Lawyer Pushes Back Against Accusations that Critics of Bill C-63 are “Rage Farming”

A lawyer has spoken out against the personal attacks pushed by the government. She explains that there are valid criticisms towards Bill C-63.

When Bill C-63 was tabled we provided an analysis of the bill. In some areas – especially areas surrounding technology policy, it felt like the government had actually listened and improved the bill accordingly. Indeed, after reading the bill, I went from thinking that I would have to shut down my own website overnight should the bill become law to feeling like my website was going to survive this legislation after all.

The problem, however, is that just because the points of concerns we had were largely addressed doesn’t necessarily make the legislation a perfect bill by any means. Indeed, there are areas, a number of which are largely outside of our area of expertise, where the bill needs to be reworked. An example includes the sweeping powers of the “Digital Safety Commission” including the power to hold secret hearings and the ability to make court rulings on top of it all. What’s more, there are sweeping changes being made to other Acts including the Criminal Code.

All of this does explain a lot about the response from different stakeholders in this debate. For instance, Open Media, which focuses on digital policy, expressed a positive response towards the bill for fixing a lot of critical problems. Meanwhile, the Canadian Civil Liberties Association, called for major changes to the legislation. One focuses on digital rights policy while the other focuses more on general human rights issues.

While the government has claimed that they welcome debate on their bill, that is seemingly where there good will on this ends. The Minister of Justice, for instance, started conjuring up false benefits of the legislation when discussing various cases. The government then went on to dismiss all criticisms as little more than “clickbait“. This by attempting to take the weakest arguments of the legislation and painting it as the entirety of all criticisms.

For those who have been following the Bill C-11 (Online Streaming Act) or Bill C-18 (Online News Act), this follows an all too familiar pattern of behaviour with this government. A poorly written bill gets tabled, the government passes it off as a cure all for whatever problem it is attempting to solve (real or imagined), others step forward and offer good faith criticisms towards the bill and offer solutions to fix these flaws, then the government pushes back and resorts to gaslighting, name calling, and threatening anyone who would dare speak ill of their legislative efforts. Thanks to ignoring anyone offering improvements to the bill, we have terrible laws such as the Online Streaming Act and the Online News Act that is either set to cause, or is already causing, immeasurable harm to innovation and the online environment.

The Bill C-63 situation appears to be no different. Government officials have been attacking critics of all stripes for daring to speak out against the legislation, regardless of how much their arguments are being made in good faith. It’s not hard to imagine that the government has taken the line of thinking of how they are the “good guys” and anyone pushing back against their bill are the “bad guys” even though these debates clearly don’t work that way.

One lawyer, Christine Van Geyn, has published an article (surprisingly) on the Toronto Star pushing back against those accusations:

Academics have warned about amendments to the Criminal Code and Canadian Human Rights Act chilling speech, and about the expansive search powers for the proposed “Digital Safety Commission.” Thousands of regular citizens have written to their Members of Parliament asking them to stop and fix the bill.

To address this criticism, the government has held technical briefings to assuage the media, and recently dispatched Supriya Dwivedi, a senior adviser to the prime minister, to defend the bill in these pages. Dwivedi assails critics of the bill as “rage farming” but defends the bill by setting up cherry-picked strawmen.

For example, Dwivedi argues the critics of peace bonds for hate speech are suggesting peace bonds are a “novel concept” invented by the Liberal government. Serious critics are not saying this. The real concern is that unlike existing peace bonds, the proposed peace bonds for future speech are inherently speculative.

Compare peace bonds for speech with peace bonds for terrorism. With terrorism, courts can be far more certain about the risks. It is obvious if a person has bought materials for a bomb, and there is more certainty about what an act of terrorism looks like. With hate speech, the court will need to speculate about what future speech exists in the mind of the speaker, and whether it will meet the inherently subjective definition of hatred.

This definition of hatred, which Dwivedi points out, is derived from the case law, specifically Saskatchewan v Whatcott. However, this is not the slam-dunk defence Dwivedi appears to believe it is. Relying on the Whatcott definition does not solve the problem of defining what hatred is, since it essentially defines hatred with reference to itself, using synonyms like “detestation” and “vilification.”

This is, admittedly, a difficult knot for courts and governments to untangle. But enshrining a complex definition that the public cannot easily understand creates obvious problems, especially when the public is empowered to use that same definition to apply for peace bonds against their fellow citizens and any potential future “hate” speech as Bill C-63 permits.

If C-63 passes, the public can also rely on this definition to bring civil claims for hate speech to the Canadian Human Rights Commission. The return of the civil remedy, which was previously used to bring claims against journalists, opinion writers and clergy, is a massive mistake.

One thing I thought was particularly worth highlighting are the two points she raised which I, admittedly, though understandably, didn’t think of when I was examining the legislation:

Individuals who complain to the commission bear no costs in bringing a complaint, but defendants will almost certainly need to retain a lawyer even for the investigation stage. That section of the Canadian Human Rights Act was rightly repealed. Its return, combined with the amorphous definition of hatred, will chill speech.

Finally, there is the newly proposed stand-alone criminal penalty for hate speech. This provision would turn any federal offence into a potential hate crime, with a maximum penalty of life imprisonment.

Some of the hardest things to spot in the bill are things that are there by omission. The first point is a great example of this. Chances are, those who have first hand experience in the criminal justice system would be the ones to notice something like that. It’s why I said that it was understandable why I didn’t catch on to this because my experience in the criminal justice system is extremely limited (i.e. I’ve seen the inside of a court house and I know those buildings tend to be tall looking on the inside. A not inaccurate observation, but not exactly helpful in understanding criminal law).

The latter point, again, falls in the expertise of someone who is much more well versed in the Criminal Code. During my analysis, I did note that there were a number of changes to the Criminal Code, but someone like me would’ve had little to no shot at fully understanding the significance of some of those changes (which is why I take to listening to people more knowledgeable in these areas instead).

One thing I will note is the fact that the criticisms from those who have a better working knowledge in criminal law than I do are becoming increasingly consistent. What’s more, they are specific in nature towards the text of the bill itself. The counterpoints towards those criticisms are vague and not very specific (even deflecting into different topics at times). Even if you aren’t as well versed in a given area of law, those are all signs that the criticisms towards the legislation are actually legit. I know because I’ve been on the other side of the wall on this, pulling my hair out over specific sections of a bill and saying, “The problem is RIGHT THERE!!! It’s in the text of the bill! It’s black and white and plain as day!”

Working against the government here is the history they have in dealing with criticisms towards their legislative efforts. Though Bill C-11 and Bill C-18, the government has a long history of not handling criticisms very well at all. Instead, they often exhibit signs that they have remarkably thin skin and are prone to throwing temper tantrums whenever people point out flaws in their bill. This is another reason why I’m more inclined to believe those criticizing Bill C-63 at this point.

(Via @MGeist)

Drew Wilson on Mastodon, Twitter and Facebook.