Ottawa’s ‘Online Harms’ bill actually threatens marginalized communities

The federal government’s proposed new Online Harms Act, Bill C-63, contains tucked within it amendments that are not about anything online but are hate-related offences. The government’s decision to wrap these into the bill will create distractions in the debate about Bill C-63. Whether this was inadvertent or intentional, it’s bad either way. In any event, these sections unfortunately show a lack of careful analysis of real-world effects of the law.

The most dramatic section in the bill is an amendment to the Criminal Code to create a separate offence for anyone committing any other Criminal Code offence while motivated by hatred. This would become section 320.1001 of the Criminal Code and would create a very serious offence subject to a penalty up to life imprisonment. Guilt of this offence arises based on the commission of any other offence combined with evidence that the action was motivated by hatred.

Let’s get real. Consider that a wayward 19-year-old painting graffiti who could be accused of being motivated by hatred could now be charged with an offence carrying the possibility of life imprisonment. That wayward youth needs corrective intervention—which might appropriately include criminal conviction for mischief. But a threat of life imprisonment is totally disproportionate to the offence.

A proponent of the law might agree but say that the individual I describe would never be sentenced to life in prison. That is likely true for someone with proper legal representation able to fight the charges through the courts, but it misses a related consequence. A major problem of establishing potentially vague offences with vastly disproportionate punishments is that they can be used as a threat to elicit plea bargains from people who should not have to plead out.

If anything in the circumstances of an offence could be used to suggest that the offender was motivated by hatred, the offender is now deeply vulnerable to new pressures to simply plead guilty of something in return for avoiding charges on the threatened indictable offence. This problem particularly affects people from marginalized communities. Some of the very people the government purports to defend will suffer direct harm from the existence of this misconceived offence.

The other piece of Bill C-63 that also applies beyond the online context is the reintroduction of section 13 of the Canadian Human Rights Act. This section was removed by the Harper government due to constitutional problems. The new section 13 would make communication of hate speech by anyone on the Internet (or other means of telecommunication) subject to the jurisdiction of the Canadian Human Rights Tribunal’s complaints mechanism.

Hate speech is contrary to Canadian values, and when introducing the bill, the federal justice minister raised an important argument relied upon by half the Court in the Keegstra case, a 1990 Supreme Court of Canada decision. There, Chief Justice Brian Dickson’s judgment eloquently spoke of a devastating harm in hate speech, that it can affect the participation in debate of its victims.

But we cannot forget the argument of the other half of the Court, authored by then-future Chief Justice Beverley McLachlin who warned of the “chill effect” of attempting to legislate speech where some citizens will refrain from participating in debate out of a fear that their permissible words could get misconstrued as hate speech.

Again, the real world matters. In recent months we’ve seen heated discussions about whether the use of certain slogans at political rallies could be prosecuted under a Criminal Code offence on the willful promotion of hatred, and nobody seemed to know. In recent years we’ve seen a Quebec comedian dragged through years of human rights proceedings under Quebec’s human rights legislation when some did not like his version of “dark comedy.”

The reintroduction of section 13 of the Canadian Human Rights Act, with its troubled history and the constitutional invalidity of a similar section, shows something amiss.

Those drafting these pieces of the bill hopefully had good intentions—and not just intentions to distract from other tough questions in the rest of the bill. But good intentions are not enough. Amendments to the Canadian Human Rights Act and the Criminal Code must be developed with serious thought about the real-world effects of the changes. That’s not evident here, and that raises serious questions about the drafting process of the entire bill.