Justice Committee on Dec. 12th, 2024

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you.

Clause 140, particularly paragraph (h), gives the regulator powers to essentially label so-called harmful content. In that, I read it as the regulator would have almost greater authority than the Canadian Human Rights Commission currently has to regulate speech, in a very undefined way.

Would you characterize that as an accurate take?

[Joanna Baron]

I would say it's very vague and virtually unchecked.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I don't think that part 1 can proceed. Fundamentally, for me, I am being asked as a legislator to abdicate my power to an unelected regulator to regulate speech in very broad terms. What do you think about that?

I fundamentally think that's wrong, and I think it's lazy on the part of the government, as opposed to actually putting forward legislation—which Conservatives have done, with Bill C-412—as a starting point that could define what online platforms are, as opposed to just porting that responsibility, with potential impingements on civil liberties, to an unelected regulator.

[Joanna Baron]

I think part 1 should not proceed. The objectives of protecting children and online victims are pressing, but there are other ways of enforcing that.

We also know there are huge problems in the courts right now where individuals who are accused of child predation aren't even being tried because of backups in the criminal courts. There are many things we should look at before we look at creating a three-headed hydra.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you.

Conservatives have tabled Bill C-412.

Would you recommend to this committee that perhaps we should be starting with a review of what should actually be in a list of responsibilities for online operators and debating that, as opposed to just porting unfettered powers into an unelected regulatory body that will cost $200 million?

[Joanna Baron]

Yes.

You haven't asked me to comment on the substance of Bill C-412. We do have some concerns with some of the categories that are listed in Bill C-412, but I do think it is worthy of further study and consideration. I'm happy to talk about the categories we have concerns with.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Fair enough. The whole point of Bill C-412 was to have an open debate about what platforms would be responsible for, rather than just porting that behind closed doors into an unelected regulator and giving it unfettered power to regulate speech or impinge on civil liberties.

Do you think that's something the government or any member on this committee should endorse?

[Joanna Baron]

I'm not making any specific endorsements, but I do think proceeding by way of law rather than regulation has benefits.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you, Ms. Rempel Garner.

We will now move for six minutes to MP Brière.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Madam Chair.

Good afternoon to all our witnesses.

Mr. Rousseau, it's a pleasure to have you here. I wish you a good and speedy recovery.

In your opening remarks, you said that creating the ombudsperson position and the commission would only increase bureaucracy. I don't know if you were here, but we just heard from Ms. Panas that her life is difficult every day, that she experiences hate online and on the street and that there is no process in place right now, which is a real problem. This process would make a big difference.

I'd like to hear your comments on that.

[Guillaume Rousseau]

Thank you for your very good question. I appreciate it in particular, since it was asked by the member for Sherbrooke, the member who represents me.

If the committee accepted my recommendation and decided that the bill should focus only on the issue of sexual victimization and revenge porn, rather than also include the hate component, that's where the issue of bureaucracy arises. The fact that the issue of sexual victimization has been mixed up with the issue of hate is problematic, since we can agree on one part but not on the other. We are mixing up two debates that aren't necessarily related. However, this approach has the advantage of ensuring that there's a volume of cases that perhaps better justifies the creation of the commission, the ombudsperson and the office. That's what I wanted to bring to your attention.

Considering the different points of view and the challenges related to freedom of expression, you could get away with focusing on sexual victimization. Does that justify this question, which is more targeted and very important? Does that justify the creation of these three organizations? That's what I'm mainly drawing your attention to. If we look for avenues other than creating this bureaucracy, we can think of legal recourse by individuals, as legislation often allows. A person could initiate a lawsuit. If they've been a victim or if they've suffered damages, they may be inclined to use that kind of recourse. However, it raises other issues, such as access to justice.

Another possible avenue would be to imagine a fund dedicated to victims of revenge porn or, more broadly, hate speech. That could facilitate access to justice.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you for your response.

We heard from a mom whose little girl was abused. The family is currently in court. As my colleague mentioned earlier, sometimes people don't know where to turn or don't necessarily have the money to start legal proceedings.

Don't you think that would be a way to help them? I think we underestimate the scope of the problem when we aren't caught up in these networks or platforms, or when our children aren't necessarily affected by everything that happens online.

The testimony we've heard so far has been horrific. It's heartbreaking. Our goal is to be there to protect our children, to help families and to reduce online hate, at the very least, if we can't eradicate it.

Help us find the right way to do that.

[Guillaume Rousseau]

That's a very good point. If we create these three organizations, we will have to ensure that there is a certain volume of business. If we deal with the more targeted issue of sexual victimization and set aside the issue of hateful content, will there be enough business to justify the creation of these three organizations? That's the question I wanted to put to you.

At the other end of the spectrum, however, the danger is that too many cases will be filed. If we add hate speech to sexual victimization, since the definition of harmful content is very broad, we could end up with an extremely high number of people filing complaints. This could result in very long delays. Generally speaking, administrative tribunals offer slightly faster and less costly access to justice than the courts, but some administrative tribunals are still overwhelmed by cases and there are very long delays. So we shouldn't think that just because an administrative route is created, there will necessarily be access to justice. It's difficult, but it's important to try to anticipate the volume of cases we'll have and the resources we'll need.

