Could I go to jail for writing this column? Under Bill C-63, that could happen – Canadian Dimension

You know what I hate? I hate politicians telling me what I can and can't say. I hate governments threatening to lock me up for something I haven't said yet but might be about to say. I hate legislators trying to throw me in prison for life for something I wrote. Is that enough hate for you? Could it be enough to put me at odds with Ottawa's latest plan to regulate the Internet and make me eligible for prosecution under Bill C-63, the Online Harms Act? You just never know, and that's the point. The Bill was introduced in February amid much uproar over proposed measures to tackle hate speech and other issues, and will return for second reading when Parliament reconvenes later this month. But events in the UK should give our MPs pause, with more than 1,000 people arrested in race riots there last month and some who had merely incited chaos online being swiftly brought to justice.

“In some cases, the illegal incitement to violence was obvious,” noted The viewer Magazine. “Julie Sweeney, 53, received a 15-month prison sentence for a Facebook comment: 'Blow up the mosque with the adults inside.'” Other results under the British Online Security Acta law similar to Bill C-63 passed last year, were even more Orwellian and were criticized for going too far with disproportionate penalties. One of at least 30 people charged under that law was sentenced to eight weeks in prison for posting pictures of South Asians with captions like “coming soon to a city near you.” Bill C-63 is so much more extreme than the British law, Joanna Baron of the Canadian Constitution Foundation claimed, that Sweeney would likely get 10 to 12 years in prison for it. “In real life, the bill's supporters say, cooler heads will prevail,” Baron wrote. “But the riots in Britain and their aftermath show that during social panics, the exact opposite is true.”

Bill C-63 would also increase the maximum sentence for promoting genocide from the current five years to life imprisonment. What if I wrote in a column, “The first thing we'll do is kill all the lawyers.” While some might think that's a good idea and others might recognize it as satire, some might say it promotes genocide. I can't claim authorship, of course, because not only is it the first recorded lawyer joke, but it's also one of Shakespeare's most famous lines, from Part 2, Act IV, Scene 2 of his 1591 play. Henry VIabout which entire books have been written.

Then there is the so-called “thought crime” provision of Bill C-63, under which anyone who has “reasonable apprehension” that you are about to publish hate propaganda can go to court to seek an order forcing you to post a financial “peace bond” promising not to do so. The court could also sentence you to house arrest, force you to wear a monitoring device, abstain from drugs and alcohol and provide bodily fluids for evidence, or put you in jail for a year if you don't agree. “Canada is about to make what George Orwell called 'thought crime' in his dystopian novel 1984 a reality,” quipped Forbes Editor Steve Forbes. “Cuba, North Korea and other tyrannical states applaud.” The viewer agreed. “If that isn't the creation of a thought police,” wrote Jane Stannus, “I don't know what is.” The Atlantic The magazine called Bill C-63 “madness” and added pointedly: “No one who advocates that the state should imprison people for expressing their opinions or severely restrict a person's freedom in anticipation of alleged hate speech that they have not yet uttered is fit to lead a liberal democracy.”

Bill C-63 is the third in a trilogy of laws that the Trudeau government has drafted to regulate the internet, and as disastrous as the first two were, this third act threatens to bring down the House of Representatives. Bill C-11, which Online Streaming Actwhich was adopted last year, updated the Broadcasting Act to regulate foreign streamers such as Netflix and Spotify, but Canadian podcasters and YouTubers fear that this could also put them in the spotlight. Bill C-18, the Online News Actpassed at the urging of major media outlets, was designed to force Google and Meta to pay local publishers an estimated $329 million a year. But it backfired, as Meta instead blocked messages on its social networks Facebook and Instagram, dealing a death blow to our nascent online media.

With our beleaguered Liberal government plummeting in the polls and facing its final year in office, Bill C-63 may be its last stand. After estimating in July that it would create a bureaucracy costing more than $200 million within five years, Conservative Leader Pierre Poilievre promised that if it passes and is elected prime minister, he will repeal the bill. Online Harms Act and the rest of the liberal “three-headed monster.”

