National
Online Harms Act threatens free expression in Canada
News release from the Justice Centre for Constitutional Freedoms
This repudiates centuries of legal tradition that rightly reserved punishment for what a person had done, not for what a person might do. Under this new provision, a complainant can assert to a provincial court that they “fear” that someone will promote genocide, hate or antisemitism.
On February 26, Minister of Justice and Attorney General of Canada Arif Virani introduced Bill C-63, the Online Harms Act, in the House of Commons. The Online Harms Act is presented by the government as a means to promote the online safety of persons in Canada and reduce harmful content online. The Online Harms Act would impose severe penalties for online and offline hate speech, including life imprisonment, which is the most severe criminal punishment in Canada. This new legislation would establish a new Digital Safety Commission with power to enforce new regulations created by the federal cabinet. The Canadian Human Rights Commission would acquire new powers to prosecute and punish non-criminal hate speech.
Good intentions should be applauded
Although the Online Harms Act seriously threatens free expression in Canada, there are good intentions behind some of its provisions. It is a laudable goal to force online platforms to remove revenge porn and other non-consensual sharing of intimate images, content that bullies children, content that sexually victimizes children, content that encourages children to harm themselves, and content that incites violence, terrorism or hatred.
Unnecessary duplication of the Criminal Code
However, good intentions do not justify passing additional laws that duplicate what is already prohibited by Canada’s Criminal Code. Additional laws that duplicate existing laws are a poor substitute for good law enforcement.
Section 162.1(1) of Canada’s Criminal Code already prohibits online and offline publication of an intimate image without consent. Section 163 already prohibits publication of obscene materials and child pornography. Thus, it is already illegal to post online content that sexually victimizes a child or revictimizes a survivor.
Section 264(1) already prohibits criminal harassment. Section 319(1) already prohibits the public incitement of hatred towards a group that is identifiable by race, ethnicity, religion, sex, sexual orientation, gender identity, gender expression and other personal characteristics. Section 59(1) criminalizes sedition: advocating the use of force to achieve governmental change within Canada. Sections 83.21 and 83.22 criminalize instructing to carry out terrorist activity; any online content that incites terrorism is already illegal.
Further, Section 22 of Canada’s Criminal Code prohibits counselling, procuring, soliciting or inciting another person “to be a party to an offence.” Any person who counsels, procures, solicits or incites another person to be a party to an offence will be found guilty if the person receiving such counsel commits the offence in question. This applies to terrorism and other violent crimes, and even to minor criminal offenses like shoplifting. Further, section 464 of the Criminal Code criminalizes counselling another person to commit an offence even if that offence is not committed.
Those who support the Online Harms Act should explain why they believe that existing legislation is inadequate to address “harmful” online expression.
New government bodies to censor online speech
If passed into law, the Online Harms Act will create a new Digital Safety Commission to enforce compliance with new regulations created by the federal cabinet. This Digital Safety Commission will have the power to regulate nearly any person or entity operating as a “social media service” in Canada. Any person or social media service found to have permitted “harmful content” would face penalties. The severity of the penalties would be established by the federal cabinet. The creators and users of online content will self-censor to avoid the risk of running afoul of the new regulations and government-imposed censorship. The Online Harms Act provides that an Order of the Digital Safety Commission may be converted into an Order of the Federal Court and enforced like a Court Order. This could result in people operating social media services being fined and imprisoned for contempt of court if they refuse to censor Canadians’ speech.
Pre-emptive punishment for crimes not committed
The Online Harms Act, if passed into law, will add section 810.012 to the Criminal Code, which will permit pre-emptive violations of personal liberty when no crime has been committed. This repudiates centuries of legal tradition that rightly reserved punishment for what a person had done, not for what a person might do. Under this new provision, a complainant can assert to a provincial court that they “fear” that someone will promote genocide, hate or antisemitism. If the judge believes that there are “reasonable grounds” to justify the fear, the court can violate the liberty interests of the accused citizen by requiring her or him to do any or all of the following:
- wear an ankle bracelet (electronic monitoring device)
- obey a curfew and stay at home, as determined by the judge
- abstain from alcohol, drugs, or both
- provide bodily substances (e.g. blood, urine) to confirm abstinence from drugs or alcohol
- not communicate with certain designated persons
- not go to certain places, as determined by the judge
- surrender her or his legally owned and legally required firearms
In other words: a citizen who has not committed any crime can be subjected to one or more (or all) of the above conditions just because someone fears that that person might commit a speech crime in future. Further, if the person who has committed no crime fails to agree to these court-ordered violations of her or his personal liberty, she or he could be sentenced to up to two years in prison.
