VERSION FRANÇAISE
Table of contents
PART 1 – Introduction
PART 2 – Telecommunications (including internet): A field of exclusive federal jurisdiction
PART 3 – Jacques Frémont: “Making the law with difficult cases”
PART 4 – Legal precedents that the Quebec Human Rights Commission could invoke to justify Quebec’s jurisdiction in the censorship of the internet
PART 5 – Legal arguments that defenders of freedom of expression could present to demonstrate federal jurisdiction over the internet
PART 6 – The expertise of Jacques Frémont as a constitutionalist
PART 7 – The three main arguments by Bill 59’s opponents so far
PART 1 – Introduction
On June 10, 2015, Premier Philippe Couillard introduced Bill 59, which would give new powers to the Quebec Human Rights Commission (QHRC / CDPDJ in French) to target ‘hate speech’ if it is adopted. During his introduction of the bill at the Quebec National Assembly, the Premier justified his government’s approach by saying that those who provoke “fear of the other” (understand: anti-Islamists) are giving “new ammunition” (“des armes nouvelles” in French) to “criminals” (understand: Islamist terrorists). After saying that the new bill was motivated by “openness,” “inclusion,” and “living together” (“vivre ensemble”), Premier Couillard announced that his government intends to use Bill 59’s censorship provisions to silence those who describe and denounce the Islamist threat. The Premier’s basic premise is that the elimination of the anti-Islamist messenger will eliminate the Islamist message itself and the violent initiatives it provokes. Such logic is like accusing Raif Badawi of provoking the “fear of the other” by criticizing certain aspects of Islam on his blog, a ‘hateful act’ that supposedly gave “new ammunition” to Saudi authorities, who took advantage of it to jail him and whip him (50 lashes of a 1,000 lashes sentence so far).
Bill 59 is the government’s answer to recommendations made public by the QHRC in November 2014. QHRC’s November 2014 Document / WebArchive – Archive.Today
When he presented the recommendations on Radio-Canada on December 2, 2014, Jacques Frémont, the QHRC president, explained that he was planning to use the requested powers to sue those who would criticize certain ideas, to sue “people who would write against […] the Islamic religion […] on a website or on a Facebook page” (“des gens qui écriraient contre […] la religion islamique […] sur un site internet ou sur une page Facebook” in the original French version).
Mr. Frémont justified his recommendations by referring to resolutions adopted by United Nations bodies in the matter. However, Mr. Frémont did not mention that these resolutions were presented by the Organization of Islamic Cooperation (OIC), an Islamist body that claims equivalence between hate speech, blasphemy, criticism of Islam and defamation of religions.
When Saudi Arabia, one of the OIC leaders, sentenced Raif Badawi to 1,000 lashes, it invoked that kind of provision. In recent months, Quebeckers assured Raif Badawi of their sympathy and their support.
Philip Authier (Montreal Gazette – April 1, 2015): Saudi Arabia tells Quebec to butt out of Raif Badawi case / WebArchive – Archive.Today
Radio-Canada (July 9, 2015): Sherbrooke displays large banners in front of city hall to support blogger Raïf Badawi / WebArchive – Archive.Today [Article in French]
The OIC is an association of 56 Muslim countries (with the Palestinian Authority). It constitutes the most important bloc of countries taking part in UN votes. In 1990, displeased with the Universal Declaration of Human Rights (that Saudi Arabia did not approve in 1948), the OIC adopted its own Cairo Declaration on Human Rights in Islam that affirms the primacy of sharia and that is incompatible with freedom of expression.
A few days ago, the Saudi minister of Islamic affairs reiterated his country’s call for criminalizing criticism of Islam (via JihadWatch). At the same time as the Saudi Kingdom condemns those who criticize Islam, it forbids the construction of non-Muslim places of worship on its territory, persecutes those who practice a religion other than Islam, and executes those who abandon Islam.
The QHRC’s recommendations have been included in Bill 59 / #Bill59:
- If adopted, article 6 of Bill 59 would give the QHRC the power to initiate legal proceedings before the Quebec Human Rights Tribunal without having to wait for complaints from the public;
- Article 1 of Bill 59 states that comments about groups in general, and not only about specific individuals, could be subject to complaint. Aside from the QHRC, article 3 of Bill 59 stresses that members of an identifiable group as well as people outside the group will be qualified to make complaints triggering suits for ‘hate speech’ before the Quebec Human Rights Tribunal.
