QUEBEC’S HATE SPEECH BILL HAS SERIOUS FLAWS, MANY PROVISIONS POSSIBLY UNCONSTITUTIONAL
Montreal, August 18, 2015 — Quebec’s Bill 59, which seeks to ban hate speech and speech inciting violence, requires significant amendments to avoid creating injustices in the pursuit of justice and protection from discrimination. This is the general assessment by CRARR of the Bill, introduced last June by Quebec Justice Minister Stéphanie Vallée as part of the government’s plan to combat hate, extremism and radicalization.
After a careful review of the Bill, CRARR considers that although the Bill has laudable goals — to combat speech that promotes hate and violence directed at vulnerable groups that are protected by the Quebec Charter of Human Rights and Freedoms, as well as combating honour-based violence and forced marriage involving minors — many of its vague, over-reaching and ill-conceived proposals can potentially deprive citizens of constitutional rights protected in the Canadian Charter of Rights and Freedoms. The Bill can also produce abusive “witch-hunts” and unintended adverse effects on vulnerable minorities protected by Quebec law.
Some of the major flaws of Bill 59 include:
❏ A failure to define “hate speech” and “speech inciting violence” that targets a group of people sharing one of the 13 characteristics identified as prohibited grounds for discrimination in the Quebec Charter such as race, gender, religion, sexual orientation and political conviction, which opens the door to potential abuse. Absent a definition that is consistent with the Supreme Court’s 2013 ruling in the Whatcott case (involving the distribution of homophobic flyers by a man in Saskatchewan), complaints can be filed by anyone who is against religious groups for sexist and homophobic statements, organizers of campaigns to boycott Israel, LGBT groups for anti-religious speech, or even language-rights activists;
❏ Far-reaching liability for anyone “acting in such a manner as to cause such types of speech to be engaged in or disseminated”, which can practically mean that legal action could be taken against those who communicate hateful comments in songs and social media or printers of flyers deemed to be hateful;
❏ The creation of two distinct and potential arbitrary classes of victims — the first being those who can prove direct and personal consequences of hate speech, which will entitle them to personal claims of damages, and the second being “any person who is aware of hate speech or speech inciting violence being engaged in or disseminated can report it”, thus who is not a victim and who is not entitled to damages;
❏ The creation of a permanent, public and online “No Hate List”, where persons found responsible for hate speech could suffer consequences worse than those with a criminal record or on Canada’s secret no-fly list. Bill 59 fails to contain clear procedures for individuals — including minors and their parents —to review or challenge their being listed.
❏ The mandatory use of the “No Hate List” by school authorities to violate both the constitutional rights to privacy and to be presumed innocent until proven guilty for students “whose name … on the list … [means that they are] considered to exhibit behaviour that could reasonably pose a threat for the physical or emotional safety of the students”;
❏ The exclusion of universities from the list of educational institutions that must undertake concrete measures to protect students from hate and violence;
❏ Excessive punitive measures against schools, including permit revocation in cases of private schools that “tolerate … behaviour that could reasonably pose a threat for the physical or emotional safety of the students.”
CRARR also expresses concerns with Bill 59 granting new powers and roles to the Quebec Human Rights and Youth Rights Commission — without necessary legal safeguards — including the maintenance of the “No Hate List”, and decision-making authority by a committee of two commissioners as opposed to the present complaints committee made up of three commissioners for regular discrimination cases.
The Commission has often shown serious problems in handling complaints of racism, particularly cases involving systemic racism and intersectional discrimination (involving groups living multiple discrimination such as English-speaking racialized people). These problems are due more to both a critical lack of diversity among Commission members and staff, persistent refusal to define systemic racism, as well as inadequate financial resources and competencies — rather than to the lack of new statutory powers to combat hate speech.
Finally, Bill 59 contains several inconsistencies between its French and English versions, the most serious of which is the reference to students’ “sécurité morale” in French and “emotional security” in English.
CRARR proposes several key amendments to Bill 59:
❏ Define “hate speech” and “speech inciting violence” in accordance with the most recent Supreme Court ruling in theWhatcott case, without depriving victims who experience the personal effects of hate speech the right to file complaints and claim damages for themselves;
❏ Eliminate the provision holding liable anyone “acting in such a manner as to cause such types of speech to be engaged in or disseminated”;
❏ Withdraw entirely the proposed “No Hate List”, as Human Rights Tribunal decisions are already public;
❏ Improve certain provisions related to the Human Rights Commission’s enforcement of this Bill, including the communication of the identity of persons who report hate speech to the police, and providing the Commission with appropriate financial and human resources to provide truly effective protection to victims of discrimination, exploitation and hate;
❏ Remove minimal parameters for financial sanctions and leave such matters to the courts;
❏ Include universities in the category of educational institutions required to take action against hate and violence;
❏ Ensure consistency in the wording of honour-based violence (the discrepancy between “violence based on a concept of honour” and “violence based on the concept of honour”), and clarify legislative intent in order to avoid, in the application of the law, giving unintended cultural or religious predominance to what is essentially gender-based violence or “femicide”.
Finally, CRARR commends the Quebec Government for its commitment to combating hate and extremism, a growing problem especially since the introduction of the Charter of Quebec Values in 2013, and protecting vulnerable minorities from such forms of human rights violations. However, it believes that the Government’s intention is not well-served by Bill 59, which may lead to further violations of constitutional and civil rights.
CRARR was invited to testify by the Commission on Institutions of the National Assembly after it led public pressures to include racial, ethnic and religious groups in the hearings after learning of the latter’s absence from the list of witnesses. Due to practical factors, it will not appear but will submit its brief.