Morgane Oger testifies at House of Commons Standing Committee on Justice and Human Rights
A Preliminary brief for The House of Commons Standing Committee on Justice And Human Rights
16 May, 2019
(Click here to listen to all six witnesses and questions)
Thank you for inviting the Morgane Oger Foundation to provide this brief to The House of Commons Standing Committee on Justice And Human Rights on the subject of addressing online hatred.
The Morgane Oger Foundation is a federally-registered non-profit society. We work to reduce the gap between Canada’s human rights laws and the experience on the ground of persons facing systemic discrimination through advocacy, education, and legal means. We have expertise in policy change and peer support, with a strong specialty on issues specific to transgender and non-binary persons.
Although this presentation specifically addresses anti-transgender hate, we believe that the basis of our argument applies equally to all types of online hate, regardless of the motive.
Hateful acts are devastating for the victim who feels the rejection she has difficulty getting rid of, often suffering a lasting psychological impact as a result of the trauma.
Neither insults or the expression of divergent points of view constitute online hatred. It's the harassment. It’s the incitement to discriminate. It’s the deliberate publication of misinformation in order to deceive the public by giving people a sense of indignation. Hatred is meant to pathologize or demonize members of a community because they are who they are.
Hate propaganda acts by creating anger or disgust towards a person or group because of their identity. Hate speech incites discrimination or violence by any means available.
Canadian websites such as The Post Millennial, Feminist Current, Woman Means Something, Canadian Christian Lobby, Culture Guard, and Transanity publish incitements to discriminate through misinformation in articles aimed at turning public opinion against the transgender community.
Twitter and Facebook are awash with anti-transgender misinformation intended to justify anti-transgender discrimination.
In the 2013 Supreme Court of Canada decision Saskatchewan (Human Rights Commission) v. Whatcott, Justice Rothstein wrote this about hate speech:
“Hate speech is an effort to marginalize individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. ”
- Saskatchewan v Whatcott SCC 2013
Case Study 1: Bill Whatcott Flyer
During the 2017 BC General Election, social-conservative activist Bill Whatcott travelled to Vancouver with 1,500 flyers he printed, which urged people not to vote for me because I was transgender and for no other reason.
He distributed them in the riding that I was contesting. The flyers had a photo of me, described me as a “biological male” and claimed I was promoting “homosexuality and transvestism”. They stated transsexuals were prone to sexually transmitted diseases and at risk of domestic violence, alcohol abuse, and suicide. I complained to the BC Human Rights Tribunal which ruled in my favour in its March 2019 decision.
Since 2017, Bill Whatcott continues to engage in transphobic and derogatory harassment campaigns against me, focusing on a claim that he is being prevented from telling the truth that a man can not be a woman.
Whatcott’s campaign includes blog posts, trips to Vancouver to distribute more flyers, audio and video interviews, a series of social media posts, and a number of articles.
Impact of Bill Whatcott Flyer Campaign: Online Hatred
The effects of Bill Whatcott's campaign against me continue today.
Two days after the Tribunal ruling was released, Bill Whatcott came to a church where I was talking while I was there. His harassment is now mostly online and on the radio, but that does not end. It's never going to end. The truth is that what Mr. Whatcott did will never go away because it was widely rebroadcast online.
Impact of Bill Whatcott Flyer Campaign: Real-world consequences of online hatred
Because of Whatcott’s campaign, I had to teach my children to be weary of people. I had to ask them to keep an eye out for strangers. I had to explain to them why. No mom wants to have to sit her children down and say to them that someone might want to hurt her or them who she is.
In 2017, I was stopped in my back lane by an individual I did not know who engaged with me about Whatcott. I was 20m from my home, and this individual shared his displeasure. He expressed I should leave Whatcott alone, and that his church had been discussing the situation.
In 2018, Whatcott announced in a Facebook video shot while hunting that he was coming back to Vancouver to distribute more flyers, boasted about his shooting skills. Because of the video, Vancouver police warned me and my children and I upgraded our security measures.
Due to the proliferation of claims made about me online, I now receive threats over the phone regularly and countless threats online, some of them explicit.
