Legal Briefs: How Does Cyberviolence Affect Human Rights?
Human Rights Law
Online Hate Propagation
Since cyberbullying research indicates that disabled, racialized, and LGBTQ youth are disproportionately targeted online, and since girls are more likely to be targets of sexualized online attacks than boys, laws relating to identity-based hate propagation may be applicable to cases otherwise misleadingly-labeled “cyberbullying.” Both federal and provincial governments have responded to hate propagation (including online hate propagation) through human rights law provisions. As such, hate propagation provisions in provincial human rights laws could be used to address certain behaviours that fall under the broad umbrella of “cyberbullying” where individuals or groups are targeted based on their membership (or perceived membership) in an identifiable group, and where attacks expose those targeted to hatred. Unfortunately, as discussed below, a federal human rights provision that might well have been helpful to young people targeted by homophobic, misogynistic, racist, and other oppressive online attacks is no longer in force.
Until 2013, the Canadian Human Rights Act (CHRA) included a provision that specifically applied to internet hate propagation (although the provision itself predated the internet). Section 13(1) of the CHRA made it a discriminatory practice to use, among other things, a computer to repeatedly communicate any matter likely to expose a person or persons to hatred or contempt by reason of their identifiability on a prohibited ground such as gender, race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, or disability. A person found to have so communicated could be ordered to cease and desist, to compensate their victim, and/or to pay a penalty.
After numerous 13 cases in which remedies were ordered against online hate propagators, and notwithstanding both the constitutionality of the provision (discussed in iii. below) and the emerging problem of identity-based cyberviolence, s 13 was repealed in 2013. Its repeal followed a report to the Canadian Human Rights Commission (CHRC) recommending repeal largely on the grounds that the extreme vitriol involved in the kinds of cases successfully dealt with ought to be reserved to the purview of criminal prosecution in order to better protect the reputations and expressive freedoms of those exposing others to hatred or contempt.
Section 13’s repeal occasioned a significant loss from the remedial toolkit for addressing identity-based online attacks. It flew in the face of statistics showing growth in hate crimes and online hate propagation targeting members of marginalized groups, as well as expert recommendations in favour of proactive, human rights-based approaches to such behaviours, especially in the context of “cyberbullying” between young people. Unlike criminal law responses, human rights law approaches do not require proof of intention because they aim at remediating discriminatory effects, rather than punishing violators. In short, they focus primarily on future-oriented approaches that aim to provide remedies for targets and stem the tide of identity-based attacks in future. Moreover, unlike Criminal Code hate propagation provisions which require Attorney General approval to prosecute, complaints under s 13 of the CHRA could be made by any member of the public.
All Canadian provinces and one territory have human rights code provisions forbidding discriminatory displays, broadcasts, or publications, which might arguably be applicable to certain cases of online hate propagation. For example, s 14 of Saskatchewan’s Human Rights Code prohibits, among other things, publication or display of any representation exposing to hatred, or affronting the dignity of any person or class of persons on a prohibited ground (e.g. religion, sex, sexual orientation, disability, colour, age, race, gender identity). Violators can be ordered to cease and desist from such behaviour and to compensate an injured complainant. Unfortunately, at least one provincial human rights tribunal has ruled that only the federal government can regulate communication over the internet, so that provincial human rights code restrictions on hate propagation cannot be applied to online hate (Elmasry and Habib v Roger’s Publishing and MacQueen (No. 4) 2008 BCHRT 378 (para 50)).
Both criminal and human rights laws against hate propagation have been subjected to and survived constitutional challenges, alleging that they trench too far on the freedom of expression.
In the 1990s, both the willful promotion of hatred provision in the Criminal Code and s 13(1) of the CHRA were alleged to be unconstitutional violations of the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms (the Charter). In both cases, the Supreme Court of Canada (SCC) concluded that although the provisions limited expression, the limitations imposed were justified in a free and democratic society.
