Strategic Initiatives

REGARDING HATE ON THE INTERNET
AND
THE CANADIAN HUMAN RIGHTS COMMISSION
QUESTI0NS AND ANSWERS

Q.1 What is the Commission doing to combat hate on the Internet?
Q.2 What is section 13 of the Canadian Human Rights Act?
Q.3 Does section 13 of the Canadian Human Rights Act specifically cover hate on the Internet?
Q.4 How do you file a complaint under section 13 of the Canadian Human Rights Act?
Q.5 What does the Commission do once a complaint is filed?
Q.6 Are the police involved in the investigation of hate message cases under section 13?
Q.7 Does the Commission initiate complaints on its own initiative?
Q.8 Has the Commission introduced any special measures to deal with hate on the Internet complaints?
Q.9 How many complaints has the Commission received with regard to hate on the Internet?
Q.10 Can the Commission take action to stop the dissemination of alleged hate messages pending a final decision by the Tribunal?
Q.11 What happens when a section 13 complaint is referred to the Canadian Human Rights Tribunal?
Q.12 Does the Commission represent section 13 complainants before the Canadian Human Rights Tribunal?
Q.13 What was the Zundel case?
Q.14 If the Canadian Human Rights Tribunal finds that a respondent has violated section 13 of the Act what remedies can it order?
Q.15 What action can be taken to enforce an order of the Canadian Human Rights Tribunal?
Q. 16 What is the role of the Canadian Radio-television and Telecommunications Commission (CRTC) in controlling hate on the Internet?
Q. 17 Does the Commission believe that the Canadian Human Rights Act needs to be amended to give it broader powers to deal with hate on the Internet?
Q. 18 Does the Commission have jurisdiction over websites originating outside Canada? If not, of what use is section 13, given that hate promoters are active around the world?

Q.1 What is the Commission doing to combat hate on the Internet?

The Commission has a unique role in combatting hate on the Internet. Section 13 of the Canadian Human Rights Act empowers the Commission to deal with complaints regarding the use of the Internet to transmit hate messages. To the best of the Commission’s knowledge, this is the only non-criminal legislation in the world that deals specifically with hate on the Internet.

Complaints are an important tool in combatting hate on the Internet and the Commission has, and will continue, to pursue complaints regarding violations of section 13 to the full extent of the law.

However, the Commission is also acutely aware that combating Internet hate messages is only one part of the broader fight against hate-motivated activity in Canada and around the world. This is a national and international problem which requires a coordinated response from a number of parties.

While the Commission has a specific and important role, so to do the police and federal and provincial departments and agencies with mandates to combat hatred and to enforce the law. Also involved are the companies that provide Internet services and those that generate Internet content as well as the many non-governmental organizations (NGOs) that represent the interests of people who are often the targets of hate.

That Commission recognizes that its efforts can only be effective if they are part of a broader strategy to combat hate. That is why the Commission welcomed the March 2005 announcement by the Government of Canada of  A Canada for All: Canada’s Action Plan Against Racism. One of the key priorities of the Action Plan is to combat hate and bias in Canada. Section 13 complaints can, of course, be filed on any of the eleven grounds in the Canadian Human Rights Act.

The Commission is actively working with other concerned parties to combat hate on the Internet. This includes building partnerships with Internet service providers (ISPs), NGOs, the police and government departments to work together against hate.

Q.2 What is section 13 of the Canadian Human Rights Act?

Section 13 of the Canadian Human Rights Act (the Act) empowers the Commission to deal with complaints regarding the telephonic transmission of hate messages:

13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

R.S., 1985, c. H-6, s. 13; 2001, c. 41, s. 88.

When the Act was enacted in 1977, it was intended to deal with the phenomena of "telephone hate lines". Various groups advertised telephone numbers that could be phoned to hear a pre-recorded message that were often antisemitic and/or white supremacist in nature.

The first case heard by the Canadian Human Rights Tribunal, and one of the first cases investigated by the Commission, dealt with an alleged violation of section 13. The Tribunal decision in the case of Smith and Lodge v. Western Guard Party (Taylor J.R.)was rendered in July 1979. The Tribunal found that the respondents had contravened the Act and ordered that they shut down the telephone line.

The respondents appealed the decision up to the Supreme Court alleging that section 13 violated the Canadian Charter of Rights and Freedoms because it denied them freedom of expression. The Court (see decision) ruled that although section 13 did infringe on freedom of speech, this infringement could be justified under section 1 of the Charter which provides that the Charter is subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In rendering its decision, the Court noted:

In its decision on the Zündel case (see below), the Canadian Human Rights Tribunal emphasized the impact that hate also has on individuals:

Q.3 Does section 13 of the Canadian Human Rights Act specifically cover hate on the Internet?

With the advent of the Internet, the question arose as to whether information posted on a website could constitute hate messages under section 13 (1). In December 2001, as part of the Anti-terrorism Act, Parliament amended the Canadian Human Right Act by adding section 13(2) which makes it clear that Internet hate messages come under the jurisdiction of the Commission:

Interpretation

(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

Any person in Canada having reasonable grounds for believing that there has been a violation of section 13 related to one or more of the eleven grounds of the Act may file a complaint with the Commission alleging a violation of section 13 of the Canadian Human Rights Act. For details on how to file a complaint, please see the Complaints section of the Commission’s website.

