Jen Gerson: This briefing did not make me feel better about the Online Harms Act

If you love the idea of Human Rights Tribunals, imagine that they keep their powers, but now Jordan Peterson gets to appoint all the members.

By: Jen Gerson

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.

The Briefing

As it stands today, there is no standalone “hate crime” in criminal law — something this act seeks to change. The criminal code right now prohibits advocating genocide, public incitement of hatred, and wilful promotion of hatred. The first and last of these charges require explicit permission by the attorney general to pursue — recognizing that these crimes are difficult to prosecute, rooted as they are in the inherent problems of policing speech.

If a crime like assault is found to have been motivated by hate, this is usually considered as an aggravating factor at sentencing. In other words, a hate-motivated crime is likely to suffer a more severe punishment.

During the briefing, the Department of Justice speaker suggested that creating a standalone hate crime offence — as the Online Harms Act aims to do — would aid justice officials in tracking those offences statistically.

The spokesperson further claimed that the Online Harms Act sets a “high bar” for whether something constitutes “hate propaganda.”

“Under the Canadian Human Rights Act, hate speech has been found to occur when it portrays a group as dangerous or violent by nature, portrays a group as preying upon children, the aging or the vulnerable, or dehumanizes a group through comparisons to and associations with animals, vermin or excrement."

Just to be clear, by this definition, morally problematic language — like using the term “groomers” to criticize certain transgender activists — could qualify as hate propaganda. Whether or not that word meets one’s personal bar for “hate speech,” we can be reasonably assured that this term will be hashed out in some future Human Rights Tribunal, if not a criminal court, thanks to the Online Harms Act.

Peace Bonds

The most controversial element of the bill — the peace bond — would allow a judge to subject an individual to up to one year of house arrest in order to prevent a hate crime or hate propaganda offence.

Now yes, of course, peace bonds are a thing that already exist in our criminal justice system. They can be applied in a very narrow set of circumstances in order to prevent likely imminent harm — house arrest for someone who is stalking his ex and has threatened to kill her, for example.

That’s not really the issue. The problem with this act is that it explicitly expands this power to crimes of speech. Speech that we can’t even be sure meets a criminal standard for hate much of the time.

Nonetheless, the Department of Justice speaker went on to provide an example in which this peace bond could be applied.  

"In this hypothetical situation, someone indicated on social media that they plan to put up a wooden cross soaked in gasoline on the front yard of the home of a biracial couple and their five children. Terrified at this possible event, the family…seeks a peace bond. They obtain the consent of the relevant provincial Attorney General to bring the application."

This, right here, is banana crackers.

Lighting a cross on someone's yard is not hate propaganda. That’s well over the line into hateful conduct. And it’s absurd to use this as an example to alleviate fears that this act could be used inappropriately to subject someone to house arrest to prevent them from handing out hateful flyers or publishing shitty tweets.

A burning cross is not protected speech. That would break any number of existing laws, including promotion or incitement of hatred. Just for fun, we could add to that criminal harassment, uttering threats, property damage, and trespassing. Further, the police would already have a duty to act if they received word of a threat like this — no Online Harms Act required.

The Problem with Genocide

The act also increases the punishment for “advocating genocide” from five years to life imprisonment. To justify this, the Justice spokesperson gave an example of the criminal provision against advocating genocide as follows:

"The crime of advocating or promoting genocide is not a light one. It is not just saying horrible things about people. As the Supreme Court of Canada has determined, it requires public communication with intent to directly prompt or provoke another to commit genocide … the threshold is illustrated by a case considered by the Supreme Court of Canada, a case called Mugesera.”

OK, but, there is a difference between deporting a non-citizen for advocating genocide abroad, and jailing a Canadian citizen for a crime using the Mugesera decision as a legal threshold. Not least of which because the Mugesera in question wasn’t actually charged with advocating genocide in Canada.

That case was from 1992, in which Leon Mugesera, a member of the Hutu political party, gave an incendiary speech to about 1,000 fellow members of that party in Rwanda. The content of that speech was so vile, and such a clear incitement to genocide, that Rwandan authorities issued an arrest warrant. Mugesera fled the country and, in 1993, applied for permanent residency in Canada. Two years later, the Canadian minister applied to have him deported under the auspices of the Immigration Act on the grounds that “he had incited to murder, genocide and hatred, and had committed a crime against humanity.”

In other words, Mugesera wasn’t actually convicted of the crime of advocating genocide — a charge the court would have had to prove to the criminal standard of beyond a reasonable doubt. Rather, Mugesera lost his right to stay in Canada because the minister at the time decided that, by the looser civil standard of balance of probability, he was subject to deportation under the conditions of the Immigration Act, which gives the minister discretion to deny entry to permanent residents or foreign nationals who have “engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity.”

And, by the way, that ability still exists in the Immigration Act. See section 35 (b).

