This legislation is desperately needed for the protection of children online. In 9.5 years of government, the Trudeau Liberals have done absolutely nothing for the protection of children from sexual predators. It's disappointing but not surprising that they would use this bill to gain even more control over the media than they alreay have, and they have a disturbing amount of control already. I wish that just for once, Trudeau would do something to protect children from paedophiles without political games involved.
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The Online Harms Act introduced this week raised many red flags for lawyers. A prime example: Someone could report you for online hate crimes they merely “fear” you might commit, and if a judge agrees the fear is reasonable, you might end up wearing an electronic bracelet for a year and living under a court-ordered curfew. If you don’t comply with the restrictions, you could be sentenced to a year in prison. |
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Online Harms Act Red Flags |
The Liberal government tabled its Online Harms Act, Bill C-63, on Feb. 26, and lawyers and analysts have since been fervently reviewing and commenting on it.
The bill would have broad impacts on how online content, and speech in general, is handled in Canada. It has received praise, such as for its strong protections against child exploitation. But many have found its hate speech provisions especially alarming.
“The balance between protecting vulnerable people on the internet and egregiously infringing on free speech and expression is a delicate one,” said columnist Cory Morgan.
Some key points:
It targets seven harms: sexually victimizing children, bullying, inducing child to harm themselves, extremism/terrorism, inciting violence, fomenting hatred, and intimate content without consent including deep fakes.
While some are fairly objective, the concern is how the more subjective harms—such as “fomenting hatred” or “inciting violence”—are judged.
It seeks to amend the Criminal Code to:
- Increase penalties for hate crimes. For example, “advocating for genocide” could come with a lifetime sentence. “That means words alone could lead to life imprisonment,” said the Canadian Constitution Foundation in a Feb. 27 press release.
- Add the provision regarding “fear” that someone will commit a “hate propaganda offence or hate crime.”
- “Far more draconian than being arrested for something you say, is being imprisoned for something someone else is afraid you’ll say,” lawyer Marty Moore told The Epoch Times.
- Create a standalone offence for crimes “motivated by hatred.” Currently, in a murder or assault case for example, “hate motivation” is only an aggravating factor considered by a judge during sentencing. Now, it would be a standalone offence police could charge from the outset, and it’s “liable to imprisonment for life.”
It seeks to amend the Canadian Human Rights Act to reinstate a “hate speech” provision that was removed about a decade ago because it caused an uproar over impacts on free speech.
It will allow a government-appointed human rights tribunal to rule on some cases of hate speech (it creates a new class of hate speech below the criminal threshold judged by the courts).
The tribunal could fine people up to $50,000 and require payment to the complainant up to $20,000. The complainant does not have to be identified in all cases—so the accused may never know who has filed the complaint.
“Findings would be based on a mere ‘balance of probabilities’ standard rather than the criminal standard of proof beyond a reasonable doubt. The subjectivity of defining ‘hate speech’ will lead to punishments for protected speech. The mere threat of human rights complaints will chill large amounts of protected speech,” CCF said.
“It’s pretty cheap to lay a complaint. It doesn’t cost you anything. And if it doesn’t even cost you your identity, you can just go ahead and do that to all of your political opponents,” Mr. Moore said.
It creates a Digital Safety Commission made up of three to five commissioners appointed by the government (parliamentarians would vote on who heads it). It would be largely responsible for enforcing the law, and many have said it would have far too much power.
It could send inspectors into a person’s workplace to look at documents without a warrant (entering someone’s home would still require a warrant). It could make online content inaccessible, hold hearings (sometimes out of public view), and more.
“Despite those powers, the Commission is not subject to any legal or technical rules of evidence,” said University of Ottawa law professor Michael Geist, the Canada Research Chair in Internet and E-commerce Law, in a post on his website.
“We are talking about some of the most draconian powers given to an agency that doesn’t exist and has no track record of integrity,” Mr. Moore says.
“One troubling aspect of Bill C-63 is the vast authority bestowed upon a newly established body, comprising government appointees, to interpret the law, make up new rules, enforce them, and then serve as judge, jury, and executioner,” said Canadian Civil Liberties Association director and general counsel Noa Mendelsohn Aviv.
It also creates the position of a digital safety ombudsperson to act as a guide and advocate for internet users, and a digital safety office to support the commission and the ombudsperson.
It places requirements on social media companies (such as Facebook) to flag content that they believe “foments hatred” and deal with content they have “reasonable grounds to believe … [poses] a risk of significant psychological or physical harm.”
Failure to abide by the requirements could cost the platforms 6 percent of their gross global revenue or $10 million, whichever is greater.
“This appears aimed at encouraging social media companies to censor speech that the government cannot outlaw,” CCF said. |
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Justice Minister and Attorney General of Canada Arif Virani arrives to a cabinet meeting on Parliament Hill in Ottawa on Feb. 27, 2024. (The Canadian Press/Sean Kilpatrick) |
Why It Matters: Who will decide what “hate speech” is?
Previously, the province’s attorneys general had to be consulted before a hate speech charge could be laid. A lot rested on high-level legal expertise to determine what “hate speech” is.
Under Bill C-63, police could lay those charges, said CCF lawyer Josh Dehaas in an email to The Epoch Times.
Your average Canadian can also initiate an onerous legal process for anyone he or she thinks may be guilty of hate speech—by filing a complaint to the human rights commission or by going to the courts with it.
Social media companies are required to discern what they believe is harmful, and the digital commission is too.
One of the main criticisms Opposition Leader Pierre Poilieve has leveled at the legislation is that the Liberal government could use it to define “hate speech” as whatever speech it doesn’t like
Justice Minister Arif Virani was asked to respond to this criticism in a Feb. 26 interview with Michael Serapio of PrimeTime Politics.
“We’re talking about codifying [a] pre-existing definition of hatred,” Mr. Virani told Mr. Serapio.
“Hatred has been defined in Supreme Court jurisprudence for at least the last 11 years in a decision called Whatcott, 2013, where it talks about something that arises to ‘detestation’ and ‘vilification.’ It doesn’t cover things like humiliating, offensive comments, things that are insulting.”
Mr. Dehaas noted, however, the Whatcott decision lays out a confusing definition of hate speech. That’s why the attorney general is asked to evaluate the cases, Mr. Dehaas said in a post on X.
The Whatcott case was about a man in Saskatchewan who distributed flyers about homosexuality. He spoke of “sodomy” from a Christian perspective and said it shouldn’t be presented to public school children. The manner in which he expressed these views was deemed “hate speech” by the Supreme Court of Canada.
Given the current widespread commentary on how gender and sexuality are treated in schools, Canadians may be hard-pressed to know where the line is between hate speech and voicing concerns.
“It’s difficult for me, a lawyer who works on free expression cases, to know exactly where the line is between protected speech and hate speech,” Mr. Dehaas said in a CCF release. “If this bill passes, I suspect many Canadians will now be too afraid of a human rights complaint to participate in policy debates around things like race, religion and gender.”
The bill also follows on other recent legislation giving the government regulatory powers over online content.
For example the Online Streaming Act (formerly Bill C-11) gives the government greater control over streaming services such as Netflix and Spotify. The Online News Act (formerly Bill C-18) requires tech companies to pay for Canadian news content on their platforms (and has led Meta to ban Canadian news links).
What’s ahead: The bill will make its way through Parliament, and it may be amended to address some of the concerns being raised. In the months to come, it will likely remain a focal point for debate over free expression and government control over the internet. =================================================================== |
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