Online Hate Act has real flaws
The federal government is clearly worried about the onslaught of criticism of its newly introduced Bill C-63, the Online Harms Act. That criticism has come from all corners, including civil society groups like the Canadian Civil Liberties Association and the Canadian Constitution Foundation, which I work for.
Academics have warned about amendments to the Criminal Code and Canadian Human Rights Act chilling speech, and about the expansive search powers for the proposed “Digital Safety Commission.” Thousands of regular citizens have written to their members of Parliament asking them to stop and fix the bill.
To address this criticism, the government has held technical briefings to assuage the media, and recently dispatched Supriya Dwivedi, a senior adviser to the prime minister, to defend the bill in these pages. Dwivedi assails critics of the bill as “rage farming,” but defends the bill by setting up cherry-picked strawmen.
For example, Dwivedi argues the critics of peace bonds for hate speech are suggesting peace bonds are a “novel concept” invented by the Liberal government. Serious critics are not saying this. The real concern is that unlike existing peace bonds, the proposed peace bonds for future speech are inherently speculative.
Compare peace bonds for speech with peace bonds for terrorism. With terrorism, courts can be far more certain about the risks. It is obvious if a person has bought materials for a bomb, and there is more certainty about what an act of terrorism looks like. With hate speech, the court will need to speculate about what future speech exists in the mind of the speaker, and whether it will meet the inherently subjective definition of hatred.
This definition of hatred, which Dwivedi points out, is derived from the case law, specifically Saskatchewan v. Whatcott. However, this is not the slam-dunk defence Dwivedi appears to believe it is. Relying on the Whatcott definition does not solve the problem of defining what hatred is, since it essentially defines hatred with reference to itself, using synonyms like “detestation” and “vilification.”
This is, admittedly, a difficult knot for courts and governments to untangle. But enshrining a complex definition that the public cannot easily understand creates obvious problems, especially when the public is empowered to use that same definition to apply for peace bonds against their fellow citizens and any potential future “hate” speech as Bill C-63 permits.
If C-63 passes, the public can also rely on this definition to bring civil claims for hate speech to the Canadian Human Rights Commission. The return of the civil remedy, which was previously used to bring claims against journalists, opinion writers and clergy, is a massive mistake.
Individuals who complain to the commission bear no costs in bringing a complaint, but defendants will almost certainly need to retain a lawyer even for the investigation stage. That section of the Canadian Human Rights Act was rightly repealed. Its return, combined with the amorphous definition of hatred, will chill speech.
Finally, there is the newly proposed stand-alone criminal penalty for hate speech. This provision would turn any federal offence into a potential hate crime, with a maximum penalty of life imprisonment. Dwivedi gives the example of murder motivated by hatred.
But Bill C-63 does not limit this provision to violent crime; it also applies to more minor offences, such as mischief or vandalism. These crimes are worthy of penalty, but life imprisonment is wildly disproportionate. While there are principles about proportionality in sentencing, charges can still be laid with the threat of serious penalty. Allowing the prosecution to threaten higher penalties for minor offences by tying the offence to hate will give them power to pressure defendants to plead out, including in cases where the defendant is marginalized, poorly represented and where the threshold isn’t met.
These criticisms are not “ragefarming” or “bad faith.” Free speech is not a threat to peace, security and democracy. It is a precondition for them. This government would do well to remember that, and to listen to its critics instead of attacking them.
Free speech is not a threat to peace, security and democracy. It is a precondition for them. This government would do well to remember that