on the internet include many borderline cases. Part of the problem is that there are no safe harbors in Canadian law (or "safe harbours," as we Canadians would call them). Hadjis was concerned that website owners could be charged under Section 13 for user comments on message boards and blog posts. While this particular website owner doesn't seem like all that nice of a guy (to be charitable...), twisting the law to make a site owner responsible for user posts would have set a terrible precedent. Hadjis, thankfully, had the common sense to avoid that error. Hopefully Section 13 is repealed soon, and other tribunal adjudicators take note of Hadjis' ruling in the meantime.

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  1. identicon
    mynorthernneighbor, Sep 3rd, 2009 @ 4:36pm

    Oh ya but remember, Canada is sooooo superior to the USA in sooooo many ways. Right? Right? LOL. Case closed.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Sep 3rd, 2009 @ 5:37pm


    at least they are attempting to better themselves and uphold citizen rights. this coment btw is coming from an american

    reply to this | link to this | view in thread ]

  3. icon
    Jorvay (profile), Sep 4th, 2009 @ 7:38am

    Case closed, eh? One example where you perceive Canada's system to be inferior and the case is closed? To put it simply:
    Canada is superior to the USA in quite a few ways. The USA is superior to Canada in quite a few ways. Both countries have strengths and weaknesses, and both can learn quite a bit by recognizing these as well as looking to eachother for ideas, advice, and support.
    This comment, by the way, comes from a Canadian who considers himself lucky to have such generally awesome neighbours accross the longest unguarded border in the world.

    Besides, when did the upholding of freedom of expression (no matter how disgusting that expression might be) become a bad thing? I always thought that freedom of speech was one of the founding principles of the U.S.

    reply to this | link to this | view in thread ]

  4. identicon
    mynorthernneighbor, Sep 4th, 2009 @ 9:05am

    Besides, when did the upholding of freedom of expression (no matter how disgusting that expression might be) become a bad thing?

    @Jorvay: I was simply mocking those who always paint the USA as the devil, while Canada is held up (usually by those on the extreme-left politically) as some bastian of virtue for "human rights". If "human rights" and "freedom of speech" include creating laws that are politically correct based, the sole intent of such laws being to actually stifle free expression, then yes, I will continue to do so.
    The law is clearly outrageous, and wheather criminally inforceable or not, is intended to make it illegal for essentially offending someone. So someone gets their feelings hurt, and it becomes a crime. This is the highest hieght of hypocracy. America, flaws and all, hasn't gone this lunatic PC route yet, and I was just pointing that out.
    So my problem is less with Canada overall, and more with those who are smugly superior in their attitudes.

    reply to this | link to this | view in thread ]

  5. identicon
    TtfnJohn, Sep 4th, 2009 @ 10:19am

    Now starts the shopping

    While it's a sensible ruling from tribunal all it appears to do is to take the CHRC off the shopping list of someone offended by a remark.

    Let's remember there are 13 Provincial and Territorial Commissions each with their own rather screwball sense of priority, at times, one of which is bound to take this on.

    The point about telephone hate speech was well taken as long as it stayed on the phone, given the context of the time it was enacted.

    The extension to the Internet is, to put it mildly, lunatic and shows the ignorance of the politicians who enacted it.

    As the post points out there is no real defence in front of any HRC in Canada concerning the truth of something said or written nor is there any real protection for either party, in the long run, to a dispute brought to one.

    Nor do any of the complaints meet the standards needed for criminal prosecution which says a lot.

    That said, it's a good ruling and one likely to influence rulings on other HRC's in the country on a wide set of issues just for its common sense alone.



    reply to this | link to this | view in thread ]

  6. identicon
    TtfnJohn, Sep 4th, 2009 @ 10:43am


    @ mynorthernneigbor:

    I have no problem with the United States or Americans either except for when we get the same "holier than thou" treatment in return.

    We have plenty to learn from the United States with respect to free speech. We tend to think we have it, mostly we do, till something happens to remind us there are limits here that don't apply south of the 49th.

    What you're confusing with your assertion that the law is outrageous because it opens the door to someone being merely offended is the difference between human rights commissions and the civil and criminal courts.

    As was pointed out in the article the burden of proving a case in front of a tribunal is far lower (some would say nearly non-existent in the case of some provincial HRCs)than the balance of probabilities demanded in civil court and "beyond a reasonable doubt" demanded in criminal court. In the courts "hurt feelings" don't amount to much.

    As the criminal courts in Canada have yielded something like two convictions for hate crimes in something like 20 years ought to prove that. As for civil court cases I find it hard to recall even one.

    Our laws with respect to hate crimes don't have the low burden of proof that nations using the Napoleonic Code do (most of Europe outside of the UK) where one is presumed guilty till proven otherwise. Nor does the actual criminal offence in the Criminal Code have provisions anywhere near as broad as those found in continental Europe.

    If some elements of the political left in the US can't figure that out it's really not my problem. Nor is it up to me as a Canadian to correct that misconception. Perhaps they ought to read our Criminal Code sometime. Unlike the USA there's only one of them here so it's not that difficult.

    I suggest, incidentally, that you do the same before commenting about "offending" someone being the basis for a criminal conviction in Canada.

    We have never been a bastion of human rights nor are we now. Like the USA we muddle through as best we can with that as the goal.

    As for smugness and superiority radiating across the border all the crap about our medical system coming from south of the border is just as offensive as you find this topic.

    We're equally as guilty of that at times, you know.



    reply to this | link to this | view in thread ]

  7. identicon
    Shelly Gray, Jan 4th, 2010 @ 7:57am

    USA and Canada

    I don't think this is another case where we should be debating USA versus Canada, especially comparing internet safety related laws.

    It is obvious that both sides (all of NA) weren't ready for these types of concerns, so now we have to play catch-up. So why not together?

    reply to this | link to this | view in thread ]

  8. icon
    Blaise Alleyne (profile), Jan 4th, 2010 @ 9:55pm

    Re: USA and Canada

    "I don't think this is another case where we should be debating USA versus Canada"

    In the post, or in the comments? I don't think it's a USA versus Canada thing. I'm a proud Canadian, but I think the USA has more reasonable laws when it comes to third-party liability (nevermind the whole human rights tribunals thing...).

    "... especially comparing internet safety related laws."

    This isn't about Internet safety. It's about free speech, and third-party liability. Section 13 has such a low bar, and without safe harbours it can threatened neutral platforms in additional to the people who are actually saying controversial things on them.

    "It is obvious that both sides (all of NA) weren't ready for these types of concerns, so now we have to play catch-up. So why not together?"

    Yeah, I think Canada would do well to look at the laws in the US around safe harbours.

    reply to this | link to this | view in thread ]

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