First there was Bill C-11, an Act to amend the Broadcasting Act in 2023, which gave the government the ability to regulate internet content, or at least some more direct oversight. It’s stated purpose was to give “Canadian broadcasting a framework to ensure online streaming services make meaningful contributions to Canadian and Indigenous content”.
Then along came Bill C-36 which offered up in a long-winded explanation of their mandated need to amend the Human Rights Act. It stated that it would be an offence to engage in “… a discriminatory practise to communicate or cause to be communicated hate speech by the means of the internet or other means of Telecommunication in a context in which the hate speech is likely to foment detestation or vilification of an individual or a group of individuals on the basis of a prohibited ground of discrimination”. One needs to remember the words detestation and vilification as they re-surface in this latest legislative manifestation which is Bill C-63. An Act to Amend the Online Harms Act.
For the purposes of this blog, we will only speak to this latest bill which has now drawn the ire and prompted warnings from many fronts, even esteemed author Margaret Atwood, who has called it “Orwellian”. She warns us that “the definitions or lack of them in the law as to what constitutes punishable speech and or thought are so vague as to invite abuse”. Michael Geist, a law professor at the University of Ottawa points to the fact that the commission which is to enforce these latest proposed rules is not “bound by any legal or technical rules of evidence”.
To understand these growing concerns you have to sort through the interminable language and legal nuances that typically run through every piece and form of government legislation and explanation. Bill C-63 is what is called an Omnibus bill, a grouping of various Act changes all rolled into one. This type of packaging should come with a warning, as it is often used as a tactic to obfuscate some of the more controversial proposals by wrapping them around other changes.
It is clear that Bill C-63 is first and foremost an online harm bill, aimed to “reduce harms caused to persons…as a result of harmful content” that comes primarily by way of social media. It is hoping to put a stop to the online bullying and harassing, often using sexual innuendo in words and pictures as a damaging weapon. The government wish to transfer responsibility to moderate or eliminate this activity, on to the purveyors of social media and to hold them “accountable with respect to their duties under the Act”. In terms of purpose, few would argue with the intent. Whether it can be accomplished through legislation is a second real question. In any event, they are going to require that social media services submit “digital safety plans to a Digital Safety Commission”, which sounds about as “Orwellian” as George Orwell imagined.
Of course, whenever government undertakes anything, it also means the growth of more bureaucracy. In this case they want a Digital Safety Commission consisting of 3-5 appointed persons on five year terms, and a Digital Ombudsman who will advocate for the “public interest”. Those working for the Commission (they are allowed to hire “any employees are necessary” )will have authorized and unrequited access to “inventories of electronic data of the operators of the social media services”.
This legislation is also bundled with some amendments to both the Criminal Code and to the Canadian Human Rights Act (CHRA). The Criminal Code will be amended to first and foremost define “hatred”. They will also “create a hate crime offence…” when that offence is “motivated by hatred based on certain factors”.
The CHRA amendments go further and make it an offence for any instance “in which the hate speech is likely to foment detestation or vilification of an individual or group of individuals on the basis of a prohibited ground of discrimination” and “content that foments hatred..” or “incites violence”. Also, alarmingly, “the Commission is not bound by any legal or technical rules of evidence, which includes the right to get a warrant to enter a dwelling house”.
Clearly, as stated previously, the nexus of this series of amendments intent is aimed at “intimate content online” and the “victimization of children”. But the problem is that it strays and has an amoeba like ability to stray into a broader definition of any “content that incites violence, extremism, or terrorism, or content that foments hatred”. So how does one define “foment” or for that matter “hatred”. The definitions are subjective and can take on different levels of seriousness. Foment can mean; to instigate, to provoke, inspire, encourage, generate, kindle, or fan the flames. Hate can also be described according to the dictionary as; loathing, dislike, resentment, aversion, or animosity.
