Honourable members of the committee, good afternoon.
The Canadian Civil Liberties Association, or CCLA, appreciates the opportunity to share its view on Bill C‑63.
The CCLA is an independent, national non-governmental organization founded in 1964 with a mandate to defend and foster the civil liberties, human rights and democratic freedoms of all people across Canada. We work to achieve strong protections for freedom of expression, privacy and principles of fundamental justice. That work is central to our mandate.
The CCLA recognizes the importance of legislative measures to protect some of the most vulnerable members of society from especially harmful forms of online speech. In that sense, the CCLA recognizes that some of the duties established under part 1 of the bill for operators of a regulated service are welcome. However, the current iteration of the online harms act also sets out broader duties that need to be clarified and limited appropriately. Otherwise, they will give rise to problems in relation to freedom of expression.
For example, the general duty set out in subsection 55(1) of the proposed act requires operators to implement measures that are adequate to mitigate the risk that users of the service will be exposed to harmful content on the service. The scope of the provision is too vague. In the absence of proper parameters, operators will likely try to fulfill the unspecific duty as efficiently and economically as possible, potentially at the expense of users' freedom of expression. For instance, operators could proactively monitor content, which at this point is not prohibited under the new act, or they could take down content as determined by non-transparent algorithms.
The general duty imposed on operators to implement tools and processes to flag harmful content, as per section 59 of the proposed act, has similar flaws, which would likely jeopardize freedom of expression as well. As it is written, the online harms act would allow operators to remove various types of flagged content, without giving the user who posted the content an opportunity to present their view. In fact, as written, the proposed act would even implicitly allow operators to remove various types of flagged content without first having to determine whether the content was indeed harmful.
The first three recommendations in our written submission to the committee address these concerns. We recommend that operators, in their efforts to fulfill their statutory duties, be prohibited from engaging in mass surveillance and unduly limiting users' freedom of expression. We also recommend that the newly created body in the bill, the digital safety commission of Canada, be required to check annually that operators are fulfilling their duties as they relate to users' rights.
The CCLA applauds the justice minister's recently announced plan to remove parts 2 and 3 from this bill. This addresses a joint request made months ago by the CCLA and a number of civil society groups to ensure that the committee's study of part 1 was not overshadowed by controversial changes to the Criminal Code and the Canadian Human Rights Act. The CCLA is of the view that Parliament should not pass parts 2 and 3 of the bill.
With respect to the proposed Criminal Code amendments, the new hate-motivated offence would irrationally increase the maximum sentence associated with any offence in Canada to life imprisonment. This excessive judicial discretion paves the way for disproportionate sentencing and an increase in plea bargaining by innocent and vulnerable defendants. It would also hinder free speech in Canada.
The CCLA also objects to the new “fear of hate propaganda offence or hate crime” provision. Criminal law should be a means of holding individuals accountable for what they have done, not for what others fear they might do. Allowing a judge to limit the freedom and expression of an individual who is not even suspected or accused of having committed a crime, let alone convicted of one, unreasonably and unjustifiably infringes on several rights protected by the Canadian Charter of Rights and Freedoms.
Lastly, I will turn to part 3 of the bill, the amendments being proposed to the Canadian Human Rights Act. The CCLA is of the view that the proposed amendments are neither an appropriate nor effective way to address the problem of hate speech in our modern society. The amendments would result in an onslaught of complaints to human rights organizations, which are already chronically under-resourced.
Thank you.
I would be pleased to answer your questions.