Juno News - 'SINISTER' - Former Chair of Human Rights Tribunal speaks out against Online Harms Bill

00:00:00.000 Bill C-63, the online harms bill, is without a doubt the most dangerous piece of legislation

00:00:10.780 put forward by the Trudeau government. Potential life imprisonment for advocating genocide online,

00:00:16.240 whatever that means. You could be sent to jail if your online content expresses vilification

00:00:21.640 of a protected group. Anonymous accusers can haul you before the Canadian Human Rights Tribunal

00:00:26.560 if they feel as though your online content violates the Canadian Human Rights Act. Where of course if

00:00:32.660 the Human Rights Tribunal argues against you, you can then be forced to pay up to $20,000 to them.

00:00:38.500 $50,000 to the government as well. But perhaps the scariest part is that you can be forced under

00:00:45.540 house arrest and forced to wear a tracking device if somebody apparently on reasonable grounds fears

00:00:52.400 that you might commit online hate speech. If you might commit online hate speech, the Attorney General

00:00:58.160 can order you to wear a tracking device. They can order you to stay in your home. Not for doing

00:01:02.060 anything wrong, but just because someone else says they think you might. Well joining us now to help

00:01:07.820 us all make sense of this is a former chair of the Canadian Human Rights Tribunal, David Thomas. Now

00:01:14.140 before you get into the details of how this might play out in front of the commission and then

00:01:19.160 eventually in front of the tribunal in regards to hate crimes cases, surely this legislation will be

00:01:25.660 struck down by a court, right? We can't, I mean, life imprisonment for hate crime violations, tracking

00:01:30.580 devices and house arrest for pre-crimes, this surely won't stand, right? Well, it's hard to prejudge that,

00:01:38.660 but I think that it's clear, you know, it takes a long time for something like that to happen,

00:01:43.160 Harrison, before it works its way through the court. And I think what we're likely to see right away is a

00:01:48.800 chilling effect and quite a big impact on free political discourse in this country. And I think

00:01:54.620 that that's what we should all be concerned about immediately. Now, how would this play out in the

00:02:02.120 Canadian Human Rights Commission? Obviously, part of this new legislation is that a Canadian who sees 0.80

00:02:08.080 something online that they take personal offense to, they can go to the Canadian Human Rights

00:02:13.520 Commission and say that they've been subjected to hate crime. If you're accused, you won't know who

00:02:18.300 your accuser is, right? How would this play out, you think, in the Canadian Human Rights Commission?

00:02:23.400 It just sounds so crazy. Well, I mean, it's problematic for a number of reasons, right? And

00:02:28.820 I think I need to maybe explain a little bit of the history. I mean, we had hate speech before the

00:02:34.580 Canadian Human Rights Tribunal up until 2013. And that was under the prior Section 13, which had

00:02:40.080 a different definition of hate speech. And since then, what happened was the Supreme Court of Canada

00:02:48.660 made a decision in the Watcott case. And the Watcott case dealt with hate speech and has offered

00:02:56.100 a new definition of hate speech, which this new legislation is really based upon. The only problem,

00:03:03.300 and with all due respect to former Justice Rothstein, the Watcott decision is terrible,

00:03:09.720 like it's awful, right? And it still doesn't really help us very much in terms of determining what is

00:03:15.380 hate speech, right? And I can talk a little bit about the proposed definition, but it really does track

00:03:19.800 that decision. The uncertainty, of course, is what is really likely to create a chilling effect,

00:03:27.340 as I say, for political discourse in this country. And, you know, it's often being said about the Canadian

00:03:32.480 Human Rights Tribunal and tribunals across the country is that the punishment is often the

00:03:37.480 process itself, right? You have to understand that these cases move at a glacial pace, number one,

00:03:44.380 okay? And so, so they move very slowly through the process. And federally, they, someone makes a

00:03:50.860 complaint, they go through the commission, the commission sifts through all the complaints they

00:03:56.120 get, and they investigate some that have merit. And in the end, they only, they only refer

00:04:02.360 about say 10% of the cases to the tribunal for adjudication. And so, for example, last year,

00:04:08.880 there were 140 cases, the year before there were 125 doesn't sound like a lot. But the reality is,

