- Canada has a duty under its international obligations to prohibit racial or religious hatred that constitutes incitement to violence, discrimination and hostility.
- The OHRC believes it is in the public interest that hate expression remains under the purview of both human rights and criminal law systems.
- Human rights agencies should use enforcement powers to deal with the publication of intent to deny housing, services or employment because of an individual's race, religion or other prohibited ground of discrimination.
- Otherwise, freedom of expression must not be interfered with except for expression that incites violence against identifiable groups.
- Legal enforcement alone is insufficient.
- The right to freedom of expression comes with the responsibility to confront hate expression.
- A human rights approach offers broad tools for confronting hate expression without trampling on freedom of expression.
- State and non-state actors, including government, human rights commissions, other public sector institutions and the media, have responsibility to address issues of hate expression.
- The OHRC would support a national press council. This would help bring consistency across jurisdictions.
- The OHRC supports the need to collect data on hate crimes and other forms of hate expression.
The Ontario Human Rights Commission (the “OHRC”) is pleased to make this submission in response to the Canadian Human Rights Commission’s (the “CHRC”) call for comment on Professor Richard Moon’s Report Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet.
While the purpose and focus of the Report is to address Section 13 of the Canadian Human Rights Act (the “CHRA”) dealing with hate messages on the Internet and CHRC’s role, Professor Moon should be congratulated for helping to frame the broader debate surrounding freedom of expression.
The OHRC’s comment below focuses on both the legal regulation of hate speech and the role of state and non-state actors. We encourage human rights agencies across Canada, as well as other public and private institutions, to carefully consider both aspects as well in anticipation of further discussion that should occur.
The OHRC would like to preface its comment with some very important principles:
All rights inherently come with responsibilities. The right to freedom of expression comes with the responsibility to confront hate expression and other forms of discrimination.
Striking this balance between different forms of rights is important and necessarily has some legal parameters. Hate expression against identifiable groups is undeniably a human rights matter and should be confronted through human rights law, not just criminal law.
But a perfect balance cannot be legislated. It’s also an active process that all individuals, organizations and institutions in society are obliged to go through; a process that must include being open to public debate.
As a statutory human rights institution founded over 45 years ago, the OHRC knows first-hand the importance of standing up and speaking out publicly to defend human rights. Human rights commissions and other agencies have a unique role to play. So do government, media and other non-state actors.
The proliferation of new forms of media and Canada’s ever changing demographic makeup also means we need to continuously find new ways to address human rights issues, and do so consistently across jurisdictions. A human rights approach offers broad tools for confronting hate expression without trampling on freedom of expression.
This understanding of balancing rights and freedoms is in keeping with Canada’s domestic and international legal obligations.
Human rights and criminal law enforcement
Professor Moon’s first recommendation is that a ban on expression should be narrowed to extreme hate expression that “advocates, justifies or threatens violence” against identifiable groups and should be a matter entirely dealt with under the Criminal Code. This is not in keeping with other areas of human rights. For example, when sexual harassment involves allegations of violence or assault, it too becomes a mater for the Criminal Code, but still remains under the purview of human rights legislation.
Human rights codes and consequently commissions and tribunals should have a role in matters of hate expression. Recognizing the harm of hate speech through a finding of discrimination has important social value and potential for other forms of response even if censorship is accepted as an exceptionally narrow legal remedy. As Professor Moon points out, human rights laws offer broad public interest remedies beyond those available to courts under criminal law.
Moreover, Canada has a duty under its international obligations to prohibit racial or religious hatred that constitutes incitement, to not just violence, but also to discrimination, and hostility.
For these reasons, the OHRC is of the view that further consideration be given to Canada’s international obligations before any decision be taken by government to repeal section 13 of the CHRA, and narrow provisions of the Criminal Code to situations of extreme hate linked to violence, or in Professor Moon’s recommended alternative, maintain but limit Section 13 in a similar manner.
As Professor Moon points out, very few human rights acts in other jurisdictions across Canada have the equivalent of section 13 of the CHRA. Ontario’s Human Rights Code does not have such a provision and could not be used to ban, for example, a newspaper article that might expose a person or persons to hatred or contempt because of being a member of an identifiable group.
At the same time, most human rights acts, including Ontario’s Code and the CHRA, do have provisions to deal with the publication or public display of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right (discriminate) under a social area. These provisions allow human rights agencies to use enforcement powers to deal with the publication of intent to deny housing, employment or services such as access to a restaurant or retail store because of an individual’s race, religion or other enumerated ground.
