In its effort to safeguard the digital frontier, the Canadian government drafted the Online Harms Act, promising to protect Canadians against hate speech. Given the rise in hate crimes, particularly for groups such as the Jewish community, who since October 7 have faced more than half of all reported hate crimes — it’s understandable why the government would put forward such a bill.

Yet, this legislation, underpinned by good intentions, is likely to veer off course, complicating the legal landscape without addressing the roots of hate and potentially stifling the very essence of free speech.

At the heart of the Act’s many flaws is the assumption that more laws equate to more safety. However, Canada’s legal system, already brimming with statutes against harmful actions, suffers not from a scarcity of laws but from a shortfall in enforcement. This inefficiency hints at a deeper systemic ailment—a broken system where the addition of new laws merely layers complexity and errors without meaningful impact.

To explain this plainly, it is important to discuss what the bill does. Bill C-63 currently focuses on seven kinds of harmful content, three of which are specific to children:

1. Content that sexually victimizes a child or revictimizes a survivor,
2. Content used to bully a child, and
3. Content that induces a child to harm themselves.

The four other harms are:

1. Intimate content communicated without consent,
2. Content that foments hatred,
3. Content that incites violent extremism or terrorism, and
4. Content that incites violence.

In addressing the complexities of the Online Harms Act, it’s crucial to acknowledge the segments of the bill that aim to protect the most vulnerable—children.

Targeting content that victimizes children, whether through sexual exploitation, bullying, or incitement to self-harm, is a commendable effort that underscores the need for such a legislative framework. This aspect of the bill deserves some latitude, recognizing the importance of safeguarding children in the digital age. However, the bill’s broader implications, particularly its approach to regulating content that foments hatred, necessitates a more nuanced discussion.

When it comes to hate speech, the bill proposes criminalizing speech that promotes genocide, with penalties of up to life imprisonment. It also introduces a new hate crime category for acts motivated by hatred, which would apply to “any other Act of Parliament.”

In effect, as Andrew Coyne put it in his column for the Globe, “anyone who breaks it for reasons of hate would be guilty of a crime. And the punishment? Once again, up to life imprisonment.”

With the potential ramifications being clear it is exceptionally important to ask, as the Leader of the Opposition Pierre Poilievre has, what does Justin Trudeau’s government mean when they say hate speech?

In Pierre’s words, it means words Trudeau hates. While perhaps facetious, the statement provides an intuitive understanding of society, and the Trudeau government writ large. The basis for hate, and sadly, the application and enforcement of the law is not cut and dry. It is a reflection of society and the views we hold as a collective. The conversation which determines those collective values is not simple, or precise.

The government wants us to believe that the definition adopted through the Supreme Court decision as “detestation or vilification,” will mitigate those concerns.

As Jane Stannus put it in her column for The Spectator “you can be put away for life for a ‘crime’ whose legal existence hangs on the distinction between ‘dislike’ and ‘detest.’” It seems immensely difficult to take that standard as safe, especially given today’s circumstances in which a significant number of nations are being accused of genocide.

At this moment, for example, across Canada, supporters of Palestine and Israel have been caught in a bitter dispute. The argument over the state of genocide itself has made it to the International Court at the Hague. Nations that have been allied with Israel have also been accused of supporting genocidal actions. This bill increases the sentence for promoting genocide to life in prison.

Does it truly make sense to put individuals on the opposite sides of those debates in prison for life? I hope not. Sadly, the points of contention do not just include cases such as Palestine and Israel. Consider just across the pond, where in the UK a man has been found committing a hate crime for filming pug’s ‘Nazi salutes.’ According to the man, it was a joke. To the courts, it didn’t matter.

Even at home today, there are clear areas of potential worry. Take for example that the Canadian government itself has effectively said that even now genocide is occurring against the Indigenous population. What occurs when individuals contest that claim? Or better yet, can you trust this government to not over-reach, when they have already shown the nation’s working-class truckers, that when given the chance – they will.

But there is also another issue with the kinds of maximums we have put forward, and that is the absolute disconnect between the acts to the repercussions. As an individual who works in criminal defence, I am also left dumbfounded and shaken, when the punishment in this country for sexually assaulting your child remains lower than that for speech crimes.

Sadly, the open-to-abuse nature of the bill still goes deeper.

It includes provisions for preemptively addressing speech that could lead to hate crimes, allowing for “peace bonds” against individuals based on feared future speech.

As broken down in S.810.‍012(6), the conditions for the bond can include an ankle monitor, mandatory drug testing, and even communication bans. Refuse to follow along with the terms Well, you could face one year in jail, over a speech crime that could have occurred in the future.

The bill as shown in S.53.‍1 also seeks to reinstate hate speech as a prohibited ground of discrimination under the Canadian Human Rights Act, subject to penalties up to $50,000 – with the accusers receiving up to $20,000.

While the implications of policing speech that has not even been made, are clear – the impact of the Canadian Human Rights Act is less so. For those who are only learning about it now, the Canadian Human Rights Act created the Canadian Human Rights Commission that investigates claims of discrimination as well as the Canadian Human Rights Tribunal to judge the cases.

The tribunal is where there have been serious cases of abuse in relation to its intended use. The most public example of this is the case of Jessica Yaniv, the individual who made complaints against female-operated salons for refusing to wax their balls. Here the complainant can be anonymous, and the bar to determining guilt is not reasonable doubt – but simply a balance of probabilities.

The above not only highlights the peculiar challenges of adjudicating rights in the digital age, but also serves as a stark reminder of how well-intentioned laws can be exploited. It underscores the precarious balance between protecting individuals from harm and preserving the fundamental freedoms that underpin democratic societies.

The Canadian Human Rights Tribunal, with its lower threshold for determining guilt, exemplifies the complexities and risks associated with legislating against online harms. Such mechanisms, while designed to foster a safer and more inclusive online environment, may inadvertently pave the way for subjective interpretations of harm that could stifle free expression.

As we stand at the crossroads of defining the future of online interaction, the lessons from past and current legislation must guide us. In weaving these threads together, the narrative that unfolds is one of legislation caught between aspiration and feasibility.

The Online Harms Act, for all its noble intentions, risks ensnaring the very freedoms it seeks to protect in its bid to create a safer online environment.

At a time when the lines between hate speech and speaking truth to power blur, the Act’s broad strokes may paint a future where caution stifles the search for truth – and no one is left feeling any safer.