online harms act | Behind the Yellow Tape

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

This probably is a bit of a heavy and somewhat dry topic, when most of us are trying to enjoy these care free summer vacation months. However, politics is very much in the air right now. In my particular part of the world there is a Provincial election, and an upcoming Federal election; neither of which am I confident I am going to like the end results. In the rest of the world, there have been swings in the electorate in the United Kingdom, which has moved to the left with the Labour Party; and in France, as of today, it is a country stuck in the middle. The French government is neither right or left and nobody wants to coalesce with the other.

I will admit that over the years, the longer I pay attention, the more I lean to some level of a libertarian philosophy in my outlook, a growing belief that less government is more the ideal. My wishes are clearly out of step, as the governments in this country are already controlling almost every facet of our daily lives through rules, taxation and regulations. Their belief is grounded on the firm commitment to the fact that they know what is good for us, and that they need to protect us from our own self-interest. The Federal government, and a variety of NDP Provinces in the passing in their legislative initiatives seem hell bent on bringing their brand of socialism to the country. Interestingly, in portraying what they believe are just causes, completely turn away from the term “socialist”. Which can only be interpreted to mean that they can fool most of the people most of the time.

During the Russian Revolution in 1917 we came to distinguish between “revolutionary socialism”, or Communism and “evolutionary socialism”. In the latter category, the proponents sometimes refer to themselves as “social democrats”. Socialism as a movement in Canada is not new, history shows us that there have been many times that we Canadians have entertained and sought a socialist political remedy: the Socialist Party of Canada was in 1904, the Social Democratic Party in 1911, the Communist Party of Canada in 1921, the CCF IN 1932 and the NDP in 1961. It started with Tommy Douglas in Saskatchewan in ____ but since then there have been NDP governments in BC, Saskatchewan, Manitoba, Ontario and the Yukon.

Socialism’s corollary is that socialism by its nature necessitates a growth of government in all its forms. More rules and regulations are to be developed in an effort to help the “working class”. It is a political doctrine that at its base feels the need to criticize the existence of social, economic, and political inequality in society. Hinged to this theory is that only government of the people can effect the necessary changes to the social order. They believe that there is a need to limit the excesses of private ownership and a wish to expand public ownership. Therefore the state is responsible for planning– to eliminate those cycles of un-controlled capitalism.

Which brings me finally as to what is the role of the police in a socialist state? Are the police a reflection of the state? Should we care? Revolutionary socialists are for the most part against the police, because in their definition they are an arm of the proletariat and therefore there only to oppress the working class. Paradoxically, most revolutionary socialists agree however that no enforcement often leads to outright chaos. Just ask the people of Portland Oregon how their experiment with no policing worked out. At the other end of this continuum, on the far right, is a state run by a despot or dictator, where the police are there to serve only the needs of the people in power. The examples for both of these extremes is an extensive list.

In Canada, we are somewhere in the middle of that bell curve, but there have been times that the pendulum has swung the police dangerously close to the narrow ends of that graph. The Convoy protest in Ottawa and the imposition of the Emergency Measures Act, clearly moved the police to the despotic end; while the protests and de-funding of the police initiatives clearly moved the police to the left end.

In an interesting article about “professionalism” in policing, the authors argue that when people make “careers” out of policing, it creates an environment of police officers there to simply “carry out orders”; that they become part of the ruling class and just “reflective of the state”. But I digress.

I believe like most police officers that policing must be; professionally effective, accountable and legitimate. This serves to consolidate a democracy. The police should be there to serve society rather than the state. They have to be legitimized by the public and to be legitimate: they must adhere to the law and due process, need to be subject to controls, need to be accountable and transparent, and they must be politically neutral. It is a fine but distinct line and to walk it requires a degree of political sophistication and insight that often seems lacking in our current police leadership. Today for example, it would be hard to argue that police management is either transparent or politically neutral, which again reflects on any claims of legitimacy.

So even though political philosophy is often a topic that causes many to roll their eyes and take a nap, police organizations and their leaders need to be wholly cognizant and continually thinking about the role of government versus the role of the police. As the government encroaches on the rights of the private individual in order to give over to the general good, we need to be paying attention as an enforcer of laws as to whether you are acting for society or the state.

Should anyone doubt Canada’s creep into socialism, one only needs to look into the statements of Justin Trudeau or Chrystia Freeland. Both have made pronouncements and proposals clearly aimed at re-ordering the social order in Canada. National Day Care and National Dental care, are in the end, examples of those governments beliefs. They have recently introduced Bill 63, the Online Harms Act which some argue will give the government the ability to censor speech. They have recently imposed an increase in the capital gains tax, to have the rich pay more for the poor, as they paint themselves in the media as Robin Hood. They have brought in Bill C-!8, the Online News Act forcing Google and Meta to pay $100 million to news organizations and they determine the distribution of those monies. They subsidize the national CBC to carry their message forward. In the government of Quebec they even regulate the language that can be used in business. In BC the government has closed Provincial parks to the public, allowing access to the Indigenous only as part of their solution to injustice. Governments regulate how we eat, how we live, and where we live and we pay them exorbitant amounts of money in the form of taxes to do that for us. The private individual is always subsumed for the good of the greater good.

So as the country moves to a full socialist imperative how are the police forces going to react? Will they become agents of the state, or will they be agents of society? Since the RCMP can not fulfill their current Federal mandates, how is it possible to take on all these other enforcement issues? Are they to become Big Brother? The Federal government continues to expand, so do we continue to grow the police state? Those decisions are important and will determine the role of the police in the future, and just as importantly, how the police are perceived and accepted by the rest of society.

Photo courtesy of Flickr Commons – Some Rights Reserved by the U.S. Library of Congress