Rob Nicholson & The Justice Dept. Respond To A Readers Concerns About Bill C-51 – The Hyperlink Hate Crime Law

Some background on Bill C-51 – The Hate Crime Hyperlink Law: “Alan Shanoff, a lawyer and Sun Media columnist says the idea that we could all be criminals for simply putting up a link is correct.” Though you’ll note that Robbies minions spin furiously in contradiction of Shanoff’s claim.

Excerpt from our readers e-mail to Rob Nicholson: “…I do not need another person to tell me what to write and how to write it or stopping me from writing it. I do not need another person deciding that what I wrote was hateful, when in fact, what I wrote was the truth! It is my freedom of expression, my freedom of the press – my freedom which will be muzzled. Just put duct tape over my mouth right now. As I’ve mentioned previously, I would never call for the harm or death of anyone, still, my words could be very strong.”

From: Ministerial Correspondence Unit – Mailout
Sent: Thursday, September 15, 2011 10:10:09 AM
Subject: Correspondence from the Minister of Justice and Attorney General of Canada


The Office of the Prime Minister has forwarded to me a copy of your correspondence concerning former Bill C-51, the Investigative Powers for the 21st Century Act.

As you may know, the Government of Canada is committed to ensuring that law enforcement and national security agencies have the tools they need to fight crime in today’s high-tech environment. For this reason, on November 1, 2010, I introduced Bill C-51 in the House of Commons. This bill died on the Order Paper when Parliament was dissolved on March 26, 2011; however, our government intends to reintroduce this legislation in due course.

I note your concerns about a proposed amendment to the Criminal Code that was contained in this legislation. Based on your correspondence, I assume you are referring to clause 5 of former Bill C-51. In addition to having created new production orders, preservation orders, and warrants to address today’s computer and telecommunications environment, former Bill C-51 proposed to update certain existing offences that are facilitated by the Internet. Some of these updates were included in order to enable the ratification of the Council of Europe’s Convention on Cybercrime, and its Additional Protocol to the Convention on Cybercrime, concerning the Criminalisation of Acts of a Racist and Xenophobic Nature committed through Computer Systems. The amendment to clause 5 in former Bill C-51 was included for that purpose.

I would like to take this opportunity to address some of your concerns. This former clause proposed amending section 319 of the Criminal Code, which creates two offences under the heading of hate propaganda that involve the act of communicating. Specifically, subsection 319(1) makes it an offence to communicate statements that incite hatred against any identifiable group in any public place, where such incitement is likely to lead to a breach of the peace. Subsection 319(2) makes it an offence to communicate statements, other than in a private conversation, which wilfully promote hatred against any identifiable group. Identifiable group is defined by subsection 318(4) to mean any section of the public distinguishable by colour, race, religion, ethnic origin, or sexual orientation. Subsection 319(7) currently defines communicating for the purposes of these sections as communicating by telephone, broadcasting, or other audible or visible means.

Clause 5 proposed to update this definition to state that communicating means communicating by any means and includes making available. While it is true that providing a hyperlink would fall under this definition in certain circumstances—as it would under the current definition of communicating in subsection 319(7)—providing a hyperlink alone is not enough to commit either of these two hate propaganda offences. As the previous paragraph shows, many other elements must be proven before a person can be found guilty. The amendment merely described the manner in which a prohibited statement could have been made. It would not have determined whether a statement was of a prohibited nature, or whether a communicator had the necessary guilty mind to commit the offence. The necessity to prove beyond a reasonable doubt the existence of a guilty mind for these crimes is an important safeguard that protects freedom of expression. For example, in the case of R. v. Keegstra, the Supreme Court of Canada held that the crime of “wilfully” promoting hatred against an identifiable group means “intentionally” promoting hatred. This excludes the reckless or negligent promotion of hatred from the scope of this crime. These stringent requirements already exist in the Criminal Code and would not have been changed by the amendments proposed in former Bill C-51.

It is also worth noting that the crime of wilfully promoting hatred against an identifiable group contains several defences found in subsection 319(3) of the Criminal Code, which further limit the scope of this crime. For instance, the fact that a statement is true is a defence. So too is the communication of statements that are relevant to any subject of public interest, the discussion of which is for the public benefit, where the person reasonably believed them to be true. None of the defences would have been affected by the amendments proposed in former Bill C-51.

Please be assured that the Government of Canada carefully considered input provided by a broad range of stakeholders in developing former Bill C-51, including civil liberties groups, the telecommunications industry, victims’ advocates, police associations, and provincial and territorial justice officials. As a result, I believe this proposed legislation struck an appropriate balance between the need to protect the safety and security of Canada and the rights of Canadians.

I appreciate having had your comments brought to my attention.

Yours truly,

The Honourable Rob Nicholson