Paul Tuns:

On Feb. 26, federal Minister of Justice and Attorney General Arif Virani introduced Bill C-63, the Online Harms Act in the House of Commons, which pro-life and civil rights groups say far exceeds the bill’s ostensible purpose of promoting online safety and could chill free speech in Canada.

According to the bill’s critics, the Online Harms Act would, if passed, be used to police so-called hate speech by granting the Canadian Human Rights Commission new powers to prosecute and punish non-criminal hate speech, creating a new “Digital Safety Commissioner” to police online speech, and imposing severe penalties for online “hate speech,” including up to life imprisonment.

A Justice Centre for Constitutional Freedoms (JCCF) brief on Bill C-63 said the “good intentions should be applauded” which include the desire to require that online platforms remove content that bullies children, sexually victimizes children, encourages children to harm themselves, or incites violence generally, as well as images of an intimate or pornographic nature that are posted without the consent of those depicted.

The problem, said the JCCF, is that “good intentions do not justify passing additional laws that duplicate what is already prohibited by Canada’s Criminal Code,” saying it would be better to expend resources on proper law enforcement of existing laws. The JCCF notes that Section 162.1(1) of Canada’s Criminal Code “already prohibits online and offline publication of an intimate image without consent” and that Section 163 “prohibits publication of obscene materials and child pornography.” Likewise, Section 264(1) prohibits criminal harassment and Section 319(1) prohibits the public incitement of hatred towards a group that is identifiable by race, ethnicity, religion, sex, sexual orientation, gender identity, gender expression and other personal characteristics. And “any online content that incites terrorism is already illegal.”

The JCCF said, “Those who support the Online Harms Act should explain why they believe that existing legislation is inadequate to address ‘harmful’ online expression.”

More problematically, are the provisions that could be used to stifle free speech as the new Digital Safety Commission’s (DSC) mandate is to enforce compliance with new regulations created by the federal cabinet to combat undefined “harmful content.” C-63 would also create a digital safety ombudsman, and the Digital Safety Office.

The left-wing Canadian Civil Liberties Association (CCLA) has also issued a warning against the Online Harms Act that it “raises serious concerns,” including turning (DSC) bureaucrats into “judge, jury, and executioner” for online conduct. It said that giving the new body the power “to interpret the law, make up new rules, enforce them” grants the DSC “sweeping powers” that “undermines the fundamental principle of democratic accountability.”

The CCLA said Bill C-63 includes “sweeping new search powers of electronic data with no warrant requirement, pose significant threats to privacy rights” and the law provides for “unacceptable intrusions into individuals’ digital lives.”

The JCCF said that Bill C-63 would grant new powers to the federal cabinet to censor speech without input from Parliament. The power to regulate without parliamentary votes, the JCCF warned, could lead to regulations with the force of law that have “come into force without any public consultation or debate.” There would be “no meaningful way to hold cabinet to account for the draconian censorship of social media services” when “harmful content” is posted.

The CHRC would attain new powers if C-63 becomes law, giving “unelected and unaccountable bureaucrats” the ability to prosecute and punish offensive but non-criminal speech they deem hateful. Those found guilty by the Canadian Human Rights Tribunal could be required to pay up to $50,000 to the government and an additional $20,000 to the person or people designated as “victims” by the CHRT. The JCCF said, “These significant financial penalties will discourage or eliminate necessary discussion on controversial but important issues in our society” as many Canadians “will self-censor to avoid the risk of being prosecuted by the Canadian Human Rights Commission.”

The part of C-63 garnering the most criticism is the addition to Section 810.012 to the Criminal Code, under which a complainant can assert they fear someone will commit a hate crime or genocide, and, if a judge believes them, subject the accused to wear an electronic monitoring device, obey a curfew or stay-at-home order, abstain from drugs or alcohol, cease communication with a designated person, be banned from certain places, or surrender legally owned firearms, even if he or she has not been convicted of a crime. These “pre-emptive violations of personal liberty when no crime has been committed,” the JCCF said “repudiates centuries of legal tradition that rightly reserved punishment for what a person had done, not for what a person might do.” A person who fails to agree to these court-ordered punishments is subject to up to two years in prison. The JCCF said, “Our criminal justice system is not supposed to function this way.”

John Fund, writing in the New York-based National Review, compared the proposed law to the 2002 Tom Cruise Movie Minority Report in which “an authoritarian government apprehends people under a ‘pre-crime’ program, in which clairvoyants claim foreknowledge of criminal activity before it is committed.”