For some, the undemocratic provisions of Bill C-63 and the undoubted chilling effect it would have on free speech outweigh the costs involved. “The bill's sweeping criminal speech bans risk stifling public discourse and criminalizing political activism,” the Canadian Civil Liberties Association noted. She called Bill C-63 “troubling” because it would give government officials sweeping powers to “interpret the law, make new rules, enforce them and then act as judge, jury and executioner,” adding, “Granting such sweeping powers to a body undermines the fundamental principle of democratic accountability.” Noting that Bill C-63 would give cabinet the power to censor free speech without input from Parliament, the Justice Centre for Constitutional Freedoms has launched an online petition where you can call on Justice Minister Arif Virani to stop the bill from passing. The Canadian Constitution Foundation has launched a similar petition where you can write directly to your MP.

The problems with the bill seem endless. Michael Geist, a law professor at the University of Ottawa, noted that the proposed Digital Safety Commission “lacks even basic rules of evidence, can hold secret hearings, and has been granted a staggering array of powers with limited oversight.” Penalties of up to life imprisonment for speech offenses are “untenable,” he added. The changes that Bill C-63 proposes for the Human Rights Actwhich include the possibility of awarding victims of hate speech compensation of up to $20,000, could, according to Geist, “open the door to the weaponization of complaints.”

A former chairman of the human rights tribunal predicted that this financial incentive would lead to “many, many new hate speech complaints” being filed with the already overburdened panel of lawyers working on a contingency basis. “Why not?” asked David L. Thomas. “Maybe you get $20,000, you get a lawyer to take your case for free, and you can do it anonymously. It costs you nothing.” Compensation payments could skyrocket, he added, depending on the number of victims. “How many victims could be identified if the hate speech is posted online? Is everyone who sees hate speech a victim?” Thomas called Bill C-63 a “terrible law” and charged that it would deliberately restrict free speech. “That's what the Liberals intend to do,” he wrote. “By drafting a vague law that creates a draconian regime to combat online 'harms,' they will win their wars without firing a single bullet.” As in the UK, the problem lies in the disproportionate penalties. “The consequences for breaking the law are so severe that one would assume that hardly anyone would take the risk of breaking it,” says Thomas. “Even news media and big tech companies should avoid the risk.” Robust political discourse in Canada could disappear as a result, he claims. “Criticism of government policies, such as immigration policy, could suddenly become dangerous. Welcome to a new era of self-censorship.”

In a ridiculous “back to the future” provision, the bill would reinstate hate speech into the Human Rights Act, even though it was removed in 2013 as problematic, particularly because of a book extract published in Maclean'swhich called the incident “one of the most divisive conflicts in the country since the Charter was introduced.” Our criminal code already contains laws against hate speech, and its Section 319 was only updated in 2022 to add a ban against anti-Semitism, including “denial or trivialization of the Holocaust.” This year alone, numerous charges have been brought under Section 319. A Toronto man was charged with public incitement to hatred for allegedly waving the flag of a terrorist organization at a January demonstration against the ongoing genocide in Gaza, while another was similarly charged in June for trampling on an Israeli flag at a Walk for Israel march.

Then there is “Canadian Girl,” a woman from British Columbia who used this online pseudonym this summer to post videos on X in which she harasses South Asians and calls one of them an “intruder” and a “jeet,” according to PressProgressand told him to “go back to his fuck”ing country.'” A court date has been set, *PressProgress Her social media comments have reportedly led to accusations of public incitement to hatred and deliberate promotion of hatred.

Bill C-63, which would extend hate speech laws to the internet, also contains some commendable measures to combat online scourges such as child pornography and revenge porn. For this reason, Geist and civil society groups such as the CCLA and Amnesty International have called on the government to carve out the parts that would amend the Criminal Code into a separate bill and Human Rights Act so as not to throw the baby out with the bathwater. That sounds like a good idea.

Marc Edge is a journalism researcher and writer living in Ladysmith, BC. His books and articles can be found online at www.marcedge.com.