CCF concerned that Online Harms Act will limit constitutionally-protected free expression

The Canadian Constitution Foundation is deeply concerned that the Online Harms Act introduced in the House of Commons on February 26 will significantly hamper constitutionally-protected expression.

The Online Harms Act would limit constitutionally-protected expression in the following ways:

• The Bill would create a new process for individuals and groups to complain to the Canadian Human Rights Commission that online speech directed at them is discriminatory. The tribunal could order fines of up to $50,000, and awards of up to $20,000 paid to complainants, who in some cases would be anonymous. Findings would be based on a mere “balance of probabilities” standard rather than the criminal standard of proof beyond a reasonable doubt. The subjectivity of defining “hate speech” will lead to punishments for protected speech. The mere threat of human rights complaints will chill large amounts of protected speech.
• The Bill would increase the maximum sentence for “advocating genocide” from five years in prison to life in prison. That means words alone could lead to life imprisonment.
• The Bill would allow judges to put prior restraints on people who they believe on reasonable grounds may commit speech crimes in the future. The accused would be forced to choose between imprisonment or a “recognizance to keep the peace” that may be accompanied by severe conditions such as giving a bodily sample, refraining from drugs and alcohol, giving up firearms and wearing an ankle monitor.
• The Bill would require social media companies to “minimize the risk that users of the service will be exposed to harmful content” with the threat of massive fines if they don’t properly mitigate the risk. Social media companies will likely err on the side of caution and block large amounts of speech that is close to the legal line.
• The Bill would require social media companies to provide a mechanism for users to flag content that they believe is “harmful content,” which is defined as including speech that “foments hatred.” This will inevitably lead to censorship of legally-protected speech.
• The Bill would 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.” This appears aimed at encouraging social media companies to censor speech that the government cannot outlaw.

CCF Executive Director Joanna Baron called the bill extremely concerning and took issue with placing these censorship provisions in the same bill as some otherwise laudable measures.

“Justice Minister Virani has tied these speech restrictions to defensible measures like removing images of child sexual exploitation material and revenge porn,” she said.

“But don’t be fooled,” she added. “Most of the bill is aimed at restricting freedom of expression. This heavy-handed bill needs to be severely pared down to comply with the constitution.”

CCF Counsel Josh Dehaas said he is particularly concerned that the threat of crossing the difficult-to-see line between legal speech and hate speech will cause many Canadians to stay silent about controversial but important political issues.

“It’s difficult for me, a lawyer who works on free expression cases, to know exactly where the line is between protected speech and hate speech,” he said. “If this bill passes, I suspect many Canadians will now be too afraid of a human rights complaint to participate in policy debates around things like race, religion and gender.”

Support Canada Free Press

VIEW Comments