Case Study 2: Stephanie Hayden: exporting hatred from Canada
14 May 2019
You asked me to provide you with details of online hatred/real world consequences. Here is my story:
I am Stephanie Hayden, a 45 year old lawyer from London UK. I am a transgender women holding a Gender Recognition Certificate. This means the law in the UK recognises me as a woman and my birth certificate has been amended to reflect this. In August 2018 I wrote an academic paper entitled “Gender Recognition Certificates Why the Feminists and the Trans Rights Activists Have got it Wrong” (copy attached). Within days of publishing this paper on my Twitter feed I started being harassed, abused, and defamed on all forms of social media. Until then I had never experienced this level of online abuse. Since September 2018 my life has changed. First, it was the doxing; anonymous Twitter accounts began posting details of my former male identity, where I had lived, who I had dated. Photographs of me as a man were posted and even photographs of extended family members. Every day I would wake up to yet more abuse. Usually this was in the form of trolls contacting me to call me a “man” or make some comment about my appearance. This got so bad that a famous scriptwriter joined in. At this point I had tolerated the abuse far too long. I reported the scriptwriter to the Police and the person concerned was given a verbal warning for harassment. At this point I became a public figure. The warning was reported in the word wide media and the online abuse I was receiving increased exponentially.
This was bad enough but nothing was to prepare me for what was to come next. In November 2018 I had to report someone else to the Police. A woman had set up anonymous troll accounts, which had started posting details of my confidential financial and medical information. The account was also abusing me because of my gender identity. A suspect was arrested in December 2018 and the High Court imposed an interim injunction on the suspect restraining her from a range of conduct. This included misgendering me as a male or man or using male pronouns to reference me. This was the first injunction in English legal history restraining misgendering. In February 2019 the arrest and the injunction was reported by the Mail on Sunday. The story was grossly misrepresented. Donald Trump Jnr intervened and made adverse remarks about my case on his own Twitter feed. Since then I have become a global figure who is subject to abuse and harassment on an almost hourly basis.
The real life consequences for me have been extreme. I am now known throughout the world. The Police have put in place security measures on my home address in case I am attacked or threatened. When I am out in public I now need to be aware of my surroundings at all times. I take precautions in case I am physically attacked. I no longer feel that I can live the open life I was able to only a year ago. Every aspect of my life is now poured over and subject to public analysis. I even have my own thread on the Kiwi Farms website, which is infamous for hounding and abusing people.
Some of the social media hounding has come from a publication based in Canada called “The Post Millennial”. In April 2019 this publication posted a whole series of allegations alleging that transgender people (including me) harass and abuse cis gender women. One of the women I am supposed to have harassed is now herself subject to an injunction for harassing me.
I feel the abuse on social media is now so bad that the only answer is to require users to verify their identities. It is all too easy to ruin and changes lives via anonymous social media abuse. The trolls rarely go punished and the real life consequences for victims are immense”.
Stephanie R Hayden
Lack of law regarding online hate
Because BC courts consider online publication a federal matter and because section 13 of the Canadian Human Rights Act was revoked in 2013, there are no human rights measures in Canada today governing hatred online.
To address this, Federal legislation needs to align with protections in the provincial acts -- because right now, there is this gaping hole that something you publish in print that is impermissible under provincial legislation, is allowable under federal. And people shouldn't have the right to say things on the internet that they can't publish in print since section 13 of the Canadian Human Rights Act was repealed in 2013 by the Harper government.
However, in 2013, the Supreme Court of Canada unanimously affirmed the legitimacy of human rights legislation that restricts hate speech under similar legislation in Saskatchewan in the Saskatchewan (Human Rights Commission) v. Whatcott 2013 SCC 11 ruling:
"Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy."
- Saskatchewan v Whatcott SCC 2013
The government has not reenacted or replaced section 13, leaving the gap in Canadian's protection of hate speech.
However, the Federal Court of Appeal found section 13 to be constitutionally sound AFTER it was repealed in Lemire v. Canada (Human Rights Commission)
Because my case was under BC law, I had to rely on Whatcott’s publishing and distributing flyers because BC’s human rights law only applies to physical publications on physical media. If Whatcott had published exclusively on the internet, I would have needed to rely on tort law or criminal statutes. BC Tort law would have been extremely messy.
