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Weaponizing human rights tribunals
From the Macdonald Laurier Institute
By Stéphane Sérafin for Inside Policy
If adopted, Bill C-63 could unleash a wave of “hate speech” complaints that persecute – and prosecute – citizens, businesses, or organizations while stifling online expression.
Much has already been written on Bill C-63, the Trudeau government’s controversial Bill proposing among other things to give the Canadian Human Rights Tribunal jurisdiction to adjudicate “hate speech” complaints arising from comments made on social media. As opponents have noted, the introduction of these new measures presents a significant risk to free expression on many issues that ought to be open to robust public debate.
Proponents, for their part, have tended to downplay these concerns by pointing to the congruence between these new proposed measures and the existing prohibition contained in the Criminal Code. In their view, the fact that the definition of “hate speech” provided by Bill C-63 is identical to that already found in the Criminal Code means that these proposed measures hardly justify the concerns expressed.
This response to critics of Bill C-63 largely misses the point. Certainly, the existing Criminal Code prohibitions on “hate speech” have and continue to raise difficult issues from the standpoint of free expression. However, the real problem with Bill C-63 is not that it adopts the Criminal Code definition, but that it grants the jurisdiction to adjudicate complaints arising under this definition to the Canadian Human Rights Tribunal.
Established in 1977, the Canadian Human Rights Tribunal is a federal administrative tribunal based on a model first implemented in Ontario in 1962 and since copied in every other Canadian province and territory. There is a Canadian Human Rights Tribunal, just as there is an Ontario Human Rights Tribunal and a British Columbia Human Rights Tribunal, among others. Although these are separate institutions with different jurisdictions, their decisions proceed from similar starting points embedded in nearly identical legislation. In the case of the Canadian Human Rights Tribunal, that legislation is the Canadian Human Rights Act.
Tribunals such as the Canadian Human Rights Tribunal are administrative bodies, not courts. They are part of the executive branch, alongside the prime minister, Cabinet, and the public service. This has at least three implications for the way the Tribunal is likely to approach the “hate speech” measures that Bill C-63 contemplates. Each of these presents significant risks for freedom of expression that do not arise, or do not arise to the same extent, under the existing Criminal Code provisions.
The first implication is procedural. As an administrative body, the Tribunal is not subject to the same stringent requirements for the presentation of evidence that are used before proper courts, and certainly not subject to the evidentiary standard applied in the criminal law context. But more importantly still, the structure of the Canadian Human Rights Act is one that contemplates a form of hybrid public-private prosecution, in which the decision to bring a complaint falls to a given individual, while its prosecution is taken up by another administrative body, called the Human Rights Commission.
This model differs from both the criminal law context, where both the decision to file charges and prosecute them rest with the Crown, and from the civil litigation context, where the plaintiff decides to bring a claim but must personally bear the cost and effort of doing so. With respect to complaints brought before the Tribunal, it is the complainant who chooses to file a complaint, and the Human Rights Commission that then takes up the burden of proof and the costs of prosecution.
In the context of the existing complaints process, which deals mainly with discriminatory practices in employment and the provision of services, this model is intended to alleviate burdens that might deter individuals from bringing otherwise valid discrimination complaints before the Tribunal. Whatever the actual merits of this approach, however, it presents a very real risk of being weaponized under Bill C-63. Notably, the fact that complainants are not expected to prosecute their own complaints means that there is little to discourage individuals (or activist groups acting through individuals) from filing “hate speech” complaints against anyone expressing opinions with which they disagree.
This feature alone is likely to create a significant chilling effect on online expression. Whether a complaint is ultimately substantiated or not, the model under which the Tribunal operates dispenses complainants from the burden of prosecution but does not dispense defendants from the burden of defending themselves against the complaint in question. Again, this approach may or may not be sensible under existing anti-discrimination measures, which are primarily aimed at businesses with generally greater means. But it becomes obviously one-sided in relation to the “hate speech” measures contemplated by Bill C-63, which instead target anyone engaging in public commentary using online platforms. Anyone who provides public commentary, no matter how measured or nuanced, will thus have to risk personally bearing the cost and effort of defending against a complaint as a condition of online participation. Meanwhile, no such costs exist for those who might want to file complaints.
