Back in 2016, when Justin Trudeau’s Liberal government still had its sunny ways glow upon its face, the government and some of its prominent advisors proudly touted the notion of the Liberal Party as the “Charter party.” Constitutional law professor Grégoire Webber, then serving as a judicial advisor, was among them. Webber praised, at the time, the government’s promise to “actively and consciously” “respect, protect, and promote rights.”
“It is a promise to situate the Charter’s influence within the workings of government and Parliament,” he said.
One key part of this promise was the Department of Justice’s new practice of affixing “Charter statements” to newly proposed laws, analyzing them for constitutional compliance. The Constitution is the supreme law of Canada, binding upon all government actors and branches of the state, so this is on its face a sensible and laudable practice aimed at transparently showing how the government arrived at its conclusion that a proposal complies with the supreme law.
But the recently published Charter statement assessing the government’s proposed Online Harms Act demonstrates that even if publishing Charter statements was an earnest attempt to ensure laws and policies are drafted within constitutional boundaries, they have in reality become sheer exercises in government agitprop.
The Charter statement will serve as the basis for any eventual Department of Justice defence of a Charter challenge, so it’s unsurprising that it aims to sell the bill’s constitutionality and is suffused with ends-motivated reasoning. It’s useful, though, in revealing the government’s weakest arguments. It’s also notable for its complete lack of engagement with some of the major critiques lobbed against the bill since its announcement in late February.
The statement’s analysis of the bill’s newly created offence for a crime motivated by hate—s. 320.1001—is a representative example. The offence applies to any crime motivated by hate, rendering it an indictable offence punishable by a maximum life sentence. The fact that, on its face, this means a simple mischief or vandalism charge could now result in a lifetime jail sentence raised alarm bells across the legal community, particularly with regard to the rights against cruel and unusual punishment and to life, liberty, and security of the person.
The statement concludes with the curious wording that “potential inconsistencies” between the s. 320.1001 proposal and “principles of fundamental justice have not been identified.” It then launches into the talking point we have heard repeatedly from Supriya Dwivedi, the PM’s advisor on the online harms file, as well as Justice Minister Arif Virani, in defence of the hefty potential sentence: that judicial discretion to craft proportionate sentences will save the law from unconstitutional application.
But at sentencing hearings it’s typical practice that the Crown will present the judge with a sentencing range based on statutory allowances and case law, and with a new maximum life sentence at its fingertips, the Crown will be able to credibly refer to a sentencing range that stretches up to life. Sentencing ranges are also important leverage for prosecutors to compel accused criminalsinto plea bargains, so a much longer potential sentence can be expected to lead to harsher deals. A young person who spray-paints something anti-Islamic or antisemitic on a building is not likely to get a life sentence, but the fact that life is now a possibility means they’re likely to get a longer sentence or a worse deal for a relatively minor crime. Neither of these nuances are addressed in the statement.
The statement also addresses the bill’s controversial peace bond provisions. The Minority Report-like prophylactic orders against future speech crimes would allow judges to impose conditions like avoiding particular places, submitting to house arrest with a tracking device, and/or maintaining a curfew. There were two major critiques of these provisions.
First, that peace bonds for future speech are inherently speculative. Unlike other contexts in which peace bonds are used, like terrorism and criminal harassment, where there are observable behaviours and steps that can ground a reasonable suspicion that an individual might commit a crime (as well as tangible victims), the notion of constraining someone against a future speech crime is a hall of mirrors relying on an inherently subjective definition of hate.
Second, the peace bond constitutes a prior restraint on speech, which according to the Supreme Court is a “particularly severe restriction” and requires a high level of state justification. Neither concern is engaged with in the statement.
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 bill would also allow the Canadian Human Rights Commission to punish Canadians who communicate “discriminatory” speech online with fines of up to $50,000 and damages awards of up to $20,000 paid to those who claim they were hurt by the speech. The Charter statement suggests this will not unreasonably interfere with freedom of expression because the definition of hate speech is in line with the 2014 Supreme Court judgement in R v Whatcott, which attempted to clarify which speech is so bad that it can be outlawed. But the bill does not track Whatcott precisely. The bill says speech that expresses “detestation and vilification” towards an identifiable group is discriminatory while speech that expresses mere dislike or disdain, or that merely discredits, humiliates, hurts, or offends is not discriminatory.
What Whatcott actually says is that it’s only the most “extreme manifestations” of the emotion described by the words “detestation and vilification” that can be outlawed. What’s more, there is no response provided to one of the biggest arguments against this proposal: that such extreme potential fines and damages awards will chill vast amounts of protected speech by Canadians who can’t see the line between concepts like “detestation and disdain” or “humiliation and vilification.”
Perhaps most stunningly, the statement outsources much of the constitutional impact of its provisions regulating social media companies to the companies themselves. The act would require platforms to “mitigate” the risk that people are exposed to “harmful content,” presumably through flagging and blocking content.
The details of how to actually implement this are explicitly left to the social media companies, and the Charter statement’s analysis even seemingly delegates the impact of such measures on the right to free expression to the platforms themselves, stating that the act “would generally not take a prescriptive approach to the measures that operators should adopt in the expectation that a more flexible approach that would enable operators to use their knowledge, expertise, and innovation to effectively mitigate risks.”
That’s a lot of fancy words to cover up what the bill actually does: impose massive and poorly defined new obligations on platforms to make notoriously fraught judgment calls over speech and outsource the questionable constitutionality of such measures to the private sector. If platforms get it wrong, they risk fines of up to a maximum of 6 percent of an operator’s global revenues or $10 million, whichever is greater. Due to the uncertainty of the obligation and the potential financial risks, it’s inevitable that operators will err on the side of caution, which means censoring all kinds of Charter-protected speech.
If the original aim of Charter statements was to increase transparency, the Justice Department’s response to one of the Trudeau government’s most ambitious and most controversial pieces of legislation undermines rather than enhances transparency. It appears to be a memo aimed more toward ensuring the government’s talking heads are in lockstep with the Liberals when communicating to the public, rather than any kind of good faith attempt to test the constitutional limits of the proposal and share those findings with Canadians. So much for the Charter party.
Joanna Baron is Executive Director of the Canadian Constitution Foundation, a legal charity that protects constitutional freedoms in courts of law and…
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