Once a complaint under section 13 has been accepted, an investigator from the Commission’s Anti-Hate Team is assigned to look into the complaint. The Anti-Hate Team consists of lawyers, investigators and policy experts with special expertise in investigating hate on the Internet cases.

In consultation with the Team, the investigator drafts an investigation report outlining the particulars of the complaint and investigative findings. Based on the evidence before it, the Commission then decides whether to dismiss the case or to refer the complaint for a full review by the Canadian Human Rights Tribunal.

While the Commission generally offers to mediate complaints, this is not generally done in the case of hate message complaints.

Q.6 Are the police involved in the investigation of hate message cases under section 13?

No, the police are not involved in the investigation of hate message cases. However, there are provisions of the Criminal Code that deal with promotion and incitement of hatred. It is the responsibility of the police to investigate alleged violations of the Criminal Code and to lay charges where warranted. The Commission is not involved in this process.

The Commission has the power to initiate complaints alleging contravention of the Canadian Human Rights Act. However, it has not done so in recent years either with regard to section 13 or any other section of the Act. The Commission may consider initiating complaints in the future if circumstances require its intervention.

Q.8 Has the Commission introduced any special measures to deal with hate on the Internet complaints?

The Commission recognizes that section 13 complaints are unique in both harm that hate causes and the special investigative challenges associated with investigating web-based activities. As a result, the Commission has instituted special measures to facilitate the investigation of section 13 complaints, including:

• The assignment of all section 13 cases to the Anti-Hate Team which includes investigators with specialized expertise in the investigation of hate on the Internet.
• Ongoing staff training to broaden knowledge about the nature of hate activity, its consequences and how to combat it.
• A review of procedures and legal requirements to ensure that section 13 cases are dealt with expeditiously.

Q.9 How many complaints has the Commission received with regard to hate on the Internet?

Since 2001, fifty-one complaints have been accepted under section 13. Of those:

• 27 have been referred to the Canadian Human Rights Tribunal for further investigation;
• 6 are still under investigation or awaiting a Commission decision;
• 9 files were closed due to lack of sufficient evidence to proceed; and
• 9 files are awaiting Commission decisions on admissibility.

So far, the Tribunal has issued eight decisions, determining in all cases that the respondents had contravened section 13 of the Canadian Human Rights Act and ordering them to cease and desist from their activities.

Q.10 Can the Commission take action to stop the dissemination of alleged hate messages pending a final decision by the Tribunal?

In the case of Canadian Human Rights Commission v. Winnicki

The Tribunal rendered its decision in Richard Warman v. Tomasz Winnicki

Mr. Winnicki continued to operate the website in contravention of both the injunction and the Tribunal order. The Commission went to Federal Court to seek a contempt of order citation against Mr. Winnicki for his continuing failure to comply with the Court and Tribunal orders. On July 12, 2006, Mr. Winnicki was sentenced to 9 months in prison (see Canada (Canadian Human Rights Commission) v. Winnicki). He is appealing his sentence. This is the first instance of a person being imprisoned in Canada in relation to material posted on the Internet.

Q.11 What happens when a section 13 complaint is referred to the Canadian Human Rights Tribunal?

The Canadian Human Rights Tribunal is a quasi-judicial body especially created to hear cases filed under the Canadian Human Rights Act. It operates separately and independently of the Commission. When a section 13 complaint is filed, the Tribunal will convene a hearing at which the respondent (the person or persons alleged to have authored a hate message), the complainant and the Commission can present evidence. After hearing from all parties, the Tribunal renders a decision based on the evidence, the law and the jurisprudence.

Q.12 Does the Commission represent section 13 complainants before the Canadian Human Rights Tribunal?

The role of the Commission before the Canadian Human Rights Tribunal is to represent the public interest. The Commission does not represent complainants before the Tribunal.

The Commission participates in all Tribunal cases but the extent of that participation is determined on a case-by-case basis by weighing public interest factors. To date, the Commission has participated fully in all section 13 complaints referred to the Tribunal. Given the strong public interest considerations with regard to combatting hate on the Internet, it is likely that the Commission will participate in future cases as well.

Q.13 What was the Zündel case?

The Zündel case (Citron et al v. Zündel)

The complaint before the Tribunal involved material posted on a website (Zundelsite) and accessible on the World Wide Web that denounced in vitriolic terms the alleged fraud of the Holocaust, Jewish/Zionist/Marxist racketeers who allegedly mounted a Holocaust extortion scheme, the supposed Judaization and attendant mental and spiritual circumcision of Western civilization, a long list of supposed lies by the Jewish Lobby, and various con games, cheating and infamous acts said to have been committed by the Jews.

Over 50 days of hearings were held. In addition dozens of procedural motions and judicial reviews were argued over the four-year period ending with the Tribunal’s decision in January 2002. The Commission participated fully in all these proceedings.

