The following text was submitted today to the Standing Senate Committee on Human Rights’ invitation to testify on Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom).
Protecting People: Regulating Hate Speech in Canada
Testimony to the Standing Senate Committee on Human Rights’ invitation to testify on Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom)
Tuesday, June 25, 2013
Testimony of Pearl Eliadis
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Thank you for the opportunity to be heard today. I am sorry that I cannot be with you in person, but hope that my remarks will nonetheless be of assistance in your deliberations.
The purpose of this testimony is to address Bill C-304 (the “Bill”) and to suggest to the Committee that contrary to its title, the Bill actually fails to protect liberty and it also fails to protect the right to be free from the discriminatory effects of hate.
It is my view that Bill C-304 is incompatible with Canada’s constitutional and international law guarantees and commitments.
It is important to underscore that Bill C-304 pre-dates the landmark decision of the Supreme Court of Canada in the Whatcott case.  Whatcott was rendered on February 27, 2013. It represents the current state of the law, not only with respect to hate speech, but also with respect to the role of human rights commissions and tribunals in regulating it.
Whatcott has implications not only for Saskatchewan but for Canada as a whole. It is understandable that the Bill, passed by the House of Commons in 2012, does not reflect the unanimous decision in Whatcott. However, the failure to reflect the legal principles articulated by the Supreme Court of Canada represents a serious flaw in the Bill. The Supreme Court of Canada has moved from a narrow majority on the regulation of hate speech by human rights commission to a unanimous decision that is more convincing and forceful than Taylor was almost a quarter century ago. Respect for the rule of law would require at the very least that these important jurisprudential developments be considered in the Bill.
As well, the Bill relies on and recycles misinformation and myths about hate speech and human rights laws, including the Canadian Human Rights Act (CHRA) that have been circulating for years, misleading the Canadian public about human rights systems and how they work.
For these reasons, I believe the Bill should not receive the support of the Senate of Canada and should not pass.
In the alternative, I believe that the Bill should be amended to reflect the 2013 decision of the Supreme Court of Canada on human rights and hate speech.
Summary of Whatcott
Whatcott put to rest any uncertainty that might have remained as a result of the 1990 decision in Canada (Human Rights Commission) v. Taylor (“Taylor”) which had upheld section 13 of the Canadian Human Rights Act, but with a narrow 4 to 3 majority. Although Whatcott dealt with the Saskatchewan Human Rights Code and not the CHRA, it affirmed the earlier holding in Taylor, upholding the constitutionality of human rights laws that regulate hate speech, albeit with some important adjustments to ensure that only the most serious forms of hate speech are caught by the law, using a very stringent test.
William Whatcott of Saskatchewan published materials that vilified homosexuals, describing them as diseased child predators. Among other things, Mr. Whatcott wrote that
“for sodomites and lesbians, (the) civil law should discriminate against them. In 1968, it was illegal to engage in homosexual acts(;) now it is becoming illegal to question any of their sick desires. Our children will pay the price in disease, death, abuse and ultimately eternal judgment (.)”
Human rights complaints were filed with the Saskatchewan Human Rights Commission. The Tribunal upheld the complaints, but was overturned by the Saskatchewan Court of Appeal. The Court of Appeal indicated that while speech promoting hatred against people based on their religion or ethnicity clearly discriminatory, speech based on sexual orientation was still controversial and somehow more permissible. It found that Mr. Whatcott’s material condemned homosexuals’ behaviour but not homosexuals themselves.
On appeal, the Supreme Court of Canada rejected this reasoning. It held that two of the four pamphlets published by Mr. Whatcott exposed gays and lesbians to what could objectively be viewed as detestation and vilification, and thus constitute hate speech. Such speech cannot be dismissed as merely targeting homosexual behaviour: it quite clearly targets people. The Supreme Court upheld the complaints about two of the pamphlets and affirmed the constitutionality of Saskatchewan’s hate speech law based on its effects.
The Court made a conscious effort to address the many misstatements and misunderstandings about human rights protections and hate speech in Canada.
1. Hate speech protections endanger liberty and freedom
False. Whatcott decided that while regulating any expressive content does engage freedom of expression, hate speech is not protected when it (1) marginalizes individuals based on their race, sex, sexual orientation or other grounds protected by law and (2) seeks to delegitimize people and reduce their social standing and acceptance. In fact, the Supreme Court held that hate speech has an impact on the targeted group’s ability to respond to the substantive ideas under debate and places a serious barrier to full participation in our democracy. Repealing section 13 would achieve the exact opposite of freedom, by protecting hate merchants while denying or diminishing the expression rights of the targets and victims of hate.
According to the Court, “when people are vilified as blameworthy or undeserving, it is easier to justify discriminatory treatment.” In other words, genuine hate speech not only produces discriminatory effects, it also denies fundamental rights, as at least two decisions of the Supreme Court have affirmed.
