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Kristopher Kinsinger: The Liberals’ online harms law is a full-frontal assault on freedom of speech

Commentary

While often referred to as the Online Harms Act, the Liberal government’s recently-introduced Bill C-63, if enacted, would go far beyond regulating harmful content on the internet. Among many other things, the bill proposes to make three significant amendments to the Criminal Code.

The first is to specifically define “hatred” under the Criminal Code, which currently includes no such definition. This amendment would define “hatred” as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike,” subject to the exception that a statement will not be deemed hateful “solely because it discredits, humiliates, hurts or offends.” 

Meanwhile, the second amendment would significantly broaden the current categories of hate crime offences, to capture any offence under any act of Parliament that is motivated by hatred based on a prohibited ground of discrimination. Currently, the only substantive hate crimes in the Criminal Code consist of prohibitions on wilfully promoting or publicly inciting hatred. In theory, this new provision would turn any federal offence (not just those found in the Criminal Code) into a potential hate crime. Those who commit such offences would potentially be liable for life imprisonment. To say that this is a radical provision would be an understatement.

These provisions have already garnered significant criticism from across the political spectrum. However, Bill C-63’s proposed amendments to the Criminal Code don’t stop there. Perhaps the most significant—and problematic—amendment would allow individual Canadians (with the attorney general’s consent) to seek peace bonds against others whom they fear will commit a hate crime in the future. Under this provision, provincial court judges would be empowered to call these parties to appear before them to determine whether there are “reasonable grounds” to fear that the defendant will commit such an offence. 

When a judge ultimately decides that an individual is reasonably likely to commit a hate crime, their powers are far-reaching. Specifically, Bill C-63 allows judges to issue peace bonds against individuals in such cases for up to 12 months that may: require them to abstain from communicating with certain individuals or from consuming drugs and alcohol; place them under house arrest; or (on the application of the attorney general) order that they wear an electronic monitoring device such as an ankle bracelet. 

The inclusion of peace bonds (known more formally as “recognizances”) against future hate crimes is arguably Bill C-63’s most draconian provision—which says something in and of itself, considering the other provisions of the bill vying for that title. And yet, at the same time, Canadian lawyers and law students (even constitutionalist ones) may be at a loss to articulate precisely how this provision offends some of the most basic tenets of our legal and constitutional order. To this end, a refresher on the rarely cited but crucially applicable legal doctrine of prior restraints is long overdue.

In short, a prior restraint is a limitation on expression that doesn’t just target the ostensibly harmful effects of that expression but seeks to prevent such expression from taking place at all. This is a departure from the other numerous ways in which our law frequently limits expression: libel, defamation, sedition, and even the current prohibitions on willfully promoting or publicly inciting hatred are all intended to punish expression after it has occurred.

By necessity, prior restraints censor expressive content by turning agents of the state into the licensors of permissible expression. To wit, the evidence that judges will consider when deciding whether to issue the peace bonds envisioned by Bill C-63 will, invariably, include the allegedly hateful content that the individual in question is expected to express. It is by no means unreasonable to fear that certain expressive content will be presumed to cause harm even where such harm has not taken place, much less been proven on a balance of probabilities—the requisite mens rea or “guilty act” that our law requires to establish that a criminal offence has been committed. 

A person holds a copy of the Canadian Charter of Rights and Freedoms during a rally on Parliament Hill in Ottawa, on Saturday, Jan. 29, 2022. Justin Tang/The Canadian Press.

The doctrine of prior restraints has seldom been cited by the Supreme Court of Canada. Though the term is largely derived from American legal scholarship and case law, the doctrine itself is rooted in the British law on which Canada’s constitutional order is modelled. Justice Iacobucci recognized as much in his partial dissent in the Supreme Court’s 2000 ruling in Little Sisters Book and Art Emporium v. Canada, citing the 18th-century English jurist William Blackstone’s warning that “Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.”

Although Justice Iacobucci did not go so far as Blackstone to conclude that prior restraints are “necessarily destructive” of freedom of the press or freedom of expression, his reasons ought to serve as an admonishment against the “inherent dangers” of prior restraints as “particularly severe restrictions on speech.” 

Should Bill C-63 become law, the legislation will inevitably be challenged under the Canadian Charter of Rights and Freedoms. The doctrine of prior restraints ought to drive the assessment of any peace bond provisions under Section 1 of the Charter, which only allows for limitations on Charter rights and freedoms if they can be “demonstrably justified in a free and democratic society.” It is doubtful that such a profound limitation on a guarantee as important as freedom of expression can survive constitutional scrutiny under this standard.

Mike Moffatt and Cara Stern: The dream of Canadian homeownership is dying. Here’s how to revive it

Commentary

If you want a well-functioning economy, people must have hope that hard work will lead to success. But in Canada, people are giving up. A recent poll by Abacus found that a full 74 percent of Canadians believe housing affordability will get worse for first-time homebuyers in 2024 and that 57 percent of non-homeowners are either pretty pessimistic or have given up hope entirely of ever being able to buy a home. That’s up from 48 percent since September 2023. 

