Bill C-63 – What harm could it be?

Posted on May 9, 2024 by Vauxhall Advance

By Cal Braid
Vauxhall Advance
Local Journalism Initiative Reporter

As he does each month, Bow River MP Martin Shields released an April newsletter to keep his constituents informed about his work both in Ottawa and on the homefront. Shields doesn’t shy away from bold statements, and in this latest update he proclaimed, “Bill C-63 is an Affront to Freedom of Expression.” The bill, otherwise known as the Online Harms Act, has generated controversy due to the perception that it will limit free speech in online public forums. Somewhat surprisingly, given the nature and intent of the bill, a few Conservatives have been quick to condemn it. It seems like a political move, but upon closer examination by a number of Canadian legal experts, there are legitimate legal ramifications within it that could bring the hammer down on offenders. As usual, there are two sides to the story.

In February, the bill passed first reading in the House of Commons. “Freedom of expression forms the bedrock of our democracy. Bill C-63 is Justin Trudeau’s latest attack on free speech and the culmination of his censorship crusade,” Shields said. “Conservatives will always stand up for Canadians’ freedom of expression and fight to protect that right from Justin Trudeau’s censorship laws.”

While the furor over the act has settled a bit, it’s still a fresh and vital story, given that it seems to offer crucial protective measures for the vulnerable but also has potential traps built into its framework. On Feb. 26, Justice Minister Arif Virani addressed the nation to explain the intent and parameters of the Act, and at face value, his explanation seemed to be the voice of good conscience and morality.

“All of us expect to be safe in our homes, in our neighbourhoods, and in our communities. We should be able to expect the same kind of safety in our online communities,” Virani said. “But we all know that our online world falls well short of the basic standards that I just mentioned. Bad actors target our most vulnerable: our children. They spread vile hate and encourage impressionable people to commit violence.”

He said that online harms can have tragic and sometimes fatal consequences. “And yet, so much of this goes unchecked. Under this bill, major online services will have three overarching obligations: a duty to protect children, a duty to act responsibly, and a duty to remove the most egregious content. This bill targets the worst of what we see online,” he said. Then he specified that which constitutes egregious and vile:

-Content that sexually victimizes children or re-victimizes survivors.

-Intimate content that is shared without consent.

-Content that incites (or foments) violence, hate, extremism or terrorism.

-Content used to bully a child or induce them to self-harm.

“The bill will establish a digital safety commission as well as an advocate for those who have been harmed,” he said. And then he emphasized, “I want to be crystal clear about what the Online Harms Act does not do: it does not undermine freedom of speech. It enhances free expression by empowering all people to safely participate in online debate.”

The digital safety commission, once assembled, will theoretically help develop online safety standards, promote online safety, and administer and enforce the act. A digital safety ombudsperson (advocate) will be available to support online users. In combination, the two will evaluate and respond to complaints from those online users. However, there’s fear that instead of using the courts to enforce and punish criminal offenders, a bureaucratic body will act as a sort of ‘kangaroo court’ that makes judgements based on interpretations of words like incite, foment, and hate.

Virani said that up until now, an online user did not control where their posts went and what appeared in their feed. Those were dictated by the platforms. Virani said C-63 “will not wade into your private communications,” which are exempted from the legislation.

He was upfront in acknowledging that the bill would receive backlash from “powerful people and organizations.” However, he said, “It is now the time to work directly with us. Profit cannot be prioritized over safety. Right now it is too easy for social media companies to look the other way while hate and exploitation festers on their platforms. This bill will require people to do their part and to do better to keep people safe from harm and exploitation.”

“Failure to do so will have a price: significant monetary penalties,” he said, neglecting to mention potential imprisonment for egregious violations.

Since then, Conservatives, Canadian lawyers, and constitutional rights groups have taken aim at the bill and online chat rooms have been abuzz with alarmist outcries. However, the first reading of the act is online for the public to review, and while it’s a daunting and complex document, it’s not incomprehensible. A dip into the online chatter suggests that those referencing similarities to nazism, facism, and ‘big brother’ haven’t actually sat down and read through Bill C-63 objectively.

The bill has been examined closely by more than a few keen legal eyes, as it should be. It’s not an easy read for a layperson and it would be foolish for a reporter to interpret the bill and speak on it with authority. Minister Virani said the bill “does not undermine free speech.” But those legal eyes have read it and say that it does tread into some potentially sketchy territory. It creates room for subjective interpretations of words like ‘hatred’ that will either lead people to self-censor or risk being drawn into a costly dispute. It creates provisions for huge fines and prison terms for serious offenders. It establishes a provision for preemptive punishment for foreseeable harms that might be inflicted. And while there are objective online harms that seem fairly easy to agree upon, it’s worth noting that some of those harms are already identified in the Criminal Code.