The federal government dared. On a minefield, constitutionally speaking, the Liberal Party tabled a bill intended to counter several forms of online harm. The controversy immediately erupted. However, the fears of some (Margaret Atwood going so far as to evoke George Orwell and the specter of “letters de cachet”) and the denials of others (the federal Minister of Justice and renowned columnists) are targeting the wrong target. The project primarily targets two categories of harm: the fomenting of hatred and the sexual victimization of children. If it shows itself to be respectful of the Charter in the first case, it is – paradoxically – hardly so in the other.
The government aims to protect minors against very specific and documented technological threats. This objective is undoubtedly laudable, but the project does not escape the specter of the unconstitutionality of certain provisions. We are surprised, for example, at the range of writings without any images covered by the ban: the project includes a provision similar to that invalidated in 2020 by the Superior Court of Quebec in the Godbout case, which concerned a horror novel, Hansel and Gretel. Due to freedom of expression, the Court found it obligatory to limit the ban only to writings which advocate illicit sexual relations with children.
The bill pretends to forget this, while making the situation worse: it purely and simply abandons the defense provided for in the Criminal Code. The pursuit of a “legitimate” artistic goal, without undue prejudice to minors, will no longer allow the creator to evade the literary ban before the Canadian Human Rights Tribunal… And the legislator adds: writing which advises a perfectly legal sexual relationship (such as the relationship of a 17 year old teenager with a 20 year old adult) now falls into censorship. The legislator’s ambition undermines freedom of expression, including freedom of artistic creation.
Conversely, the part of the project devoted to stemming the fomenting of hatred online is more concerned with freedom of speech. The provisions envisaged also have the merit of legislatively enshrining constitutional protection. Bill C-63 goes out of its way to declare that a statement is not hateful just because it discredits, humiliates, hurts or offends a person. Suffice to say that a blasphemous caricature does not constitute a crime. Suffice to say that bad taste sarcasm against a minority group does not justify a criminal record. The bill echoes the majority judgment of the Supreme Court in the Ward decision. However, there is a counterpart: the voluntary stoking of hatred remains, again and again, banned, as it should be. The penalties for extreme incendiary remarks are even reinforced.
The bill literally draws a delicate line between simple disdain for a group as opposed to detesting or defaming it. No one is required to like it. All are required not to hate. The balance retained in the federal bill is reminiscent of the arbitration carried out by the English Parliament in the Racial and Religious Hatred Act 2006. Political, religious and societal controversies remain permitted, as does harsh criticism. The ban takes shape when intolerance is promoted.
However, the scope of language prohibition is growing. The federal legislator no longer wishes to be satisfied with the provisions of the Criminal Code to curb hate speech. It proposes to resurrect the old provision of the Canadian Human Rights Act which banned hate speech regardless of the intention of the speaker. Clearly, the suppression of speech also targets the person lacking a guilty state of mind. The proposed guidelines are, however, respectful of the Ward decision.
An abject statement is not enough: we must still establish that due to the precise context of the speech, the reproached words are likely to encourage the hatred of others. The discriminatory potential of the statement must therefore be established even before any muzzling measure. We cannot be moved by this part of the bill: the same protection already exists in full in Quebec due to article 4 of the Quebec charter, dealt with in the Ward decision. To speak out against this federal measure is to ignore the fact that freedom of expression is already regulated in this way in Quebec.