Civil liberty, law critics say stiffer hate crime sentences ‘troubling’
The Liberal government is proposing “draconian penalties” in the Criminal Code as part of its sweeping plan to target online hate, the Canadian Civil Liberties Association warns.
Justice Minister Arif Virani tabled the long-awaited bill earlier this week, billed as a way to address dangers that children face online.
It also includes the introduction of stiffer penalties for hate offences.
The bill proposes increasing the maximum punishment for advocating genocide to life imprisonment, and allowing sentences of up to five years in prison for other hate propaganda offences.
The national civil liberties group says higher sentences risk chilling free speech and also undermine “the principles of proportionality and fairness” within the legal system.
Noa Mendelsohn Aviv, its executive director and general counsel, said in an interview Wednesday she sees significant liberty issues throughout the bill.
There are problems, too, with the proposal of a digital safety commission that would be given sweeping powers to regulate social-media giants, she said.
When it comes to hate speech offences, she said she’s concerned because of the difficulty of distinguishing between “political activism, passionate debate and offensive speech.”
To address such concerns, Virani has said the government is seeking to clarify the definition of hatred to reflect Supreme Court rulings on the matter.
It will be newly defined as “the emotion that involves detestation or vilification” that is “stronger than disdain or dislike.”
The bill also lays out that a statement that “discredits, humiliates, hurts or offends” would not meet the bar to be considered promoting or inciting hatred.
University of Windsor law professor Richard Moon, who specializes in freedom of expression, welcomes the move.
It will help both authorities and the general public to better understand that courts view hate speech in a narrow sense, he said.
Defining hate in the Criminal Code also helps spell out what it’s not, said Kyla Lee, a British Columbia-based lawyer who chairs the criminal justice section of the Canadian Bar Association.
Historically, she said, it’s been difficult for prosecutors to prove when an offence has been motivated by hate for reasons that include a lack of clear definition.
Moon said the bill’s stiffer sentencing changes are “troubling” because there’s no reason to believe they will work as an effective deterrent.
And it’s unclear, he said, how the government’s plan to create a new stand-alone hate crime offence would work, since hate can already be used as an aggravating factor in sentencing.
As proposed, the new offence would carry a potential sentence of life imprisonment.
“The idea that this could possibly carry with it life imprisonment ... makes little sense to me,” Moon said in an interview Wednesday.
In theory, he said, mischief or vandalism motivated by hatred could be seen as a hate crime.
And though it’s unlikely a judge would consider life imprisonment in such cases, “just the idea that is in theory an available sentence seems surprising, shocking to me,” he said.
He said it’s a “dramatic” increase and “quite a troubling development.”
Jewish advocacy groups have welcomed the proposed changes, citing a sharp rise in antisemitism since the Israel-Hamas war began last fall.
Lee said as a national association, it advocates for criminal law not being wielded as an instrument to solve societal issues, noting that police-reported hate crimes have been on the rise since the arrival of the COVID-19 pandemic in 2020.
“It’s bowing to political pressure for more tools to be given to law enforcement to deal with the increase in hate,” she said of the changes.
In unveiling the potential life sentence for advocating genocide, Virani said he heard through consultation with stakeholders that the penalty should be increased.
He also said creating a new hate crime offence is meant to give police and Crown prosecutors more options.
To lay a hate propaganda charge under current Criminal Code provisions, such actors need to get permission from attorneys general. The new offence would not require that.
Virani said after the release of the bill that there had been some “misunderstanding” around the proposed offence and whether it would carry a punishment of life imprisonment.
He said the intention is not for the offence to be used alone, but rather in conjunction with other offences.
“Think about a theft, think about an assault, think about a rape, think about a murder — in certain contexts, what this will make available to a judge is that when they twin the fact of a murder with hate motivation, they could potentially apply something as significant as a life sentence,” he said.
A life sentence under Canadian law is 25 years long.
Virani said judges have discretion on how and whether to use that level of sentencing.
“It is not a mandatory minimum. It is a potential maximum.”
Lee suggests it’s not likely an accused will face a life sentence for a hate-based offence outside of killing someone, which already carries a maximum penalty of life.
Mendelsohn Aviv said introducing a new hate offence could lead to misuse by police and potentially affect someone’s ability to a fair trial, given there would be a stigma associated with it.
Dealing with accusations of hate at the sentencing stage runs fewer risks, she said, because at that point evidence has already been presented and the accused has been convicted.
RCMP commissioner Mike Duheme welcomed the legislation, particularly tougher sentencing provisions and the move to make tech companies bear more responsibility for what happens online.
At this point, the RCMP believes it could enforce new measures ushered in by the bill without additional resources, Duheme said.
However, after seeing “what this generates,” the force could look at any need for fresh resources, he added.
Conservative Leader Pierre Poilievre has said he would prefer police and criminal courts to tackle online harms against minors, rather than a regulator.
On Thursday, Virani said that approach ignores the wishes of victims who are asking for materials to be removed altogether and much more quickly than is currently the case.
“What I’ve heard resoundingly from law enforcement itself is that they need more responsibility from online platforms,” he said.
“This stuff spreads virally very, very quickly. And when it stays online ... even if you are successfully able to prosecute the offender, the revictimization of that individual child or that woman remains for years thereafter.”
-- with files from Jim Bronskill