So far, all commentators, including Point de Bascule, have focused on the threat to freedom of expression represented by Bill 59 and the QHRC recommendations that came before it.
An important aspect has been neglected.
When Jacques Frémont gave two interviews to Radio-Canada on December 2, 2014, he clearly indicated that the QHRC recommendations, now included in Bill 59, would enable his Commission to sue websites that criticize Islam. However, it should be noted that the internet belongs to the telecom sector that is under federal jurisdiction and that should be beyond the reach of Quebec and the QHRC.
Jacques Frémont / Interview with Jacques Beauchamp on Radio-Canada – December 2, 2014
[Translation by Point de Bascule] For example, I don’t know … on a website or on a Facebook page, as we have seen, as we see regularly, there would be people who would write against, I don’t know, the Islamic religion and against Muslims by saying things, and we have seen some of them, I don’t even dare to repeat them, they’re are so offensive. Then, it would become possible for any member of the public, etc., to contact the QHRC and lodge a complaint by stating that: ‘This group, these people wrote on webpages statements inciting hatred for a forbidden motive of discrimination, so could you intervene’. At that time, if the complaint is deemed valid, if it conforms to all the procedures, this group could be convicted, dragged in front of the human rights tribunal for… convicted for the statements that were made.
Original French version / AUDIO SRC 13:53
Jacques Frémont: Par exemple, je sais pas… sur un site internet ou sur une page Facebook, comme on a vu, comme on voit régulièrement, il y aurait des gens qui écriraient contre, ché pas, la religion islamique et contre les musulmans en disant des propos, pis on en a vu certains, j’ose même pas les répéter tellement c’est outrageant. Alors, à ce moment-là il y aurait moyen que n’importe qui, membre du public, etc., saisisse et fasse une plainte à la Commission en disant : ‘Ce groupe, ces personnes ont écrit sur les pages internet des propos qui incitent à la haine pour un motif interdit de discrimination et, par conséquent, pourriez-vous intervenir’. À ce moment-là, si jamais la plainte est retenue, si ça correspond à tous les processus, ce groupe pourrait être condamné, être trainé devant le tribunal des droits de la personne pour… et condamné pour les propos qui ont été tenus.
Jacques Frémont / Interview Michel C. Auger on Radio-Canada – December 2, 2014
[Translation by Point de Bascule] With our new proposal, when a website that rants and raves, publishes material and incites hatred against certain groups, like Muslim groups, for example, we have seen some of these websites, currently nobody has a sufficient interest to notify the Commission and lodge a complaint. With the new provision, it would be possible, for us, to investigate even without receiving a complaint. If a website is targeting Muslims, a French-speaking Quebecker could also lodge a complaint.
Original French version / AUDIO SRC 02:14:39
Jacques Frémont: Maintenant, il est évident qu’avec la nouvelle disposition que nous proposons, lorsque par exemple il y a un site web, tout simplement, qui déblatère et qui a des propos, des incitations à la haine par rapport à certains groupes particuliers, pensons aux groupes musulmans, on a vu certains de ces sites, actuellement personne a l’intérêt suffisant pour se présenter chez nous et faire la demande. Avec la nouvelle disposition, à ce moment-là, il y aurait moyen pour nous d’enquêter, nous-mêmes, même si il n’y a pas personne qui se présente, et pour une personne qui est … par exemple, si le site vise les musulmans, puis on a une personne québécoise francophone, la personne québécoise francophone pourrait se présenter et faire une plainte.
At first glance, Mr. Frémont’s intentions seem unrealistic since legal writings and jurisprudence confirm that the internet is a field under federal jurisdiction. However, Mr. Frémont is one of Canada’s top constitutionalists. We would be wrong to dismiss his plan as belonging to an inexperienced activist who does not know his subject. If he is threatening to sue websites that criticize Islam, it is necessary to discern the kinds of constitutional arguments the QHRC could come up with to demonstrate at least a partial provincial jurisdiction in the matter.