A second implication arising from the Tribunal’s status as an administrative body with significant implications for Bill C-63 is that its decisions attract “deference” on appeal. By this, I mean that its decisions are given a certain latitude by reviewing courts that appeal courts do not generally give to decisions from lower tribunals, including in criminal matters. “Deference” of this kind is consistent with the broad discretion that legislation confers upon administrative decision-makers such as the Tribunal. However, it also raises significant concerns in relation to Bill C-63 that its proponents have failed to properly address.
In particular, the deference granted to the Tribunal means that proponents of Bill C-63 have been wrong to argue that the congruence between its proposed definition of “hate speech” and existing provisions of the Criminal Code provides sufficient safeguards against threats to freedom of expression.
Deference means that it is possible, and indeed likely, that the Tribunal will develop an interpretation of “hate speech” that diverges significantly from that applied under the Criminal Code. Even if the language used in Bill C-63 is identical to the language found in the Criminal Code, the Tribunal possesses a wide latitude in interpreting what these provisions mean and is not bound by the interpretation that courts give to the Criminal Code. It may even develop an interpretation that is far more draconian than the Criminal Code standard, and reviewing courts are likely to accept that interpretation despite the fact that it diverges from their own.
This problem is exacerbated by the deferential approach that reviewing courts have lately taken towards the application of the Canadian Charter of Rights and Freedoms to administrative bodies such as the Tribunal. This approach contrasts to the direct application of the Charter that remains characteristic of decisions involving the Criminal Code, including its “hate speech” provisions. It also contrasts with the approach previously applied to provincial Human Rights Tribunal decisions dealing with the distribution of print publications that were found to amount to “hate speech” under provincial human rights laws. Decisions such as these have frequently been criticized for not taking sufficiently seriously the Charter right to freedom of expression. However, they at least involve a direct application of the Charter, including a requirement that the government justify any infringement of the Charter right to free expression as a reasonable limit in a “free and democratic society.”
Under the approach now favoured by Canadian courts, these same courts now extend the deference paradigm to administrative decision-makers, such as the Canadian Human Rights Tribunal, even where the Charter is potentially engaged. In practice, this means that instead of asking whether a rights infringement is justified in a “free and democratic society,” courts ask whether administrative-decision makers have properly “balanced” even explicitly enumerated Charter rights such as the right to freedom of expression against competing “Charter values” whenever a particular administrative decision is challenged.
This approach to Charter-compliance has led to a number of highly questionable decisions in which the Charter rights at issue have at best been treated as a secondary concern. Notably, it led the Supreme Court of Canada to affirm the denial of the accreditation of a new law school at a Christian university in British Columbia, on the basis that this university imposed a covenant on students requiring them to not engage in extra-marital sexual relations that was deemed discriminatory against non-heterosexual students. Four of the nine Supreme Court of Canada judges would have applied a similar approach to uphold a finding by the Quebec Human Rights Tribunal that a Quebec comedian had engaged in discriminatory conduct because of a routine in which he made jokes at the expense of a disabled child who had cultivated a public image. (With recent changes to the composition of the court, that minority would now likely be a majority). This approach to Charter-compliance only increases the likelihood that the proposed online hate speech provisions will develop in a manner that is different from, and more repressive than, the existing Criminal Code standard.
Finally, the third and potentially most consequential difference to arise from the Tribunal’s status as an administrative rather than judicial body concerns the remedies that the Tribunal can order if a particular complaint is substantiated. Notably, the monetary awards that the Tribunal can impose – currently capped at $20,000 – are often imposed on the basis of standards that are more flexible than those applicable to civil claims brought before judicial bodies. An equivalent monetary remedy is contemplated for the new online “hate speech” provisions. This remedy is in addition to the possibility, also currently contemplated by Bill C-63, of ordering a defendant to pay a non-compensatory penalty (in effect, a fine payable to the complainant, rather than the state) of up to $50,000. This last remedy especially adds to the incentives created by the Commission model for individuals (and activist groups) to file complaints wherever possible.