Our criminal justice system is not supposed to function this way. Violating the liberty of citizens through pre-emptive punishment, when no crime has been committed (and quite possibly when no crime will be committed), is a radical departure from centuries of common law tradition. The respect that our legal system has for individual rights and freedoms means that an accused person is presumed innocent until proven guilty by way of a fair trial, held before an independent and impartial court. We do not punish the innocent, nor do we restrict their liberty based on what they might do. The mere fear that harmful expression may occur is not a legitimate basis for court-ordered imprisonment or other conditions that violate personal liberty.
Life imprisonment for words spoken
For the existing Criminal Code offence of advocating for genocide, the Online Harms Act would raise the maximum penalty from five years in jail to life imprisonment. Free societies recognize the distinction between speech and actions. The Online Harms Act blurs that distinction.
Considering the inherent difficulty in determining whether a person has actually “advocated for genocide,” the punishment of a five-year prison term is already an adequate deterrent for words alone.
Federal cabinet can censor speech without input from Parliament
The Online Harms Act, if passed into law, would give new powers to the federal cabinet to pass regulations (which have the same force of law as legislation passed by Parliament) that place prohibitions or obligations on social media services. This includes passing regulations that impose fines or other consequences (e.g., the removal of a licence or the shutting down of a website) for non-compliance. New regulations can be created by the federal cabinet in its sole discretion, and do not need to be debated, voted on or approved by Parliament. Parliamentary proceedings are public. Any political party, or even one single MP, can raise public awareness about a Bill that she or he disagrees with, and can mobilize public opposition to that Bill. Not so with regulations, which are deliberated in secret by the federal cabinet, and that come into force without any public consultation or debate.
Apart from a federal election held once every four years, there is no meaningful way to hold cabinet to account for the draconian censorship of social media services by way of regulations and the harsh penalties that may be imposed for hosting “harmful content.” The federal cabinet can also decide what number of “users” the “social media service” needs to have in order to trigger federal regulation of content, or the federal cabinet can simply designate a social media service as regulated, regardless of the number of its users.
New censorship powers for Canadian Human Rights Commission
The Online Harms Act, if passed into law, will give the Canadian Human Rights Commission new powers to prosecute and punish offensive but non-criminal speech by Canadians if, in the subjective opinion of unelected and unaccountable bureaucrats, they deem someone’s statement to be “hateful.” The Online Harms Act will empower Canadians offended by non-criminal expression to file complaints against their fellow citizens.
Those who are prosecuted by the Human Rights Commission cannot defend themselves by establishing that their supposedly “hateful” statement is true, or that they had reasonable grounds for believing that their statement was true.
Those found guilty by the Canadian Human Rights Tribunal can be required to pay as much as $50,000 to the government, plus up to $20,000 to the person(s) designated as “victims” by the Canadian Human Rights Tribunal. These significant financial penalties will discourage or eliminate necessary discussion on controversial but important issues in our society.
Advocates for censorship often stress the fact that human rights prosecutions are not criminal. It is true that those found guilty of violating vague speech codes by the Canadian Human Rights Tribunal do not suffer the consequences of a criminal record. However, those who are prosecuted for expressing their beliefs face the difficult choice of having to spend tens of thousands of dollars on legal bills or having to issue an abject apology. Regardless of whether they choose to defend themselves against the complaint or not, they may still be ordered to pay up to $20,000 to the offended party or up to $50,000 to the government, or up to $70,000 to both.
