Policing ‘hate speech’ terrible idea
The Liberal government’s proposed Bill C-63, the online harms act, is a terrible law that will unduly impose restrictions on Canadians’ sacred Charter right to freedom of expression. That is what the Liberals intend. By drafting a vague law creating a draconian regime to address online “harms,” they will win their wars without firing a bullet.
The consequences for violating the law are so severe that it should be expected that hardly anyone would risk violating it. Even news media organizations and big tech companies should be expected to avoid the risk. In this moment when we need it the most, robust political discourse in Canada could disappear with a whimper.
You don’t need to be cynical to make the observation that this bill contains deceitfully mixed purposes.
Of course, the Canadian public wants to protect children from online exploitation. Of course, Canadians are concerned about child pornography and insidious practices like “deep fakes” and “revenge porn.” Much of that is already addressed in the Criminal Code.
Unfortunately, these good intentions in the bill are just the lipstick on the pig. The terrible part of this proposed legislation is bringing hate speech back into the Canadian Human Rights Act. Hate speech was removed from the act more than a decade ago for a simple reason: It was a bad idea. It was unworkable and created far more problems than it solved.
It is still a bad idea. Because the definition of “hate speech” in Bill C-63 closely tracks the Supreme Court of Canada’s language in the 2013 Whatcott decision, you will hear the argument that this clears everything up, that the problems of the past will not prevail in the future.
The problem is, with all due respect to the court, Whatcott is a lousy decision. It does very little to explain where the fine line of hate speech begins and where honest but uncomfortable debate ends. “Oh, let the courts define it for us,” the politicians will say. What will the casualty list look like in the meantime, in the ten or 20 years it will likely take for the Supreme Court to rule on hate speech again? Whatcott came 23 years after the Taylor case, the previous time the SCC decided what hate speech means.
Under the current law, you have to be a complainant to receive a remedy from the Canadian Human Rights Tribunal. Under the proposed new powers, the tribunal will be able to award $20,000 to “any victim identified” in a communication deemed to be hate speech. How many victims might be identified if the hate speech is posted online? Is everyone who sees a hate speech message a victim?
WELCOME TO A NEW ERA OF SELF-CENSORSHIP.
In another new remedy power, the tribunal can order a fine of up to $50,000, payable to the government, having regard for the circumstances and the wilfulness or intent of the perpetrator. Weirdly, the tribunal is also asked to consider the perpetrator’s ability to pay the fine.
Since 2011 the tribunal has not been allowed to award legal costs to a successful complainant. The change resulted in many more complainants appearing before the tribunal without a lawyer. Bill C-63 carves out a new exception, but only for hate-speech cases. The tribunal will have new powers to award legal costs in those cases where abuse of process is found, making it easier to be represented: as it happens now in discrimination cases, there will be lawyers keen to represent hate-speech complainants on a contingency fee basis.
Another dangerous change involves allowing complaints to be made anonymously.
The current presumption is that all inquiries are conducted in public. The tribunal has the power to anonymize complaints under certain conditions, such as whether there is “a serious possibility that the life, liberty or security of a person will be endangered.” Fair enough.
Bill C-63 expands those considerations for hate-speech cases, which may be anonymized if the complainant or a witness may be subjected to “threats, intimidation or discrimination.” It’s now a much lower threshold. Secrecy, not transparency, will be the new normal.
Unrelated to discrimination, Section 60 of the Canadian Human Rights Act allows for summary conviction and a large monetary fine for other offences, such as obstruction of an investigation. We rarely see such a prosecution because it requires the consent of the attorney general. Under Bill C-63, consent from the attorney general is not required to go after anyone who breaches an order for anonymity in hate-speech cases.
All of this tinkering to create a big stick for enforcement, just for hate-speech cases, makes it clear that the intention of the bill is to stifle free speech and needed political discourse.
Lastly, the Tribunal needs experienced, skilful members who will be impartial, fair and neutral when deciding these hate-speech cases. Although Bill C-63 allows for the maximum number of members to be increased from 18 to 20, there are currently only 11. The tribunal is gravely under-resourced as it is, and cannot keep up with its current caseload. How will its members manage with the massive influx of new hate-speech cases, even if new members are appointed?
And there will be many, many new hate-speech complaints lodged. Why not? You might get $20,000, you might get a lawyer to take your case at no cost to you, and you might get to do it anonymously. It will cost you nothing.
Meanwhile, your online enemies will pay a huge price. We used to say at the CHRT that the process itself is the punishment. It takes years to bring a case to conclusion. No one wants to be a respondent to a human rights complaint. Everyone knows that, and that’s likely the point.
Criticism of government policies, like immigration policy for example, might suddenly become dangerous.
Welcome to a new era of self-censorship.
Free speech in Canada is about to be stifled. Don’t be fooled by the lipstick. This is terrible legislation.