That said, the monetary remedies contemplated by Bill C-63 are perhaps not the most concerning remedies as far as freedom of expression is concerned. Bill C-63 also provides the Tribunal with the power to issue “an order to cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from recurring.” This remedy brings to mind the Tribunal’s existing power to under the anti-discrimination provisions of the Canadian Human Rights Act.
It is not entirely clear how this kind of directed remedy will be applied in the context of Bill C-63. The Bill provides for a number of exemptions to the application of the new “hate speech” measures, most notably to social media platforms, which may limit their scope of application to some extent. Nonetheless, it is not inconceivable that remedies might be sought against other kinds of online content distributors in an effort to have them engage in proactive censorship or otherwise set general policy with little or no democratic oversight. This possibility is certainly heightened by the way in which the existing directed remedies for anti-discrimination have been used to date.
A prominent example of directed remedies being implemented in a way that circumvents democratic oversight is provided by the Canada Research Chairs (“CRC”) program endowed by the federal government at various Canadian universities. That program has recently come under scrutiny due to the on appointments under the CRC program. In reality, those implementing the quotas are merely proceeding in accordance with a settlement agreement entered into by the federal government following a complaint made by individuals alleging discrimination in CRC appointments. That complaint was brought before the Tribunal and sought precisely the kind of redress to which the government eventually consented.
Whatever the merits of the settlement reached in the CRC case, the results achieved by the complainants through their complaint to the Tribunal were far more politically consequential than the kinds of monetary awards that have been the focus of most discussion in the Bill C-63 context. As with the one-sidedness of the procedural incentives to file complaints and the deference that courts show to Tribunal decisions, the true scope of the Tribunal’s remedial jurisdiction presents significant risks to freedom of expression that simply have no equivalent under the Criminal Code. These issues must be kept in mind when addressing the content of that Bill, which in its current form risks being weaponized by politically motivated individuals and activist groups to stifle online expression with little to no democratic oversight.
Stéphane Sérafin is a senior fellow at the Macdonald-Laurier Institute and assistant professor in the Common Law Section of the Faculty of Law at the University of Ottawa. He holds a Bachelor of Social Science, Juris Doctor, and Licentiate in Law from the University of Ottawa and completed his Master of Laws at the University of Toronto. He is a member of the Law Society of Ontario and the Barreau du Québec.
Uncategorized
UK Government And Media Spread Disinformation About Southport Killer, Evidence Suggests
Britain’s Prime Minister Keir Starmer answers questions during a press conference following clashes after the Southport stabbing on August 1, 2024. (Photo by HENRY NICHOLLS/AFP via Getty Images)
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UK police now say that the alleged killer possessed an al-Qaeda training manual and a deadly biological toxin
The riots in England this summer were motivated by far-right Islamophobia and driven by disinformation online, argued the UK media and government at the time. In July and August, social media posts claimed that a Muslim migrant was responsible for a mass stabbing in the seaside town of Southport. Those claims were false, according to officials and fact-checkers.
The riots began after a 17-year-old named Axel Rudakubana allegedly stabbed to death three young girls at a Taylor Swift-themed dance workshop. Rudakubana was born in the UK and raised Christian, the media reported. The rioters, said Prime Minister Keir Starmer, were “far-right thugs” seeking to exploit the tragedy and “target people because of the color of their skin.”
But it now appears that the UK government may have deliberately spread disinformation and used it to justify censorship and repression. Police yesterday issued new charges under the Terrorism Act against Rudakubana, now 18, for allegedly producing ricin, a biological toxin, and possessing an al-Qaeda training manual titled “Military Studies in the Jihad Against the Tyrants.” Since police arrested Rudakubana at the scene of the stabbings, it’s likely they searched his home shortly after, and thus may have discovered the ricin and manual within hours of the attack.
Ricin is a protein toxin derived from the castor bean plant and has no known antidotes. The terrorism charges identify the al-Qaeda training manual as “of a kind likely to be useful to a person committing or preparing an act of terrorism.” Although the police stated that the case is not yet classified as a “terrorist incident,” these new charges suggest that radical Islamism motivated the attack, contradicting authorities’ previous narrative.