00:04:15.260 to adjudicate these cases themselves takes years. So, you know, from start to finish,

00:04:20.840 when someone lodges a complaint to when they get a final decision, it would not be surprising if it

00:04:27.500 took three or four or five years or even longer. And that's, that's a terrible thing, especially for

00:04:32.620 an administrative tribunal, which is supposed to be delivering access to justice to the public on an

00:04:39.240 expedited, fast basis. I mean, it's, it's nothing like that at all. And when I was in office, it was

00:04:45.940 something that I, when I had a chance, would speak to the minister about and say, you know, we really need to

00:04:50.340 fix this, because we're not accomplishing the goals at all that this tribunal was set out to do. Now,

00:04:56.240 complicate that with this hate speech legislation, where we now have a definition that nobody really

00:05:02.640 knows what it is. And, you know, where we cross the line, right? I mean, there's, you know, you can,

00:05:08.580 you know, you can, you can say you have disdain for somebody, but you can't say you have detestation

00:05:15.400 for somebody, right? You can't have, you can't vilify somebody. But, you know, it's, it's like,

00:05:22.420 what do these things mean exactly? Right? And nobody knows. And often you'll hear the politicians

00:05:26.220 say, well, we'll just let the courts sort that out. Really? Really? Like, and you have to then

00:05:34.620 think about like, okay, not only does this take years and years to do that, but, you know, who are

00:05:40.240 the tribunal members, right? Like who is appointed to make these decisions? And this is another

00:05:45.300 important thing. I mean, everybody assumes, oh, well, this will work out just fine. But you know

00:05:50.180 what? Maybe it won't work out all that fine. One of the problems that we have is that, you know,

00:05:57.380 we have an appointment process to put members on this tribunal, which, which takes a very long time,

00:06:03.640 right? And right now the tribunal only has 11 members. The act says they can have up to 18 members.

00:06:10.160 But the last time I looked at not even advertising for new members, the proposed changes,

00:06:15.300 allow the tribunal go up to 20 members, right? To add two members to deal with this anticipated

00:06:21.680 influx of cases. Well, I just don't think that two, an additional two members will be anywhere near

00:06:28.280 enough to, to decide these cases. This is, this is going to be a really big problem. But I mean,

00:06:34.820 as I say, it'll be years before we have, we have jurisprudence from this new legislation. But in the

00:06:42.840 meantime, right, people are going to be afraid to say what they want, they're going to be afraid to

00:06:47.900 post things online, they're going to be afraid to say things at an all candidates debate or something

00:06:53.560 like that, they're going to be very mindful about what might make by the consequences of this

00:06:59.560 legislation. I think this is the, this is the really unfair thing about this, right? I mean,

00:07:04.020 if you really want to, to do something to protect people, you have to be clear. And it's a cop out for

00:07:11.180 politicians to throw a vague, lousy definition of hate speech out there and just say, Oh, it'll take

00:07:17.700 care of itself. The damage that will be caused in the meantime will be immense. And it will be a

00:07:23.400 chilling effect for everybody in this country. And, and, and, you know, there's some really interesting

00:07:30.100 changes, Harrison, that want to talk about, like, in terms of what the penalties are, right? So right now,

00:07:35.820 if, if the tribunal finds that somebody has, uh, breached the Canadian Rights Act, and they've, uh, done

00:07:42.340 something that's discriminatory, the tribunal member can award up to $20,000 for pain and suffering, uh, and they

00:07:49.340 can award another $20,000 if the conduct of the respondent was willful and reckless. Now, under these new, uh,

00:07:57.340 proposed changes to the act for hate speech, the tribunal can award up to $20,000 for any victim

00:08:05.860 identified, right? So who, who's that, right? Is that the person that brought the complaint?

00:08:13.120 Is it everybody on the, on the internet that saw a video or a post that, uh, was considered to be

00:08:20.340 hate speech? Like, who is that? So that's, that's the first question I have. The second question,

00:08:25.500 the second point is that, um, and this is really kind of really unusual, is that the tribunal can then,

00:08:32.840 uh, award, if somebody had willful intent to, to commit hate speech, they can, they can impose a fine

00:08:41.320 up to $50,000, which is payable to the government of Canada. And interestingly enough, the tribunal members

00:08:48.920 also to consider the respondent's ability to pay that $50,000 fine, which I find rather interesting.