In what follows, we will outline the evidence establishing federal jurisdiction over telecommunications and the internet in particular. We will next present a rapid overview of some cases in which judges decided that Quebec was entitled to legislate on activities conducted in apparently exclusive federal jurisdictions. This is likely where Mr. Frémont and other supporters of censoring the internet will find their arguments in order to demonstrate a partial Quebec jurisdiction, at least, on activities conducted on the internet. We will end by looking at the arguments that proponents of freedom of expression could put forward to demonstrate a federal jurisdiction on the internet, including some cases of jurisprudence.
PART 2 – Telecommunications (including internet): A field of exclusive federal jurisdiction
- Section 92(10) of the Constitution Act (1867) provides that “local works and undertakings” are within provincial jurisdiction, with the following exceptions:
Lines of steam or other ships, railways, canals, telegraphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province.
This passage was quoted by the Ontario Human Rights Tribunal, in section 6 of Huk v. Bell Mobility Inc., 2013 HRTO 1155 (CanLII), to justify its refusal to hear a complaint for discrimination by an employee of a phone company.
- Technological developments led the Supreme Court to decide in 1989 that telecommunication enterprises fall within the above mentioned exceptions and are under federal jurisdiction. See Alberta Government Telephones v. (Canada) Canadian Radio-Television and Telecommunications Commission, [1989] 2 SCR 225, 1989 CanLII 78 (SCC). Section 7 of Huk v. Bell Mobility Inc., 2013 HRTO 1155 (CanLII) referred to this Supreme Court case.
- With the establishment and development of the internet, the courts have concluded that this technology is under federal jurisdiction since it enables the transmission of information from one province to another. Professor Patrick Monahan / Archive.Today, now Deputy Attorney General of Ontario, summarized the issue in his book Constitutional Law. He was quoted in Stark v. Research in Motion, 2009 HRTO 1054 (CanLII)/ section 5:
Professor Patrick Monahan: Since Internet service providers are integral to the transmission of telecommunications from one province to another and around the world, they must be regarded as federal undertakings subject to exclusive federal jurisdiction pursuant to Section 92 (10) (a). Moreover, any other undertakings that participate in or facilitate the transmission of communications or information via the Internet as a regular or continuous part of their business must be regarded as falling within exclusive federal jurisdiction.
PART 3 – Jacques Frémont: “Making the law with difficult cases”
During a conference that he gave at the Université de Montréal on March 25, 2015, Jacques Frémont described the QHRC’s activist role very clearly. He indicated that the QHRC’s mandate is “seeking changes in people’s attitude” (“faire changer les mentalités” in French / video 12:07), “provoking a social change” (“induire le changement social” in French / video 16:39), and “making the law” by choosing to prosecute difficult cases (“faire le droit” in French / video 42:24).
The proper role of state agencies is to apply the laws that have been put in place by those who represent the electors and not to “to provoke a social change.” If QHRC administrators’ ambitions are to modify what has been adopted by parliamentarians, they should quit their jobs and start their own blog or join a political party that will present their social change program to the electorate.
The intention expressed by Jacques Frémont to sue websites for ‘hate speech,’ in spite of well-established legal writings and jurisprudence confirming federal jurisdiction over the internet, demonstrates this intention of provoking change rather than applying the law.
Here is a useful excerpt to understand the state of mind at the QHRC. It comes from a conference given by Mr. Frémont on March 25, 2015 at the Université de Montréal. The excerpt was transcribed and translated by Point de Bascule.
Jacques Frémont: [There are] many groups saying: there are many cases that you should take and that you don’t take. You are not taking risks. You tend to take cases that will be won before the courts and you won’t make the law with easy cases. You will make the law with difficult cases, risky cases. I am very sensitive to these issues. […] In many cases, interventions made by the QHRC, we have made the law. We have defined systemic discrimination. Last January, we were at the Supreme Court in the Latif v. Bombardier case for racial profiling. The first case that went before the Supreme Court for racial profiling, etc. So, we made the law, but almost by accident. It’s rare that there is a file… It happened the other day. A file came in… the person, it’s an advocacy group, had warned me that they would do it. They brought the file in and we put it on a “fast track” [The expression is in the original French text]. I said about that file: We won’t settle, we won’t offer mediation. We’re going to court. The complainant wants to go to court, it’s against the government. We must settle this issue once and for all before the court. So, we’re trying to transform our culture from a random culture of litigation to a much more strategic culture of litigation or a culture of strategic litigation.
