Oct. 19, 2011 - André Schutten - On November 1, 2010 the Justice Minister introduced to the House of Commons Bill C-51 which would, among other things, make it a criminal act to communicate hate speech by any means. The Bill redefined the term “communicating” to mean: “communicating by any means and includes making available”. Speculation about this incredibly broad definition suggested that even linking to a hateful web post via hyperlink on a blog or website would be caught by this definition. In other words, someone might be criminally charged for hate speech simply by linking to a website that happened to have hate speech on it.

 That Bill died on the order paper when the spring election was called. Now with a majority government, the Conservatives have introduced a new criminal omnibus bill, Bill C-10. Having scanned the language of that proposed law, I am thankful to note that the redefinition of communicating has not been included.

 To be honest, I was not terribly concerned as it was. To be clear, I would prefer the government not introduce or include such amendments limiting free expression. Increased government intrusion into what may or may not be said or shared or linked to or communicated in a political, social and legal climate where there is already a lack of free speech and chill on free speech is unhelpful.

 Even so, the reason that I was not terribly concerned is that the Criminal Code has a number of safeguards built in to this section:

1. the prosecutor first needs the consent of the Attorney General to prosecute;
2. the prosecutor, assuming he gets permission to prosecute, must then prove beyond a reasonable doubt that the individual accused of espousing hate both 1. promoted hated and 2. that he or she did so willfully;
3. Furthermore, there are a number of defences allowed: truth is a defence; religious belief is a defence; public policy discussions are protected; private conversations are protected; and hate speech that is being communicated for the purpose of exposing it for removal is also protected.

 The hyper-link concern is valid, in the sense that it is over-reaching. But I have a hard time believing that with the above protections in place, anyone who was not linking directly to a true hate-speech article (one calling for violence against a certain people for example) with encouragement for people to read the linked page, would be prosecuted.

 The Supreme Court of Canada today (Wed. October 19, 2011) released a decision in which it has unanimously upheld a lower court's ruling that linking to a website containing libellous material does not in itself constitute libel. Such a ruling gives support to an argument that linking to a website containing hate speech does not in itself constitute hate speech. We can certainly hope and encourage our law makers to not resurrect Bill C-51 from the last session of Parliament.