Bill C-261: An Act to amend the Criminal Code and the Canadian Human Rights Act and to make related amendments to another Act (hate propaganda, hate crimes and hate speech)

R.S., c. C- 46 Criminal Code Amendments to the Act 1 Paragraph 264(4)(a) of the Criminal Code is replaced by the following: (a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.012 , 810.1 or 810.2; or 2 (1) Subsection 319(7) of the Act is amended by adding the following in alphabetical order: hatred  means the emotion that involves detestation or vilification and that is stronger than dislike or disdain; ( haine ) (2) Section 319 of the Act is amended by adding the following after subsection (7): Exclusions (8) For greater certainty, the communication of a statement does not incite or promote hatred, for the purposes of this section, solely because the statement discredits, humiliates, hurts or offends. 3 The Act is amended by adding the following after section 810.011: Fear of hate propaganda offence or hate crime 810.012 (1) A person may, with the Attorney General’s consent, lay an information before a provincial court judge if the person fears on reasonable grounds that another person will commit (a) an offence under section 318 or subsection 319(1) or (2); (b) an offence under subsection 430(4.1); or (c) an offence motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or expression, or any other similar factor. Appearances (2) The provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge. Adjudication (3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period of not more than 12 months. Duration extended (4) However, if the provincial court judge is also satisfied that the defendant was convicted previously of any offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period of not more than two years. Refusal to enter into recognizance (5) The provincial court judge may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance. Conditions in recognizance (6) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that (a) require the defendant to wear an electronic monitoring device, if the Attorney General makes that request; (b) require the defendant to return to and remain at their place of residence at specified times; (c) require the defendant to abstain from the consumption of drugs, except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; (d) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; (e) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or (f) prohibit the defendant from communicating, directly or indirectly, with any person identified in the recognizance, or refrain from going to any place specified in the recognizance, except in accordance with the conditions specified in the recognizance that the judge considers necessary. Conditions — firearms (7) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which it applies. Surrender, etc. (8) If the provincial court judge adds a condition described in subsection (7) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession shall be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant shall be surrendered. Reasons (9) If the provincial court judge does not add a condition described in subsection (7) to a recognizance, the judge shall include in the record a statement of the reasons for not adding it. Variance of conditions (10) The provincial court judge may, on application of the informant, the Attorney General or the defendant, vary the conditions fixed in the recognizance. Other provisions to apply (11) Subsections 810(4) and (5) apply, with any modifications that the circumstances require, to recognizances made under this section. 4 (1) The portion of subsection 810.3(1) of the Act before paragraph (a) is replaced by the following: Samples — designations and specifications 810.3 (1) For the purposes of sections 810, 810.01, 810.011, 810.012 , 810.1 and 810.2 and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory, (2) Paragraphs 810.3(2)(a) and (b) of the Act are replaced by the following: (a) to make a demand for a sample of a bodily substance for the purposes of paragraphs 810(3.02)(b), 810.01(4.1)(f), 810.011(6)(e), 810.012(6)(d) , 810.1(3.02)(h) and 810.2(4.1)(f); and (b) to specify the regular intervals at which a defendant must provide a sample of a bodily substance for the purposes of paragraphs 810(3.02)(c), 810.01(4.1)(g), 810.011(6)(f), 810.012(6)(e) , 810.1(3.02)(i) and 810.2(4.1)(g). (3) Subsections 810.3(3) and (4) of the Act are replaced by the following: Restriction (3) Samples of bodily substances referred to in sections 810, 810.01, 810.011, 810.012 , 810.1 and 810.2 may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (1). Destruction of samples (4) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a recognizance under section 810, 810.01, 810.011, 810.012 , 810.1 or 810.2 to be destroyed within the period prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 811. (4) Paragraph 810.3(5)(a) of the Act is replaced by the following: (a) prescribing bodily substances for the purposes of sections 810, 810.01, 810.011, 810.012 , 810.1 and 810.2; (5) Subsection 810.3(6) of the Act is replaced by the following: Notice — samples at regular intervals (6) The notice referred to in paragraph 810(3.02)(c), 