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The Online Harms Bill (Bill C-63) imposed on larger social media platforms a “duty to act responsibly,” which rested on a recognition that traditional legal responses were no longer effective in addressing hate speech and other forms of unlawful expression when they occur online. This recognition, however, made it all the more surprising that the Bill also included an amendment to the Canadian Human Rights Act (CHRA), adding a prohibition on online hate speech. This ban was a slightly revised version of a provision — section 13 of the CHRA — that had been repealed by the federal government in 2014. The proposed revisions to the earlier CHRA ban on hate speech addressed some of the concerns raised about the earlier version of the section and that led to its repeal, but fail to account for the fact that the communication landscape has changed dramatically since 2014. In this new landscape, traditional legal responses, including human rights code restrictions, are simply too slow and cumbersome to respond effectively to the problem of online hate speech.
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Two very general ideas have shaped my thinking about constitutional law. The first is that most of the rights in the Charter protect or advance different aspects of our relationship or connection with others. We are social beings. Who we are – our identity, our agency – is shaped by our interactions with others. Rights such as freedom of expression, religious freedom, and the right to equality, do not simply protect individual autonomy, but instead protect different aspects of human flourishing within community. The second theme is narrower and more legal and has to do with what we can expect from the courts in the protection of rights or the advancement of the public good. Courts are adjudicative bodies. Their role is to interpret and apply the law – existing law - to the cases that come before them. Because courts are insulated from political pressure, they are well suited to the role of adjudicator – to resolving disputes based on the law. At the same time, because they are independent in this way, courts are poorly suited to the task of general policymaking, or the redistribution of resources. In my writing I have explored both these themes, and the tension between them. In this lecture, I will discuss three Charter rights – freedom of expression, the right to equality, and religious freedom – to illustrate what I mean by the social character of rights and the tension between this understanding of rights and the structure of constitutional adjudication.
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While much of Canada’s early commitment to religious freedom was simply a pragmatic compromise to ensure social peace and political stability, the Supreme Court of Canada in a series of judgments that pre-dated the Charter sought to articulate a principled account of religious freedom as an “original freedom” that is an important “mode[] of self-expression” and “the primary condition[] of the community life”. This understanding of religious freedom shaped the Supreme Court of Canada’s initial reading of freedom of conscience and religion protected by s. 2 (a) of the Canadian Charter of Rights and Freedoms. However, the story of religious freedom in Canada is not simply that of a linear progression from the pragmatic tolerance of religious minorities to the principled protection of the individual’s religious freedom. In its subsequent s 2 (a) decisions, the Court began to read freedom of religion as a form of equality right that requires the state to remain neutral in religious matters. The state must not prefer the practices of one religious group over those of another and it must not restrict the religious practices of a group unless it has a substantial public reason to do so. Underlying the Court’s commitment to religious freedom is a recognition of the deep connection between the individual and her/his spiritual commitments and religious community and a desire to avoid the marginalization of minority religious groups. Concerns about inclusion and social peace that lay behind the extension of religious tolerance in Canada’s early history continue to be important in the contemporary justification and interpretation of religious freedom. The Court’s commitment to state neutrality in religious matters requires it to distinguish between the private sphere of individual or group spiritual life and the sphere of public secular life. However, the line between these two spheres is contestable, moveable, and porous.
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Richard Moon, Howard Kislowicz, Asha Kaushal, 2022 CanLIIDocs 1392
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