Alan Borovoy, Canada’s great civil rights lawyer, used to say we should censure, not censor, those who spew hate speech.
He and I worked together on a committee many years ago. I would frequently give him a ride home afterwards which gave us opportunities to chat. His views continue to influence my perspectives on Bill C-63, Canada’s Online Harms Act. An editorial in the Toronto Star (written to mark his passing in 2015) should be mandatory reading for parliamentarians reviewing the Bill.
Alan was the long time general cousel of the Canadian Civil Liberties Association. The CCLA has called for “substantial amendments” to the Act.
Our preliminary read raises several serious concerns. While the CCLA endorses the declared purposes of upholding public safety, protecting children, and supporting marginalized communities, our initial assessment reveals that the bill includes overbroad violations of expressive freedom, privacy, protest rights, and liberty. These must be rectified before the bill is passed into law.
I referenced The Star’s tribute a couple years ago, writing about early proposals for the Online Harms Act. It is worth another look. As The Star notes, Borovoy’s view, that even the most offensive speech deserved protection, would lead him into “clashes with others on the left.”
I have frequently cited Aaron Sorkin’s version of that perspective from the film The American President: “You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.”
There are a number of recent articles highly critical of portions of the proposed Online Harms Act, especially as related to Part 2, amendments to the Criminal Code and the Canadian Human Rights Act. Michael Geist writes about why those provisions should be removes from the Act. Christine Van Geyn writes in the National Post that the proposed process creates financial incentives for filing complaints. Individuals face no costs in bringing a complaint — not even the costs of a lawyer — and could receive a $20,000 civil award if successful. “The process becomes the punishment even if the case does not proceed past an investigation.”
Last week, Andrew Coyne wrote “Canada’s Online Harms Act is revealing itself to be staggeringly reckless”, saying, “the more closely it was examined, the worse it appeared.”
There is, first, the proposal to increase the maximum penalty for promoting genocide from its current five years to life imprisonment. Say that again: life in prison, not for any act you or others might have committed, not even for incitement of it, but for such abstractions as “advocacy” or “promotion.”
The most remarkable part of this is the timing. At the very moment when everyone and his dog is accusing someone else of genocide, or of promoting it – as Israel’s defenders say of Hamas’s supporters, as the Palestinians’ say of Israel’s, as Ukraine’s say of Russia’s – the government proposes that the penalty for being on the losing side of such controversies should be life in prison? I have my views on these questions, and you have yours, but I would not throw you in jail for your opinions, and I hope you would not do the same to me – not for five years, and certainly not for life.
Earlier this week, writing in the Toronto Star, Rosie DiManno says “Bill C-63 is a mess of a bill, a fatally flawed piece of overreaching legislation that has drawn scorn from, and made weird allies of, Margaret Atwood and Elon Musk. So maladroit that it can’t possibly be fixed — apart from the obvious correction of severing the child protection part from everything else”.
Finally, a commentary by David Thomas, former chief of the Canadian Human Rights Tribunal, says Bill C-63 is “terrible law that will unduly impose restrictions on Canadians’ sacred Charter right to freedom of expression”.
I have also said that there are limits to our speech freedoms. As the (oft misattributed) expression says, “one’s right to swing their fist ends precisely where the other one’s nose begins.” As CIJA said in its statement on March 6, “We cannot allow mob-driven demonstrations to obstruct our right to participate fully in society.”
There are lines that may not be crossed. Intimidation, threats of physical harm, go beyond the bounds of protected speech. But, we should be able to find a better balance than what has been proposed in Bill C-63.
As Alan Borovoy espoused, censure, not censor.