Original French version / VIDEO 42:24
Jacques Frémont: [Il y a] plusieurs groupes qui disent : il y a plusieurs cas que vous devriez prendre et que vous ne prenez pas. Vous ne prenez pas de risques. Vous avez tendance à prendre les causes qui vont être gagnées devant les tribunaux et vous ferez pas le droit avec des causes faciles. Vous allez faire le droit avec des causes difficiles, avec les causes risquées. Et, je suis extrêmement sensible à ces questions. […] Dans plusieurs des causes, des interventions de la Commission [des droits de la personne du Québec], on a fait le droit. On a défini ce qu’est la discrimination systémique. On était encore à la Cour suprême en janvier dernier [2015] dans l’affaire Latif c. Bombardier pour le profilage racial. La première cause soumise à la Cour suprême en matière de profilage racial, etc. Donc, on fait le droit mais presque par accident. C’est rare qu’il y a un dossier… C’est arrivé l’autre jour. Il y a un dossier qui est rentré … la personne c’est un groupe de pression m’avait averti qu’ils le feraient. Ils ont rentré le dossier et là, on l’a mis sur un ‘fast track’ parce que c’est un dossier avec lequel j’ai dit : On règle pas, on n’offre pas la médiation. On s’en va en cour. Le groupe veut aller en cour, c’est contre le gouvernement. Il faut régler cette question-là une fois pour toutes devant les tribunaux. Donc là, on essaye de transformer notre culture d’une culture aléatoire de litiges à une culture beaucoup plus stratégique de litiges ou une culture de litiges stratégiques.
The Latif v. Bombardier case that Mr. Frémont was counting on “to make the law” was won by the QHRC before the Quebec Human Rights Tribunal on November 29, 2010, but the decision was overturned by the Court of Appeal on September 24, 2013. On July 23, 2015, the Supreme Court confirmed the Court of Appeal’s decision.
Toronto Star (July 23, 2015): Supreme Court absolves Bombardier of discrimination in case involving pilot / WebArchive – Archive.Today
Aside from concluding that the Quebec Human Rights Tribunal did not bring any concrete evidence to demonstrate Bombardier’s alleged discriminatory practices (sections 103 to 109), Judge St-Pierre from the Court of Appeal stated that the Quebec Human Rights Tribunal did not have the authority to order Bombardier to stop taking into account US standards regarding national security (section 149), nor to impose punitive damages because it did not demonstrate Bombardier’s intent to harm the complainant (sections 156-157). Moreover, the Court of Appeal concluded that the report on profiling produced by the expert called by the QHRC (section 41) had “many flaws and weaknesses” (section 117), that it “was not a scientific and objective document” (section 121), and that its second part contained “generalizations [that] are more akin to comments than scientific analysis” (section 126).
In short, the entire exercise was a waste of public money that could have been prevented if the QHRC first, and the Quebec Human Rights Tribunal after, had sought concrete evidence of discrimination in the facts reported to them.
The same kind of scenario is likely to occur with QHRC’s legal suits against websites criticizing certain aspects of Islam. QHRC’s legal advisors will be mobilized at great expense and will spend hours trying to find an opening to sue in spite of legal writings and jurisprudence to the contrary.
In 2004, in an interview with Egypt Today, Muslim Brotherhood heavyweight Tariq Ramadan incited Islamists operating in Canada to use the Canadian legal framework, which he referred to as “one of the most open in the world,” to subtly and gradually introduce rules of sharia in Canada. At the time, Tariq Ramadan strongly urged his supporters in Canada not to openly mention their commitment to sharia: “The term shariah in itself is laden with negative connotations in the Western mind,” Ramadan said. “There is no need to stress that. […] For the time being this is not how we want to be perceived,” he added.
Jacques Frémont’s plan to implement United Nations resolutions originating from the Organization of Islamic Cooperation that aims to criminalize the criticism of Islam is an example of the discrete application of sharia. Let’s keep in mind that these UN resolutions being invoked by Jacques Frémont to justify the plan of censoring those who criticize some aspects of the Islamic religion have been consistently rejected by Canada at the UN, under both the Liberal and Conservative governments. Standing Senate Committee on Human Rights (p. 15) / WebArchive – Archive.Today
Point de Bascule (July 13, 2015): From the OIC’s concept of ‘blasphemy’ to QHRC’s ‘hate speech’: The origin of the censorship provisions in Quebec’s Bill 59 [Article in French]
The Quebec Human Rights Commission President, Jacques Frémont, giving a conference before the Research Centre in Public Law at the Université de Montréal on March 25, 2015.