810.01(4.1)(g), 810.011(6)(f), 810.012(6)(e) , 810.1(3.02)(i) or 810.2(4.1)(g) must specify the places and times at which and the days on which the defendant must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the defendant is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days. 5 Subsections 810.4(1) to (3) of the Act are replaced by the following: Prohibition on use of bodily substance 810.4 (1) No person shall use a bodily substance provided under a recognizance under section 810, 810.01, 810.011, 810.012 , 810.1 or 810.2 except for the purpose of determining whether a defendant is complying with a condition in the recognizance that they abstain from the consumption of drugs, alcohol or any other intoxicating substance. Prohibition on use or disclosure of result (2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a recognizance under section 810, 810.01, 810.011, 810.012 , 810.1 or 810.2. Exception (3) The results of the analysis of a bodily substance provided under a recognizance under section 810, 810.01, 810.011, 810.012 , 810.1 or 810.2 may be disclosed to the defendant to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 811 or, if the results are made anonymous, for statistical or other research purposes. 6 Subsection 811.1(1) of the Act is replaced by the following: Proof of certificate of analyst — bodily substance 811.1 (1) In a prosecution for breach of a condition in a recognizance under section 810, 810.01, 810.011, 810.012 , 810.1 or 810.2 that a defendant not consume drugs, alcohol or any other intoxicating substance, a certificate purporting to be signed by an analyst that states that the analyst has analyzed a sample of a bodily substance and that states the result of the analysis is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person who appears to have signed the certificate. 7 Form 23 of Part XXVIII of the Act is amended by replacing the references after the heading “FORM 23” with the following: (Sections 810, 810.012 and 810.1) 8 (1) Form 32 of Part XXVIII of the Act is amended by replacing the references after the heading “FORM 32” with the following: (Sections 2, 462.34, 490.9, 550, 683, 706, 707, 779, 810, 810.01, 810.012 , 810.1, 810.2, 817 and 832) (2) Paragraphs (b) to (i) of Form 32 of Part XXVIII of the Act after the heading “List of Conditions” are replaced by the following: (b) agrees to keep the peace and be of good behaviour (sections 83.3, 810, 810.01, 810.012 , 810.1 and 810.2 of the Criminal Code ); (c) abstains from possessing a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and surrenders those in their possession and surrenders any authorization, licence or registration certificate or other document enabling the acquisition or possession of a firearm (sections 83.3, 810, 810.01, 810.012 , 810.1 and 810.2 of the Criminal Code ); (d) participates in a treatment program (sections 810.01, 810.1 and 810.2 of the Criminal Code ); (e) wears an electronic monitoring device ( if the Attorney General makes the request ) (sections 810.01, 810.012 , 810.1 and 810.2 of the Criminal Code ); (f) remains within a specified geographic area unless written permission to leave that area is obtained from the judge (sections 810.01 and 810.2 of the Criminal Code ); (g) returns to and remains at their place of residence at specified times (sections 810.01, 810.012 , 810.1 and 810.2 of the Criminal Code ); (h) abstains from the consumption of drugs, except in accordance with a medical prescription (sections 810.01, 810.012 , 810.1 and 810.2 of the Criminal Code ); (i) abstains from the consumption of alcohol or of any other intoxicating substance, except in accordance with a medical prescription (sections 810.01, 810.012 , 810.1 and 810.2 of the Criminal Code ); 9 Form 51 of Part XXVIII of the Act is amended by replacing the references after the heading “FORM 51” with the following: (Paragraphs 732.1(3)(c.2), 742.3(2)(a.2), 810(3.02)(c), 810.01(4.1)(g), 810.011(6)(f), 810.012(6)(e) , 810.1(3.02)(i) and 810.2(4.1)(g)) 2002, c. 1 Related Amendments to the Youth Criminal Justice Act 10 Subsection 14(2) of the Youth Criminal Justice Act is replaced by the following: Orders (2) A youth justice court has exclusive jurisdiction to make orders against a young person under sections 83.3 (recognizance — terrorist activity), 810 (recognizance — fear of injury or damage), 810.01 (recognizance — fear of certain offences), 810.011 (recognizance — fear of terrorism offence), 810.012 (recognizance — fear of hate propaganda offence or hate crime) , 810.02 (recognizance — fear of forced marriage or marriage under age of 16 years) and 810.2 (recognizance — fear of serious personal injury offence) of the Criminal Code and the provisions of this Act apply, with any modifications that the circumstances require. If the young person fails or refuses to enter into a recognizance referred to in any of those sections, the court may impose any one of the sanctions set out in subsection 42(2) (youth sentence ) except that, in the case of an order under paragraph 42(2)(n) (custody and supervision order), it shall not exceed 30 days. 11 Paragraph 142(1)(a) of the Act is replaced by the following: (a) in respect of an order under section 83.3 (recognizance — terrorist activity), 