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.

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Canada’s struggle against transnational crime & money laundering

Published on November 10, 2024

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From the Macdonald-Laurier Institute

By Alex Dalziel and Jamie Ferrill

In this episode of the Macdonald-Laurier Institute’s Inside Policy Talks podcast, Senior Fellow and National Security Project Lead Alex Dalziel explores the underreported issue of trade-based money laundering (TBML) with Dr. Jamie Ferrill, the head of financial crime studies at Charles Sturt University in Canberra, Australia and a former Canada Border Services Agency officer.

The discussion focuses on how organized crime groups use global trade transactions to disguise illicit proceeds and the threat this presents to the Canada’s trade relationship with the US and beyond.

Definition of TBML: Trade-based money laundering disguises criminal proceeds by moving value through trade transactions instead of transferring physical cash. Criminals (usually) exploit international trade by manipulating trade documents, engaging in phantom shipping, and altering invoices to disguise illicit funds as legitimate commerce, bypassing conventional financial scrutiny. As Dr. Ferrill explains, “we have dirty money that’s been generated through things like drug trafficking, human trafficking, arms trafficking, sex trafficking, and that money needs to be cleaned in one way or another. Trade is one of the ways that that’s done.”

A Pervasive Problem: TBML is challenging to detect due to the vast scale and complexity of global trade, making it an attractive channel for organized crime groups. Although global estimates are imprecise, the Financial Action Task Force and The United Nations Office on Drugs and Crime (UNODC) suggests 2-5% of GDP could be tied to money laundering, representing trillions of dollars annually. In Canada, this could mean over $70 billion in potentially laundered funds each year. Despite the scope of TBML, Canada has seen no successful prosecutions for criminal money laundering through trade, highlighting significant gaps in identifying, investigating and prosecuting these complex cases.

Canada’s Vulnerabilities: Along with the sheer volume and complexity of global trade, Canada’s vulnerabilities stem from gaps in anti-money laundering regulation, particularly in high-risk sectors like real estate, luxury goods, and legal services, where criminals exploit weak oversight. Global trade exemplifies the vulnerabilities in oversight, where gaps and limited controls create substantial opportunities for money laundering. A lack of comprehensive export controls also limits Canada’s ability to monitor goods leaving the country effectively. Dr. Ferrill notes that “If we’re seen as this weak link in the process, that’s going to have significant implications on trade partnerships,” underscoring the potential political risks to bilateral trade if Canada fails to address these issues.

International and Private Sector Cooperation: Combating TBML effectively requires strong international cooperation, particularly between Canada and key trade partners like the U.S. The private sector—including freight forwarders, customs brokers, and financial institutions—plays a crucial role in spotting suspicious activities along the supply chain. As Dr. Ferrill emphasizes, “Canada and the U.S. can definitely work together more efficiently and effectively to share and then come up with some better strategies,” pointing to the need for increased collaboration to strengthen oversight and disrupt these transnational crime networks.

Looking to further understand the threat of transnational organized crime to Canada’s borders?

Check out Inside Policy Talks recent podcasts with Christian Leuprecht, Todd Hataley and Alan Bersin.

To learn more about Dr. Ferrill’s research on TBML, check out her chapter in Dirty Money: Financial Crime in Canada.

Immigration

ISIS and its violent Central Asian chapter are threatening Canada and the West with jihad. Hussain Ehsani for Inside Policy

Published on October 27, 2024

Todayville

From the Macdonald Laurier Institute

By Hussain Ehsani

Recent terrorism-related arrests in Canada and the wider West are evidence of the resurgence of ISIS, and especially its ultra-violent Afghanistan wing… recently revealed internal memos by Canada’s Integrated Terrorism Assessment Centre (ITAC) highlighted ISIS’s growing role in inspiring domestic terrorism

Ten years ago, the Islamic State of Iraq and Syria waged a holy war that threatened to engulf the wider Middle East. At its peak, ISIS conquered nearly 200,000-square-kilometres of Iraq and Syria, inspiring thousands of jihadis to join its crusade against the West.

It took a global coalition of 87 nations and groups, led by the United States and including Canada, to defeat Daesh for good. By December 2017, the damage was decisive: ISIS had lost more than 95 per cent of its territory. The coalition members celebrated the defeat of ISIS and thought it could no longer pose a threat, in the Middle East or anywhere else.

The moment lasted only a short time.

