Blog

The Trudeau government has announced that they intend to split Bill C-63, the proposed Online Harms Act, into two separate bills. This would allow necessary protections for children to be studied and voted on separately from worrying new provisions that would create new speech crimes and give new powers to the Canadian Human Rights Commission to police online comments. However, the CCF remains concerned about the free expression implications of both proposed bills.

Justice Minister Arif Virani told reporters on Wednesday that Part 1 and 4 of Bill C-63 will form a new piece of proposed legislation that will be prioritized in Parliament; Parts 2 and 3 of C-63 will form a second bill. The new bills would be on two different legislative tracks.

Part 1 of Bill C-63, as presently written, would create new obligations on social media platforms to police speech, including by creating a new “duty to act responsibly” by taking down and reporting on “harmful content.” It would also create a new regulator called the Digital Safety Commission. 

Part 4 deals with mandatory reporting of Internet child pornography by internet service providers.

Part 2 would make amendments to the Criminal Code, including creating a new stand-alone crime of an “offence motivated by hatred,” which includes penalties up to life imprisonment, and would increase penalties for existing hate crimes to as much as life behind bars. Part 2 would also create a new “fear of hate propaganda” offence that would allow for prior restraints on people for anticipated future hate speech crimes in the form of peace bonds and other restraints.

Part 3 would allow individuals to complain to the Canadian Human Rights Commission about “discriminatory” speech online. A tribunal could award up to $20,000 to accusers and fines of up to $50,000 for online speech found to be discriminatory, with no costs to the complainant, who may be anonymous in some cases. A previous version of this provision was removed from the Canadian Human Rights Act in 2014, after it was weaponized to silence journalists and clergy.

When C-63 was introduced, the CCF launched a website encouraging members of the public to write to their MPs and ask them to stop and fix the bill. Nearly 9,000 people have written to their MPs using the CCF’s online portal. 

CCF Litigation Director Christine Van Geyn said the shift in approach is an improvement but the risks to speech remain.

“Bill C-63 combined things that have no reason to go together,” Van Geyn said. “The issue of the online sexual exploitation of children through pornography is urgent and serious and should not be lumped in together with the government’s controversial plans to criminalize all kinds of speech and allow for civil remedies through the Canadian Human Rights Commission for speech,” she added. 

“We have encouraged the public to ask their elected representatives to stop and fix Bill C-63, and splitting the bill is an important step, but Parts 1, 2 and 3 still raise major concerns.” 

“We think that Parts 2 and 3, the criminal and human rights penalties for speech, should be killed entirely,” Van Geyn added. “If these speech infringing amendments do pass, creating the threat of life imprisonment for speech crimes and allowing for ankle monitors to be imposed on individuals for future speech crimes, the CCF would strongly consider a constitutional challenge.”

CCF Counsel Josh Dehaas said splitting the bill does not solve all of the problems. 

“The good news is that splitting this bill makes it less likely that the most egregiously censorious parts of it will not pass,” he said.

“But, Part 1 of the legislation still raises serious concerns about free speech,” he added. “Part 1 requires social media companies to minimize the risk that users of the service will be exposed to harmful content with the threat of huge fines.”

“Harmful content includes some genuinely harmful content like revenge porn and child exploitation images, but the bill would also require policing content that foments hatred, and hatred is notoriously difficult to define. If it passes, we can expect to see media companies err on the side of caution by blocking large amounts of speech that is constitutionally protected. ”

“Part 1 would also require social media companies to report on how they dealt with perfectly legal but otherwise “harmful” content that the operator had reasonable grounds to believe posed a risk of significant psychological or physical harm,” Dehaas added. “This appears aimed at encouraging social media companies to censor speech that the government cannot outlaw.”