Constitutional rights groups have expressed stark concerns over the Online Harms Act which was introduced in the House of Commons by the Trudeau government on Monday.
Presented as a means to protect Canadians from viewing harmful content online, the bill has become the subject of controversy due to its broad scope, with many critics arguing that it will lead to censorship en masse.
Groups like The Democracy Fund and The Canadian Constitution Foundation are aiming to sound the alarm now before the legislature is passed.
Bill C-63 would allow anybody to file complaints to the Canadian Human Rights Commission for any speech directed towards protected groups that they may feel to be discriminatory.
Complainants who, depending on the circumstance may remain anonymous, could be awarded up to $20,000, which could act as an incentive for some.
“This bill is a trojan horse. If allowed to pass, it would quickly release an army of bureaucrats and social media censors on the Canadian public,” wrote Mark A. Joseph, senior litigation counsel for The Democracy Fund on Thursday.
“The threat of criminal sanction and years of litigation at a human rights tribunal would silence most citizens from speaking on controversial subjects. The bill should be rejected by anyone who values their free speech rights.”
Executive Director of the CCF Joanna Baron called the bill “extremely concerning.”
“Justice Minister Virani has tied these speech restrictions to defensible measures like removing images of child sexual exploitation material and revenge porn,” said Baron.
“But don’t be fooled,” she added. “Most of the bill is aimed at restricting freedom of expression. This heavy-handed bill needs to be severely pared down to comply with the constitution.”
The commission’s findings would be based on a “balance of probabilities” metric, instead of what’s long since been understood under the Canadian criminal code as proof beyond a reasonable doubt.
This alteration will make defining what constitutes “hate speech” a very difficult and ultimately subjective task, leading many Canadians to err on the side of staying quiet at times when they perhaps shouldn’t, to avoid crossing what currently remains an unknown line.
“It’s difficult for me, a lawyer who works on free expression cases, to know exactly where the line is between protected speech and hate speech,” said CCF Counsel Josh Dehaas.
“If this bill passes, I suspect many Canadians will now be too afraid of a human rights complaint to participate in policy debates around things like race, religion and gender.”
Bill C-36 would also allow for judges to put prior restraints on people whom they believe on reasonable grounds may commit future speech crimes, meaning the accused would have the option of choosing between imprisonment or a “recognizance to keep the peace.”
This may include conditions like wearing an ankle monitor, giving a bodily sample and abstaining from drugs and alcohol.
“The bill is overbroad, replete with ambiguous language, empowers government censors and contains draconian penalties. If enacted and strictly applied, it will result in substantial and pervasive online censorship,” wrote The Democracy Fund in a press release on Thursday.
While the TDF acknowledged the importance of protecting citizens from online expression which foments hatred, they argue that Bill c-63 will more often suppress speech that may be offensive but is not illegal.
Social media companies would be required to report on how they dealt with content that had been flagged as harmful under the bill, which would encourage tech companies to censor speech that the government can’t necessarily outlaw for fear that they will face fines and other penalties from the government.
Essentially, the bill aims to reintroduce Section 13 of the Canadian Human Rights Act, an internet censorship provision that was once used to prevent online media outlets from discussing contentious subjects.
Section 13 was repealed by the Harper government in 2014 because the provision was too broad and punitive.
“The bill attempts to define hate as “vilification and detestation,” but the language is ambiguous and subjective. Thus, as with all such legislation that concerns speech acts, it will be selectively applied to disfavoured parties and political opponents,” wrote the Democracy Fund.
