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In Canada, looming censorship bill recalls long-repealed 'Section 13' of Human Rights Act

Bill C-36 broadly targets free speech throughout the country; civil liberties advocates raise alarms.

Updated: July 3, 2021 - 11:32pm

The Facts Inside Our Reporter’s Notebook

A looming bill in Canada would impose significant speech burdens on Canadian citizens reminiscent of earlier restrictive censorship rules that were repealed nearly a decade ago. 

Bill C-36, introduced in the Canadian parliament late last month, would if passed amend the Canadian Human Rights Act "to provide that it is a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination."

The law would authorize the Canadian "Human Rights Commission" to "accept complaints alleging this discriminatory practice" and would empower the country's "Human Rights Tribunal" to "adjudicate complaints and order remedies."

The bill defines "hate speech" as "communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination," although it notes that speech that "expresses mere dislike or disdain or ... discredits, humiliates, hurts or offends" does not necessarily qualify as "hate speech" under the law.

As with many European countries, Canada's government allows for significantly more speech restrictions than are permitted under the United States Constitution. The U.S. Constitution's First Amendment — along with roughly six decades of pro-free-speech decisions by the U.S. Supreme Court — have established protections for free speech that are comparatively rare throughout the rest of the world. 

Canada, meanwhile, expressly notes in its Charter of Rights and Freedoms that restrictions on fundamental freedom, including free speech, can be permitted so long as they "can be demonstrably justified in a free and democratic society."

That provision has been interpreted broadly by Canadian lawmakers in the past. A provision of the Canadian Human Rights Act — Section 13 — had prohibited the digital communication of "any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination."

That rule was ultimately repealed in 2014. Its demise was attributed in part to conservative commentators Mark Steyn and Ezra Levant arguing successfully against a complaint brought before the Canadian Human Rights Commission pursuant to Section 13 regarding commentary written by Steyn that was critical of Islam. 

Bill C-36 would appear to essentially revive Section 13, potentially signaling a new wave of digital speech restrictions in the country. The proposed bill has been met with criticism from various quarters both in and out of Canada. An editorial last week in the Toronto Sun, for example, criticized the proposal's language as "broad" and the bill itself as "a mockery of real laws."

"What it will mean in practice is that anyone will be able to make nuisance claims that someone else's Twitter or Facebook post violates their rights," the editors wrote. 

On his eponymous website, meanwhile, Mark Steyn wrote last week that "in the intervening years [since Section 13's repeal] we have reached the stage where free speech is now openly mocked as a weird fringe right-wing obsession." 

"The left feels it has no need of freedom of expression because it controls the culture, and therefore in the new world of 'approved speech' they're the ones who grant approval, so what's the problem?" he wrote rhetorically.