Freedom of Expression, Discrimination, and the Internet: Legislative Responses and Judicial Reactions

Authors

Talia Joundi

Keywords

systemic discrimination, hate speech laws, freedom of expression

Abstract

In Part I of this article, I argue that cyber racism is inextricably linked with systemic discrimination. The definition of systemic discrimination relied on was first provided by Judge Abella in the Report of the Royal Commission on Equality in Employment (Abella Report), which states that systemic discrimination points to practices or attitudes that can result in inequality of opportunity for individuals or groups. The Supreme Court of Canada has since adopted this definition, and in some instances, has acknowledged that systemic problems require systemic remedies. The purpose of this discussion is to demonstrate how situating cyber racism within the context of systemic discrimination illuminates the sources of the problem, the appropriate responses, and the multiple stakeholders who have a role to play in curbing cyber racism.

Following the contextualization of the problem, Part II will discuss cyber racism alongside the phenomenon of the Internet more specifically. In this part, I argue that cyber racism is not a new problem, but simply a new form of a well- known social ill. While the nature and location of racist speech may have changed due to advancements in digital media and the omnipresence of technology, the forces that work to perpetuate racist or discriminatory acts remain deeply embedded in society. For this reason, we must avoid demonizing the Internet, and direct our energy towards users of the Internet instead.

Part III of this article will provide an overview of the legal framework related to racist speech in Canada, including human rights legislation and free speech jurisprudence. Here, I will introduce the relatively recent legislative change to the Canadian Human Rights Act (the CHRA), i.e. the repeal of section 13. I use the discourse and debates surrounding the repeal of section 13 of the CHRA to highlight the tension between freedom of expression interests and the need to protect vulnerable groups from hate speech. Secondly, Part III will introduce constitutional conflicts raising section 2(b) claims in order to demonstrate how Canadian courts have responded to this tension.

I will explore five cases dealing with freedom of expression, beginning with Canada (Human Rights Commission) v. Taylor, which provided a definition of hate speech in 1990 that was adopted in later decisions. Next I will discuss R. v. Keegstra which, though it was a case in the criminal context, is a key decision because the Supreme Court of Canada reaffirmed that hate speech is by its very nature degrading, of low value, and does not advance any of the goals of freedom of expression. This discussion is followed by an analysis of Citron v. Zundel, where the Canadian Human Rights Tribunal dealt with online communications. Lastly, two recent decisions, Whatcott v. Saskatchewan Human Rights Tribunal and Canada (Human Rights Commission) v. Warman reaffirm the constitutionality of section 13 of the CHRA. Specifically, in Whatcott, the Court emphasized that because hate speech has a ‘‘tendency to silence the voice of its target group,” it can ‘‘distort or limit the robust and free exchange of ideas,” and is therefore detrimental to the very values forming the basis of our fundamental freedoms. To conclude this section, I will discuss the serious implications of repealing section 13. Because the government has prioritized individual freedoms over robust collective protections, it has created a legislative void in relation to discrimination claims.

In Part IV, I propose a specific constitutional amendment. While I appreciate the slow pace of legal reform, I posit that it is imperative that Canada creates progressive laws that can better protect society from discriminatory speech. To this end, the Canadian government and ultimately Parliament can gain inspiration from other jurisdictions. This discussion is followed by a broader theoretical analysis of the framework within which claims of human rights violations are assessed. I argue that the adversarial structure relied on by courts and human rights tribunals is an inappropriate method to adjudicate claims of discrimination. While structural reform of adjudicative bodies is beyond the scope of this article, Part IV invites readers to reflect on whether the adversarial framework can effectively protect victims of discrimination.

Finally, the article will conclude with a focus on legal and policy recommendations. Part V will return to the discussion of systemic problems and systemic remedies introduced in Part I. In this section, I gain inspiration from pedagogical experts who explain that online manifestations of racism can be directly connected to how young people learn and interact in the school environment. The institutional culture of schools can inadvertently serve to perpetuate prejudices and stereotypes; this institutional culture includes the school’s values, norms, assumptions, and habits. For this reason, educators, administrators, and policy-makers must look beyond curricula when confronting racism in schools. I explore the incorporation of a literacy program which includes teaching both legal literacy and digital media literacy, and which has the goal of empowering young people to navigate the Internet in a safe and positive way.

Recommended Citation

Talia Joundi, "Freedom of Expression, Discrimination, and the Internet: Legislative Responses and Judicial Reactions" (2015) 13:2 CJLT.