Legal experts say efforts ‘overboard’
Critics warn of consequences of proposed changes to Criminal Code and Human Rights Act
Some of the Liberal government’s proposed efforts to crack down on hate speech and hateful conduct has some experts wondering whether Ottawa has gone too far in introducing legislation that was initially meant to address dangerous content on social media.
Last week, Justice Minister Arif Virani introduced Bill C-63, a sweeping piece of legislation largely aimed at regulating how social media platforms should respond to harmful content online. That part of the legislation, the Online Harms Act, would focus on egregious content that targets youth, disseminates intimate images without consent, promotes hatred, or incites violence, terrorism or violent extremism.
The ways in which the federal government is proposing to regulate that has been, for the most part, well-received by those who criticized earlier versions of the bill for their perceived potential to chill free speech.
But another part of the bill, which outlines several amendments to the Criminal Code and the Canadian Human Rights Act, is raising eyebrows as the possible consequences of the legislation begin to sink in.
“I call it a poison pill because I think it is poisoning the debate — a legitimate, policy-oriented debate — that we should be having about the online harms portion of this bill,” said Vivek Krishnamurthy, a member of the government-appointed expert panel tasked with advising Ottawa on the final version of the legislation.
Two proposed changes to the
Criminal Code have ignited criticism that they are overly broad and even “draconian.”
One amendment would create a stand-alone hate crime offence that could be applied to every offence in the Criminal Code and all acts of Parliament. The offence could come with a maximum penalty of life in prison. Another amendment involves increasing penalties for hate propaganda offences — in particular, extending the maximum penalty for advocating for or promoting genocide from five years to life imprisonment.
“Harsher sentences do not create a greater deterrent, and the Criminal Code has a real effect on people’s lives which should not be the way to send a message,” said Noa Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association.
Mendelsohn Aviv said the government’s decision to propose such extreme sentences — which she called a “government gone overboard situation” — feels more like a political statement than an effective measure to curb hate.
Shaheen Shariff, a James McGill professor at McGill University who has long studied law, policy and human rights, says courts and governments must also be careful with harsher penalties for promoting genocide, in light of the political and societal tensions sparked by the Israel-Hamas war.
“How (will) that work? Who defines it?” said Shariff, who also believes the proposed sentences are too high. “It’s so subjective. How can we be more objective about what hate is in today’s climate? There’s very little agreement.”
Krishnamurthy, now a law professor at the University of Colorado, said the onus is on the government to be exceedingly precise with its language. Otherwise, Ottawa is simply laying the groundwork for an influx of court challenges, a view shared this week by former Supreme Court chief justice Beverley McLachlin on a podcast with the Public Policy Forum.
Changes to the Canadian Human Rights Act have also dominated the response to the bill. Among the proposed amendments is one that would allow people to file complaints to the Canadian Human Rights Commission about hate speech online. Those complaints could be sent to the Canadian Human Rights Tribunal to decide whether the content should be removed or if financial penalties for pain and suffering are warranted.
Critics say the commission, which already deals with a high volume of complaints, may not be able to withstand an expected deluge.
The swell of criticism over such provisions prompted the Justice Department this week to clarify its rationale for amending both acts, in an attempt to assuage fears that the legislation could put people behind bars for life for minor offences.
Government officials, speaking to reporters on a background basis during a technical briefing, underlined that courts will only impose sentences proportionate to the gravity of the offences committed. Under the new hate crime offence, less serious offences like property damage and forms of mischief motivated by hate would have lower sentences.
“At the higher end of the sentencing range up to life imprisonment, we would expect to see existing Criminal Code offences that are already punishable by a maximum of life imprisonment, such as aggravated sexual assault and attempted murder,” one official said.
In rare cases, the new offence could be paired with violations to other acts of Parliament, like “war crimes under the Crimes Against Humanity and War Crimes Act, or some offences under the National Defence Act, such as spying,” the official said.
Another intent behind creating the new offence is also to help with statistical tracking — responding to a key request from racialized and religious minority groups, the government says — to improve how crimes are being “charged, prosecuted and addressed by the courts.”
But Mendelsohn Aviv says those goals — while well-intentioned — have been poorly executed.
“If they had intended to limit it to very, very serious offences with very serious penalties, then the legislation should have said so,” she said. “With respect to the second point about collecting data … it is high time that the government took it seriously and collected the data so that they can address it. But that doesn’t mean they have to resort to this method, which has other concerning consequences.”