The Online Harms Act would amend the Criminal Code punishment for advocating for genocide from five years to life in prison. This blurs the distinction between speech and actions. The JCCF said “the punishment of a five-year prison term is already an adequate deterrent for words alone.” Numerous commentators online noted that many people who commit actual violent crimes are not sentenced to life imprisonment. The draconian punishments, the CCLA warned, “not only chills free speech but also undermines the principles of proportionality and fairness in our legal system.”

There is widespread concern about the chilling effect of C-63 on freedom of speech and freedom of expression.

The CCLA said “Bill C-63 risks censoring a range of expression from journalistic reporting to healthy conversations among youth under 18.” It said, “The broad criminal prohibitions on speech in the bill risk stifling public discourse and criminalizing political activism.”

Marty Moore, litigation director for Charter Advocates Canada, said the new Digital Safety Commissioner raises “serious concerns for freedom of expression” in Canada.

Moore told LifeSiteNews that Bill C-63, if passed, allows for the “creation of a new government agency with a broad mandate to promote ‘online safety’ and target ‘harmful content’.” Moore said, “The use of the term ‘safety’ is misleading, when the government through Bill C-63 is clearly seeking to censor expression simply based on its content, and not on its actual effect.”

Josh Dehaas, a lawyer with the Canadian Constitution Foundation, told the Globe and Mail the threat of being reported to the CHRC will chill speech for comedians, political commentators, activist groups or “people just trying to have difficult conversations about things like gender or immigration or religion.” Dehaas explained, “Allowing people to seek compensation at a human rights tribunal for their online speech will chill a huge amount of protected expression and prevent the kinds of raucous debates that are sometimes necessary in a democracy.”

Michael Geist, the University of Ottawa’s Canada Research Chair in internet law, went further, told the Globe and Mail he could see some activists trying to “weaponize” the complaint system to shut down debate. “There is a danger, a risk of a chilling effect,” he said.

Campaign Life Coalition campaigns director David Cooke said in a March 11 blog post, that along with previous laws passed during his tenure as Prime Minister, (C-11, C-18, C-4), C-63, the Justin Trudeau Liberals are completing their “devious plan to create a powerful online censorship regime.”

Cooke warned that combined with the previous laws, “Bill C-63 spells the end of any meaningful pro-life, pro-family, and pro-freedom discourse on the Canadian internet.” He said that anyone who falls “afoul of the new law by posting what may be misconstrued as homophobic, transphobic, or misogynist ‘hate speech’ could face” huge fines and time imprisoned for their views. He compared life sentences for Canadians who commit “wrong-speak” to prisoners of conscience in communist countries. Cooke wondered whether opposing abortion would be considered hate speech against women or standing up for women-only intimate spaces or sports competition might be considered “transphobic” hate-speech. Cooke said, “our very own Campaign Life Coalition website, which presents research and discussion on almost every hot-button issue” will “come under fire.”

Cooke said C-63 “will certainly do more harm than good if it passes into law” by “transforming our beloved country into a new type of woke totalitarian state, where liberal dogma is sacrosanct and free speech is dead.”

Not all legal experts agree that Bill C-63 poses a threat to free speech. Dax D’Orazio, a postdoctoral fellow in political studies at Queen’s University, said authorities would take into account intent and context when adjudicating complaints. Justice Minister Virani said there would be no chilling of free speech because the law would not be used to go after what he characterized as “awful but lawful” speech.

CLC national president Jeff Gunnarson told The Interim, “The government is trying to get a censorship bill passed under the guise of protecting children.” He urged Parliament to defeat C-63, echoing the JCCF, which encouraged MPs to vote against the legislation.

In a press release issued by the CCLA, Noa Mendelsohn Aviv, its executive director and general counsel, called on the Trudeau government to substantially amend Bill C-63, saying that in its present form the bill “includes over-broad violations of expressive freedom, privacy, protest rights, and liberty.”

Conservative Party of Canada leader Pierre Poilievre, who came out against C-63, rose in the House of Commons to accuse the Trudeau government of looking for ways to censor the internet. He previously said that “What does Justin Trudeau mean when he says the word ‘hate speech’? He means speech he hates.”

A statement released by the Official Leader of the Opposition office said that the Conservative Party did not believe in “censoring opinions.”

The Christian Heritage Party has also opposed bill C-63. CHP leader Rod Taylor said, “The Online Harms Act must be stopped,” because the legislation’s goal is “eliminate dissent.” Taylor explained if Trudeau succeeds in getting the bill passed, “more Canadians will spend time in the Gulag, our grandchildren will wonder what ‘free speech’ was like, and why we allowed it to be taken from us.”