Locking young people out of home ownership is bad for the political fortunes of incumbent governments and bad for the economy. It is also a threat to the social stability of Canada, according to a recent RCMP report. Therefore, all orders of governments need to restore the dream of homeownership to Millennials and Generation Z, while creating abundant options for renters.

Additional housing supply for both owners and renters is necessary. But building new supply will take time. Governments cannot expect people to feel good about the measures taken to increase housing supply if they’re living in unsuitable spaces, with only the promise that supply may restore affordability in a decade or more. Canadians need solutions now, so the government needs to find ways to get existing homes into the hands of first-time homebuyers. 

We believe it’s possible to attack the demand side of the equation to get first-time homebuyers into homes sooner. This goal can be accomplished through a three-part plan of scaling back international student enrollment, creating incentives for investors to return single-family homes to the ownership market, and making it easier for first-time homebuyers to qualify for mortgages. The key is that all of these reforms must be implemented together for it to have an effect.

Getting more single-family homes back into the hands of families

The only immediate way to increase homeownership for younger families is to make it easier for them to buy homes that already exist or are about to be completed. In Ontario alone, there are nearly 700,000 single-detached, semi-detached, and row homes that are not occupied by their owners but are serving some other purpose. 

While homes being left unoccupied or turned into short-term rentals receive a great deal of attention, the majority of these investor-owned homes are being used as long-term rentals, often for university and college students. With the international student boom, entire neighbourhoods are getting converted into student rentals. These conversions reduce the number of homes available for families but also cause inefficient use of existing infrastructure. It leaves local elementary schools underused because these neighbourhoods then lack children.

International students and other non-permanent residents add to the social, cultural, and economic fabric of Canada. However, for them to thrive, they must have adequate housing. Canada’s international students and temporary foreign workers programs need to be scaled back even more until Canada’s non-permanent resident population returns to pre-pandemic levels. The scale of the international student program, in particular, should be tied to the construction of on-campus or near-campus housing. This could help prevent the loss of single-family neighbourhoods in our cities.

Governments should then create incentives for the current owners of those student rentals to return them to the market to be used as homes for actual families. A time-limited and temporary reduction in capital gains tax or provincial land-transfer taxes when selling a secondary property could act as such an incentive. For example, the capital gains inclusion rate could be lowered for any single-family home or condo unit purchased before January 1, 2024, so long as that unit is sold to a buyer using it as a primary residence, and the sale is completed between July 1, 2024, and July 1, 2027. This measure would incentivize investors to return those units to the ownership market. Over the longer term, the tax system should be designed to disincentivize investors (from mom-and-pop investors to large domestic and foreign corporations) from buying up existing single-family homes and instead incentivizing them to provide capital only to new home construction (rental and ownership).

While having investors sell their portfolio of single-family homes will increase the supply of homes available for purchase and put downward pressure on prices, it will still likely not be enough to allow first-time buyers to purchase these homes. Last year, home sales dropped by 11 percent due in part to high prices and interest rates, causing first-time homebuyers and young families to be unable to qualify for a mortgage at all. The drop in sales can be addressed by recognizing that the current rules could be better designed for younger homebuyers. 

For example, the current 25-year amortization rule helps ensure homebuyers will not still be paying off their mortgages when they are in their 80s or 90s. However, these rules do not take into account the age of the buyer and treat a 50-year-old and a 30-year-old the same. Because younger buyers have more time left in their working careers, they should be allowed to choose longer amortizations if they wish. A 35-year-old buyer with a 30-year amortization would still have their mortgage paid off before retirement. The federal government could create an amortization length of 30 years, but only for first-time homebuyers of primary residences. Ideally, this would only apply if one of the buyers is under 40 years old. It could even introduce 35-year amortizations for buyers under age 35. The reform would allow more young families to qualify for a mortgage and give an advantage to first-time homebuyers when they are competing with investors and older buyers for a home.

A real estate agent puts up a “sold” sign in front of a house in Toronto, April 20, 2010. Darren Calabrese/The Canadian Press.

Finally, the current stress test rules are not particularly well-designed for young professionals. The stress test is an important tool to ensure that homebuyers can continue making payments if interest rates go up or if economic circumstances change. However, the current test may be excessive for young professionals, who are likely to be earning more five years from now than they are today. Canada should consider reducing the stress test rate from 200 basis points to 50 basis points, but only for first-time homebuyers of primary residences. Or, for buyers under 40 (and the home will be used as a primary residence), who choose a fixed-rate mortgage of five years or more. As with the amortization changes, it would allow more families to qualify for a mortgage, while giving an advantage to families over investors.

It is critical that these ideas be implemented together. Policies designed to increase homeownership that do not take into account the rental market risk displacing renters. A program in the Netherlands that banned investor ownership of some housing types did manage to increase first-time ownership. But it also led to increases in rents, as lower-income renters were displaced by middle-income families. It left more renters chasing fewer rental properties. A plan to scale back international student enrollment until sufficient on-campus and near-campus housing can be built would help minimize this effect, ensuring rents do not skyrocket as rental housing is converted into ownership housing.

Governments cannot afford to wait for new supply to come onto the market to address the dying dream of homeownership in this country. Canadians cannot afford to wait that long. Demand-side policies must be a part of every government’s toolbox in 2024.