Many Canadians will continue to exercise their Charter-protected freedom of expression, but many will self-censor to avoid the risk of being prosecuted by the Canadian Human Rights Commission.
Anonymous complaints: no right to face one’s accuser
The Online Harms Act, if passed into law, will allow complaints to be filed against Canadians in secret, such that the citizen who is prosecuted by the Canadian Human Rights Commission loses the ancient and well-founded right to face and question one’s accuser. This repudiates centuries of common law tradition requiring the legal process to be public and transparent.
The pretext for eliminating this necessary and long-standing legal protection is that some complainants might be subjected to “threats, intimidation or discrimination.” This ignores the fact that threats and intimidation are already Criminal Code offences, and any illegal discrimination can be addressed by way of a new and separate complaint. Those filing complaints about expression should be accountable for their decision to do so; this is an inherent and necessary component of both criminal and civil legal proceedings.
No need to establish that someone was harmed
If the Online Harms Act is passed into law, the Canadian Human Rights Commission will not even require a victim in order to prosecute a citizen for what she or he has said. For example, a man in Vancouver can file an anonymous complaint against a woman in Nova Scotia who made disparaging online remarks about a mosque in Toronto, regardless of whether that mosque’s members were harmed, or even offended, by the post. No actual victims are required for the Canadian Human Rights Commission to find guilt or to impose penalties. Nor does a victim need to prove that he or she suffered loss or damage; feeling offended by alleged “hate” is all that is needed to become eligible for financial compensation.
Conclusion
For reasons set out here above, the Online Harms Act will harm freedom of expression in Canada if it is passed into law. Many Canadians will self-censor to avoid being prosecuted by the Canadian Human Rights Commission. Canadians who do not self-censor, by practicing courage and by continuing to exercise their Charter-protected freedom of expression, will still see their online expression removed from the internet by the operators of social media websites and platforms. These operators will seek to avoid running afoul of Mr. Trudeau’s new regulations. Everyone will live in fear of the Digital Safety Commission.
The Justice Centre urges all Members of Parliament to vote against this legislation.
Health
Tens of thousands are dying on waiting lists following decades of media reluctance to debate healthcare
Better thousands of us die prematurely, apparently, than risk a grownup conversation
About the same time as William Watson’s outstanding book Globalization and the Meaning of Canadian Life was being published in the late 1990s, the newspaper I worked for was sending a journalist to Europe to research a series of articles on how health care systems work in some of those countries.
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I mention Bill’s book, which was runner-up for a public policy Donner Prize, because it exquisitely details many of the things Canadians believe about themselves that simply aren’t true. Which was the same reason why the Calgary Herald sent its health reporter (yes, there used to be such a thing), Robert Walker, to Europe – to expose its readers to the fact that there are more than two health care systems: our “defining” one and America’s, both of which are extremes. To the best of my knowledge, that remains the only time a Canadian news organization has taken on that task.
In every country examined in Walker’s reports, as is the case with almost every country in the world, public and private health care and insurance systems maintained a peaceful coexistence and the public’s needs were being met. Almost 30 years later, that remains the case. Also almost 30 years later, neither Bill’s book nor the Herald’s reporting has had the slightest impact on the prevailing media narrative in Canada. It remains determined to perpetuate the fear that any move to increase the role of private health providers or even allow doctors to work in both systems (as was proposed this week by Alberta Premier Danielle Smith) is the first step on the slippery slope to “American-style” health care. This line has been successfully used for decades – often hyperbolically and occasionally hysterically – by public monopoly advocates for Canada’s increasingly expensive and difficult to access systems. We have known for 40 years that once Baby Boomers like your faithful servant turned bald and grey that the system would be unsustainable. But that single, terrifying “American-style” slur has halted reform at every turn.
The Tyee responded with a “Danielle Smith’s secret plan to Destroy Public Health Care” column while the Globe and Mail’s Gary Mason, a Boomer, challenged my thesis here by suggesting it was time for open minds because “the reality is, the health care system in Canada is a mess.”
It is. And at least some of the blame – a lot, in my view – belongs at the door of Canadian news organizations that for decades have failed to fully inform readers by making them aware that there are a great many alternatives to just “ours” and “US-style.”
