There was a point during the last Line podcast where Jen Gerson used the word “assuaged”, and then realized that although she knows what it means and when it’s appropriate to use it, she didn’t know how to say it out loud (a problem I’ve encountered many times in my life, having read widely but not listened to lectures on the various topics I’ve read about). I reference that in the headline, as she recounts going through a belated “technical briefing” on the already tabled bill:
Let’s start by noting that it’s a little bit odd for a government to hold a technical briefing for a bit of legislation more than a week after that legislation has been tabled. Usually presentations of this kind are held for media, MPs, and various stakeholders as or just before a complicated issue or bill is about to be announced to the public.
For the federal government to hold a briefing on the Online Harms Act on March 6 — as it did — raises questions. Questions like “Why?” Questions like “Is this really a ‘technical briefing’ or is this an attempt to assuage concerns about what is actually written in the bill?” And, most importantly, questions like “Am I so assuaged?”
I think, dear readers, that I am not.
Let me explain by appending a caveat about the Online Harms Act, or Bill C-63, which was tabled about two weeks ago. About 75 per cent of what’s in this bill is either good, or benign but potentially useless, and is genuinely focused on mitigating real online harms like child porn and revenge porn. I might nitpick some of those parts if it weren’t for the rest of it. The rest of it consists of “will result in the most significant expansion of Canada’s hate speech laws and create one of North America’s most rigid regulatory environments for media and social media companies”, as law firm Norton Rose Fulbright put it.
In C-63, and its attempts to explain this bill, this government has consistently muddied the waters that delineate between hate crimes and hate speech, and has demonstrated a deep unwillingness to deal with the philosophical problem of defining hate speech in a way that is clear, consistent, and fairly and evenly applied. More specifically, the bill’s attempts to increase the penalties for “advocating genocide” to life imprisonment; the use of peace bonds for pre-crime hate speech; and the re-introduction of Section 13, to be administered by the already questionable Human Rights Tribunal apparatus. All of these present such punitive measures that they would have a chilling effect on speech that is fundamentally incompatible with the freedoms we expect in a Western liberal democracy.
There’s no nice way to put this. These measures reveal deeply authoritarian instincts toward speech and regulation, all the more pernicious as they’re being introduced by people who are absolutely convinced of their own righteous good intentions.
And that brings us back to the aforementioned technical briefing, which attempted to address each of these concerns in turn. I should note that I don’t believe I was invited directly to this briefing — and as I’m not in the Parliamentary Press Gallery, this is not surprising or unusual. I was, however, provided a copy of the briefing in its entirety, and I was told that I was free to quote from it, provided I did not name the Department of Justice official speaking.
To that end, I’d like to provide some excerpts and paraphrases from this briefing, followed by my own observations on what was being presented to an audience of, broadly speaking, laymen. I’ve also run these observations by criminal lawyers to ensure my understanding of the law is sound. If I am in error in any point, I welcome any correction.
