Connect with us

National

Online Harms Act threatens free expression in Canada

Published

17 minute read

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.

Todayville is a digital media and technology company. We profile unique stories and events in our community. Register and promote your community event for free.

Follow Author

COVID-19

Ontario gov’t drops over 100 fines from COVID era for compliance violations

Published on

From LifeSiteNews

By Anthony Murdoch

Charges were withdrawn for violations of the Quarantine Act ‘due to a lack of reasonable prospect of conviction, delay, non-appearance of the government’s witness at trial, or a decision taken by the Crown not to proceed.’

Canadian legal advocacy group The Democracy Fund (TDF) says that because of generous donor support it secured the staying or withdrawal of 109 COVID-era tickets given to multiple people in Ontario.

The TDF said in a press update sent to LifeSiteNews that most often the charges were withdrawn or stayed “due to a lack of reasonable prospect of conviction, delay, non-appearance of the government’s witness at trial, or a decision taken by the Crown not to proceed.”

“It’s gratifying to see our hard work pay off, and a relief to our clients who have endured years of legal uncertainty,” TDF paralegal Jenna Little said.

“But the government is still doggedly pursuing many clients for charges that should not have been brought in the first place and consume scarce judicial resources.”

The TDF observed that its clients were charged under the Quarantine Act s.15 (failure to provide information to screening officer), s.58 (failure to complete ArriveCan, failure to arrange for quarantine), or s.66 (obstruct an officer).

It noted that the fine for each charge was around $5,000, with “with potential total fines for conviction on all charges reaching $681,250.”

“Though many of these cases have been successfully resolved, many remain,” the TDF said.

Some of the charges were issued under the Emergency Management and Civil Protection Act, such as s.7.0.11 (obstruct an officer), which can carry a one-year jail sentence and a $10,000 fine.

The TDF stated that in “rare cases” some clients were also charged under “s.10 of the Reopening Act (gather or fail to close premises).”

The TDF noted that despite the recent court wins, there are still “hundreds” of clients who are facing “potential fines and jail time for peacefully protesting or objecting to government overreach during COVID lockdowns.”

The TDF said that during COVID the government used the opportunity to enact “rights-infringing, overbroad laws.”

“Legislators and bureaucrats zealously enforced these laws against Canadians in an effort to secure compliance and suppress peaceful protest. Fortunately, The Democracy Fund (TDF) and its team of lawyers and paralegals, with the support of generous donors, fought back,” it said.

The TDF, founded in 2021, bills itself as a Canadian charity “dedicated to constitutional rights, advancing education and relieving poverty,” by promoting constitutional rights “through litigation and public education.”

In early July, LifeSiteNews reported that TDF lawyers helped get criminal charges against a Canadian man who participated in the pro-family 1 Million March 4 Children protest over radical LGBT ideology being taught in public schools dropped by the Crown.

Over the last couple of years, the TDF has been active in helping Canadians persecuted under COVID mandates and rules fight back. Notable people it has helped include Dr. Kulvinder Kaur Gill, an Ontario pediatrician who has been embroiled in a legal battle with the College of Physicians and Surgeons of Ontario (CPSO) for her anti-COVID views. She has also had the help of Elon Musk.

COVID vaccine mandates, which came from provincial governments with the support of the federal government, split Canadian society. The mRNA shots have been linked to a multitude of negative and often severe side effects in children.

Continue Reading

Addictions

Claims about ‘safer supply’ diversion aren’t disinformation

Published on

News release from Break The Needle

This month, police in London, Ont., admitted to what critics have said all along: safer supply diversion is happening at alarming levels

Last spring, Canada’s minister of mental health and addictions claimed critics’ concerns about “safer supply” diversion — the illegal selling and trading of taxpayer-funded addictive drugs — were based on lies.

“For Pierre Poilievre to state untrue information about safer supply, and try to create barriers to accessing harm reduction services that are saving lives amid this ongoing crisis, is incredibly irresponsible and dehumanizing to people who use drugs,” read a statement by then-minister Carolyn Bennett’s office.

Fast forward a year, and it’s clear which side was telling the truth.