810 (recognizance — fear of injury or damage), 810.01 (recognizance — fear of certain offences), 810.011 (recognizance — fear of terrorism offence), 810.012 (recognizance — fear of hate propaganda offence or hate crime) , 810.02 (recognizance — fear of forced marriage or marriage under age of 16 years) or 810.2 (recognizance — fear of serious personal injury offence) of that Act or an offence under section 811 (breach of recognizance) of that Act; R.S., c. H- 6 Canadian Human Rights Act 12 Section 4 of the Canadian Human Rights Act is replaced by the following: Orders regarding discriminatory practices 4 A discriminatory practice, as described in sections 5 to 14.1, may be the subject of a complaint under Part III and anyone found to be engaging or to have engaged in a discriminatory practice may be made subject to an order as provided for in section 53 or 53.1 . 13 The Act is amended by adding the following after section 12: Communication of hate speech 13 (1) It is a discriminatory practice to communicate or cause to be communicated hate speech by means of the Internet or other means of telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination. Continuous communication (2) For the purposes of subsection (1), a person who communicates or causes to be communicated hate speech continues to do so for as long as the hate speech remains public and the person can remove or block access to it. Mere indication, hosting or caching (3) For the purposes of subsection (1), a person does not communicate or cause to be communicated hate speech by reason only that they (a) indicate the existence or location of the hate speech; or (b) host or cache the hate speech or information about the location of the hate speech. Facility or service used by others (4) For the purposes of subsection (1), a telecommunications service provider , as defined in subsection 2(1) of the Telecommunications Act , does not communicate or cause to be communicated hate speech if their telecommunications facility or service is used by another person to communicate that hate speech. Exception — private communication (5) This section does not apply in respect of a private communication. Exception — Broadcasting Act (6) This section does not apply to the following persons: (a) a person who, in respect of the communication in question, holds a license to carry on a broadcasting undertaking , as defined in subsection 2(1) of the Broadcasting Act ; and (b) a person who carries on a distribution undertaking , as defined in subsection 2(1) of the Broadcasting Act , if the communication in question is part of a programming service that the person does not originate. Exception — online communication service provider (7) This section does not apply to the provider of an online communication service. Definition of online communication service (8) In subsection (7), an online communication service means a service that is accessible to persons in Canada, the primary purpose of which is to enable users of the service to communicate with other users of the service interprovincially or internationally over the Internet. Definition of hate speech (9) In this section, hate speech means the content of a communication that expresses detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination. Clarification – hate speech (10) For greater certainty, the content of a communication does not express detestation or vilification, for the purposes of subsection (9), solely because it expresses mere dislike or disdain or it discredits, humiliates, hurts or offends. 14 (1) Paragraph 40(5)(b) of the Act is replaced by the following: (b) occurred in Canada and was a discriminatory practice within the meaning of section 5, 8, 10, 12 or 13 in respect of which no particular individual is identifiable as the victim; or (2) Section 40 of the Act is amended by adding the following after subsection (7): Non-disclosure of identity — Commission (8) The Commission may deal with a complaint in relation to a discriminatory practice described in section 13 without disclosing, to the person against whom the complaint was filed or to any other person, the identity of the alleged victim, the individual or group of individuals who has filed the complaint or any individual who has given evidence or assisted the Commission in any way in dealing with the complaint, if the Commission considers that there is a real and substantial risk that any of those individuals will be subjected to threats, intimidation or discrimination. Non-disclosure of identity — persons (9) The Commission may order a person who, in the course of the Commission’s dealing with a complaint filed in relation to a discriminatory practice described in section 13, has learned of the identity of the alleged victim, the individual or group of individuals who has filed that complaint or any individual who has given evidence or assisted the Commission in any way in dealing with that complaint, not to disclose that identity if the Commission considers that there is a real and substantial risk that any of those individuals will be subjected to threats, intimidation or discrimination. Exceptions (10) An order made under subsection (9) does not prevent a person named in the order from disclosing the information