Repealing section 13 of the CHRA would further endanger liberty by leaving only a criminal sanction for hate speech. This would increase the likelihood that people will go to jail as a result of speech, an outcome that civil libertarians should be concerned about.
2. Section 13 “overrides” the Canadian Charter of Rights and Freedoms
False. The Supreme Court of Canada decided in 1990 in Taylor that section 13 CHRA is consistent with the Charter, not that it overrides it. The test for hate speech was upheld in the 2013 Whatcott case.
3. S. 13 has been misused to address “differing values” instead of extreme discrimination
False. The test as articulated by the Supreme Court of Canada in Whatcott makes it explicit and clear that the test is not one of “differing values”, but rather whether speech invokes or “refers to unusually strong and deep-felt emotions of detestation …and vilification” (p. 928 from Taylor). In other words, the issue is not about values at all, but rather whether the manner in which they are formulated and communicated creates a discriminatory effect: indeed, the Court considered that there is “little danger that subjective opinion as to offensiveness will supplant the proper meaning of the section” (p. 929 of Taylor). Again, only extreme forms of speech are caught by hate speech regulation and it is these forms of speech that are addressed, not values. This has been the law in Canada for twenty-three years.
4. Section 13 is loosely written and highly subjective
False. See above. On several occasions, the Supreme Court of Canada has stated that the test is objective and not subjective, because of the need to show discriminatory effects.
However, should the Senate of Canada wish to ensure the application of the high standards set by the Court, one option would be to modify the Bill so that it amends section 13 by explicitly incorporating the new Whatcott test noted above.
5. Section 13 empowers free speech violations based on being “offended”
False. People who are subjected to hate speech are no doubt offended. But that is not the test and it has never been the test, whatever the media might say.
In addition to Taylor and Whatcott, several Supreme Court of Canada decisions have held that the issue is discriminatory effect and the harm caused by hate speech, not whether someone is offended. Indeed, the Court was at pains to point out that merely offensive comments are not caught by hate speech laws. Indeed, two of the four pamphlets that were offensive in Whatcott but did not meet the higher test for hate speech were found to be constitutional.
6. There is already a criminal protection against hate speech and thus s. 13 is redundant
This is one of the most-repeated critiques levied against hate speech regulation and it results from the conflation of criminal proceedings with human rights laws. Section 13 is not a criminal proceeding. The accompanying penalty is not a criminal sanction. It is not, therefore, redundant, in that human rights proceedings have an entirely different aim than criminal law.
Criminal law, civil law and administrative law sanctions often co-exist for the same behaviour but for different reasons, and with different legislative objectives. For example, defamation and libel give rise to a civil recourse, but there is also a distinct criminal offence of defamatory libel under s. 300 of the Criminal Code. Similarly, fraud victims can seek to recoup financial losses by suing the perpetrators before the courts, but fraud can also give rise to criminal charges. The list goes on. Several types of sanctions can and do co-exist in Canadian law under different legal regimes.
The objectives of human rights law and criminal law are not coextensive. Criminal law punishes and deters, whereas human rights law is mainly concerned with eradicating discrimination. To this end, human rights law seeks to compensate.
Human rights laws, for example, can ensure that hate sites are taken down, without having to engage in a criminal trial involving the incarceration of an accused. Government officials should have access to mixed and varied policy instruments so as to enable nuanced responses to different contexts rather than criminalizing behaviour.
7. Intent and truth are irrelevant in human rights proceedings
Partly true. Section 319(1) of the Criminal Code, which prohibits inciting hatred, does not require proof of intent nor does it create a defence of truth. Section 319(2) of the Criminal Code does require intent where the person is accused of “wilfully” promoting hatred, and it creates a defence if the statements are true.
In Canada, criminal law does generally require proof of intent. Discrimination claims, however, do not. They generally focus on effects. This rule was established in a unanimous Supreme Court of Canada decision in 1985: “we are dealing here with consequences of conduct rather than with punishment for misbehaviour… It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof [in the human rights context].” Indeed, insisting on “intent” for discrimination has had insidious consequences in the human rights context and was partly responsible for the “separate but equal” doctrine in the United States, which helped reinforce the segregation of African-Americans.
With respect to “truth”, the Supreme Court of Canada decided that truthful statements can be “presented in a manner that would meet the definition of hate speech” and that “truthful statements can be interlaced with harmful ones or otherwise presented in a manner that would meet the definition of hate speech.”Moreover, “the vulnerable group is no less worthy of protection because the publisher has succeeded in turning true statements into a hateful message. In not providing for a defence of truth, the legislature has said that even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.”
There can be no meaningful inquiry into the “truth” of propositions to the effect that entire groups of people are bestial, degraded, or likely to be pedophiles simply because they are men or women, white or black, Jews or Muslims, gay or straight. These are not “ideas” that can be countered with more speech.