I was reminded of this in a recent Postmedia story concerning the perils of private health care provision. Referencing a study on MRIs, the story, right on cue, quotes the part of a study that states “It’s a quiet but rapid march toward U.S.-style health care.”
One would not want to suggest that those clinging to that parochial view should be denied a platform. But at the same time, readers have every right to demand that journalists push back and ask advocates for state monopolies simple questions such as “Why do you say that? Could it not be the first step towards UK-, German-, Dutch-, French-, Portugese- or Swedish-style health care?” and open the debate.
But, as it was 30 years ago and likely ever shall be, there is nothing to suggest that approach even crossed the reporter’s mind. Canadians deserve to be fully informed on major public policy matters and the record shows that when it comes to health care, media have largely failed to do so. Stuck in the fetid trench of an us and them narrative that compares two systems at extreme ends of the spectrum, the public is largely unaware that moderate alternatives exist, ensuring that no meaningful reforms will ever take place and tens of thousands of Canadians will continue to die on waiting lists – a story that continues to be of little interest within the mainstream. Better thousands of us die prematurely, apparently, than risk a grownup conversation that could challenge our national mythology and lead us down the path to “European-style” healthcare.
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Postmedia’s Brian Lilley has written a defence of the use by journalists of anonymous sources. Lilley’s introduction describes him as coming down on both sides of the issue and that “Using anonymous sources is completely justified, if done right.” Well of course it is, but in my view it’s frequently and increasingly not being done right and its abuse is being exploited by government comms people to control the narrative.
An example of that occurred last week when the Globe and Mail, in a story concerning Prime Minister Mark Carney’s sojourn to the United Arab Emirates, declined to reveal the identity of a source offering very standard information. To wit:
“The (senior government) official, whom The Globe and Mail is not identifying because they were not authorized to speak publicly, said this visit matters because the UAE economy is very much driven by personal relationships – the kind that benefit from face-to-face meetings.”
This story had three bylines – from a senior parliamentary reporter, an institutional investing reporter and an economics reporter. It is inconceivable to me that, between them, they couldn’t find an on the record source who could explain how important it is, culturally, to have face to face meetings, particularly in that part of the world. Doing so would have added some needed thump to a “sources say” story and helped mute criticisms by others in the industry such as John Robson and Holly Doan, the latter stating in a Tweet that “Anon sources are gov’t propagandists.” Others have privately expressed their dismay.
Meanwhile, I expect Lilley’s piece is worth a read and it’s important to hear all sides but as it is behind a paywall I haven’t got to it myself. It’s also worth pointing out that a recent Reuters Institute survey put Lilley in Canada’s top 10 social media influencers and creators.
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Sadly, we have more this week on unnecessary online smartassery by journalists.
First up is Global News’s Sean O’Shea who managed to allow himself to look like a member of Carney’s comms team when he Tweeted his disapproval of some fans’ behaviour at the Grey Cup.
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Then came The Hill Times’s Stu Benson, who blasted his alarm from a loudspeaker before deleting.
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Honestly, folks, to paraphrase grandpa’s advice and as I have to remind myself from time to time, just because something pops into your head doesn’t mean it has to pop onto your social media feed.
Last week’s column for The Hub on how Diversity, Equity and Inclusion initiatives remain alive and enforced in the nation’s newsrooms is available here. And don’t forget to watch out for the Full Press podcast with myself, Harrison Lowman and Tara Henley on Thursday.
(Peter Menzies is a commentator and consultant on media, Macdonald-Laurier Institute Senior Fellow, a past publisher of the Calgary Herald, a former vice chair of the CRTC and a National Newspaper Award winner.)
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It finally happened. Canada received a federal budget earlier this month, after more than a year without one. It’s far from a budget that’s great. It’s far from what many expected and distant from what the country needs. But it still passed.
With the budget vote drama now behind us, there may be space for some general observations beyond the details of the concerning deficits and debt. What kind of budget did Canada get?
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Try it out.