I dunno, maybe it’s fine to use a civil case to determine a criminal threshold. Seems a bit sus to me, but I ain’t no law man.

In fact, I think the Justice spokesperson had to rely on Mugesera because it’s the only case that is tangentially applicable. In reality, I cannot find any example of any Canadian citizen being jailed solely for advocating genocide ever. Let me repeat that: I am not a lawyer, and I am happy to be corrected, here (please! Email me!) — but I cannot find any case in which any individual has been sentenced to a full a five-year jail term solely for the crime of advocating genocide since that provision was brought into the criminal code in 1985.

The sort of individuals who get caught up in these kinds of hate provisions tend to be unstable, prone to mental-health problems, and face a host of interrelated criminal charges and personal crises. The closest I can find is this charge levelled against a Quebec man named André Audet in 2020 — the first time the “advocating genocide” provision had ever been used in Quebec. And for the life of me, I can’t even find the outcome of that case. All of which begs the question: if the courts have yet to use the maximum penalty of five years for this crime, why is it necessary to increase that penalty to life imprisonment?

But then this gets weirder. Because then the Justice spokesperson went on to compare “advocating genocide” with the crime of “counselling murder.”

“For example, under the criminal code, it is a crime to counsel someone to commit any crime, whether or not the crime is actually committed…

“In other words, this amendment would ensure that prompting someone to commit mass murder by genocide would have the same potential penalty as counseling someone to commit a single murder that did not happen."

Couple of things.

The spokesperson tried to make life imprisonment sound reasonable by noting that people counselling murder are likewise subject to similar criminal penalties. But these aren’t apples-to-apples. Counselling murder is not a speech crime. That’s the kind of offence that would more typically be laid on, say, a mob boss for ordering a hit against a rival. In these kinds of cases, the prosecution needs to demonstrate mens rea — in other words, a clear intent for that murder to actually happen.

But the law as written doesn’t condemn “incitement of genocide.” It explicitly prohibits “advocating genocide.” Yes, I understand that “advocate” has a specific meaning in a legal context — but then why not substitute the clearer word for the more opaque one?

Further, I’m not soothed by the knowledge that a law against advocating genocide has been remarkably little used to date. Once a punishment is written into law, there is always the risk of abuse — ever more so in a social environment in which our definition of “genocide” is constantly being down-shifted. A plain reading of “advocating genocide” could just as well apply to someone waving an Israeli flag as to an individual screaming “from the river to the sea” depending on the interpretation and ideology of the person choosing to press charges. The spokesperson couldn’t really address that problem beyond assuring us that the bar for prosecution is really, really high. Super high, in fact. The highest. Just trust them.

Section 13

And that brings us to Section 13 — ah Section 13. To avoid going wildly off topic, I’m not going to re-litigate all of the issues and history of Section 13 beyond noting that we’ve already done this. We’ve already tried to give our Human Rights Tribunals the ability to litigate hate.

It didn’t work then. We are simply and wilfully repeating the mistakes of the past.

The Department of Justice is pretty optimistic it’s going to go better this time, though!

"The legislation provides that the Canadian Human Rights Commission would screen complaints and rapidly dismiss unfounded complaints. They would send to the Canadian Human Rights Tribunal only well-founded claims. We emphasize that the purpose of this mechanism is not to punish, but to remove hate speech online and redress harm."

The ability to screen for a legitimate complaint is only as good as the quality of the screener, and as Human Rights Tribunals are quasi-judicial kangaroo courts staffed by activists, that quality is not high. Look, I’m sure HRT commissioners are all lovely and well-intentioned individuals, but it’s impossible to peruse their profiles and fail to notice that this is a self-selecting crowd. To put it mildly. If you share their social gospel and fail to see the problem, I would invite you to imagine an HRT run by Jordan Peterson appointees and re-examine the value of this institution.

HRTs are not criminal courts and can’t impose criminal penalties like jail time, but this is a double-edged sword. They also don’t operate with the same safeguards as the criminal justice system. This assures — absolutely assures — that “hate speech” that would never meet the standard of a criminal court will be litigated in Human Rights Tribunals. Problematic individuals who do not immediately comply with the HRT’s orders to remove allegedly hateful content will be subject to a show trial; they’ll be required to hire lawyers, and subject to penalties of up to $70,000.

Even if they are not guilty, the chilling effect is obvious. The process is the punishment, and the process is intended to penalize anyone who doesn’t conform to a standard of speech dictated by the sort of people who fled Twitter for Bluesky.

Anyone who can’t see this is either disingenuous or delusional.

And for the life of me, I cannot tell which one of those descriptors applies to our fine Department of Justice.

Update: An exceptionally helpful reader found some evidence to explain why it was so difficult to track down the outcome of André Audet’s advocating genocide charge. He appears to have died in 2022. Thank you Line reader!

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