OpenMedia, Amnesty International Canada and more than 20 civil society groups and legal experts delivered an open letter to Minister of Justice Arif Virani, urging the government to separate controversial Parts Two and Three of Bill C-63, The Online Harms Act, into independent legislation.
This separation is vital to allow Parliament and the public to focus on considering the merits of the Online Harms Act itself, as described in Part One of Bill C-63. Public discussion surrounding Bill C-63 has overwhelmingly focused on its controversial changes to the Criminal Code and Human Rights Act described in Parts Two and Three, overshadowing the core elements designed to tackle illegal online content and protect young people in Canada.
Bill C-63 enables blatant violations of expressive freedom, privacy, protest rights, and liberty. It also undermines the fundamental principles of democratic accountability and procedural fairness by granting sweeping powers to the new Digital Safety Commission. It is crucial that both parliamentarians and the public be given enough time to properly address the many flaws of this Bill. Separating Parts Two and Three of the Bill would be a first step in the right direction.
Anaïs Bussières McNicoll, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association (CCLA)
Part Two’s proposed Criminal Code changes, including pre-emptive peace bonds and potential lifetime imprisonment, raise serious concerns about disproportionate punishments that risk chilling legitimate speech. Part Three’s changes to the Human Rights Act are widely believed likely to overwhelm the Commission with complaints, delaying more substantive cases and potentially incentivizing bad-faith complaints as tools of harassment.
To refocus public and parliamentary conversation on due consideration and debate of the Online Harms Act itself, signatories request the government separate Parts Two and Three as a distinct legislative package.
Many of the signatories engaged the government throughout its consideration of illegal online content, including through a 2023 expert letter outlining red lines and recommendations for potential legislation, and by individual submissions to the government’s 2021 consultation.
Bill C-63 was introduced on February 26th, and is currently awaiting second reading in the House of Commons.
The full text of the letter can be read below:
May 7, 2024
To: The Honourable Arif Virani, Minister of Justice and Attorney General of Canada
CC: The Rt. Hon. Justin Trudeau
Subject: CIVIL SOCIETY JOINT STATEMENT: Request for Bill C-63
We, the undersigned civil society organizations, academics and experts are writing to express our deep concern with key sections of Bill C-63, the Online Harms Act. We ask that you separate Parts Two and Three of Bill C-63, which contain the proposed changes to the Criminal Code and Human Rights Act, for independent parliamentary consideration, so that the aspects of the Online Harms Act central to its purpose can receive the scrutiny and broad public consultation they need and deserve.
Since the introduction of Bill C-63, public conversation and debate have overwhelmingly centered on the parts of the bill we are asking be separated. Critics, academics, and civil society members have raised many concerns that the proposed changes to the Criminal Code, including potential lifetime sentences and preemptive peace bonds for acts of speech, are disproportionate, unlikely to meaningfully reduce the expression of hate online, and risk creating a serious chilling effect on lawful speech and debate.
Commentators including well-respected former Human Rights Commission staff have also expressed deep concerns about the practical effectiveness and perverse incentives of Bill C-63’s proposed changes to the Human Rights Act. Many have pointed out that the volume of complaints brought to the Canadian Human Rights Commission (CHRC) is likely to be
extraordinary, creating years of backlog for complaints to be addressed, and potentially slowing its processing of complaints it currently answers that have direct employment or health impact on specific individuals.
Serious concern has also been raised about problematic incentives that Bill C-63 creates for “testing one’s luck” by submitting complaints. Complaints may be filed anonymously, at no cost to the complainant, and if successful, could lead to defendants facing fines of up to $70,000, with up to $20,000 awarded directly to the anonymous plaintiff. This procedural framework lacks basic elements of justice, including evidence or truth assessment. It strongly encourages weaponizing the Commission’s process, causing huge reputational and financial harm with minimal financial risk and some chance of benefit. This ill-considered system is not ready for adoption and needs deeper reevaluation than Bill C 63’s committee time and amendments will allow.
Separating the highly contentious Parts Two and Three of Bill C-63 into their own legislation will allow both parliamentarians and the public to focus on the actual central purpose of Bill C-63: properly defining the mandate, powers, and functions of the new Digital Safety Commission, Digital Safety Ombudsman, and Digital Safety Office of Canada.
If this separation is not made, the clear and present risks posed by these problematic portions will continue to overshadow Bill C-63’s main goal: establishing a regulatory body to mitigate categories identified by the Bill as illegal harmful content that negatively affects Canadians, especially Canadian youth. That overshadowing could delay or even prevent the passage of Bill C-63, and it will curtail time needed to address necessary transparency and accountability on
the powers of the new Digital Safety Commission, which if approved, will be the most powerful regulator of Canada’s Internet.
In the coming weeks, we hope to see you act on our recommendation and clear the way for proper consideration and broad public consultation of Bill C-63’s primary purpose. We will be happy to meet with you to discuss this and other issues with Bill C-63 in more detail.
Sincerely,
Organizations:
OpenMedia
Amnesty International Canada (English-Speaking Section)
British Columbia Civil Liberties Association (BCCLA)
Canadian Association of University Teachers
Canadian Civil Liberties Association (CCLA)
Canadian Council of Muslim Women (CCMW)
Canadian Internet Policy and Public Interest Clinic (CIPPIC)
Canadian Muslim Public Affairs Council (CMPAC)
Canadians United Against Hate / Canadiens Unis Contre la Haine
Centre for Free Expression
Independent Jewish Voices Canada
International Civil Liberties Monitoring Group (ICLMG)
Ligue des droits et libertés
PEN Canada
Prisoners’ Legal Services
Privacy & Access Council of Canada
Individuals:
Brenda McPhail, Director, Executive Education, Public Policy Program, McMaster University
Jillian Rogin, Associate Professor, University of Windsor, Faculty of Law
Kirk Lubimov, President & Investor, Testbed Lab
Kristen Thomasen, Assistant Professor, University of British Columbia, Peter A. Allard School of Law
Sharon Polsky MAPP, President, Privacy & Access Council of Canada
Vivek Krishnamurthy, Associate Professor, University of Colorado Law School