In Keegstra, the SCC concluded that the Criminal Code prohibition on the willful promotion of hatred limited expression that was far from core democratic values. The provision also served pressing objectives such as promoting equality of opportunity unhindered by attacks based on one’s membership in a marginalized group. In Taylor, a decision released at the same time as Keegstra, the SCC concluded that the limitation on free expression produced by s 13(1) of the CHRA was justified for similar reasons. The Court noted that s 13(1) applied only to extreme expression likely to stir “detestation, calumny, vilification,” and was part of a conciliatory human rights scheme aimed at remedying discrimination, rather than punishing wrongdoers. Subsequently, in the first internet-based s 13(1) case, the Canadian Human Rights Tribunal rejected a challenge to s 13(1) premised in part on the argument that its application to the internet rendered it too broad
In 2013, the SCC again confirmed its analysis of human rights law restrictions on hate propagation in a case involving anti-LGBTQ pamphlets distributed in several neighbourhoods in Saskatchewan. In Whatcott, the SCC found that s 14(1) of the Saskatchewan HRC’s restrictions on publicly displaying hate propagation were largely justifiable in a free and democratic society because they served the purpose of reducing the harmful effects and social costs of discrimination against, and degradation of, individuals and groups merely because of their identifiability on a prohibited ground, such as sexual orientation.
In 2014, the Federal Court of Appeal again confirmed the constitutionality of s 13(1) of the CHRA, although by then it had already been repealed. In Lemire, the Court held that s 13 withstood constitutional muster, notwithstanding the fact that the section had been modified to state that it explicitly applied to the internet and that penalties could be ordered as a remedy, and that s 13(1) cases were not as frequently subject to mediation as other kinds of CHRA disputes.
Despite this series of findings in favour of the constitutionality of tailored restrictions on hate propagation in criminal and human rights law, Parliament voted to repeal s 13(1) of the CHRA in 2013. As a result, it is no longer part of the repertoire for dealing with identity-based cyberviolence.
Institutional liability for bullying under human rights codes
Other human rights law provisions, however, have been successfully used by targets of non technology-based bullying to hold schools and school boards responsible for addressing identity-based harassment. For example, Azmi Jubran complained under s 8(1) of the BC Human Rights Code that the North Vancouver School Board had violated its obligation not to discriminate on the basis of sexual orientation in the provision of education services to the public when it failed to adequately respond to students’ repeated homophobic attacks against him. The British Columbia Court of Appeal ruled in Jubran’s favour, concluding that the Board had failed to foster an environment free from discriminatory harassment.
In another case, Jeremy Dias relied on a similar provision in a prior version of the Ontario Human Rights Code to file a 2002 complaint against a Sault Ste Marie high school and the Algoma District School Board for refusing to allow him to start school clubs aimed at encouraging a “more positive environment for non-heterosexual students.” Dias had been targeted because of his sexual orientation, and proposed the clubs as a proactive response to that harassment. He ultimately settled the case and used the settlement funds to set up a scholarship fund and the advocacy organization Jer’s Vision (which later became the Canadian Centre for Gender and Sexual Diversity).
Similar provisions in human rights codes across Canada prohibit those providing services to the public, such as schools, from discriminating on the basis of prohibited grounds such as race, sexual orientation, and gender. These provisions could be relied upon to make complaints where schools and school boards fail to adequately address identity-based cyberbullying. In addition, a number of provinces and territories have revised education legislation and policies to directly address bullying and cyberbullying. These new initiatives include reactive punitive measures, as well as proactive initiatives designed to address discriminatory prejudices and stereotypes that are at the root of identity-based attacks and to build young people’s empathy and healthy relationship skill sets.
 See e.g. Bailey, “Sexualized Online Bullying” supra note 19; Bailey, “Time to Unpack the Juggernaut?” supra note 1.
Canadian Human Rights Act, RSC 1985, c H-6, s 13 as it appeared on 1 January 2013.
Ibid, s 54(1); See Jane Bailey, “Twenty Years Later Taylor Still Has It Right: How the Canadian Human Rights Act’s Hate Speech Provision Continues to Contribute to Equality” (2010) 50 SCLR (2d) 349 at 352 [Bailey, “Twenty Years Later”].
