House Committee Hears Range of Views on Government’s Role in Protecting Freedom of Expression

Arif Virani, minister of justice and Attorney General of Canada, holds a press conference regarding the online harms bill on Parliament Hill in Ottawa on Feb. 26, 2024. The Canadian Press/Sean Kilpatrick

From moving out of the way to beefing up regulations, experts and advocates provided wide-ranging views to a House of Commons committee studying what the government should do when it comes to protecting freedom of expression in Canada.

The Commons Canadian heritage committee held a sixth meeting this week for its study on the “the protection of freedom of expression and the means the government should have at its disposal to ensure its exercise.”

The study took place after the Liberal government tabled its controversial piece of legislation earlier this year, seeking to crack down on what it calls “online harms.” It includes the targeting of issues like child pornography and would create a new hate crime offence punishable by life imprisonment.

The stiff penalties sought around speech generated some backlash, and Justice Minister Arif Virani said this week his Online Harms Act, Bill C-63, would be split into two pieces of legislation. Virani said his government will try to pass the first portion of the bill, which deals with online safety for children, and seeks to create a new Digital Safety Commission to regulate social media companies.

Bill C-63 in its current form is in second reading in the House and will move to committee review if passed.

Bruce Pardy, professor of law at Queen’s University, told the heritage committee on Dec. 4 that C-63 should be defeated, and that other laws impacting the online environment, such as the Online Streaming Act (Bill C-11) and the Online News Act (Bill C-18), should be repealed. Bill C-11 revamped the Broadcasting Act, imposing rules on content producers, while Bill C-18 sought to have tech giants pay for news links displayed on their platforms.

Google got an exemption from the Online News Act to cap its payment to publishers at $100 million annually for the next five years, while Meta, which owns Facebook and Instagram, stopped displaying news links completely to comply with the legislation.

Pardy said it is “quite strange” that the committee is conducting the study on how the government should protect freedom of expression, because the answer “seems obvious” and he said Ottawa has been “doing the opposite” for years.

“Free speech means the right to be free from government limits on speech,” said Pardy. “If governments did nothing, we would have free speech. Governments protect free speech by getting out of the way.”

While advocating for less government involvement, Pardy said free speech is not absolute and there are existing limits, such as someone can’t counsel to commit a crime, defame, or harass.

“These limits make sense because they protect the liberty of other people, the same liberty that provides you with the right to free speech in the first place. But that’s about as far as it goes,” he said.

Mitzie Hunter, president and CEO of the Canadian Women’s Foundation, told the committee on Dec. 4 that freedom of expression is not an “unlimited right.”

She said Bill C-63 signals that “online harms are finally being taken seriously” and suggested consultations with those “most affected” is “fundamental to fostering inclusive digital spaces while protecting rights for all.”

Hunter said online hate is “often gendered” and the lack of safety “leads many to self censure or leave digital spaces making it a threat to their freedom of speech and democratic engagement.”

Michael Geist, a law professor at the University of Ottawa who specializes in digital policy, told the heritage committee on Nov. 18 that a balance needs to be struck between freedom of expression and expression “viewed as so harmful that it should be restricted or rendered unlawful.”

The difficulty is not around issues like child pornography, defamation, or terrorism-related offences, Geist said, but around digital policy and the “challenge of when expression chills other expression.” Geist also mentioned Bill C-11 and C-18, of which he has been an outspoken critic.

As for Bill C-63, he said it identifies “real harms” such as revenge pornography and inciting terror, and it seeks in part to “establish a balance in addressing them.” What is more problematic in the legislation are the provisions related to Criminal Code and the Canadian Human Rights Act, he said.

Geist called them “overbroad” said they “may weaponize the human rights system and have a chilling effect.”

Geist earlier this week welcomed Minister Virani’s announcement that he would split Bill C-63, saying on social media the decision was “long overdue.” He said the provisions “undermined public support” and called the bill a “case study of government legislative overreach.”

Along with creating a new hate crime offence punishable by life imprisonment, the bill seeks to give power to the human rights commission to deal with complaints related an online discriminatory practices and impose fines of tens of thousands of dollars to individuals found in contravention.