protected by the order if the disclosure is required by law or is necessary for the purposes of an investigation under section 43, conciliation under section 47 or a settlement under section 48. Revocation (11) The Commission may, on application, revoke an order made under subsection (9) if it is satisfied that the order is no longer warranted. Opportunity to make representations (12) Before the Commission makes its decision on an application under subsection (11), it shall afford any person whose identity is protected by the order an opportunity to make representations with respect to that application. Order ceases to have effect (13) An order made under subsection (9) ceases to have effect from the time the member or panel makes, in the course of an inquiry into the complaint in question, an order under paragraph 52(1)(e) in respect of the same individual or group of individuals whose identity is protected by the order made under that subsection. Statutory Instruments Act (14) The Statutory Instruments Act does not apply to an order made under subsection (9). 15 (1) Paragraph 41(1)(a) of the Act is replaced by the following: (a) the alleged victim of the discriminatory practice to which the complaint relates or the complainant ought to exhaust grievance or review procedures otherwise reasonably available; (2) Section 41 of the Act is amended by adding the following after subsection (1): For greater certainty — section 13 complaint (1.1) For greater certainty, the Commission shall, under paragraph (1)(d), decline to deal with a complaint filed on the basis of section 13 if it is plain and obvious to the Commission that the complaint indicates no hate speech , as defined in subsection 13(9). 16 Subsection 48.1(1) of the Act is replaced by the following: Establishment of Tribunal 48.1 (1) There is established a tribunal to be known as the Canadian Human Rights Tribunal consisting, subject to subsection (6), of a maximum of 20 members, including a Chairperson and a Vice-chairperson, to be appointed by the Governor in Council. 17 Subsection 52(1) of the Act is amended by striking out “or” at the end of paragraph (c), by adding “or” at the end of paragraph (d) and by adding the following after that paragraph: (e) there is a real and substantial risk that the alleged victim, the individual or group of individuals having made the complaint or an individual who gives evidence or assists in any way in respect of the inquiry will be subjected to threats, intimidation or discrimination. 18 The portion of subsection 53(2) of the Act before paragraph (a) is replaced by the following: Complaint substantiated (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to sections 53.1 and 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate: 19 The Act is amended by adding the following after section 53: Complaint substantiated — section 13 53. 1 If at the conclusion of an inquiry the member or panel conducting the inquiry finds that a complaint relating to a discriminatory practice described in section 13 is substantiated, the member or panel may make one or more of only the following orders against the person found to be engaging or to have engaged in the discriminatory practice: (a) an order to cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from recurring; (b) an order to pay compensation of not more than $20,000 to any victim personally identified in the communication that constituted the discriminatory practice, for any pain and suffering that the victim experienced as a result of that discriminatory practice, so long as that person created or developed, in whole or in part, the hate speech indicated in the complaint; (c) an order to pay a penalty of not more than $50,000 to the Receiver General if the member or panel considers it appropriate having regard to the nature, circumstances, extent and gravity of the discriminatory practice, the wilfulness or intent of the person who is engaging or has engaged in the discriminatory practice, any prior discriminatory practices that the person has engaged in and the person’s ability to pay the penalty. Award of costs 53. 2 A member or panel conducting an inquiry into a complaint filed on the basis of section 13 may award costs for abuse of process in relation to the inquiry. 20 Section 57 of the Act is replaced by the following: Enforcement of order 57 An order made under section 53, 53.1 or 53.2 may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy. 21 (1) Subsection 60(1) of the Act is amended by striking out “or” at the end of paragraph (b) and by adding the following after paragraph (c): (d) contravenes an order made under subsection 40(9); or (e) contravenes an order made under subsection 52(1) or (2). (2) Subsection 60(4) of the Act is replaced by the following: Consent of Attorney General (4) A prosecution for an offence under paragraph 1(b) or (c) may not be instituted except by or with the consent of the Attorney General of Canada. Coming into Force 90th day after royal assent 22 (1) Sections 1 to 11 come into force on the 90th day after the day on which this Act receives royal assent. Order in council (2) Sections 12 to 21 and the provisions they enact come into force on a day or days to be fixed by order of the Governor in Council.