Mr. Frémont’s speech highlighted that the QHRC has an activist role (seeking changes in people’s attitudes) on the one hand and, on the other hand, that it prosecutes those who refuse the ideas that the Commission wants to promote / impose.
PART 4 – Legal precedents that the Quebec Human Rights Commission could invoke to justify Quebec’s jurisdiction in the censorship of the internet
During a conference that he gave at the Université de Montréal in March 2015, Mr. Frémont stated that the QHRC won 95% of the cases that it initiated in court. Since the QHRC lost in appeal some of the cases that it had previously won before the Quebec Human Rights Tribunal, such as the Latif case (2013), the Centre hospitalier St-Joseph de La Malbaie case (1998), and others, we may conclude that its rate of success before the Quebec Human Rights Tribunal alone is near 100%. Strictly on a statistical basis, the odds are high that the QHRC would win a case for ‘hate speech’ against a website that criticized Islamist organizations or some aspect of Islam before the Quebec Human Rights Tribunal.
Once in appeal, the issue of the provincial or federal jurisdiction over the internet would likely become the main issue. There are precedents for Quebec’s jurisdiction in a given field (advertising and commerce for example) trumping federal jurisdiction regarding the technology that was being used (television for example) for such activities.
In the case Attorney General (Que.) v. Kellogg’s Co. of Canada et al., [1978] 2 SCR 211, 1978 CanLII 185 (SCC), Kellogg objected that the restrictions envisioned by the Quebec government on its TV ads did not respect the federal jurisdiction on broadcasting. The Supreme Court rejected the argument and stated that the Quebec legislature did not intend to regulate television but only the advertisement that happened to be broadcast on television in this case:
Judge Martland: Kellogg is not exempted from the application of restriction upon its advertising practices because it elects to advertise through a medium which is subject to federal control. A person who caused defamatory material to be published by means of a televised program would not be exempted from liability under provincial law because the means of publication were subject to federal control.
In the case Quebec (Attorney General) c. 156158 Canada Inc. (Boulangerie Maxie’s), 2015 QCCQ 354 (CanLII), the defendants objected that the government of Quebec did not have the power to compel them to present their advertisement in French on the internet, since the internet is under federal jurisdiction (section 10 of the case).
Judge Mascia borrowed the distinction already made in the Kellogg case between an activity (under provincial jurisdiction) and the technical infrastructure (under federal jurisdiction) being used to conduct this activity and justified the Quebec government’s interference in the commercial activities of the defendant by stating that advertisement is under provincial jurisdiction.
[126] The Court agrees with the Attorney General of Quebec that the true character of the impugned legislation cannot be put in doubt simply because the infractions were committed through unilingual English postings on the internet. In Devine, the Court held that the Quebec legislature could regulate language when it comes to commercial signs. Similarly, it could regulate language when it comes to commercial advertising on the internet. [131] In sum, the core aspect of the impugned section of the CFL [Charter of the French Language] does not purport to regulate the internet. Instead, the said section is chiefly concerned with regulating commercial activities that use the internet as a medium to disseminate the message.
It is likely that by relying on such cases that Mr. Frémont and other supporters of internet censorship could try to demonstrate that Quebec does not intend to regulate the internet (under federal jurisdiction) but only to prosecute an activity under provincial jurisdiction that is conducted on the internet. They will make a distinction between the technical infrastructure being used to conduct the activity and the activity itself, between the medium and the message, to use Judge Mascia’s formula. Now, they have to identify this activity.
PART 5 – Legal arguments that defenders of freedom of expression could present to demonstrate federal jurisdiction over the internet
http://www.cdpdj.qc.ca/en/droits-de-la-personne/vos-droits/Pages/charte-respect.aspx / Archive.Today
The provisions of Bill 59 on which the QHRC would rely to sue websites for ‘hate speech’ would be added to the Quebec Charter of Human Rights. On its website / Archive.Today, the QHRC acknowledges that the Charter does not apply to enterprises in the telecom sector, of which the internet has become an important part.