There is another reason for not making truth the litmus test in human rights cases: unlike defamation cases, writers should have the right to be wrong in the context of human rights law. What they should not have the right to do is to drum up public support for exposing entire groups of people as inherently inferior or dangerous based on race, religion, or other personal characteristics that are protected by human rights law. As others have noted, this form of discrimination paves the way for even worse treatment, since targeted groups will likely be seen as deserving of whatever they get. There is a long, sad history of these tactics and their noxious effects.
8. Due process protections are unavailable in human rights proceedings
False: The Supreme Court of Canada decided twelve years ago that due process protections under section 7 of the Charter apply to human rights proceedings.
I would urge the Senate to reach a decision that represents the values of the vast majority of Canadians including Canada’s values of inclusiveness, diversity and equality. Restrictions on hate speech comply not only with our Charter, but also with Canada’s international obligations under the International Covenant on Civil and Political Rights and, in terms of racist hate speech, our commitments to the International Convention to Eliminate All Forms of Racial Discrimination. Repealing section 13 would be an error and would signal our intention to deprive entire groups of Canadians of the right to be treated as equal citizens in Canada. This would violate not only our constitutional guarantees of equality, but also – and just as fundamentally – the liberty interests of all Canadians and not just the perceived interests of those who engage in hate speech.
For these reasons, I would urge that Bill C-304 not be passed by the Senate of Canada. In the alternative, Bill C-304 should be amended to retain section 13, but to take into consideration the recent decision of the Supreme Court of Canada in Whatcott and its test for hate speech.
Thank you for your consideration. I would welcome any questions that you may have.
 Human rights lawyer, Montreal Canada. Member of the Quebec Bar Association and Law Society of Upper Canada; Lecturer in Civil Liberties, Faculty of Law, McGill University; Full Member of the Centre for Human Rights and Legal Pluralism (McGill University); President-elect of the Human Rights Committee of the Quebec Bar Association. Pearl Eliadis was a member of the legal advisory team for the African Canadian Legal Clinic team that intervened before the Supreme Court of Canada in Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCC 11.
 Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCC 11 [Whatcott].
 RSC 1985, c H-6.
 The summary of Whatcott is drawn in part from Eliadis and Hendry, “Anti-Hate Publication Ban Constitutional” (2013) 19 Charter and Human Rights Litigation 1644.
  3 SCR 892.
 S.S. 1979, c. S-24.1.
 Supra note 2, at paras. 183-189.
 Ibid at para. 190.
 Ibid at paras 49-54.
 Ibid at 75.
 Ibid at para. 71.
 Ibid at para. 74. See also Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40,  2 SCR 100. 147.
 In Whatcott, supra note 2, the Court struck the word “calumny” from the original formulation of the hate speech test.
 According the Supreme Court of Canada, it was “clear from Taylor, and reaffirmed through the evidence submitted by interveners in this appeal, [that] the discriminatory effects of hate speech are part of the everyday knowledge and experience of Canadians. I am of the opinion that the Saskatchewan legislature is entitled to a reasonable apprehension of societal harm as a result of hate speech.” Whatcott, supra note 2 at para. 135.
 Ibid at para. 77, citing Thomson Newspapers Co. v. Canada (Attorney General),  1 SCR 877; Ross v. New Brunswick School District No. 15,  1 SCR 825.
 Whatcott, supra note 2 at para. 39, citing Taylor at p. 929.
 Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44.
 Ontario (Human Rights Commission) v. Simpsons-Sears,  2 SCR 536 at para 14. In this decision, the court also distinguished between direct and indirect discrimination. This distinction was overturned in British Columbia (Public Service Employee Relations Commission) v. BCGSEU  3 SCR 3, but the focus on effects in discrimination law was reaffirmed.
 See Ontario (Human Rights Commission) v. Simpsons-Sears, supra, note 18 paras. 14-16.
 Whatcott, supra note 2 at para. 140.
 Whatcott, supra note 2 at para. 141.
 Book review, Michael Plaxton, “Public Hostility: What Makes Hate Speech Wrong” (Review of Jeremy Waldron, The Harm in Hate Speech) 21 Literary Review of Canada (2013) 16 at 16.
 This section is drawn in part from Pearl Eliadis, The Rights Fights (Montreal and Kingston: McGill-Queen’s University Press, 2014 (forthcoming).
 Blencoe v. British Columbia (Human Rights Commission) supra note 17.
 See David Matas, Ken Norman and Margaret Parsons, “All rights, including speech rights, are subject to limits” Toronto Star (March 22, 2013). Online <http://www.thestar.com/opinion/commentary/2013/03/22/all_rights_including_speech_rights_are_subject_to_limits.html>.