00:08:56.520 But probably, you know, I don't want to get too much in the details, but one of the things that's

00:09:00.760 very interesting to me, uh, Harrison, and you have to kind of read between the lines sometimes to

00:09:06.440 figure this stuff out. But, you know, under the current, uh, legislation we have, there's a provision

00:09:13.080 of section 52 for us to anonymize a complaint, right? So if a complaint involves, you know, mental,

00:09:18.760 illness or sexual harassment or something like this, there might be sort of a good reason for us

00:09:23.160 to anonymize a complaint, a complainant's name or certain details about the complaint.

00:09:29.240 Um, and, and it's all set out there in, in, in the existing act. Now for hate speech, they've expanded

00:09:35.800 that and they've done it in an interesting way. So they've expanded the anonymization,

00:09:40.440 uh, the grounds for anonymization for a hate speech complainant, uh, to include, quote, threats,

00:09:47.480 intimidation, or discrimination. That's it. So I don't, I don't know what exactly that means,

00:09:54.120 but that's quite a, a, a, a departure from where we are. Now, the other interesting thing about this

00:10:00.200 is that there's another section, I think it's 660 of the act, which allows for prosecution of offenses

00:10:07.400 under the Canadian human rights act. And now in my seven years in office, I don't recall us ever

00:10:13.640 seeing a prosecutor is a very rare thing. And you need the consent of the attorney general of Canada

00:10:19.560 to prosecute somebody for an offense on the Canadian human rights act. But wait, there's more

00:10:25.640 under hate speech. If somebody breaches an anonymization order of the tribunal,

00:10:32.040 you can prosecute them without getting the attorney general of Canada's consent to do that.

00:10:37.640 Now that's a big change. And that sends a message, right? That, that, that really, to me,

00:10:44.280 conveys a message that things are different here and they really intend, uh, to have a very big stick

00:10:51.400 over people, right? It's just how it's going to work. Yeah. Like the volume of cases. I mean,

00:11:00.520 it's, it's very hard to say. What I don't understand is why it seems as though all of the

00:11:07.480 criticism, at least that we see on social media is coming from what you would consider to be the

00:11:12.840 opposition of the government, the right wing, the conservative side. Why is it that, uh, why,

00:11:18.040 why is it that you think that the people on the left don't see that this could also be abused by a

00:11:22.680 government who wants to try and silence them? Because obviously right now, I mean, I don't

00:11:26.920 know how you can make the assumption or anyone can make the assumption that this bill is really

00:11:31.080 about protecting children online when they're putting in such clearly dangerous and authoritarian

00:11:37.880 almost, uh, restrictions on free speech. I just don't understand why people aren't aware that this

00:11:43.240 could be used against them. If they like the current, they like how it could be played out right

00:11:47.560 now, but maybe they won't like it when this shoe's on the other foot. Well, it's, it, I mean,

00:11:52.760 it's a, it's a really good point. And you're right. I mean, this of course is being dressed up as, uh,

00:11:57.000 a bill to protect, uh, child exploitation or, uh, things like revenge porn and that kind of stuff,

00:12:03.720 which I think most Canadians can get behind that. Of course we want to protect children, uh, from online

00:12:09.160 harms. Right. But that's, that's just the window dressing for a much more sinister, uh,

00:12:14.840 part of this legislation, which is this, uh, as I say, this hate speech, which really, you know,

00:12:21.720 we don't know how it's going to play out, but we, but we know from the vagueness of the draft

00:12:26.200 legislation that it will have a chilling effect on people. Um, and you know, and it's, and when

00:12:31.160 you think about that, like, like Harrison, you know, do you think that we live in a country,

00:12:35.160 like I think Canada is a country of the rule of law. I mean, does it feel like this is a rule of law

00:12:40.200 country to you? Yeah, a little bit. I don't know. I mean, I tell you, so there's three,

00:12:45.480 there's three main principles. People talk about the rule of law, right? There's really three main