For a government that built its political identity on social-program expansion and moralized spending, Budget 2025 arrives wearing borrowed clothing. It speaks in the language of productivity, infrastructure, and capital formation, the diction of grown-up economics, yet keeps the full spending reflex of the Trudeau era. The result feels like a cabinet trying to change its fiscal costume without changing the character inside it. Time will tell, to be fair, but it feels like more rhetoric, and we have seen this same rhetoric before lead to nothing. So, I remain skeptical of what they say and how they say it.
The government insists it has found a new path, one where public investment leads private growth. That sounds bold. However, it is more a rebranding than a reform. It is a shift in vocabulary, not in discipline.
A comparison with past eras makes this clear.
Jean Chrétien and Paul Martin did not flirt with restraint; they executed it. Their budgets were cut deeply, restored credibility, and revived Canada’s fiscal health when it was most needed. The Chrétien years were unsentimental. Political capital was spent so financial capital could return. Ottawa shrank so the country could grow. Budget 2025 tries to invoke their spirit but not their actions. Nothing in this plan resembles the structural surgery of the mid 1990s.
Stephen Harper, by contrast, treated balanced budgets as policy and principle. Even during the global financial crisis, his government used stimulus as a bridge, not a way of life. It cut taxes widely and consistently, limited public service growth, and placed the long-term burden on restraint rather than rhetoric. Budget 2025 nods toward Harper’s focus on productivity and capital assets, yet it rejects the tax relief and spending controls that made his budgets coherent.
Then there is Justin Trudeau, the high tide of redistribution, vacuous identity politics, and deficit-as-virtue posturing. Ottawa expanded into an ideological planner for everything, including housing, climate, childcare, inclusion portfolios, and every new identity category. Much of that ideological scaffolding consisted of mere words, weakening the principle of equality under the law and encouraging the government to referee culture rather than administer policy.
Budget 2025 is the first hint of retreat from that style. The identity program fireworks are dimmer, though they have not disappeared. The social policy boosterism is quieter. Perhaps fiscal gravity has begun to whisper in the prime minister’s ear.
However, one cannot confuse tone for transformation.
Spending is still vast. Deficits grew. The new fiscal anchor, balancing only the operating budget, is weaker than the one it replaced. The budget relies on the hopeful assumption that Ottawa’s capital spending will attract private investment on a scale that economists politely describe as ambitious.
The housing file illustrates the contradiction. The budget announces new funding for the construction of purpose-built rentals and a larger federal role in modular and subsidized housing builds. These are presented as productivity measures, yet they continue the Trudeau-era instinct to centralize housing policy rather than fix the levers that matter. Permitting delays, zoning rigidity, municipal approvals, and labour shortages continue to slow actual construction. Ottawa spends, but the foundations still cure at the same pace.
Defence spending tells the same story. Budget 2025 offers incremental funding and some procurement gestures, but it avoids the core problem: Canada’s procurement system is broken. Delays stretch across decades. Projects become obsolete before contracts are signed. The system cannot buy a ship, an aircraft, or an armoured vehicle without cost overruns and missed timelines. Spending more through this machinery will waste time and money. It adds motion, not capability.
Most importantly, the structural problems remain untouched: no regulatory reform for major projects, no tax competitiveness agenda, no strategy for shrinking a federal bureaucracy that has grown faster than the economy it governs. Ottawa presides over a low-productivity country but insists that a new accounting framework will solve what decades of overregulation and policy clutter have created. More bluster.
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From an Alberta vantage, the pivot is welcome but inadequate. The economy that pays for Confederation, energy, mining, agriculture, and transportation receives more rhetorical respect in Budget 2025, yet the same regulatory thicket that blocks pipelines and mines remains intact. The government praises capital formation but still undermines the key sectors that generate it.
Budget 2025 tries to walk like Chrétien and talk like Harper while spending like Trudeau. That is not a transformation; it is a costume change. The country needed a budget that prioritized growth rooted in tangible assets and real productivity. What it got instead is a rhetorical turn without the courage to cut, streamline, or reform.
Canada does not require a new budgeting vocabulary. It requires a government willing to govern in the best interest of the country.
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