This month, police in London, Ont., admitted to what critics said all along: diversion of pharmaceutically supplied opioids to the streets is happening at alarming levels. London is home to Canada’s longest-running safer supply program, which dates back to 2016 and was significantly expanded in 2020.

The London Police Service released data that shows a staggering 3,000 per cent increase in the seizure of hydromorphone tablets — the opioid predominantly given out by safer supply programs — over the last five years. In 2019, London police seized just under 1,000 tablets. By 2020, that number had tripled. In 2023, they seized 30,000 hydromorphone tablets.

For context, hydromorphone is as potent as heroin and just two or three of these pills, if snorted, can cause an overdose in an inexperienced opioid user.

Earlier this month, the city’s deputy police chief, Paul Bastien, told CBC’s London Morning, “We recognize the value that safe supply plays as part of that harm reduction piece, but diversion is an important issue that is affecting community safety. I won’t say that everyone’s doing it, but some of the tablets from safe supply are being diverted for that purpose.”

“Criminal groups are fairly adept at exploiting policy changes that are well intended. But unforeseen consequences sometimes arise and this appears to be, at least in part, one of them,” he continued.

A reasonable person may assume that, given this alarming new evidence, proponents of safer supply would change their tune about widespread diversion being “fake news.” Unfortunately, they haven’t.

Some activists are now claiming on social media that London’s spike in hydromorphone seizures was not caused by safer supply, but rather by a high-profile theft of 245,000 hydromorphone tablets from an Ontario pharmacy. Yet the spike in seizures began years before this theft and, according to multiple addiction physicians, the street price of hydromorphone collapsed in the city well before 2023, suggesting an earlier influx of diverted supply.

However, these mental contortions aren’t surprising. As more and more evidence of widespread diversion emerged over the past year, accusations of disinformation and misinformation haven’t stopped –– they have simply evolved. The narrative changed from “Diversion doesn’t exist” to “Fine, it exists, but only on a small scale” to, now, “Fine, diversion exists at scale, but imagine the alternative?”

This is the angle already emerging in British Columbia, where the province’s top doctor, Bonnie Henry, authored a damning report that acknowledges the regularity and harms of safer supply diversion, yet still concludes safer supply is “ethically defensible” and advocates for its expansion.

Like many safer supply activists, Henry often argues diversion isn’t a significant concern because most opioid deaths are caused by fentanyl.

While it’s true that most opioid deaths are attributable to fentanyl, hydromorphone is still incredibly dangerous. When diverted into the black market, it creates new addictions, often among young people, which culminate in fentanyl use.

Moreover, data indicate hydromorphone is implicated in an increasing share of drug-related deaths in young people in B.C. In 2019, there were no reported deaths involving hydromorphone. By 2022, that number jumped to 22 per cent. Similarly, a recent report by the Centre for Addiction and Mental Health in Ontario found the number of youth in the province who self-reported using prescription opioids for “non-medical” reasons jumped 71 per cent between 2021 and 2023.

Still, safer supply activists continue to insist, despite overwhelming evidence to the contrary, that widespread diversion isn’t happening.

In 2017, Collins Dictionary declared “fake news” the word of the year. Since then, the term –– along with sister terms “misinformation” and “disinformation” –– have taken on a disturbing new life.

While fake news, misinformation and disinformation are very real democratic threats, some politicians and activists realized they could delegitimize opponents’ arguments and unflattering media stories by simply proclaiming them fake. Now, we’re in the dizzyingly ironic position of real news, and real facts, being dismissed as misinfo and disinfo by self-declared guardians of the truth.

This is the exact problem journalists and concerned medical professionals continue to face when raising the alarm on so-called “safer supply.” Despite the abundance of solid reporting, emerging data, whistleblower warnings and first-hand accounts of widespread diversion, harm reduction activists and their allies in government don’t just recklessly dismiss the problem, they weaponize the language of fake news to discredit a reality they don’t like.

Communities across Canada, and addicts themselves, deserve better.

A guest post by
Sabrina Maddeaux
Bold opinions and analysis of the political and economic issues that matter.
Continue Reading

Trending

X