TDF expresses concern over federal government's new censorship bill

The government claims Bill C-63 would keep Canadians safe from "online harm."

TORONTO: The government introduced the Online Harms Bill C-63 this week, which is the federal government’s latest attempt to censor expression in the name of keeping people safe from harmful online content. However, 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.

While The Democracy Fund (TDF) acknowledges that the government is justified in protecting against some harms, such as those that sexually victimize children, regulating other content, such as expression that “foments hatred,” threatens to suppress speech that may be offensive but not illegal.

The bill effectively re-introduces s.13 of the Canadian Human Rights Act - the notorious internet censorship provision that had been used to prevent online news outlets from discussing controversial subjects. Over time, s.13 had metastasized beyond its original purpose, until it had come to allow for private prosecutions of individuals and news organizations for alleged "hate speech." Prior to its repeal in 2014, the section was roundly condemned as overbroad and punitive.

In addition to empowering the Canadian Human Rights Commission, the bill creates a Digital Safety Commission, a Digital Safety Office and Digital Safety Ombudsperson - a vast new bureaucracy that would censor online speech through coercion of, and coordination with, social media companies. The Bill would threaten social media companies with heavy fines if they fail to “minimize the risk that users of the service will be exposed to harmful content." Rather than risk fines and prosecution, companies like Facebook and Twitter would most likely remove any material that could conceivably constitute "harmful content," resulting in sweeping censorship of marginal speech. The bill also requires social media companies to provide a mechanism for users to flag content that they believe is harmful, making them agents of the surveillance state.

The Criminal Code would be amended to make any offence punishable by life imprisonment if it was motivated by hatred based on identifiable grounds such as race or gender. However, courts are already required to consider "hate" as an aggravating factor on sentencing.  The theoretical imposition of a life sentence for a minor crime is also improper, given that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Perhaps most troubling is that the bill would allow for "pre-crime": it would amend the Criminal Code to allow a person to ask a court for a type of restraining order if they had reasonable grounds to fear that another person will commit a hate crime. Under certain conditions, the court would also have the power to order the person to wear an electronic monitoring device and obey a curfew.

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. For example, in a 2016 case a pro-life group from Alberta was accused by the City of Grande Prairie of propagating hatred against women for comparing abortion to murder in its advertisements. While there was no judicial finding on the issue, city lawyers deemed the comparison to be hateful. Hate crime prosecutions also inordinately affect racialized, marginalized and low-income communities, since they are often the target of government ire and fare poorly in the judicial system.

Senior litigation counsel for TDF warned, "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. 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."

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About The Democracy Fund:

Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education and relieving poverty. TDF promotes constitutional rights through litigation and public education. TDF supports an access to justice initiative for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.

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