00:12:49.160 principles, right? So one is that the law should be predictable, right? Like we should know what the

00:12:54.840 law is and that if we do certain things, what those legal consequences of those actions will be,

00:13:00.600 right? So that's the first principle. The second principle of the rule of law is that laws are made

00:13:06.520 for universal application, right? So there, there's one law that's for everybody, right? So that's the

00:13:11.640 second principle. And the third principle of the rule of law is that when we go to enforce those laws,

00:13:17.960 or we go to imply those laws to people, that we do it equally to everyone, right? Now, just give yourself

00:13:25.960 a little moment to think about, can you think of examples where maybe we don't really live up to the

00:13:31.880 rule of law in this country? I don't think it's hard to think of examples where we don't live up to

00:13:37.960 all three of those principles, right? And now it's in the context of that, that we want to bring in

00:13:44.440 an incredible damping piece of legislation, which I think, of course, will infringe on our charter

00:13:53.720 rights of freedom of expression. But as I said, it'll take years to get a case to the Supreme Court

00:13:59.320 of Canada to, to make a decision about that. In the meantime, people will be afraid to say anything.

00:14:06.360 And in the me, and of course, I haven't already talked about, you know, this new commission that

00:14:10.600 they're going to set up. But again, that's more directed, I think, at the platforms and for having,

00:14:16.200 you know, big tech censor themselves. And, and again, that's probably likely to happen,

00:14:22.200 they're probably going to want to err on the side of caution. And so where does that,

00:14:26.120 where does that leave us as a country to, to, to be able to speak freely, and to have a needed

00:14:31.320 political discourse, right? You know, the government has just, you know, everybody knows

00:14:36.840 has ramped up immigration, for example, up to huge levels, right, huge levels that we have never seen

00:14:42.040 before. And now, are we vilifying people if we decide to have a debate about that, whether that's

00:14:49.080 right or not? I mean, this is, you know, really the question, right? And, and I think that, you know,

00:14:56.200 for all these reasons that we should be very, very careful about, about hate speech, and I, and I was

00:15:02.440 happy when it got dropped the first time. But, you know, and they've been thinking about it for five

00:15:09.240 years now. I mean, I was started to be consulted in this in 2019. And, you know, I gave some written

00:15:16.520 submissions to the minister's office in 2021 about this with my, my own thoughts. But, you know, again,

00:15:23.160 um, you know, they, they have their own reasons for, for wanting to bring it forward.

00:15:29.560 So I guess the, the question I have now is, is this incompetence by the minister, or is this

00:15:35.800 intentional malice? Are they actually fully going after free speech? Or is this just, you know,

00:15:41.800 they've just allowed this to be so broad that they aren't actually able to see the consequences

00:15:45.800 behind this? Well, you know, as I said, it's been in the works since 2019. And I'll be honest with you,

00:15:52.520 I thought, when I first saw it, I was shocked going, don't tell me we're going back there again,

00:15:57.320 it was such a mess before, but I, I suspected in 2019, it was going to be an election issue. And then,

00:16:05.400 you know, the election came and went in, and this didn't arise. And then in 2021, it came up again. And,

00:16:11.800 you know, we were tasked with doing some costing exercises and providing some feedback with some

00:16:18.760 fairly strict timelines, deadlines. And I, that made me think that, you know, again, okay,

00:16:23.480 so maybe we're heading into an election, which were actually in 2021. But again, it didn't really

00:16:29.480 come up as an issue. But now, you know, you know, the polls are not looking very good. And it's now

00:16:36.760 suddenly here. And is this is this new wedge issue? And I hate to be cynical about this. But,

00:16:43.080 you know, what's the point of this, other than trying to do some virtue signaling and call and

00:16:46.680 telling anybody who opposes it that they're in favor of, you know, child explored exploitation on

00:16:52.360 the internet, right? I mean, why now? But, but anyway, I don't think it's I don't think it's this

00:16:58.600 minister. It's this government has been toying with us for five years now.