Moreover, human rights policy and law in Canada have established that employers, landlords and service providers have a duty to refrain from certain forms of expression that create a poisoned environment for their employees, tenants or clients. For example, a CEO who, at a staff retreat, expresses a disparaging comment to everyone such as, “women should stay home to raise kids” or “Muslim men and women should dress at work in western fashion”, even in jest, may influence the actions of other employees and have irreversibly poisoned the terms and conditions of employment for such individuals. Tribunals and courts have found these types of situations to be a violation of human rights law.
Without question, freedom of expression must be safeguarded, but it cannot be limitless. Everyone has a right to full participation in society. And while having effective and enforceable human rights and criminal laws are both necessary to deal with comment or conduct that is harassing, creates a poisoned environment, or is so extreme that it incites or results in violence and discrimination against identifiable groups, legal enforcement alone is insufficient.
Professor Moon recognizes this in his third recommendation the important role non-state actors must play in confronting hate expression.
Role of the media
The OHRC agrees with the Report’s recommendation that: Non-state actors including the media also have responsibility to address issues of hate expression, and should do so either voluntarily through provincial press councils, or through statutory creation of a national press council with compulsory membership and powers to determine breach of professional standards and order publication of press council decisions.
The OHRC would particularly support a national press council given that, increasingly, media services publish online editions. This would help bring about more consistency across all jurisdictions in Canada.
At the same time, the OHRC recognizes the media must have full freedom and control over what they publish. Ensuring mechanisms are in place to provide opportunity for public scrutiny and the receipt of complaints, particularly from vulnerable groups is important, but it must not cross the line into censorship.
Role of human rights commissions
Professor Moon noted in his Report that he came across “shocking misdescriptions” of the CHRC’s complaint process. This is indicative of the fundamental misunderstanding that the media and the public often have of the role of human rights commissions.
The OHRC appreciates that the limited scope and timeline of Professor Moon’s task prevented him from “straying very far beyond an examination of the legal regulation of hate speech.” Before acting upon the recommendations of this Report, however, the OHRC believes proper consideration must be given to understanding the full mandate of human rights commissions under human rights legislation.
Human rights law is given special status over other law under domestic and international instruments. Ontario’s Human Rights Code, for example, expressly states that it has primacy over other laws in the province.
But rights on paper alone are not enough. They must also provide for institutions with adequate functions and powers to ensure the effective protection, promotion, and realizations of those rights. Human rights commissions have been created in Canada, and abroad, to do just that. Their existence and independence is secured in law from government interference. They have mandates much broader than tribunals or courts, but cannot act as judge, jury or legislator. Commissions can take actions against the state and others and appear as parties or intervenors before tribunals or courts.
A commission’s enabling legislation limits what matters it may litigate before a tribunal or court. For example: commissions have no powers to act, and should not act, as a “censorship board.” Section 13 (2) of Ontario’s Human Rights Code, is explicit about this and states that the Code “shall not interfere with freedom of expression of opinion.”
Tribunals and courts have the responsibility to rule on the merits of cases, make orders and only “speak” through their decisions.
Commissions, on the other hand, don’t just deal with technical breaches, but also with the broader spirit and goals of human rights legislation. They should speak out to confront hate expression against identifiable groups, and in fact have responsibility to advance promotion and protection of human rights through their broad functions to: conduct research, review legislation, interpret human rights law, develop policy, advise other bodies, hold public inquiries, seek cooperation, pursue its own human rights claims and intervene in proceedings when necessary, as well as deliver public education, and monitor and report on the state of human rights.
Like the media, commissions should be asking provocative questions and fostering debate on important public issues of the day. Sometimes that means being right at the middle of matters that cause tension and conflict, challenging social views and emerging forms of stereotype and discrimination.
But as Professor Moon acknowledges, hate messages and many other forms of discriminatory comment and conduct are commonplace. Commissions need to prioritize their limited resources and be strategic on what issues they will address next.
The role of other state and non-state actors
Commissions and the media are not the only institutions with responsibility to address hate expression and discrimination.
While Professor Moon’s Report suggests that “extreme” expressions of hate are relatively rare, and recommends only those tied to violence be addressed as a criminal matter, the Report also recognizes that less extreme forms are common and must be confronted by other means:
“We must develop ways other than censorship to respond to expression that stereotypes and defames the members of an identifiable group and to hold institutions, such as the media, accountable when they advance such views.”
The OHRC agrees, but would add that all degrees of hate expression should be addressed by a broad range of means, regardless of whether judicial remedies are appropriate in particular circumstances. Even the courts have acknowledged the need to confront hate beyond judicial action.
Even if most expressions of hate do not fall within the jurisdiction of a court or tribunal, a broad range of state and non-state actors still have legal obligations under Canada’s domestic and international laws to respect, protect, promote and fulfil human rights.
For example, under the International Convention on the Elimination of all Forms of Racial Discrimination, the State “Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.”