They said it was going to cost about $200 million. I think that estimate comes from the Parliamentary Budget Officer. You would think that with that kind of money, there would be relatively quick processing, but hate and online sexual victimization are such broad issues that it's quite likely there will be an extremely large volume of cases, where some complaints will be warranted and others less so, and you end up with a problem of access to justice. So I draw your attention to that.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

I have only a few seconds left. Thank you for being here, as well as all the witnesses who are with us today.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much, Mrs. Brière.

Mr. Fortin, you have the floor for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Madam Chair.

I would like to welcome the three witnesses. This is a good group of witnesses. I'm pleased to have them here today. I just deplore the fact that we have far too little time to ask such important questions of such competent witnesses.

Mr. Rousseau, I also wish you a speedy recovery. First, I want to mention that we haven't received your opening remarks. It's not mandatory to send them, obviously, but you had some interesting references. So if you have the opportunity to send them to us, I would be very grateful.

I would ask the same of each of the witnesses.

That said, Mr. Rousseau, I'm going to address the issue of the definition of hate. You told us that this is indeed a rather problematic definition. You referred to a Supreme Court decision that contains, if I understood correctly, a definition that might be more appropriate, but I didn't really understand what decision it was about.

First, can you spell the name of the case in question for me so I can write it down properly?

Second, what definition did the Supreme Court propose in this regard?

[Guillaume Rousseau]

Thank you for your question.

I think I sent my notes, but maybe too late. I was told to send them 72 hours in advance, and I think I did that last night. Perhaps that's why you didn't receive them. They should be arriving a little late. In the worst-case scenario, please don't hesitate to write me an email, and I'll send you my notes in the next few days.

The definition proposed in the bill is inspired by the Supreme Court decision in Saskatchewan (Human Rights Commission) v. Whatcott. In my view, this definition is a bit too broad; it refers to detestation and defamation, the definition of which refers to hate. So it's a circular and vague definition. Also, it comes from a human rights judgment. We know that human rights differ from criminal law, particularly when it comes to the notion of intent. In human rights, when it comes to discrimination, we focus mainly on the effects, regardless of intent, whereas in criminal law, intent is at the heart of the reflection. So it's really not the same logic. That's why it's problematic to create a definition based on a human rights ruling in a bill that is part of a more criminal logic. In addition, the definition is too broad.

I'd like to draw your attention to the decision in R. v. Keegstra, which was rendered in 1990 and was repeated in Mugesera v. Canada (Minister of Citizenship and Immigration). It defines hatred as “an emotion of an intense and extreme nature that is clearly associated with vilification and detestation”. That seems to me to be a bit narrower than the definition in the bill, which is inspired by the Whatcott decision, which refers instead to detestation and defamation, since we're talking here about the intense and extreme nature of emotion. The word “extreme” already prevents it from being interpreted too broadly. However, here too, we're talking about vilification and detestation, so we have somewhat the same problem. I'm not telling you that the definition is perfect, but since it comes from a criminal case, it's preferable to the definition set out in the Whatcott decision.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Rousseau.

When it comes to the aspect of individual freedoms provided for in the charter, is it reasonable to think that a definition that is poorly chosen, that is not the right one, could have consequences for freedom of expression? The act could govern certain situations that it shouldn't, and that could lead to lengthy and costly legal debates that might not have taken place if we had a better definition.

Am I right to be concerned about that?

[Guillaume Rousseau]

You're absolutely right.

Obviously, the challenge is to protect vulnerable people who are victims of revenge porn or hate speech while protecting freedom of expression. That's your challenge.

Where that balance is very concretely reflected, where it can be found, is in the definition of hate. At the heart of this balance is the definition of content that promotes hatred and the definition of hate. I would draw your attention to the fact that you need to define this very precisely. This concerns freedom of expression for two reasons.

First, if you define the concept of hate too broadly, the courts will sanction people who have justly acceptable speech that, in an open liberal democracy, should ideally be tolerated. There's that risk.

Second, there is an even greater risk: if it isn't clear, litigants who wish to speak won't know exactly whether their remarks could fall within the scope of the act or not. A litigant might want to say something that is just fine and not subject to the act. However, since the definition isn't clear, the litigant could refrain from making that comment. That chilling effect is perhaps more problematic than the risk of courts convicting people of actions that should be protected by freedom of expression.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

What you're telling me leads me to the proposal you raised about abolishing religious exceptions.

Isn't that a case similar to what you're describing? The issue of religious exceptions is so unclear that it can hinder the conduct of trials. People don't know what they can and cannot say. It can be harmful because Crown prosecutors don't know whether or not they should prosecute someone.

What do you think?

[Guillaume Rousseau]

Indeed, it's the same kind of problem: the exception isn't clear. The other advantage of abolishing the religious exemption is that we don't need a ton of bureaucracy. We would really be fighting hate speech without encountering the problems of bureaucracy and costs that were raised earlier.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

[The Chair, Liberal, Lena Metlege Diab]

Thank you very much.

Now we will go to MP MacGregor, please.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Madam Chair.

Thanks to all the witnesses for joining us today. This is an important prestudy on a very important subject matter for a lot of Canadians.

Professor Clement, I'd like to start with you, just on the subject of artificial intelligence. The other hat I wear is that of a member of the public safety committee, and at that committee we certainly heard a lot of concern from a lot of experts about the rapid pace of development in artificial intelligence. Can you tell this committee what the role of artificial intelligence is with respect to algorithmic content curation practices?