LEGAL WRITINGS
In his book Constitutional Law quoted in section 5 of the decision Stark v. Research in Motion, 2009 HRTO 1054 (CanLII), constitutionalist Patrick Monahan, now Deputy Attorney General of Ontario, states that the internet, not only the medium but the activities it supports, is under federal jurisdiction. He wrote: “[A]ny other undertakings that participate in or facilitate the transmission of communications or information via the Internet as a regular or continuous part of their business must be regarded as falling within exclusive federal jurisdiction.”
When Mr. Monahan mentions the enterprises that “facilitate the transmission of communications or information via the Internet,” he is referring to enterprises providing internet service, while when he mentions the enterprises that “participate in […] the transmission of communications or information via the Internet,” he is referring to enterprises that use the internet for their activities. Websites such as Point de Bascule fall in the second category.
A PROVINCIAL HUMAN RIGHTS TRIBUNAL ACKNOWLEDGED THAT JUDGING TEXTS PUBLISHED ON THE INTERNET IS BEYOND ITS JURISDICTION
Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4), 2008 BCHRT 378 (CanLII)
http://www.canlii.org/en/bc/bchrt/doc/2008/2008bchrt378/2008bchrt378.html / Archive.Today
The Elmasry case heard by the British Columbia Human Rights Tribunal provides a very useful distinction to help understand the situation of websites such as Point de Bascule. In this decision, the Tribunal ruled that it had the jurisdiction to investigate statements that were made only in the paper edition of Maclean’s magazine, but not those that appeared on the website of the magazine since they are under the federal jurisdiction over telecommunications (sections 44 to 50 in the Elmasry case).
In this case, the Muslim complainants alleged that an article authored by Mark Steyn and published by Maclean’s magazine exposed Muslims in BC to hatred and contempt on the basis of their religion. After having decided that it did not have jurisdiction to investigate the online version of the text, the tribunal also dismissed the complaint on its merits and ruled that the complainants did not prove that Mark Steyn’s article in its paper copy of the magazine would likely expose them to hatred or contempt on the basis of their religion (section 160 of the decision).
MANY DECISIONS BY THE CANADIAN HUMAN RIGHTS TRIBUNAL INVOLVING WEBSITES HAVE CONFIRMED THE FEDERAL JURISDICTION OVER THE INTERNET
In many cases initiated by the Canadian Human Rights Commission before the Canadian Human Rights Tribunal, federal jurisdiction over the internet has been confirmed. The lawsuits had been initiated under article 13 (now repealed) of the Canadian Human Rights Act.
Canadian Human Rights Act / Current version
Canadian Human Rights Act / 2013 version including the article 13
13 (1)It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
(2) For greater certainty, subsection (1) applies in respect of a matter that is communicated by means of a computer or a group of interconnected or related computers, including the Internet, or any similar means of communication, but does not apply in respect of a matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.
(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.
Here are some of the decisions that highlighted federal jurisdiction over texts published on the internet:
Warman v. Winnicki, 2006 TCDP 20
http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6826/index.do / Archive.Today
Citron v. Zundel, T.D. 1/02
http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6496/index.do / Archive.Today
Sections 50, 88 and 117 of the decision mention that statements made by the respondent Zundel fall under the Canadian Human Rights Tribunal’s jurisdiction because they were made on the internet.
Warman v. Kulbashian, 2006 TCDP 11
http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6776/index.do / Archive.Today
Warman v. Harrison, 2006 TCDP 30
http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6733/index.do / Archive.Today
Warman v. Jessica Beaumont, 2007 TCDP 49
http://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7183/index.do / Archive.Today
Other similar cases can be easily found by entering the words hate and internet in the search engine of the Canadian Human Rights Tribunal’s website.
We wish to emphasize that our references to decisions made by the Canadian Human Rights Tribunal based on the article 13 (now repealed) of the Canadian Human Rights Act do not constitute an endorsement of this article in any way (quite the contrary) but simply a means to demonstrate federal jurisdiction over the internet, over the medium and over the messages being disseminated.
