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Canada’s authoritarian response to free speech

Prime Minister Justin Trudeau and the Liberals introduced Bill C-63, or the Online Harms Act, on Feb. 26. The purpose of this Act is to go after so-called hate speech on the Internet, and to “amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts.”

While that may sound like a noble effort, it’s not when you dig deeper. Trudeau’s bill may actually rank among the most authoritarian and draconian ever introduced in a democratic country.

What makes Bill C-63 so egregious? As the Act currently stands, it would have a chilling effect on free speech and public discourse in Canada. It would create new, unnecessary additional layers of government to monitor online comments, discussions and activity – all paid for with taxpayer dollars. It could lead to hefty fines and possibly jail sentences for some Canadians. It could even lead to judges issuing penalties like home arrest based on a hunch rather than an actual crime.

These characteristics of Bill C-63 (and more) are nightmare scenarios one would expect from a totalitarian state and rogue nation, not a democracy like Canada’s.

Our Criminal Code already deals with much of Bill C-63’s focus on hate speech. Section 264, for instance, covers criminal harassment of individuals which would cause a person to “reasonably, in all the circumstances…fear for their safety or the safety of anyone known to them.” There’s also Section 319 (which deals with “public incitement” and “willful promotion” of hatred) and Section 157 (which deals with “sexual offences, public morals and disorderly conduct”). These sections and others would be applicable to cases related to Internet-based child pornography, racist behaviour and hateful remarks.

Meanwhile, the Canadian Human Rights Commission, founded in 1977, examines issues and complaints related to speech and racism in the workplace. The CHRC also used to hear complaints based on Section 13 of the Canada Human Rights Act, which focused on online communications that were “likely to expose a person or persons to hatred or contempt.” This controversial section, which led to high profile complaints against media commentators Mark Steyn and Ezra Levant, regularly turned off most on the political right – and, in due course, many left-leaning voices who recognized it did far more harm than good. Section 13 was finally repealed by the Canadian Parliament in June 2014.

Alas, Trudeau and the Liberals have made several attempts to introduce flawed concepts of online hate speech legislation. This includes the failed Bill C-36 in 2021, which was criticized by left-leaning and right-leaning commentators in Canada and abroad as being draconian and an affront to free speech. Now, they’re seeking to bring back Section 13’s worst elements from the grave and create a whole new monster with Bill C-63.

This new bill would enable a person, “with the Attorney General’s consent, [to] lay an information before a provincial court judge if the person fears on reasonable grounds that another person will commit” an offence. A judge could choose to issue a peace bond from a list of conditions, including home arrest and an electronic tag, if it’s feared someone could commit a hate crime. Yes, you read this correctly: it could theoretically be done without the person committing a crime.

Bill C-63 could lead to fines of up to $50,000 per person based on a supposed “balance of probabilities” rather than, it appears, proof of criminal intent. Social media services that don’t comply with the Act could face penalties of up to 6 percent of gross global revenue or $10 million, whichever is greater. Anyone found guilty of “advocating genocide” online could lead to anywhere from five years in prison to life behind bars.

To make matters worse, Bill C-63 would empower people to send the CHRC complaints related to what they perceived as hate speech online. It could be anything from an antisemitic remark to a racy, off-colour joke by a comedian on social media. Every person found guilty would have to pay the “victims” up to $20,000, plus whatever legal fees are involved. There appears to be no limit of how many complaints could be sent off per person, either.

The Online Harms Act could potentially turn into a profit-generating industry for Canadians with certain political and personal agendas. The bill could “open the door to this massive influx of complaints,” as Michael Geist, the University of Ottawa’s Canada Research Chair in Internet law, recently suggested to the Globe and Mail. He fears some people could “weaponize” Bill C-63 and “there is a danger, a risk of a chilling effect.”

Bill C-63 would also be a massive threat to free speech. Josh Dehaas, a lawyer with the Canadian Constitution Foundation, told the Globe and Mail “we’re very concerned that comedians, and even people just trying to have difficult conversations about things like gender or immigration or religion, are going to be faced with complaints.” Or, as Canadian Civil Liberties Association executive director and general counsel Noa Mendelsohn Aviv said to the Canadian Press, it would lead to difficulties in establishing the differences between “political activism, passionate debate and offensive speech.” Bill C-63 would cloud this interpretation even further.

Finally, this bill would introduce a Digital Safety Commission of Canada to “ensure that operators of social media services in respect of which that Act applies are transparent and accountable” and “contribute to the development of standards with respect to online safety.” There would also be a Digital Safety Ombudsperson of Canada, which would “provide support to users of social media services in respect of which that Act applies and advocate for the public interest in relation to online safety.” As well, there would be a Digital Safety Office of Canada, which would “support the Digital Safety Commission of Canada and the Digital Safety Ombudsperson of Canada in the fulfillment of their mandates.”

Ottawa would acquire the ability to get involved in decisions about perceived online harm that should be left up to our courts to decide. That’s exactly what our country doesn’t need.

Trudeau’s decision to go back to the online hate speech well once more, in spite of the fact it remains as dry as a desert, is a poor one. The only harm he’s creating is to the cherished principle of free speech, which he seemingly has little to no respect for.

Michael Taube, a long-time newspaper columnist and political commentator, was a speechwriter for former Canadian prime minister Stephen Harper.


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