Kevin Wiener: The Online Harms Act is a threat to vulnerable permanent residents

One little-discussed provision will make millions of permanent residents open to deportation for even the most minor criminal offences

By: Kevin Wiener

According to the Trudeau government and its defenders, the Online Harms Act is nothing to worry about. This is supposed to be a bill that will protect equity-seeking groups like racial minorities — yet one little-discussed provision will make millions of permanent residents open to deportation for even the most minor criminal offences, as long as a prosecutor can show that the crime was hate-motivated.

The resulting power to turn any crime into a deportable offence will make non-citizens — many of whom are racial and religious minorities — even more vulnerable in the criminal justice system compared to citizens.

The main focus of the Online Harms Act is regulating online platforms, but it also makes major changes to the way the criminal justice system deals with hate-motivated crimes. Under current law, if a crime is motivated by hate based on a protected characteristic, that’s considered an aggravating factor at sentencing. That means the judge can impose a higher sentence than they normally would, although they can never exceed the maximum sentence for the underlying crime. For many minor crimes, that maximum sentence is two years less a day.

The Online Harms Act uses a totally different approach to hate crimes. Rather than just being a sentencing factor, the Act would create a brand-new hate crime offence. Committing any crime, if motivated by hatred, would make someone guilty of a second crime, with a maximum sentence of life imprisonment. To counter public concern, the Trudeau government has recently sent one of its senior advisors, Supriya Dwivedi, to argue that critics of this provision are “engaging in bad faith tactics,” going so far as to make the absolutely false statement that the bill won’t allow an increased sentence unless the underlying crime already had that sentence.

That is an accurate description of the current sentencing regime, but the text and clear purpose of the new bill is to let judges go further: a serious aggravated assault that might normally attract the maximum 14-year sentence can lead to life imprisonment if the attack was hate-motivated.

Further, Dwivedi's defence of the bill ignores that maximum sentences play an important role in Canada’s immigration policy. If someone is neither a citizen nor a permanent resident, they can only be deported if they commit a more serious (called an “indictable”) offence, or two separate less serious (or “summary”) offences.

The new hate crime provision would be an indictable offence.

Permanent residents have greater protection against deportation, reflecting their stronger ties to Canada. A permanent resident can only be deported for particularly serious crimes. And how does the system determine if a crime is serious enough?

It’s based on the maximum sentence.

If the hypothetical maximum sentence for a crime 10 years or more, a permanent resident can face deportation even if their actual sentence is just probation. They can only avoid deportation by showing compelling humanitarian circumstances to the Immigration and Refugee Board, and by spending years in a precarious immigration status called a “stay.”

The new hate crime provision will let prosecutors threaten permanent residents with deportation proceedings, and temporary students and workers with surefire deportation, even when charged with the most minor crimes, like causing a public disturbance. It’s not too difficult to imagine a situation where a rowdy protest on a contentious political issue — think the trucker convoy or the current Gaza protests — gets broken up, police and prosecutors face pressure to file hate crime charges, and get people deported for conduct that would earn a citizen a slap on the wrist. And those serious risks of deportation could lead people to plead guilty to crimes they didn’t commit to avoid a minor conviction becoming a lifetime bar from Canada.

This isn’t the first time the Liberals’ tinkering with maximum sentences have had major unintended immigration consequences. In 2018, the Senate attempted to amend changes to Canada’s impaired driving laws that increased maximum sentences, pointing out that the changes would create the “sledgehammer” penalty of deportation for any conviction, no matter how small the actual sentence.

The government’s majority in the House of Commons rejected that amendment, with the Immigration Minister promising that he was “carefully considering and addressing the immigration consequences” of the change. In the end, the government did nothing, and now permanent residents face the exact sledgehammer the Senate warned of. That is, a permanent resident who is caught driving while a little over the limit and sentenced to, say, a $2,000 fine could nonetheless also face deportation.

The Liberals’ hate crime amendments will have an even greater impact on immigration, and yet they have given no thought at all to how a bill designed to protect equity-seeking groups will instead have a disproportionately negative impact on them.

It’s not too late for the Liberals to start fixing the serious and myriad problems with their Online Harms Act. But that requires them to start responding to criticisms with good faith and an open mind, not spin.

Kevin Wiener is a lawyer who lives in Toronto.

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