Governments at all levels have a responsibility to take steps and make progress towards confronting hate expression and addressing the circumstances that lead to this form of discrimination. That must include speaking out and confronting hate when it happens. As Professor Moon and many others have put it, “bad” speech should be countered with “good” speech, not censorship.
Supporting ways to help others get their viewpoints out is also important. Vulnerable groups typically face barriers in this regard. There are many reasons, for example: lack of means for some groups to mobilize their efforts; discrimination, poverty and related under representation some groups face in education, housing, employment and other social areas; the increasing corporate concentration of media.
The proliferation of new forms of media can cut both ways. Internet websites, blogs, Facebook, e-mail and other electronic tools make it easier for targeted groups to get their message out; but they also make it easier for hatemongers.
It is important to monitor actions being taken and progress made to confront hate expression and fulfil human rights. Domestic and international human rights standards recognize this. Professor Moon reports that tracking of suspected hate crime activity is a “mishmash” and ineffective. As we have recommended in other areas, including racial profiling, the OHRC supports the need to collect data on hate crimes and other forms of hate expression. It’s an important tool for confronting discrimination and we are prepared to help further explore proposals to do so.
Being open to engaging communities targeted or “victimized” by hate is key. So is cooperating with other community organizations as well as public and private institutions, like schools and the media all of whom have responsibilities to protect and promote human rights.
The police and the Crown have that same responsibility and of course enforce the hate provisions of the Criminal Code. Professor Moon acknowledges the potential drawbacks to exclusive reliance on the Criminal Code – the higher burden of proof, the requirement that an Attorney General consent to prosecution and the lack of experience on the part of police and prosecutors in pursuing hate speech cases. He recommends greater use of the provisions and the establishment of provincial "Hate Crime Teams" composed of experienced police and Crown law officers.
The OHRC believes other cooperative structures are required as well. We know from our work in racial profiling and other areas of human rights the great benefit that results when commissions, policing and other law enforcement agencies and communities work together. All the more reason hate expression must remain both the purview of human rights and criminal justice institutions.
Multi-lateral initiatives like the Canadian Coalition of Municipalities Against Racism and Discrimination offer a model for cooperation among municipalities, other levels of government, the private sector and civil society organizations. The Coalition framework specifically identifies the need to address hate crimes by working with police and others, and offers a number of non-judicial actions that any level of government, institution or organization could undertake including:
- Support or establish, in collaboration with community organizations, a monitoring and rapid response system or network to identify and respond to acts of racism, hate crimes and incidents, including bringing such incidents to the attention of the appropriate authorities.
- Involve citizens by giving them a voice in anti-racism initiatives and decision-making.
- Support initiatives that increase expertise and capacity within ethno-cultural organizations to effect change in their communities and enable their members to participate fully in society (including avenues for expressing countering views)
Finally, there are a number of important resources such as the report prepared by Ontario’s Hate Crimes Community Working Group, which offer a wealth of information and direction for addressing hate and discrimination through broad means. Among their recommendations, they reinforced the need for human rights commissions and other institutions to play a role in addressing hate expression. Other groups such as the Canadian Jewish Congress have developed internet-based and other effective tools for tracking, reporting and speaking out on hate incidents.
The OHRC believes it is in the public interest that hate expression remains under the purview of both human rights and criminal law systems.
Under the human rights system, a wide range of tools are available to help promote compliance and understanding that individuals and institutions have responsibility to respect human rights and prevent hate expression, protect vulnerable groups who experience it, identify it and speak out when it happens, and take steps to remedy it.
It is in the public interest to have a human rights system in place that can recognize and deal with the harm hate expression does to all of society. But it is equally in the public interest to safeguard freedom of expression and ensure that remedies stop short of banning expression, except for expression that incites violence against identifiable groups.
Hate expression should be something in which we all have an interest – not just courts or tribunals, but commissions, governments and their public institutions as well. Hate impacts us individually and within our ethno-cultural, religious, geographic and other forms of community, and throughout society at large; addressing hate should be a shared responsibility.
 UN treaty bodies such as the Committee on Civil and Political Rights have stated through their interpretive “Comments” that human rights treaties such as the International Convention on Civil and Political Rights convey positive obligations on signatory States to take immediate and progressive measures including refraining themselves from making any hate propaganda (see for example ICCPR Committee Comment #11).
 See Article 20(2) of the International Covenant on Civil and Political Rights, and under Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination.
 See “poisoned environment” under the Ontario Human Rights Commission’s Policy and Guidelines on Racism and Racial Discrimination.
 See for example, section 29 of Ontario’s Human Rights Code, as well as the UN Principles Relating to the Status of National Institutions (the “Paris Principles”), resolution 1992/54.