Recent terrorism-related arrests in Canada and the wider West are evidence of the resurgence of ISIS, and especially its ultra-violent Afghanistan wing. At the same time, recently revealed internal memos by Canada’s Integrated Terrorism Assessment Centre (ITAC) highlighted ISIS’s growing role in inspiring domestic terrorism, and in particular, potential “lone Wolf” attacks against Canada’s Jewish community.

The memos – issued on June 24 and July 10, 2024, and later obtained by media – were prescient: On July 31, Canadian police detained two alleged ISIS-affiliated men in Richmond Hill, Toronto, apparently based on a tip from French intelligence. In September, the RCMP in Quebec – working with the FBI – arrested a Pakistani national on a student visa for allegedly plotting an attack on a Jewish centre in Brooklyn, New York. These events were especially shocking since it was widely believed that ISIS was confined to Iraq and Syria. But ISIS is clearly influencing a new generation of terrorists around the world. Indeed, it’s suspected that ISIS inspired, and possibly directed, a plot to attack the Jewish community in Ottawa last February. Police arrested two Ottawa youths in relation to the alleged plot and charged them with attempted murder.

American authorities have also thwarted ISIS schemes, resulting in the arrest of ISIS-Tajiki operatives in the US earlier this year. The arrests continue: On October 7, the FBI apprehended an Afghan national and a juvenile co-conspirator for allegedly planning an attack under the Islamic State banner on November 5 – the day of the US presidential elections.

These US arrests point to a new trend: the rise and global reach of the Afghan branch of ISIS, known as the Islamic State-Khorasan Province (ISKP). Some background is necessary. ISIS officially emerged in 2014, following rapid territorial gains in eastern Syria and northwestern Iraq. Rooted in the ideology of Salafi Jihadism, ISIS sought to establish a “Caliphate” governed by a strict interpretation of Sharia law. The group declared its leader, Abu Bakr al-Baghdadi, as Caliph in June 2014 after capturing Mosul, Iraq’s second-largest city. This marked the height of ISIS’s power, controlling large swaths of Syria and Iraq.

As ISIS entrenched itself, it began expanding its influence beyond Iraq and Syria. Various affiliates, known as “provinces” or “wilayat,” emerged worldwide. Pledging allegiance to the central ISIS leadership, these groups dedicated themselves to establishing a global Islamic State.

That is one reason for the group’s resilience and recent resurgence. The ISKP was one of the most deadly branches to emerge. Founded in southeastern Afghanistan in 2015 on the border with Pakistan, ISKP immediately sought closer ties with the core ISIS group in Syria and Iraq to gain legitimacy and embolden its fighters and middle-rank commanders to conquer more territory. Those efforts came up short, and ISKP failed in its first years to win ISIS’s support.

Since then, ISKP has redoubled its efforts to impress its ISIS masters – and in many ways, it has succeeded. The group is now among the strongest of ISIS’s adherents.

Turning Point

The collapse of the former Afghan Government on August 15, 2021, was the turning point, when a host of transnational extremist fighters were released from prisons of Afghanistan. Aside from rejoicing about the withdrawal of foreign troops from Afghanistan, they prepared to take up their “holy duty” to expand ISIS’s regime. ISKP initially in 2015 drew its fighters from disaffected and wayward elements of the Taliban, Haqqani network, and Pakistani Taliban. The release of an additional cohort of Salafists (Sunni fundamentalists) aided its recruitment.

ISKP moved quickly to expand its influence and operations. The first attack in this new era was devastating: it stormed the Abbey Gate of the Kabul Airport on August 26, 2021, killing 170 Afghan civilians and 13 US soldiers. The US Department of Defense later released a report that Abdul Rahman al-Logari, one of the prisoners released on the day of Kabul collapse, was behind the Abbey Gate attack.

The message was clear – ISKP was on the march.

ISKP on the International Stage

To gain “formal” admission to the ranks of ISIS’s provinces, ISKP would have to show initiative and capability, not just in Afghanistan but in the wider territory of Khorasan: Iran, Tajikistan, Uzbekistan, and the eastern part of Turkmenistan.

To do so, it had to find new targets. Traditionally, the Hazara community, the most persecuted ethnicity in Afghanistan, was the main target for Islamist groups, along with former Afghan security forces. They remain primary victims. However, ISKP’s range of targets and ability to strike them has grown. It added new targets in Afghanistan, attacking the Russian embassy in Kabul in September 2022, and a Chinese facility in December of the same year. Then it started reaching beyond the borders of Afghanistan: ISKP has carried out terrorist attacks in Central Asia and plotted a number of them in Pakistan.

