Government says only extreme online hate speech would be probed by human rights body

OTTAWA — Government officials say online hate speech would have to portray a group as “inherently violent” or “unhuman” to meet the threshold for investigation by a human-rights tribunal under a newly proposed law. 

Justice officials briefed reporters Wednesday about Criminal Code provisions in the government’s new bill to tackle online harms, known as Bill C-63.

The changes have come under harsh criticism from civil liberties groups and legal experts who are voicing concerns about the potential chill on free speech. 

They also come after Liberals received significant pushback — especially from the Opposition Conservatives — on other legislation to regulate tech giants for their streaming platforms and their use of news content. 

Bill C-63, also known as the Online Harms Act, seeks to introduce harsher penalties for existing offences. It would allow sentences of up to five years behind bars for hate propaganda, up from the current two years. It would also allow a judge to impose lifetime imprisonment for advocating genocide. 

Such moves are “draconian,” the Canadian Civil Liberties Associated has warned, adding that they could stifle public discourse, including through “criminalizing political activism.” 

The legislation is landing in the middle of a debate, prompted by the Israel-Hamas war, around what constitutes hate speech versus free speech, and what should be considered the threshold for advocating genocide.

Hamas militants killed 1,200 people and took 250 more hostage in an attack on southern Israel on Oct. 7. Israel has retaliated in a war that has killed more than 30,000 Palestinians, according to officials in the Hamas-controlled Gaza Strip. 

Amid widespread protests in Canada and abroad, advocates have been raising the alarm about hate-motivated attacks on Jewish and Muslim people.

Jewish advocacy groups have called for more police action, saying demonstrators have crossed into antisemitic and hateful behaviour.

Pro-Palestinian protesters have said they feel vilified, and Muslim organizations have raised concerns about people being censored because of their comments about the war. 

Justice officials, who spoke to journalists on the condition they not be named, underscored that a high threshold would need to be met for a court to convict someone of advocating genocide. 

Not only does a provincial attorney general have to sign off on such a charge, but a judge would need to be satisfied that an individual “is directly seeking others to prompt or provoke others to commit genocide.”

A chant heard at some protests since the war — “From the river to the sea, Palestine will be free” — has been at the centre of the debate over where the line is when it comes to hate speech. 

Some Jewish groups have said it calls for the destruction of Israel, which lies between the Jordan River and the Mediterranean Sea, and should therefore be considered hate speech or advocating genocide. 

Palestinian protesters and other supporters have said it is simply a call for freedom and equality. 

Last fall, a man whose lawyer said he had chanted the phrase was charged in Calgary with causing a disturbance with a hate motivation. The charge was eventually stayed. 

The primary focus of the Liberal government’s bill is to tackle online hate by introducing a new regulator for social media companies. 

But it also proposes to reintroduce a section of the Canadian Human Rights Act that would allow people to file complaints against those who post online hate speech. 

Officials said the bill includes an improved version of language that was removed under the former Conservative government of Stephen Harper. 

Known as Section 13, the original version sparked concerns from critics, including Conservative MPs, about its potential impact on free-speech rights. 

It defined hate speech as anything “likely to expose a person or persons to hatred or contempt” on the basis of their race, gender, religion or other prohibited ground of discrimination

In both its human-rights legislation and the Criminal Code, the government is now seeking to define hate speech as “content that expresses detestation or vilification.” 

Under the proposed law, an individual or group would be able to file a complaint about online hate speech to the Canadian Human Rights Commission. 

Officials said the commission would screen for unfounded complaints and forward legitimate ones to a tribunal for a hearing. 

Remedies could include the perpetrator being ordered to take down their posts or pay a victim up to $20,000 in damages, a penalty that would increase to $50,000 if they refuse to comply, department officials said. 

Speech considered worthy of action includes anything that would “portray groups as inherently violent, as unhuman and worthy of execution or banishment,” an official said. 

It would not include content that criticizes or belittles a group and attacks its dignity through jokes, ridicule or insults. Content that argues for taking away the rights of a group would not meet the bar as “detestation or vilification” either, the official said. 

This report by The Canadian Press was first published March 6, 2024. 

Stephanie Taylor, The Canadian Press