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(Remarks prepared for delivery to the Ottawa Conference on Combating Anti-Semitism, November 8, 2010, Parliament Buildings, Ottawa, Canada)

by David Matas, November 21, 2010

Combating incitement to hatred on the internet requires a variety of responses from a host of actors. I am aware here that I am addressing mainly Parliamentarians whose primary responsibility is legislation. So I will confine my suggestions to legislative responses.

Right now in Canada there is a good deal of angst about the proper legislative response to hate on the internet. There is a lively debate about whether the law should be repealed or changed, and, if changed, how.

Canada has two internet specific provisions in its legislation relating to hate. One is to be found on the Criminal Code. The second is to be found in the Canadian Human Rights Act. There are also generic anti-hate provisions in a number of provincial statutes which have been used to engage hate on the internet. 

In general, the Canadian criminal law allows for private prosecution. However, that is not true of the Criminal Code prohibition against incitement to hatred which has a specific exception. 

Federal law requires consent of the attorney general in the province with jurisdiction over the offence before a prosecution can commence. Attorney General consent for hate prosecution is extremely rare. Many Attorneys General, even in the face of clear cut breaches, have taken a free speech absolutist position, and refused consent for philosophical or ideological reasons. 

Nonetheless, in non-internet cases, there is the odd consent. There has never been, in contrast, consent, for an internet hate offence, though the amendment which provided for the internet specific offence is now nine years old. In light of the large amounts of hate on the internet, this complete absence of legal activity means that the criminal law is a dead letter.
Civil remedies before human rights commissions and tribunals have the value of specialization. Incitement to hatred is a form of denial of equality. Human rights commissions and tribunals are familiar with the harm and wrong of incitement to hatred. Police and prosecution units which deal with a wide variety of unrelated behaviour have little sense of the mischief the law is designed to combat. That problem can be overcome by dedicated units.  These units, regrettably, are few and far between. 

The civil remedies in the federal and provincial human rights laws have unfortunately manifested the opposite problem, too easy access generating abuse. This abuse is led to the effective suspension of their activity.

Three incidents in particular generated concerns about the law. The Alberta publications Western Standard and Jewish Free Press republished the cartoons of the prophet Mohammed initially published by The Danish newspaper Jyllands Posten. In February 2006, Syed Soharwardy, president of the Islamic Supreme Council of Canada, complained to the Alberta Human Rights Commission. The Edmonton Council of Muslim Communities filed a similar complaint.

Soharwardy settled his complaint with publisher Richard Bronstein of the Jewish Free Press in March 2007 after mediation. In February 2008, he dropped his complaint against the Western Standard and publisher Ezra Levant in reaction to the widely expressed view that pursuit of the complaint amounted to an undue restriction on freedom of expression. The Alberta Human Rights Commission dismissed the complaint by the Edmonton Council of Muslim Communities in August 2008 as being without merit.

The Canadian Islamic Congress filed a complaint against Maclean's magazine with the British Columbia Human Rights Tribunal, the Ontario Human Rights Commission and the Canadian Human Rights Commission for publishing in October 2006 an excerpt from Mark Steyn's book, America Alone. The Ontario Human Rights Commission dismissed the complaint on jurisdictional grounds, while the Canadian Human Rights Commission dismissed the complaint on the ground that the excerpt was polemical but not extreme. The British Columbia Human Rights Tribunal decided in October 2008 that the article was not likely to expose the complainants to hatred.

In February 2004, Shahina Siddiqui filed a complaint against B'nai Brith Canada with the Manitoba Human Rights Commission for sponsoring a presentation in October 2003. Shahina Siddiqui herself was not present at the Winnipeg seminar but based her complaint on what she had been told about the seminar. The evidence of the alleged violation came from sources who have never been disclosed to B'nai Brith, despite a disclosure request. The complaint was dismissed in March 2009, five years after it was made on the ground that it had "no reasonable basis in the evidence".

The complaints against Levant, Steyn and Maclean's were heavily publicized and controversial; leading to charges that the system of dealing with complaints was so weighted against those the objects of complaint as to chill free expression.  In response the Canadian Human Rights Commission in June 2008 appointed Professor Richard Moon to conduct a study of how best to address hate messages on the internet. 

Professor Moon recommended in October 2008 that the prohibition against hate on the internet in the Canadian Human Rights Act be repealed and the law banning hate on the internet should be restricted to the Criminal Code. He proposed specialized provincial police hate crimes units and removal of the requirement of the consent of the Attorney General, "if it appears that the consent requirement is a barrier to the prosecution of serious hate speech cases".

In the alternative Professor Moon recommended changes in the Canadian Human Rights Act prohibition if it were to be kept. He proposed
i) limiting the prohibition to expression which threatens, advocates or justifies violence,
ii) including an intention requirement, and
iii) ending the investigation and assessment of formal complaints from outsiders and giving the Commission the exclusive right to initiate an investigation and conduct a case. This recommendation, in my view, is inconsistent with the conditional recommendation to remove the consent of the Attorney General for criminal prosecutions.
Richard Warman had initiated complaints against a sequence of neo-Nazi websites which both the Commission and then a Canadian Human Rights Tribunal had determined to be well founded. Canadian Human Rights Tribunal member Athanasios Hadjis in September 2009 determined that the latest of these complaints, against Marc Lemire, was, in part, well founded. He nonetheless dismissed the complaint on the basis that the law was unconstitutional. 