THE QUEBEC BOARD OF THE FRENCH LANGUAGE ACKNOWLEDGED THAT ITS CONTROL OVER FACEBOOK IS LIMITED TO COMMERCIAL PUBLICATIONS AND DOES NOT INCLUDE EXCHANGES OF IDEAS
On December 2, 2014, when the QHRC president Jacques Frémont explained the kind of changes he was asking the government to make to the Quebec Charter of rights, he pointed out that Facebook was part of his censorship plan. He told Jacques Beauchamp on Radio-Canada that the changes he was asking for would enable lawsuits against “people who would write against […] the Islamic religion […] on a website or on a Facebook page.” The changes that Mr. Frémont was asking for have been included in Bill 59.
A controversy between the Quebec Board of the French Language (QBFL) and a businesswoman who was using Facebook to advertise her products provides some useful information regarding the reach of the censorship that can be applied by state bodies such as the QBFL and the QHRC. Let’s highlight the fact, however, that this controversy was not evaluated by a tribunal. The information that we are bringing comes from an article that was published by Radio-Canada / Archive.Today. Many other news organizations reported about this controversy.
After a businesswoman published commercial ads, mostly in English, on her Facebook page, a QBFL employee contacted her and told her that she had to advertise in French. At the time, the QBFL representative said: “This does not affect conversations and exchanges with the clientele. These are private matters.”
OTHER CASES IN WHICH PROVINCIAL HUMAN RIGHTS TRIBUNALS ACKNOWLEDGED THAT JUDGING INTERNET-RELATED ENTERPRISES IS BEYOND THEIR JURISDICTION
In the following cases, provincial human rights tribunals have dismissed, at the preliminary stage, complaints for alleged discrimination. In all cases, they based their decisions on the fact that the complainants were working for enterprises involved in the installation of equipment needed for the internet, the phone and the cable, a field under federal jurisdiction.
The parallel between these enterprises and websites is limited, however, since these enterprises are not involved in the exchange of ideas via the internet but in the installation of equipment.
Huk v. Bell Mobility Inc., 2013 HRTO 1155 (CanLII)
http://www.canlii.org/en/on/onhrt/doc/2013/2013hrto1155/2013hrto1155.html / Archive.Today
Aklilu v. Wirecomm Systems (2008) Inc., 2014 HRTO 577 (CanLII)
http://www.canlii.org/en/on/onhrt/doc/2014/2014hrto577/2014hrto577.html / Archive.Today
Germain v. Dryden (City), 2012 HRTO 285 (CanLII)
http://www.canlii.org/en/on/onhrt/doc/2012/2012hrto285/2012hrto285.html / Archive.Today
Swift v. Bell Technical Solutions, 2013 HRTO 210 (CanLII)
http://www.canlii.org/en/on/onhrt/doc/2013/2013hrto210/2013hrto210.html / Archive.Today
Chan v. Bell Mobility, 2003 BCHRT 27
This decision does not seem to be available on the internet. However, the general principle followed in this case is explained on the BC Human Rights Tribunal’s website / Archive.Today.
PART 6 – The expertise of Jacques Frémont as a constitutionalist
Before being appointed president of the Quebec Human Rights Commission by a Parti Québécois government in 2013, Jacques Frémont earned a reputation as a jurist and as a constitutionalist in particular, in Quebec, in Ottawa, and on the international scene. This is why, although legal writings and jurisprudence would seem to be in conflict with his project to censor those criticizing Islam on the internet, it should be taken seriously.
1980 – During his doctoral studies at the London School of Economics and Political Science, Jacques Frémont assisted the Parti Québécois government in its preparation for constitutional talks that could be held in London. This was mentioned on December 9, 1980 by Robert Normand, a senior civil servant, during his testimony in front of the Standing Commission of the Council Presidency and the Constitution in Quebec City.
Jacques Frémont’s bio / Archive.Today on the QHRC’s website indicates that, early in his career, he acted as constitutional advisor to the Government of Quebec.
1986 – While he was working for the Research Center in Public Law at the Université de Montréal, Jacques Frémont authored, with Pierre Trudel, a Study on the relationship between the CRTC, the Canadian Broadcasting Corporation and the Government / Archive.Today.
1991-1992 – Mr. Frémont was a Commissioner / Archive.Today to the Law Reform Commission of Canada.
