As Canada grapples with how to prosecute existing laws like harassment, defamation and criminal hate speech in the Wild West, one Liberal MP is proposing the creation of a new judicial body to deal with online offences.
“The criminal code is not an effective instrument,” said Liberal MP Nathaniel Erskine-Smith, at a justice committee meeting on Thursday, where MPs are studying the problem of online hate. Erskine-Smith, who is vice chair of the ethics and privacy committee, was subbing in at the justice hearing because of overlapping issues the MPs are dealing with.
Rather than embarking on an expensive prosecution for minor offences, Canada could set up “an administrative system that is flexible and efficient,” Erskine-Smith said. “The blunt instrument of imprisoning someone, putting them through a rigorous criminal trial, is probably not the right answer for enforcing rules against hate speech online in every instance.”
In an interview with the National Post after the committee meeting, Erskine-Smith raised examples like online threats, harassment and defamation that are obviously breaking Canada’s laws but that rarely get policed. The proposed administrative judicial system could issue tickets or warnings, the same way it happens “if you’re drunk in the street and disorderly,” he said.
However, critics warned that any such system could simply become a mechanism for people to shut down views with which they don’t agree.
There needs to be a recourse against the platforms and the individuals responsible for the speech
“My question for you is, who is determining what is hateful?” said Jay Cameron, a lawyer for the Justice Centre for Constitutional Freedoms.
Cameron said he was concerned that whether the social media platforms some judicial body were responsible for removing content, it was likely to unfairly target conservative voices. He raised examples of pro-life advocates being silenced simply for stating their beliefs.
Jennifer Klinck, from Egale Canada Human Rights Trust, said she was broadly in favour of “a non-criminal administrative law remedy” for dealing with hate speech but said she was also wary of free speech issues. If it becomes a mechanism for shutting down controversial views, she said that could disproportionately affect vulnerable groups like LGBT people.
“There needs to be a recourse against the platforms and the individuals responsible for the speech,” said Klinck. We need “a variety of tools in the toolbox,” she said.
The committee’s discussion comes in the wake of two landmark rulings on hate speech in Canada and an international focus on the issue. In Toronto in January, two men were found guilty of promoting hatred against women and Jews with a publication called Your Ward News that was delivered to homes in the city. In British Columbia in March, anti-gay activist William Whatcott was ordered to pay $55,000 to trans activist Morgane Oger after Whatcott distributed a hate-filled flyer about Oger during the 2017 provincial election.
Both those rulings involved physical flyers, which MPs and witnesses agreed was much easier to prosecute than the more ephemeral and voluminous speech that takes place online.
There has also been a global push to police online hate after the Christchurch shootings in New Zealand, which targeted Muslims and were livestreamed online. In Paris on WednesdayPrime Minister Justin Trudeau announced that Canada will launch a “digital charter” that will govern how the country fights hate speech and misinformation online. Trudeau was in France for an international summit sparked by the shootings.
After her successful human rights ruling against Whatcott, Oger was in Ottawa to testify at the justice committee on Thursday. She said while her situation rose to the level of criminality, there are countless cases online that tiptoe over the line but never get prosecuted, and argued the situation urgently needs a solution.
“No mom wants to sit her children down and say someone wants to hurt her because of who she is,” said Oger, who detailed for the committee the history of harassment and death threats against her sparked by activity online. “Canadians need a civil remedy,” she said.
As the hearing wrapped up, committee chair Anthony Housefather said the committee’s study doesn’t necessarily have to be about policing the issue, but could centre on information-gathering and studying the problem itself. MPs expect to have the reported completed by early June, before the House rises for the summer.
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