Targets even farther away have now been hit. In January 2024, ISKP executed a complex attack in Kerman, Iran, at an event commemorating Qasem Sulaimani, the former commander of the Iranian Islamic Revolutionary Guard Corps (IRGC) Qods Force, killed by US forces in 2020. On March 22, 2024, it hit a concert hall in Moscow – an operation that took the international community by complete surprise.

These operational successes mattered, but ISIS’s core leaders in Syria and Iraq demanded signs of ideological subservience as well. Under the leadership of Sanaullah Ghafari (also known as Dr. Shahab al-Muhajir), ISKP worked hard to prove that its propaganda machine is an engine of ISIS Salafist ideology.

ISKP uses fluency in a variety of languages, including Urdu, Russian, Tajiki, Uzbeki, Turkish, English, and Pashto, to spread its message. It seeks to extend its ideology to other fighters in the region in order to recruit transnational Salafi Jihadists. It has already recruited a vast number of terrorists from the ranks of the Islamic Movement of Uzbekistan in the north of Afghanistan. ISKP also exploited propaganda and demand from the diaspora of Uzbekistan and Tajikistan to plot attacks against Western countries.

The attacks and ideological efforts seem to have worked. ISKP now appears to have become the operational wing of the core ISIS group. After the ISKP attack on Moscow, an ISIS spokesman released a 41-minute audio message praising the attack by “Mujahidin” and called on other “dormant” provinces of the “Caliphate” to rise up and follow ISKP’s example.

The terror spreads

ISIS leader Abu Hafs al-Hashimi al-Quraishi has more work in mind for his prized ISKP group. His priorities include freeing jihadists detained in Syria and attacking targets in Europe and North America.

In Syria, Al-Quraishi has encouraged ISIS terrorists to redouble efforts to attack the Syrian Democratic Forces, a US-backed Kurdish militia in the country’s northeast, and try to break detained comrades out of SDF-run prisons. These facilities host thousands of ISIS fighters, including women and children. Given the success of ISKP’s operations and recruitment, ISIS is likely trying to implement the same tactic of jailbreaks in Kurdish territory in Syria and Iraq, to replenish its ranks.

ISIS spokesmen have also called for all Muslims to attack Christians and Jews in the broader West.

In September 2024, Türkiye’s domestic security agency (MIT) arrested Abuzar Al Shishani, who allegedly was plotting an attack on Santa Maria Italian Church in Istanbul in early January 2025. According to MIT, ISKP recruited him in 2021. The arrests in Canada, the US, and Türkiye are proof that ISKP’s reach is growing.

How can Canada fight back?

Canada and its allies in the West must act now to counter the terrorist threat posed by ISKP and ISIS. Fortunately, the RCMP and other Canadian police forces halted the recent spate of planned domestic terror attacks. However, stringent immigration screening is also crucial to keeping Canada and its allies safe. The Canada Border Services Agency needs to be ready to deal with the ISIS/ISKP threat.

To that end, Public Safety Canada should examine ways to enhance inter-agency targeting and intelligence sharing. A task force consisting of Immigration, Refugee and Citizenship Canada, Canadian Heritage, the Canadian Revenue Agency, and FINTRAC – given their respective roles in immigration processing, countering disinformation and anti-terrorist financing – could help to ensure maximum coordination against the group.

Canada must also guard against the threat ISKP/ISIS poses to religious and minority communities in the country. ISIS’s call to target Jewish and Christian communities presents a special challenge. The Jewish community is particularly vulnerable due to the rampant antisemitism seen at pro-Hamas, Hezbollah, and Iran rallies across Canada. But Christian sites, like churches, are also vulnerable. ISKP/ISIS are also likely to target Muslim groups that speak against its violent ideology.

Canada should collaborate with international partners to support communities and groups opposed to ISKP/ISIS. These include the Hazara, Kurdish, and Yazidi communities in Afghanistan and Kurdistan, as well as allies in the Kurdistan Regional government, and the Syrian Democratic Forces. Canada should also support initiatives led by the Kingdom of Saudi Arabia and other Gulf Cooperation Council countries to strengthen the voice of moderate Islam in the Middle East and Central Asia. Such initiatives require careful diplomacy with allies and a range of partners. That is what Canada will require to counter the evolving threat of ISIS and ISKP.

Hussain Ehsani is a Middle East affairs analyst with expertise on the Islamic State and al-Qaeda in Iraq and Afghanistan. He is currently exploring the foreign policy relationship between Saudi Arabia and Canada. In addition to MLI, he also contributes to the Jerusalem Post, BBC Persian, and The Hill.