MONTREAL — Quebec’s proposed legislation to combat hate speech is so flawed that it should be completely reworked and resubmitted for public consultation, according to the Centre for Israel and Jewish Affairs (CIJA).
The Jewish community advocacy group told the public hearings that began last week that it is “perilous to use civil law to accomplish what is treated adequately by criminal law.”
CIJA’s chief criticism is that Bill 59 does not strike a fair balance between guaranteeing freedom of expression and protection against hate. It deplores the lack of a clear definition of what constitutes hate speech and of judicial safeguards for those accused of it.
“In its present form, the bill risks creating an undesirable climate of self-censorship that is incompatible with fundamental rights and freedoms,” the CIJA written brief states.
Representatives of CIJA also appeared on Aug. 20 before the hearings being held at the National Assembly.
CIJA emphasized that the Jewish community, as one of the groups most frequently targeted by hate crimes in Canada, is deeply concerned with their prevention and the prosecution of those charged with them.
However, CIJA believes the answer is a more rigorous application of the existing hate speech provisions in the Criminal Code of Canada, under sections 318 to 320. It regrets that police seem reluctant to investigate and prosecutors to invoke those provisions. Criminal law also affords greater protection of free speech because of the burden of proof required, CIJA points out.
Bill 59, which was introduced in June by Justice Minister Stéphanie Vallée, is aimed at preventing and combating public hate speech and speech inciting violence against identifiable groups described in Section 10 of the Quebec Charter of Human Rights and Freedoms.
Individuals will also be covered by an amendment to the charter.
The bill gives the province’s Human Rights and Youth Rights Commission new powers, including the jurisdiction to investigate complaints about hate speech. It introduces the procedure by which citizens can make such complaints.
The commission can also seek a court order forcing hate speech to cease.
The Human Rights Tribunal also will have new responsibilities, including determining if a person has engaged in hate speech and imposing a monetary penalty.
Particularly troubling to CIJA is the tribunal’s power to enter the names of those found to have contravened the anti-hate prohibitions on a list to be kept at the commission and made available to the public on its website.
The justice minister is also given new powers. He or she may withhold all or part of public funding to educational institutions, public or private, from the preschool to college level, or even revoke their permit, in cases where the behaviour of any person who is on the hate-speech offenders list is presumed to pose a threat to students.
CIJA believes this is too vague and that the presumption of guilt violates basic rights.
Among other weaknesses, CIJA also notes that the bill does not stipulate whether public dissemination of hate speech includes that made via social media or the Internet. It also objects to the inclusion of “political convictions” as a category among identifiable groups that may be targeted.
It asks, for example, if denunciation of the Ku Klux Klan, could constitute hate speech. More generally, CIJA fears the stifling of genuine political debate.
It is concerned as well that those making complaints to the commission may remain anonymous, unless they consent to their identity being disclosed, which could encourage frivolous or malicious actions.
Overall, CIJA thinks the bill makes things too easy for plaintiffs. They do not have to appear before the tribunal or pay any legal fees and the standards for evidence are not spelled out. The defendant, on the other hand, must spend the time and money.
CIJA questions the severity of the sanctions: fines from $1,000 to $10,000 for a first offence, and the stigma and risk of reprisals posed by being publicly listed for a length of time at the tribunal’s discretion.
The normal rules of civil procedure should apply in the application of Bill 59 in order to assure a fair trial, CIJA says.
CIJA Quebec vice-president Luciano Del Negro said, during its presentation to the public hearings, government representatives on the committee “attempted to say that their legislation factors in our concerns. Their questions were not so much tough, as an attempt to reassure us.”
But CIJA is not convinced. “The intent of [Bill 59] is OK, but if the definition of hate speech is left so broad, action against it becomes arbitrary and discriminatory…
“The best antidote to hate speech is freedom of speech and education and a global strategy to deal with it.”