MARCH 16, 1999 – Jacques Frémont testified on many occasions in Ottawa. In March 1999, he was there, at the insistence of the Bloc Québécois, as an expert on electronic commerce before the Standing Committee on Industry. See the exchange between Bloc MP Francine Lalonde and the Chair of the Committee that occurred on March 11, 1999.
FEBRUARY 24, 2000 – The Bloc Québécois attempted (without success) to table a study authored by Jacques Frémont on social union in the House of Commons during the study of the bill on referendum clarity.
SEPTEMBER 5, 2001 – The Ottawa Citizen and other Canadian newspapers described Jacques Frémont as an expert on Supreme Court decisions. Mr. Frémont was commenting on Supreme Court Judge Claire L’Heureux-Dubé’s announced retirement.
JANUARY 22, 2002 – Jacques Frémont and Pierre Trudel presented an update on a study about the constitution of an independent Quebec that they had been asked for by a Parti Québécois government. Update of the study / WebArchive – Archive.Today
OCTOBER 17-19, 2008 – Jacques Frémont served as an expert on human rights and freedoms for the International Organization of La Francophonie during its summit in Quebec City. La Presse / WebArchive – Archive.Today
MAY 11, 2010 – Bloc Québécois MP Meili Faille quoted a text written by Jacques Frémont in support of a motion brought forward by her party at the House of Commons on the impossibility to renew Canadian federalism.
PART 7 – The three main arguments by Bill 59’s opponents so far
Here are the three main arguments that Point de Bascule and other commentators have put forward against Bill 59 so far:
- We stated that freedom of expression must be used to defend the right of individuals to criticize ideas and not to protect ideas (religions in particular) from being criticized by individuals. Montreal Gazette Don Macpherson wrote that, if adopted, Bill 59 would transform the QHRC into a “speech police” / WebArchive – Archive.Today.
- We pointed out that, by Jacques Frémont’s own admission, the censorship recommendations that he proposed and that were included in Bill 59 are inspired by United Nations resolutions on the matter. However, Mr. Frémont did not mention that these resolutions were presented by the Organization of Islamic Cooperation (OIC) that claims an equivalence between blasphemy, criticism of Islam, defamation of religions and hate speech. It is noteworthy that Canada, under liberal and conservative governments, has systematically voted against the censorship proposals that are submitted, year after year, by the OIC at the UN. Standing Senate Committee on Human Rights (p. 15) / WebArchive – Archive.Today
- We highlighted that, in a liberal democracy, restrictions to freedom of expression should be limited to speech that incites violence. In a Suburban article in which he was also making this very point, Beryl Wajsman added that the censorship being proposed by the Couillard government would lead to two levels of citizenship on fundamental rights: “One level for all of us, another for state agents who can limit our rights.” Suburban / WebArchive – Archive.Today
Further reading
Point de Bascule: FILE Quebec Human Rights Commission (Commission des droits de la personne du Québec / CDPDJ in French)
Don Macpherson (Montreal Gazette – June 13, 2015): The Couillard government’s ‘speech police’ proposal / WebArchive – Archive.Today (Reaction to Bill 59’s ‘hate speech’ provisions)
Beryl Wajsman (The Suburban – June 17, 2015): M. Couillard, time to end the suppression of expression / WebArchive – Archive.Today (“On broad principle, freedom of speech must never be limited short of direct and overt incitement to violence. […] In practice, leaving decisions on issues of freedom to bureaucrats suggests two levels of citizenship on fundamental rights. One level for all of us, another for state agents who can limit our rights.”)
Point de Bascule (December 15, 2014): The Quebec Human Rights Commission wants a modification of laws in order to facilitate complaints, especially against websites that it considers ‘Islamophobe’
Point de Bascule (June 30, 2015): March 25, 2015 – Excerpts of a speech given by Jacques Frémont on the role of the Quebec Human Rights Commission (Mr. Frémont’s speech highlights that the QHRC has an activist role on one hand [Changing the mentalities] and a role of initiating legal procedures against those who challenge the ideas that the QHRC wants to promote / impose.) [Article in French]
Point de Bascule (July 13, 2015): From the OIC’s concept of ‘blasphemy’ to QHRC’s ‘hate speech’: The origin of the censorship provisions in Quebec’s Bill 59 [Article in French]
