Update on Bill C-63: Canada's Online Harms Act

In a phrase, 'it's still harmful'

As I reported previously here, Bill C-63, The Online Harms Act, which passed first reading in the House of Commons, and is currently at second reading—has already been called “Orwellian,” and will allow government appointees outside the court system to censor expression and criminalize political activism. It would also open up the possibility of lifetime imprisonment for any offence, including speech-related offences — that it deems to have been “motivated by hatred.”

According to the Canadian Civil Liberties Association (CCLA), the Bill also “risks censoring a range of expression” including “journalistic reporting,” by imposing “draconian penalties for certain types of expression, including life imprisonment for a very broad and vaguely defined offence of “incitement to genocide”, and 5 years of jail time for other broadly defined speech acts. This not only chills free speech but also undermines the principles of proportionality and fairness in our legal system. Bill C-63 also creates a new offence (“offence motivated by hatred”) that risks misuse or overuse by police, and unfairness to accused persons in court.”

“The bill also re-introduces a speech restriction within the Canadian Human Rights Act, which CCLA has previously opposed. The new provision has the potential to censor strong opposition to political authorities. It limits debate and dissent on contentious issues, and historically has not adequately protected the most marginalized groups.”

On December 5, 2024, Tim McSorley of the International Civil Liberties Monitoring Group testifies at the House of Commons Standing Committee on Justice and Human Rights for their study of Bill C-63, The Online Harms Act.

A few days ago, the CCLA’s Director of the Fundamental Freedoms Program, Anaïs Bussières McNicoll reported that there was some “welcome” news: the Federal Justice Minister Arif Virani decided to separate Parts 2 and 3 from the rest of Bill.

According to Bussières McNicoll, by doing this, Part 1 will “benefit from the focused scrutiny it deserves.”

“It is crucial that this new Act, which proposes to regulate online content, now be the subject of a broad public and parliamentary conversation.”

”By separating Parts 2 and 3 from the rest of the Bill, the Justice Minister accedes to civil society’s call to split the bill so controversial changes to the Criminal Code and the Canadian Human Rights Act do not overshadow Part 1,” says Bussières McNicoll.

Not unlike many of the laws the Liberals have enacted since 2020, this too has received little media attention — to the detriment of Canadians.

According to the CCLA, “the amendment to the Criminal Code introducing the possibility of life imprisonment for any offence motivated by hatred would pave the way to disproportionate sentencing, a chilling effect on free speech, and an unwarranted increase in plea bargaining from innocent and vulnerable defendants. The proposed “fear of hate propaganda offence or hate crime” provision would allow a judge to limit the liberty and expression of individuals who are not even suspected of having committed any crime, let alone convicted.”

The group also point out that the proposed amendments to the Canadian Human Rights Act “would be improper and ineffective to address the issue of hate speech in our modern society, as they would flood with complaints human rights bodies that are already chronically under resourced.”

In sum, the proposed law should terrify us—and journalists who cover politics, policy, legislation, and human rights issues, but are not reporting on this are doing a disservice to their readership— how can we know the peril our democracy is in if no one tells us?

The International Civil Liberties Monitoring Group, of which the CCLA is a part, also recently reported that there still remain “serious areas of concern” in Part 1 of the Act:

—The harm of “content that incites violent extremism or terrorism” is overly broad and vague, and encompasses kinds of activities that are not defined in law, opening the likely possibility of excessive censorship. Further, given the inclusion of the online harm of “content that incites violence,” it is redundant and unnecessary.

—The definition of “content that incites violence” is also overly broad, allowing for the possibility of content advocating for protest and civil disobedience to be made inaccessible on social media platforms.

—While not explicitly requiring platforms to proactively monitor content, the Act does not disallow such actions either.

—Lack of clarity in the definition of what is considered a regulated service could lead to platforms being required to monitor, and likely “break”, encryption tools that protect online privacy.

—Platforms would be required to preserve certain data relating to posts alleged to incite violence or to incite violent extremism or terrorism for one year; this is likely to ensure that the data is available if law enforcement receive judicial authorization to request it. However, the current wording leaves the breadth of the requirement uncertain and in need of clarification/narrowing.

—While the Act lays out transparency requirements for online platforms, it fails to include algorithmic transparency in regard to how content is recommended.

The Quaking Swamp Journal will continue to provide updates on Bill C-63 as it makes its way through the various readings.

Postscript (dated Jan 27, 2025): On January 6, 2025, Governor Mary Simon granted Prime Minister Trudeau’s request to prorogue Parliament until March 24, 2025. Prorogation ends the parliamentary session by terminating all business, including bills and committees. Bills, like Bill C-63, die on the order paper. However, at the start of the new session, the House of Commons may vote to reinstate a lapsed bill, and restart committee business. The Onlines Harms Act can be revived when the session resumes in late March.