“It is not plausible for the police, Home Secretary, Prime Minister not to have known about the suspect’s background until this week,” said conservative Member of Parliament and former Home Secretary, Dame Priti Patel, in a statement to The Telegraph. “This detail would have materialized within 2-3 days of such a devastating and serious incident with the entire security apparatus focusing on finding answers to key questions.
Mourners gather for the funeral of a nine-year-old victim of a knife attack in Southport on August 11, 2024 (left); Axel Rudakubana, Southport stabbing suspect (center); Britain’s Prime Minister Keir Starmer at 10 Downing Street on August 1, 2024 (right). [Getty Images and Liverpool Crown Court drawing]…
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Canadian man euthanized after COVID shot injuries
From LifeSiteNews
An Ontario man in his late 40s has been euthanized after doctors diagnosed him with ‘post COVID-19 vaccination syndrome’ following three COVID jabs, which caused him to suffer ‘severe functional decline.’
An Ontario man has been granted euthanasia for “post COVID-19 vaccination syndrome.”
According to an October report by the National Post, an anonymous Ontario man in his late 40s has been euthanized after doctors determined his COVID shot injuries qualified him for assisted suicide or “Medical Assistance in Dying” (MAiD) under Canada’s euthanasia regime.
“Amongst his multiple specialists, no unifying diagnosis was confirmed,” the reports issued by a 16-member MAiD death review committee found.
Nevertheless, the doctors “opined that the most reasonable diagnosis for Mr. A’s clinical presentation (severe functional decline) was a post-vaccine syndrome, in keeping with chronic fatigue syndrome.”
The man experienced “suffering and functional decline” following three doses of the experimental COVID shots.
He also suffered from a slew of mental illnesses, including depression, post-traumatic stress disorder, anxiety and personality disorders. He was admitted to the hospital twice “while navigating his physical symptoms” with thoughts of suicide.
He was eventually diagnosed “post COVID-19 vaccination syndrome,” which is not currently include in Canada’s current vaccine reporting system. Notably, Canada’s program to compensate those injured by the so-called “safe and effective” COVID shots has now spent $14 million, but the vast majority of claims remain unpaid.
His death is further complicated by the fact that multiple specialists failed to agree on his diagnosis, with many questioning if his condition met the criteria for an “irremediable” condition, which is required to seek euthanasia in Canada. Many also questioned if his mental health disqualified him from undergoing assisted suicide.
The man’s death is considered “Track 2,” part of a group who are not “terminally ill” and whose natural deaths are not reasonably foreseeable.
Dr. Sonu Gaind, a psychiatrist and professor of medicine at the University of Toronto, revealed that he is troubled “by almost everything in this report.”
“I think we have gone so far over the line with Track 2 that people cannot even see the line that we’ve crossed,” said Gaind.
“It’s pretty clear that some providers are going up to that line, and maybe beyond it,” Gaind said.
As LifeSiteNews previously reported, internal information has revealed that Canadian doctors are questioning the morality of euthanizing vulnerable and impoverished patients who are choosing death because of poverty and loneliness.
During his time in office, Prime Minister Justin Trudeau and his government have worked to expand assisted suicide 13-fold since it was legalized, making Canada’s euthanasia program the fastest growing in the world.
Currently, wait times to receive actual health care in Canada have increased to an average of 27.7 weeks, leading some Canadians to despair and opt for euthanasia instead of waiting for genuine assistance. At the same time, sick and elderly Canadians who have refused to end their lives via “MAiD” have reported being called “selfish” by their providers.
The most recent reports show that euthanasia is the sixth highest cause of death in Canada. However, it was not listed as such in Statistics Canada’s top 10 leading causes of death from 2019 to 2022.
When asked why it was left off the list, the agency said that it records the illnesses that led Canadians to choose to end their lives via euthanasia, not the actual cause of death, as the primary cause of death.
According to Health Canada, in 2022, 13,241 Canadians died by MAiD lethal injections. This accounts for 4.1 percent of all deaths in the country for that year, a 31.2 percent increase from 2021.
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