 See e.g. Bailey, “Twenty Years Later”, ibid, at 378 fn 44; Citron v Zündel,  CHRC No 1, 44 CHRR D/274 at 303 [Citron]; Schnell v. Machiavelli and Associates Emprize Inc., 2002 CanLII 1887 (CHRT) at para 161; McAleer v Canada (Canadian Human Rights Commission),  FCJ No 1095 (FCA) (holding that the Taylor reasoning applied equally to grounds of hatred or contempt other than race and religion, including sexual orientation).
 See Jane Bailey, “Submission to the Standing Senate Committee on Human Rights Regarding Bill C-304” (25 June 2013) at 3, online: <https://egirlsproject.files.wordpress.com/2013/06/bailey-submissions-on-c-304.pdf> [Bailey, Senate].
 Canada, Bill C-304, An Act to amend the Canadian Human Rights Act (protecting freedom), 1st Sess, 41st Parl, 2013, s 2 (assented to 26 June 2013).
 See e.g. Bailey, “Twenty Years Later” supra note 33 at 350; Richard Moon, Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet (October 2008) at 42, online: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1865282>.
 See Bailey, Senate supra note 35 at 4.
 See Bailey, “Twenty Years Later” supra note 33 at 371; Jeff Brunner, “Canada's Use of Criminal and Human Rights Legislation to Control Hate Propaganda” (1999) 26 Man LJ 299 at 315.
Human Rights Act, PEI H-2, s 12 [Prince Edward Island HRA]; Human Rights Code, RSBC 1996, c 210, s 7 [BC HRC]; Alberta Human Rights Act, RSA 2000 A-25.5, s 3 [AHRA]; The Saskatchewan Human Rights Code, SS 1979, c S-24.1, s 14 [SHRC]; Human Rights Code, RSM c H-175, s 18 [Manitoba HRC]; Human Rights Code, RSO 1990, c H-19, s 13 [Ontario HRC]; Charter of Human Rights and Freedoms, RSQ c C-12, s 11 [Quebec Charter]; Human Rights Act, RSNB 2011 c 171, s 7 [NB HRA]; Human Rights Act, RSNS 1989, c 214, s 7 [NS HRA]; Human Rights Act, SNL 2012 c H-13.1, s 19 [Nfld HRA].
 Human Rights Act, SNWT 2002, c 18, s 13 [NWT HRA].
SHRC,supra note 40.
Ibid, ss 35(1), 38(1).
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
R v Keegstra,  3 SCR 697. See generally Bailey, “Twenty Years Later” supra note 33 at 353.
Canada (Human Rights Commission) v Taylor,  3 SCR 892 at 928.
Citron supra note 34 at 207, 242.
Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 at 71.
Lemire v Canada (Human Rights Commission), 2014 FCA 18.
20] BC HRC, supra note 40.
School District No. 44 (North Vancouver) v Jubran, 2005 BCCA 201.
 Ontario HRC, supra note 40.
[ See James Moran, “Jeremy Dias creates scholarship with rights settlement”, Daily Xtra (15 June 2005), online: <www.dailyxtra.com/ottawa/news-and-ideas/news/jeremy-dias-creates-scholarship-with-rights-settlement-11555>.
 See Letter from Renu Mandhane, Chief Commissioner, Ontario Human Rights Commission (April 2016), in The Canadian Centre for Gender and Sexual Diversity, “Implementing the Accepting Schools Act: The 2nd Annual Ontario Educators Conference” (29 April 2016), online: <ccgsd-ccdgs.org/wp-content/uploads/2015/12/Accepting-school-act-conference-booklet.pdf>.
AHRA, supra note 40, s 4; SHRC,supra note 40, s 13(1); Manitoba HRC, supra note 40, s 13(1); Ontario HRC,supra note 40, s 1; Quebec Charter,supra note 40, s 12; Nfld HRA,supra note 40, s 11(a); NB HRA, supra note 40, s 6(1)(a); NS HRA,supra note 40, s 5(1); PEI HRA,supra note 40, s 2(1); Northwest Territories supra note 41, s 11(1).