Canada’s former chief justice is warning that a federal bill regulating “online harms” will undoubtedly face constitutional challenges.
Beverley McLachlin, who retired from the Supreme Court of Canada in 2017, shared her concerns in an interview with journalist Edward Greenspon.
She noted that Bill C-63 creates a new hate law based on motivation, accompanied by increased sentences of up to life imprisonment.
“Life sentences for sending out some words. That’s heavy. And it will, I suspect, be challenged,” said McLachlin.
She added that this is just a bill and may not become law, but it will engender debate.
McLachlin explained that anti-hate laws have been in the Criminal Code for many years but a high threshold for criminal convictions means there are very few prosecutions.
“When the internet came, I think we realized that this useful but very cumbersome, if you wish, method of handling hate speech and other genocidal speech is probably inadequate to the task,” said McLachlin.
McLachlin said that defining hate speech is a difficult task in the criminal context, and defining genocide is hugely difficult.
“And then the underlying issue is how far can you go without violating the guarantee in our charter of free speech? Where is the line between hateful comment, for example, and a person’s right of free speech?” asked McLachlin.
These questions have led to many constitutional challenges related to such provisions, said McLachlin.
The first woman to be appointed as chief justice of Canada compared two previous cases. The first case, Keegstra, went to the Supreme Court in 1990 and found that the prosecution of a high school teacher in Alberta for antisemitic statements in his class was a reasonable and justifiable limitation on freedom of expression.
At the time of the decision, McLachlin’s dissenting opinion did not agree that the limitation to freedom of expression was justifiable and reasonable under Section 1 of the Charter.
“Although I dissented, I’m content with Keegstra. I think it draws a line that is workable and that is necessary in our modern society, where there is so much hate and vilification circulation, and people can be so badly harmed by it,” she said.
The Ernst Zündel case was a Supreme Court decision from 1992 where the court struck down the provision in the Criminal Code that prohibited the publication of false news because it violated the freedom of expression provision of the Charter. McLachlin wrote the majority decision, concluding that restricting all expressions likely to cause injury or mischief to a public interest was far too broad.
“So Zündel didn’t survive, but Keegstra, which was more pointedly directed to antisemitic hate speech, did,” she said.
McLachlin said that she has always been a staunch advocate for free expression but thinks that it’s possible to make cases for both sides in both the Zündel and Keegstra cases.
Legislation can limit free expression if the courts find the limitation to be reasonable.
“If the limit is too stringent on freedom of speech, then it will not be upheld,” she said.
The ability for people to issue complaints is an important feature of any legislation in the online area, said McLachlin.
Some provinces already have specialized tribunals to deal with complaints about internet content, but no such tribunal exists federally.
Adding these complaints to the Canadian Human Rights Commission’s already-busy workload will be a real administrative challenge, said McLachlin.
She added that when a criminal case about hate is brought before the courts, it has to be proven beyond a reasonable doubt. However, in the human rights tribunals, that is not the case.
“And in some cases, truth is not a defence. So, there’s a risk here that there could be prosecutions. People use the word overzealous prosecutions that amount almost to persecution, or at very least go over that justifiable red line for intruding on free speech,” said McLachlin.
The previous provision under the Canada Human Rights Act, Section 13, existed until 2013.
McLachlin explained that many people considered it too intrusive of freedom of speech and the idea that people should be able to discuss all sorts of ideas freely, which led to the Harper government repealing it.
The section is set to return, which McLachlin expects to receive a lot of debate in the House of Commons.
It’s the government’s responsibility to deal with new media and new harms that develop in society, said McLachlin.
“So, I applaud the government for taking this on, as many other countries have. And I welcome the debate that some of the provisions may evoke. And we’re at the early stages here. I hope that in the end, we will come up with a good law on all these difficult, difficult points,” said McLachlin.
She concluded that she was certain that many of the provisions will be challenged if they remain in their current form.