It is the reason why most online law experts say that the Act as written due to these broad definitions, violates constitutional and privacy rights. That the social media groups if forced to comply would by necessity have to rely on artificial intelligence and algorithms to mediate their platforms, and this will by its very nature cause a “disproportionate use of censorship”. The Canadian Civil Liberties Association point to the sections which allow searches of electronic data without warrant, which would grant sweeping powers to a single government un-elected agency and could be in a position to censor strong opposition to political authorities. The Canadian Constitution Foundation focuses on the words “detestation” and “vilification” as being too broad and they believe it would widen the various grounds of discrimination. The punishment by the way for a contravention of the hate laws should one be convicted of a “hate crime” can be as much as a “life sentence” –under these Criminal Code amendments.
Interestingly, there is even a provision which allows for a peace bond to be obtained– if someone or some group were “likely to create a hate crime”. In other words there will be an ability to exercise what they call “prior restraint” under this Act. If a Judge believes that there are “reasonable grounds” to fear some “future” hate crime, that person can be sentenced to house arrest and electronic tagging. Keep in mind a peace bond needs only one person to proceed if they can convince a Judge of their concern.
When you look at the continuum of government legislative moves, including Bill C-11 and Bill C-36 you can clearly see a rather ominous pattern. They are models of government trying to grasp greater control of what we see, read, and listen to. Also troubling is that these most recent legislative attempts are well hidden, disguised in the world of good intentions, covered with the cloak of big brother. In trying to get to the motivation one wonders if this progressive Liberal government is simply overwhelmed by the need to react. To see any evidence of public outrage as a time for them to act. In this case, online harassment and the tragic cases like Amanda Todd have been receiving constant and continued attention and the government feels the need to protect us and thus gain our continuing support.
A further question is whether it is possible that in order to be seen to be proactive and in their knee jerk reactions they produce a piece of legislation without enough scrutiny as to the side effects or results of their activism? If one considers the levels of bureaucracy and the layers of legal scrutiny that act as filters before something becomes legislation it would seem unlikely that the government has just not thought it, so if government ineptitude is not the case, then the explanation becomes a lot more sinister.
John Stuart Mill, considered one of the most influential philosophers of the 19th century who wrote extensively on the history of liberalism, described the need for protection from the “tyranny of the magistrate” and the need for protection from the “tendency of society to impose its own ideas and practices as rules of conduct on those that dissent from them…” He referenced it as the “tyranny of prevailing opinion”.
It does seem clear that this Federal government has a fundamental precept that they know better, that they in their elected duty, have been entrusted to look after us; the flip side being that we can not be trusted to look after ourselves. This, they constantly argue is all for the betterment of a progressive society and therefore self-justification to extend into every aspect of our lives. This philosophy is not new, it has been going on for some time. Rules and regulations now already saturate our work places, our private lives, where we live and how we live. We can not be responsible therefore they will be responsible for us.
This most recent legislation will protect all of us from “harm”. It is a laudable goal to be sure when it comes to the targeting of children and teens by those wanting to exploit them. However, this government whether through lackadaisical legal drafting or in a conspiratorial way is trying to gain the upper hand in what is written or spoken against their agenda. Maybe this government has been emboldened by the use of the Emergencies Act, and Covid 19, where they proved that Canadians will go along with even some of the most draconian measures –if they can be convinced that it is merely to protect them, to keep them out of harms way.
And if you think it may be far fetched to think that persons could try and control speech through this particular piece of legislation, consider this; currently, there is a lawyer in Saskatchewan, Eleanore Sunchild, claiming that residential school “denialism” should be included in the Criminal Code as a criminal offence and is equivalent to Holocaust denialism and therefore a “hate crime”.
Bill C-63 for all these reasons should be considered completely unacceptable. This Federal government unwillingly or intentionally is leading us into very dangerous territory. It is hard to believe that most Canadians continue to not pay attention.
Photo courtesy of Flickr Commons by Apionid – Some Rights Reserved
Behind the Yellow Tape 