Arif Virani, Minister of Justice, and Attorney General of Canada, speaks during a press conference on Parliament Hill in Ottawa regarding the new online harms bill, on Feb. 26.Sean Kilpatrick/The Canadian Press
The Liberals have bundled their online harms laws into a single bill, but that wide-reaching legislation is really two very different frameworks that have been unwisely conjoined.
The first part, the one actually called the Online Harms Act, is indeed plausibly about online harms. It would create an infrastructure – including statutory responsibilities for social media platforms – that would limit loathsome digital acts such as cyberbullying and revenge porn.
There are still flaws within that part of the bill, most notably the lack of due process safeguards at the proposed Digital Safety Commission. The body is expected to act as informally and expeditiously as possible, but will be granted wide-ranging powers. Similarly, commission staff will be able to obtain data and information without getting a search warrant.
But for the most part, the Liberals have proposed sensible, modest steps that will protect minors and discourage some of the most venal online actors, while avoiding intrusive measures such as digital IDs.
Then there is another part of the bill, which ramps up criminal sanctions on hate speech, most notably on advocating or promoting genocide.
That is already an offence under the Criminal Code, carrying a sentence of up to five years. The Liberals propose to increase the maximum sentence to life, which would place the crime of hate speech among the most serious offences, such as manslaughter and aggravated sexual assault, which also carry life sentences.
But there are other abhorrent crimes that have much lower maximum sentences: the sexual assault of a minor carries a maximum of 14 years; assault with a weapon carries a maximum sentence of 10 years. In setting a much higher sentence for hate speech advocating genocide, the Liberals are deeming that crime more serious than those other offences.
This is more than just a theoretical objection, and cannot be waved away with the assertion that the government is not setting a floor, just a higher ceiling. The changes would be a clear signal to judges to impose higher sentences for hate speech; a life sentence would typically result in a prison term of around seven years.
On its own, that defect would be a fatal flaw. Unfortunately, it’s just the start. The bill also proposes that anyone who breaks any other federal law “motivated by hate” be found guilty of a hate crime, and subject to a maximum life sentence. To be clear: that provision is not limited just to the Criminal Code; all federal statutes are included.
That overreach is bizarre enough that it may be down to simple sloppiness. Much more worrisome, however, is the mechanism that the Liberals have set up that will allow for peace bonds, including house arrest, to be sworn out against individuals who may, someone believes, break the hate-speech law at some point in the future.
Federal Justice Minister Arif Virani told The Globe and Mail last week that such peace bonds could be a “very, very important tool” to place restraints on someone with a pattern of hateful behaviour. His comments are misleading. No prior conviction on a hate-speech crime is required, simply a “reasonable belief” presented in an application that the Attorney-General authorizes and a judge approves.
Peace bonds are nothing new in Canada. But using that tool for speech, rather than conduct, and in the absence of any proven past violation is dangerous and a violation of fundamental principles of justice. The punishment should fit the crime, not the pre-crime.
The solution is obvious: split the bill so that measures that take direct aim at mitigating digital harms, particularly those on social media, can come into force quickly. Amendments can improve due process protections for the work of the proposed Digital Safety Commission.
But the Criminal Code amendments are fundamentally flawed and must be withdrawn. There may be a balance to be struck between toughening sanctions against hate speech while protecting freedom of expression and due process. The Liberals have not found that balance.