The MLAT Problem
MLAT is the international treaty through which Canadian law enforcement accesses user data on US-owned social media platforms. It is through MLAT that canadian law enforcement accesses information related to evidence subject to foreign jurisdiction. Because many online platforms are operated from outside Canada, MLAT is often required to access social media records.
Canadian law-enforcement personnel specialized in hate-motivated crime report long delays when using MLAT. One hate-crimes investigator reported delays of up to two years to be commonplace.
“Internationally, my colleagues in the law enforcement community lament what they perceive as less than straightforward access to user data from online providers based (for them) overseas. Facebook, Microsoft, Yahoo and Google - all based in the US - are the most commonly cited providers, but providers can and are increasingly based anywhere in the world.
This is often described as ‘the Mutual Legal Assistance Treaty (MLAT) problem’, after the existing international frameworks used to obtain evidence - including communications data - across borders. There are, however, alternatives to MLAT available in differing circumstances, and this in itself adds to the problem.”
This sluggishness interferes with the likelihood of criminal convictions relating to online hate.
Lack of civil consequence for online hatred
The current gap in the Canadian Human RIghts Act enables the publishing of material on websites and social media that is prohibited from publishing in physical form. For online hatred, the only remedy is a criminal complaint which has a very high bar for conviction and can require special approval from the province's Attorney General.
My complaint against Bill Whatcott at the BC Human Rights Tribunal would have failed if he had restrained himself to only spread his flyers online, through Facebook, Twitter, or his website.
It is also because they stay online that Meghan Murphy, Kari Simpson, and Jenn Smith have managed to stay free of provincial hate legislation.
Disproportionate reach of online publications
Canadians need a civil recourse that effectively deals with hate publications that can reach wide audiences they can online.
Bill Whatcott is quoted in Oger v Whatcott estimating that the online version of his flyers reached an approximate 10,000 persons. His future posts were widely distributed and cited in the socially-conservative online press in Canada and the U.S.
Meghan Murphy’s 1-2 hour online trans-antagonistic videos denying the validity of transgender women have been watched by over 100,000 persons
Dozens of Feminist Current articles painting transgender women in a negative light on the basis of their gender identity have been approximately 1,000 each.
Canadian Websites Are Exporting Hatred
Canada’s gap in online hate legislation also has an impact outside of Canada. The UK and Scotland are currently considering legislation to improve the lives of transgender persons on those countries and Meghan Murphy’s antagonism towards transgender persons is being leveraged by UK activists opposed to the proposed changes.
Because of our legislative gap regarding online publications, Canada is exporting anti-transgender hatred overseas, inciting discrimination that is prohibited in Canada.
The Morgane Oger Foundation recommends that:
The Canadian Human Rights Act be updated to address online hatred and incitement to discriminate on prohibited grounds;
Any online material that can be produced and then retrieved on demand to display on a browser or device should be considered in the same way as if published on paper. As we move away from paper our laws need to adapt.
All social media platforms doing commerce in Canada be required to meet or exceed Canada’s human rights laws as they pertain to publications;
Because display screens are the modern equivalent of paper, in the context that they are fetching information stored on a media for the purpose of displaying, they should be treated as publications;
Publications based on the storage of material on a media for the purpose of displaying on demand should be handled within the same jurisdiction;
When an individual or organization publishes material or allows it to be published, or when the consumer is in Canada, Canadian hate laws should apply.
Director, Morgane Oger Foundation
2 https://www.feministcurrent.com/2019/03/20/discontinuation-of-grant-to-vancouver-rape-relief-shows-trans-activism-i s-an-attack-on-women/
7 Saskatchewan (Human Rights Commission) v. Whatcott,  1 SCR 467, 2013 SCC 11 (http://canlii.ca/t/fw8x4)
8 Oger v. Whatcott (No. 7), 2019 BCHRT 58 (http://canlii.ca/t/hzdgk)
10 Lemire v. Canada (Human Rights Commission), 2014 FCA 18 (http://canlii.ca/t/g2x2d)