One of the key issues in contention at the Tribunal was whether section 13 "telephonic" messages included postings on the Internet. The Commission argued that they did. Ironically, the final decision of the Tribunal which confirmed that section 13 included the Internet was issued only days after Parliament approved the Anti-terrorism Act, which added sub-section 13(2) to the Canadian Human Rights Act specifying that section 13 covers postings on the Internet.

In light of its findings, the Tribunal issued an order against Ernst Zündel and any other individuals acting in his name to cease the discriminatory practices related to the Zundelsite that were reflected in the material placed before the Tribunal, or reflected in any other material of a substantially similar form or content.

Q.14 If the Canadian Human Rights Tribunal finds that a respondent has violated section 13 of the Act what remedies can it order?

If the Tribunal finds that section 13 has been violated, it may order the respondent to:

• cease any activities contrary to section 13 and to desist from operating any website that contains similar information (a cease and desist order);
• compensate a victim specifically identified on the website up to $20, 000 if the actions of the respondent have been found to been wilful or reckless (special compensation);
• pay a penalty of not more that $10,000.

For example in the case of Richard Warman v. Fred Kyburz, the Tribunal ordered as follows:

Q.15 What action can be taken to enforce an order of the Canadian Human Rights Tribunal?

Tribunal decisions may be made orders of the Federal Court of Canada. This means that if a respondent fails to implement a Tribunal order, including the payment of any monies, it can be enforced by the Federal Court. Respondents who fail to comply with a Federal Court order can be found in contempt of court and be subject to penalties, including imprisonment (see Question 10 above).

The Commission monitors the implementation of all Tribunal orders to make sure that they are fulfilled and takes appropriate enforcement action when appropriate.

In Broadcasting Public Notice CRTC 1999-84 issued in 1999, the CRTC determined that it would not exercise control over the content of the Internet, including offensive and illegal content. The CRTC found that such content could be more effectively dealt with under existing legal provisions such as the Criminal Code and the Canadian Human Rights Act.

As a result, the CRTC was not involved in any matters dealing with hate on the Internet until August 22, 2006, when Mr. Richard Warman applied to the CRTC for interim approval under section 36 of the Telecommunications Act to allow Canadian carriers to block two websites that contained information, including death threats, which Mr. Warman believed contravened the Criminal Code of Canada. In a Letter of Decision dated August 24, 2006, the CRTC dismissed the application citing technical faults in the application and the need for broader discussion on whether section 36 could be used to block websites such as those cited by Warman.

Q. 17 Does the Commission believe that the Canadian Human Rights Act needs to be amended to give it broader powers to deal with hate on the Internet?

At this time, the Commission has made no recommendations to Parliament regarding the amendment of section 13 of the Act. The Commission believes that section 13 has shown itself to be an effective tool for combatting hate on the Internet since 2001.

However, through its ongoing consultations, the Commission is aware of various proposals to strengthen Canada law and regulatory powers with regard to hate on the Internet. The Commission has not yet adopted a position on such proposals.

The Commission only has jurisdiction with regard to websites that are either hosted in Canada or are authored by people in Canada. It is true that website material found to be in contravention of section 13 can still be posted on websites and by persons that are beyond the Commission’s jurisdiction. This limitation stems from both the nature of the Internet and jurisdictional limits of Canadian law.

Nevertheless, a decision under section 13 or a conviction under the hate promotion provisions of the Criminal Code are of great importance in indicating that hate promotion on the Internet is not permissible in Canada. The Canadian Human Rights Tribunal addressed this issue in explaining its cease and desist order against Ernst Zündel. The Tribunal noted:

[298] We are extremely conscious of the limits of the remedial power available in this case. There always exists the possibility that an individual, wholly unrelated to a named respondent, will engage in a similar discriminatory practise. The technology involved in the posting of materials to the Internet, however, magnifies this problem and arguably makes it much easier to avoid the ultimate goal of eliminating the material ....

2. [299] Nonetheless, as a Tribunal we are charged with the responsibility of determining the complaints referred to us, and then making an Order if we find that the Respondent has engaged in a discriminatory practise. We cannot be unduly influenced in this case by what others might do once we issue our Order. The Commission, or individual complainants, can elect to file other complaints, or respond in any other manner that they consider appropriate should they believe that there has been a further contravention of the Act.

[300] Any remedy awarded by this, or any Tribunal, will inevitably serve a number of purposes: prevention and elimination of discriminatory practises is only one of the outcomes flowing from an Order issued as a consequence of these proceedings. There is also a significant symbolic value in the public denunciation of the actions that are the subject of this complaint. Similarly, there is the potential educative and ultimately larger preventative benefit that can be achieved by open discussion of the principles enunciated in this or any Tribunal decision.

[301] Parliament, on behalf of all Canadians, has determined that the telephonic communication of hate messages is not to be tolerated in our society. In our view, the victims of hate are entitled to obtain the benefit of the full weight of our authority.

[302] We have determined that the Respondent Ernst Zündel has engaged in a discriminatory practice by posting material to his website that is likely to expose Jews to hatred or contempt, and the granting of the remedy requested is warranted and appropriate.