00:17:03.160 Yeah, it's unbelievable. Now, let's just look at the Canadian Human Rights Commission. So the

00:17:11.560 the bill, as I understand it, and correct me if I'm wrong, you bring a complaint forward,

00:17:15.400 you bring a human rights complaint forward to the Canadian Human Rights Commission, right,

00:17:19.560 under this new legislation. Okay, so is this commission, as I perhaps as I suspect it is,

00:17:26.920 is this extremely ideologically to the left? Is this the people on this commission have a have

00:17:34.120 a pretty unified worldview and view of Canadian politics the way I imagine them the way the way

00:17:39.560 I imagine them? Well, I think it's an important point. And people always get the commission and

00:17:46.840 the tribunal confused. And the reality is that they are two very distinct organizations. And the Canadian

00:17:54.600 Human Rights Commission has a has a broad mandate, and it goes beyond just receiving and investigating

00:17:59.240 complaints. They're there also to participate in international human rights events, but also to

00:18:05.480 educate and advocate for human rights in Canada. So in fairness to them, they do have a broader mandate

00:18:11.400 than the tribunal does. Now that now the tribunal, right, is like a is like a court, right? Like,

00:18:18.040 and and the reason I'm speaking out right now, Harrison, is that nobody who's on the tribunal right now

00:18:23.560 is free to speak, right? They're like, they're like judges sitting on the bench right now. They're

00:18:27.400 they're they're not at liberty to talk about this. And so only somebody like me and my duties for the

00:18:33.720 the Canadian Human Rights Tribunal ended just last summer. And so I'm, you know, free to speak about

00:18:38.840 it now. But nobody else is right. And that's why I think it's important for somebody with inside

00:18:44.360 knowledge to to convey these, these concerns about this legislation. The important thing for the

00:18:50.920 tribunal, though, is that we as members should be neutral, right? And we should be perceived to be

00:18:57.320 neutral. And that's a really important thing. And I would I would share with you that

00:19:06.120 that the selection process of members is a super important thing, obviously, right? We're not judges,

00:19:12.680 right? Like the people and even in the Canadian Human Rights Act does not require members of the

00:19:18.120 tribunal to be lawyers to be legally trained. Now, thankfully, for the last 25 years, they for the

00:19:24.360 most part, I think with one exception, everybody has been legally trained. The chairperson and the vice

00:19:29.640 chairperson must be called to the bar for at least 10 years. But that doesn't apply to anybody else.

00:19:36.760 But I think that what's important is from parties in front of the tribunal, they feel that, you know,

00:19:44.200 if they're a respondent, they should have a right to feel that, you know, their access to justice means

00:19:49.960 they've got a neutral decision maker in front of them, not somebody who's a human rights advocate or

00:19:55.960 social justice warrior, right? And I have to be honest, I was part of the selection committee,

00:20:02.360 three times, and I was I'll commend the Liberal government, this Liberal government for including

00:20:08.920 me as a chairperson in the selection process. Previously, you know, under the Conservatives,

00:20:13.560 I didn't have a role to play. But at the end of the day, you know, it's, you know, it's the minister

00:20:19.320 who chooses from a shortlist. And I can tell you, I got out voted many times. The job of the of the of

00:20:27.640 a tribunal member is is very complex. The Human Rights Tribunal, if you if you go into the website and

00:20:33.080 look, start reading some of the decisions, you'll find that they're very legalistic. Some of the

00:20:38.440 problems are are really complex. There's constitutional challenges, there's there, it's really a skills

00:20:48.520 intensive job, right? And it's not a job that everybody who graduated from law school could even do. And yet,

00:20:56.440 you know, that doesn't seem to be a priority with with the people that pull the real levers and

00:21:03.800 selecting decision makers. And I would say I'm flagging it now. That's a concern. That is a concern.

00:21:13.240 Going forward that people coming before the tribunal have a perception that there is a

00:21:19.080 a impartial, neutral decision maker in front of them, not somebody who's trying to advocate

00:21:27.000 one way or the other. Now, if this legislation goes through, I suspect that there may be listeners

00:21:33.320 to this show and maybe even myself who get called up before the Canadian Human Rights Tribunal for

00:21:38.360 violating somebody's, I guess, you know, their feelings online. Now, David, what would you advise

00:21:44.520 to somebody? I know it's still it's yet to go through. But just from what you've seen,

00:21:48.840 how would you advise Canadians to proceed with this? If this goes through? What would you be

00:21:53.160 recommending to Canadians about what they posted? Because as well, as I'm as I believe is the case,

00:21:58.680 this is also retroactive, right? So comments are things you've already posted online previously.

