Bill C-36, An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech) is a continuation of the government agenda to create additional powers to regulate allegedly hateful speech. The Bill has two parts. It amends the Criminal Code and the Youth Criminal Justice Act to add a peace bond provision for cases of suspect hate propaganda. It also adds hate speech provisions to the Canadian Human Rights Act
Peace Bonds
A peace bond is a special form of court order which may be used to prevent an anticipate crime. A person who has reasonable grounds to fear that another person (the defendant) is likely to commit certain types of crimes may start proceedings before a provincial court judge seeking a peace bond.
The judge hears both parties and, if satisfied by the evidence, may order the defendant to enter into a “recognizance to keep the peace” which can include various conditions. A defendant who refuses to enter into the recognizance or breaches the terms of the recognizance can be sent to jail.
At present peace bonds are available for a limited number of offences involving violence against persons or property. They are commonly used in domestic violence cases. The Jian Ghomeshi case of a few years ago is probably the most well known case to be have resolved by a peace bond A peace bond allows a court to place restrictions on a defendant without giving him a criminal record.
Bill C-36 makes a peace bond available for three new categories of offence:
Hate propaganda offences under sections 318 and 319;
Causing damage to property owned by a religious institution or “identifiable group” if the damage is motivated by bias prejudice or hate; and
any offence motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or expression, or any other similar factor.
The judge is given the power to impose any “reasonable” conditions on defendants including:
wearing an electronic monitoring device;
remaining at their place of residence during specified times;
abstain from alcohol or drugs;
submit samples of bodily substances for analysis;
not communicate with any person named on the recognizance;
surrender firearms.
The recognizance is normally for a period of one year, but it can be extended to two years if the defendant has already been convicted of an offence.
The extension of peace bonds to hate propaganda offences is bad in theory but will probably not be very harmful in practice.
It is arguable that peace bonds violate fundamental justice by restricting the liberty of a person who has not been convicted of an offence. However, they have been justified on the basis that they protect against threats of imminent violence.
The hate propaganda provisions of the Criminal Code have been challenged as restrictions on freedom of expression but have been upheld on the basis that hate speech, as defined in those sections, creates an imminent threat of violence.
The combination of the two means that a person who may never have been convicted of an offence can be subject to very severe restrictions on their personal liberty on the basis that they might say something which might cause someone else to do something bad.
However, there are a number of factors that may keep the bill from doing much harm in practice.
The definition of hate speech, which is already quite narrow, is being further amended to provide that a statement “does not incite or promote hatred, for the purposes of this section, solely because it discredits, humiliates, hurts or offends.”
Bringing a prosecution for hate speech or an application for a peace bond will require consent of a provincial Attorney General. This requires a request for a decision at the political level and Crown prosecutors do not make these requests lightly. Prosecutions for hate speech have been very rare in Canada.
The case will be heard before a Provincial Court judge. These judges deal with violent offenders on a day to day basis and are less likely than most to accept without question that speech can be “literal violence.”
Changes to the Human Rights Act
The second part of Bill C-36 reinstates, with some variations, provisions regarding hate speech which had been repealed by the Harper government in 2013.
The Canadian Human Rights Commission is given the power of investigate complaints of hate speech over federally regulation telecommunications facilities and seek remedial orders from the Canadian Human Rights Tribunal. These sections complement other amendments which are being made to the Broadcasting Act and other legislation.
The new definition of hate speech reads as follows:
(9) In this section, hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination.
Clarification – hate speech
(10) For greater certainty, the content of a communication does not express detestation or vilification, for the purposes of subsection (9), solely because it expresses mere dislike or disdain or it discredits, humiliates, hurts or offends.
The section does not apply to private communications, broadcasters regulated by the Broadcasting Act, internet hosting services or search services.
A complaint can be made to the Canadian Human Rights Commission which conducts an investigation and may then refer the matter to the Canadian Human Rights Tribunal for a hearing.
The Human Rights Commission may direct that the identity of the complainant be kept confidential and not disclosed even to the respondent.
If the tribunal finds that a complaint has been substantiated, it can make a number of orders, including:
to cease and desist the discriminatory practice and to take remedial measures;
to pay compensation of up to $20,000 to any victim named in the offending communication; and
to pay a fine of up to $50,000.
These provisions are a much greater cause for concern than the amendments to the Criminal Code. Although the Human Rights Act is nominally a civil administrative tribunal, a human rights complaint can have much the same effect as a criminal prosecution but without some of the safeguards built into criminal law.
The initial investigation of the complaint is done by commission staff without cost to the complainant. The complainant is responsible for presenting the case at the tribunal level but in many cases, a lawyer for the Commission will do much of the work. Meanwhile, the respondent must bear the costs of defending the case throughout the process.
The language of “detestation” and “vilification” seems on the surface to be very strong but in today’s intellectual climate words don’t always mean what they seem. Human rights commissions are staffed by people who have spent their careers in the social and intellectual circles that produced gender ideology and critical race theory. Robust defense of freedom of speech is not a high priority in this world.
Tribunal members do not have the same degree of independence as judges. Judges are mainly full time and hold office until the age of 75. The law of contempt of court protects judges against personal attack for unpopular decisions.
Tribunal members are part time, with regular jobs as lawyers or academics, and hold office for 5 year terms. Like the commission staff, they usually move in human rights activist circles.
While there is no doubt that Tribunal members are persons of integrity who will not hesitate to decide major cases against large corporations and even the government, the highly politicized nature of hate speech cases raises the stakes. Taking the side of a respondent whose speech “discredits, humiliates, hurts or offends” the woke establishment will carry significant risk.
This article is for general information only and should not be relied on as legal advice.