The Supreme Court of Canada, in the case of John Ross Taylor, had held in 1990 that the law was constitutional, (a case I argued for an intervener, the League for Human Rights of B'nai Brith Canada). Since that decision the law had been amended, in 1998, to add a penalty provision. Previously the law allowed only a prohibition order, prohibiting the continued posting of the offending material. Tribunal member Hadjis found that the limits on administrative tribunals in dealing with unconstitutionality prevented him from severing the penalty provisions and finding them inoperative. So he refused to apply the provisions in their entirety.

The Supreme Court of Canada in the case of Conway  decided in June 2010, that is to say after the Lemire decision, set out a new approach for the relationship between administrative tribunals and the Charter. The result is to give the Canadian Human Rights Tribunal a power to deal with the constitutionality of the penalty provisions in the Canadian Human Rights Act Tribunal member did not think he had.

Richard Warman, the Canadian Human Rights Commission and supporting interveners have sought judicial review of this decision in the Federal Court. That judicial review application is still pending. Since the Lemire decision, the Commission has not brought forward to a Tribunal any other complaint that the hate on the internet prohibition has been violated. The law rests in limbo.

Where does this leave us now? The likely result of the Lemire decision is either a severance and a finding of unconstitutionality of the penalty provision in the Canadian Human Rights Act or a finding of constitutionality of the present law. In light of the ruling of the Supreme Court of Canada in the John Ross Taylor, it is hard to see how the Federal Court could hold the power to prohibit hate on the internet unconstitutional.

Such a Court decision would still leave open the policy decision. Is the law worth keeping? Does it need amending? If so, how?

My view is that the law is worth keeping but that the recent complaints against Levant, Maclean's, Steyn and B'nai Brith, even though all dismissed, show that the working of the law is problematic. The very mechanics of going through the dismissal of an unfounded complaint impose an undue burden on innocent respondents.

Though there are many specific recommendations which could be made, I will limit myself here to five:
1) Human rights tribunals should have the power to award costs against unsuccessful complainants. Right now complaints are cost free to complainants. The Canadian Human Rights commission, in its June 2009 response to the Moon report, rejected the recommendation of Professor Moon that its jurisdiction over hate on the internet and telephone be repealed. It did recommend a number of specific changes to that jurisdication, including a change to "allow for an award of costs in exceptional circumstances where the Tribunal finds that a party has abused the Tribunal process".

2) Human rights commissions should have the power to screen out complaints before they go to a full hearing. The absence of a commission screening mechanism was a particular problem with the BC complaint against Steyn and Maclean's since prior legislation had abolished the BC human rights commission and its screening function.  The Canadian Human Rights commission, in its response to the Moon report recommended a change to the legislation to allow the early dismissal of complaints when messages do not meet the definition of hatred or contempt.

3) Decouple screening and conduct of cases. In jurisdictions with commissions engaged in screening, a commission which screens a case then assumes conduct of the case before the tribunal. This coupling has imposed on commissions a greater burden than they could bear, leading to inordinate delays. 

The response has been, in British Columbia, to abolish its commission and allow instead direct access of complainants to tribunals. In Ontario, the commission survived, but it has been taken off case work. The proposal of Professor Richard Moon to give the Canadian Human Rights Commission the exclusive right to initiate an investigation and conduct a case is likely to generate the very problem the abolition of the British Columbia commission and the removal of the Ontario commission from case work was designed to solve. A better response would be to keep a commission on case work for screening purposes but leave it free to choose case by case whether it would assume conduct of that case.

4) Require election of forum. The advent of the internet means that material the subject matter of complaint can appear in several jurisdictions simultaneously. The law has not adapted to this reality, leading to the possibility, as the Maclean's case manifested, of pursuing essentially the same complaint in several jurisdictions at once. 

The ability to make several complaints at once in different jurisdictions against the same target joined with the powerlessness of the tribunals to award costs to the successful side and either the absence of screening where there are no commissions or the inordinate delays where there are commissions means that the complaint power can be used as a way of harassing the object of the complaint. 

Complainants should be required to choose one venue only. Once such a choice has been made, no other jurisdiction should have the power to entertain essentially the same complaint.   

5) Every respondent should have a right to know who the accuser is. A striking feature of the complaint against B'nai Brith was that it was based on the rumour. B'nai Brith was the victim of faceless accusers. 

The first reaction of many, when addressing the law and the internet, is say that the law is powerless in the face of such a global, individualized phenomenon. However, Canada has manifested the opposite problem, a law from the pre-internet age which has turned out to be too heavy handed when applied to the internet. We have had here to worry not so much about the ineffectiveness of the law in combating incitement to hatred as about an out of date law which has imposed undue restrictions on free expression. 

The defects in current procedures have put wind in the sails of free speech absolutists, helping to push their agenda of abolishing the powers of human rights commissions and tribunals to combat hate speech. These powers though are too valuable to lose.  The law needs to be kept, but changed, to be responsive to the internet. Re-equilibration can make human rights commissions and tribunals respectful of both the right to freedom of speech and the right to freedom from incitement to hatred.

David Matas is an immigrant, refugee and international human rights lawyer based in Winnipeg, Manitoba, Canada.  He is senior honorary counsel to B'nai Brith Canada and author of the book Bloody Words: Hate and Free Speech.

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