00:22:03.960 Those can be brought up as well. I didn't see that in my review that it's that it could be

00:22:10.440 retroactive. I do see in parts of the legislation, I think it's in the other part of the proposed

00:22:18.360 legislation is that they can be proactive. And if they think you're going to do something,

00:22:22.440 Right, of course, yeah. There can be some consequences for you,

00:22:25.640 which is, of course, pretty shocking, just basic legal principles.

00:22:29.800 Yeah. I mean, so how do you think Canadians should proceed with this? I mean,

00:22:35.560 this just seems as though it's a clear violation of charter rights, the rights that Canadians have

00:22:41.480 come to expect. But as you've mentioned, this is going to have a significantly chilling effect on

00:22:46.120 free speech in our country. Let's say a Canadian is hauled before the Canadian Human Rights Tribunal. 0.95

00:22:53.000 Is there any recourse for them? Do they have a chance of not having to pay $20,000? What would you advise them?

00:22:59.160 Well, you know, here's another interesting thing I didn't mention, Harrison.

00:23:06.680 Another really interesting aspect of this legislation, and again, it's telling

00:23:10.600 in terms of the government's intention, is that they specifically included in there that for hate

00:23:15.240 speech cases, the tribunal member can award legal costs against the respondent, which means that in

00:23:21.640 addition to that $20,000 that they might award to somebody, they can also make an award for 10 or 20 or

00:23:28.360 $30,000 for that person's legal fees. Now, why is that so interesting is that there was a Supreme

00:23:35.080 Court of Canada decision in 2011 called the Mowat decision, which ruled that the tribunal had not

00:23:41.640 been interpreting its legislation correctly, and that we were not allowed to issue or award legal costs to

00:23:49.400 complainants. And so what happened was you saw immediately a big drop off of people having legal

00:23:54.520 representation before the tribunal because there wasn't room for legal awards on top of the of

00:24:00.600 the award to the complainant. Now, by the government turning around and saying specifically for hate

00:24:05.960 speech cases, the tribunal member can award legal costs. To me, the message there is, okay, lawyer,

00:24:12.920 lawyer up folks, because you're going to get your legal fees paid for when the tribunal finds in your

00:24:20.120 favor. And so, you know, and you'll also find more lawyers interested in taking on those cases,

00:24:26.120 knowing that that the potential, particularly if it's a if it's a deep pocket publisher or somebody

00:24:32.840 like that, they'd love to, they'd love to have the tribunal award their legal costs. And so again,

00:24:38.840 the fact that they went out of their way to change the legislative proposed legislation to allow that

00:24:44.120 tells you that that's what they want to see happen, right? They want to see complainants lawyer up and

00:24:51.000 go after people. And so that would make me very worried. So you asked me, what would be my advice

00:24:56.280 to people? Be very careful, be very careful, because we don't know where this is going. And if this passes,

00:25:03.160 you know, God help us, because I don't know where it'll go. And who wants to be the sacrificial lamb,

00:25:09.880 right? Who wants to be the next Bill Watcott to go all the way to the Supreme Court of Canada

00:25:14.600 to fight this thing, right? You're not going to find a lot of people lining up to go for that.

00:25:20.440 That's just unbelievable. It's hard to believe it's real. And, you know, we're gonna have to,

00:25:24.760 we're gonna have to bring you back, David, to talk more about this as this as this progresses. And

00:25:28.280 hopefully, hopefully one day it gets shot down, because it's just like I said, it's hard to believe

00:25:32.520 it's real. David Thomas, thank you so much for coming on. Thanks for having me, Harrison. Have a good day.

00:25:40.520 David Thomas.

00:25:49.320 We'll see you next week.

Juno News - March 12, 2024

'SINISTER' - Former Chair of Human Rights Tribunal speaks out against Online Harms Bill

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