Liberals’ plans for stiffer hate-crime sentences attacked

OTTAWA — 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 bill this week, touted 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 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 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.”