The human-rights tribunal that would judge hate-speech complaints under the new federal online harms bill took more than 12 years to conclude a case resolved last year, raising fears that decisions on taking down hate posts could be long and arduous.
Experts are warning that the complaints process would not provide a swift resolution to people who want hateful posts taken down or to people accused of hate speech.
“For someone to launch a complaint is burdensome. It’s not about pushing a button and filing a complaint on Meta,” said, Emily Laidlaw, the University of Calgary’s Canada Research Chair in Cybersecurity Law.
Bill C-63, tabled by the federal government last month, would give people the power to make complaints under the Canadian Human Rights Act about hate speech to the Canadian Human Rights Commission.
The CHRC has the power to swiftly dismiss complaints without merit. Those deemed valid would be forwarded to the Canadian Human Rights Tribunal to assess. The tribunal could demand that a hateful post be taken down or that the victim of a hateful post gain up to $20,000 in compensation.
Last year, the CHRT made 15 decisions. The average time it took for decisions on cases referred by the CHRC was four years and five months, it said. The shortest time a case took to reach the point of a decision was a year and four months, while the longest time a case took was 12 years and nine months.
The CHRC itself could take up to eighteen months to reach a conclusion on whether a hate-speech complaint should proceed to the tribunal.
David Thomas, a former chairperson of the CHRT, said allegations under human-rights law, though often levelled, are not always upheld, but the process can take years.
“Just having an allegation like that against somebody in itself has repercussions because it takes years for a final decision to be made. So even if the allegations are proven to be not substantiated at the end of the day, in the two or three or four years it takes for someone to clear their name, the damage has already been done,” he said.
The federal auditor general has in the past raised concerns about the amount of time that the CHRC has taken to make decisions. The commission now has service standards or targets on the amount of time stages in the assessment process should take. This includes six months for mediation between the parties and two months for the accused person to respond.
Bill C-63 reinstates Section 13 of the Canadian Human Rights Act on hate speech and discrimination, which was removed in 2013 by prime minister Stephen Harper amid fears that it could be used to stifle freedom of expression.
Cases under the Canadian Human Rights Act do not have the same standard of proof as in a court of law. It would be “a discriminatory practice” to post online material likely “to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination” under changes brought back under Bill C-63.
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The bill “authorizes the Canadian Human Rights Commission to deal with complaints alleging that discriminatory practice and authorizes the Canadian Human Rights Tribunal to inquire into such complaints and order remedies.”
Justice Minister Arif Virani told The Globe and Mail on Thursday that the provision in the bill is carefully “calibrated.” He said the government decided to put Section 13 back because he had heard clearly that “there was a demand for reinstating the tool for addressing the pernicious impact of online hate speech.”
He said to stop a flood of complaints he had brought in powers to allow the CHRC to dismiss claims outright that don’t meet the threshold for hate speech. The bill also brings in a power to deal with “abuse of process” and those who pursue a complaint in bad faith or to manipulate the system, he said. They could also be ordered to pay costs.
Mr. Thomas, a lawyer who was chairperson of the CHRT from 2014 through 2021, expressed concerns that the bill would allow the tribunal to anonymize complaints, with a lower bar for hate speech than for other tribunal cases.
Most cases are held in public and the identity of complainants is usually kept secret only if the tribunal believes there is a real possibility that their life, liberty or security could be endangered, he said.
But for hate-speech cases, Bill C-63 would allow a complainant’s identity to be kept secret if it is deemed they could be the target of threats, intimidation or discrimination.
Mr. Virani said he had been advised that there was a need to protect people’s identify through anonymity because “the fear of reprisals was so great.”