Feds claim Online Harms Act won’t infringe on Charter rights
Feds claim Online Harms Act won’t infringe on Charter rights

The Liberal government says its widely contested Online Harms Act will not infringe on Canadians’ charter rights, and when it does limit freedoms, it will be justified in doing so.

As required by law, Justice Minister Arif Virani tabled a “Charter statement” on the Liberal government’s proposed Bill C-63. The statement is supposed to show that the government has fully considered the Canadian Charter of Rights and Freedoms when introducing a new law.

“The Bill would amend the Canadian Human Rights Act to provide that it is a discriminatory practice to communicate, or cause to be communicated, hate speech by means of the internet or other telecommunications in a context in which the hate speech is likely to foment detestation or vilification of an individual or a group of individuals on the basis of a prohibited ground of discrimination,” Virani said.

The bill will allow the courts to apply peace bonds on people who are “likely” to commit a hate crime, give out life sentences for those who commit any crime deemed to be hate-motivated, and re-introduce a section of the Canadian Human Rights Act prohibiting online “hate speech.”

People found to have engaged in online hate speech could be fined up to $70,000, up to $20,000 of which would go to the person who filed the complaint, if they were the target of the speech.

The statement acknowledged that the bill could limit Canadians’ rights to freedom of religion, freedom of expression, liberty, equality, and security against unreasonable search or seizure, cruel and unusual treatment and punishment, and other offence-related rights.

“The proposed definition of ‘hatred’ has the potential to engage freedom of expression in section 2(b) of the Charter,” Virani said.

Section 1 of the Charter permits violations of Charter rights provided they are found to be “reasonable.”

Virani said the government concluded the bill would be constitutional because it would only codify the Supreme Court’s definition of hatred which characterizes hate speech as “connoting extreme manifestations of detestation or vilification, which go beyond mere dislike or causing humiliation or offence.”

Critics of the bill point out that this definition of hatred is ill-defined.

Virani also found that handing out peace bonds for “hateful speech” online complies with the Charter and it would only be given to those who are feared to commit a future crime on “reasonable grounds.”

Peace bonds would be subject to the same checks and balances that they are in current criminal cases.

The Charter statement said the provisions also serve to protect future victims, as future hate speech could limit their rights.

“The Bill would advance the objective of the CHRA that all individuals should have an equal opportunity to make a life for themselves without being hindered by discrimination based on the prohibited grounds,” it said. “(It) would seek to protect the social standing of members of groups identified by these prohibited grounds of discrimination from the discriminatory effects of hate speech.”

The statement justified the infringements on Canadians’ rights and freedoms as the hate speech defined in the bill could “lay the groundwork for later attacks on group members, including discrimination, ostracism, segregation and violence.”

“By marginalizing the group and forcing its members to argue for their basic humanity or social standing, hate speech creates barriers to their full participation in our democracy,” it said. “The effects of the Bill on freedom of expression are outweighed by the benefits of protecting members of vulnerable groups identified by a protected ground of discrimination.”

The Liberal government also said its use of the Emergencies Act wouldn’t violate the Charter, although the Federal Court ruled that it did.

The House of Commons debated the bill for the first time on Friday morning.

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