Online Harm's Act would make it illegal to promote hatred against an identifiable group based on race, ethnicity, nationality, colour, religion, sexual orientation, or gender identity. But what does that mean for free speech? And what would it mean for online harms?
00:00:00.000One. Welcome back to another episode of Stand on Guard. I'm your host, David Craydons.
00:00:05.820My guest today is the founder and president of the Justice Center for Constitutional Freedoms, John Carpe.
00:00:14.560And when we come back momentarily, we're discussing the Online Harms Act.
00:00:21.020So we are in a very precarious position in this country.
00:00:24.240We need political change, but we also need to resolve to resist.
00:00:54.240It was Carpe last Friday, and you delivered a fantastic address to a standing room only church there.
00:01:04.580And I think everybody left with a sense that at least somebody out there is organizing resistance to Trudeau's Online Harms Bill.
00:01:16.360And you talked to a lot of people there, a lot of your supporters, and my wife and I are among those supporters, by the way.
00:01:23.340We've supported the Justice Center for many years, and I think the work you're doing is phenomenal.
00:01:30.420But did you leave there with a sense that people felt at least there's hope we can do something to stop this odious Online Harms Bill?
00:01:39.380Well, democracy is a political system that rewards the people who are the most active and the most engaged, and it punishes people who are not active.
00:01:51.860There's an old French proverb that says, if you don't do politics, then politics will be done unto you.
00:01:57.940And so we've seen, not only in Canada, but in different countries, when people roll up their sleeves, and when you have strong grassroots support for a candidate or for an idea or on an issue, when people are both active and persistent, so they don't give up and quit after a few hours, a few days, a few weeks, but they're willing to stick with an issue for years, you can see positive change.
00:02:26.020In Alberta, we used to have this premier by the name of Jason Kenney, and he was replaced by somebody named Daniel Smith, and that was because a lot of Albertans were very upset with Jason over breaking his promises to stop the lockdowns, and he just made things worse and broke his promises and then brought in vaccine passports, etc.
00:02:49.460And so there are so many examples throughout history and across the world, if people will roll up their sleeves and engage in the political process, engage in the democratic process, then it is possible to bring about change.
00:03:04.940Well, I certainly think you're right, people can fight back, and if they're mobilized and educated, and I think that's part of the process here that you're fulfilling.
00:03:16.460But I think Trudeau's unalloyed narcissism is part and product of a bill like this.
00:03:24.460He really thinks he can get away with this, the taking away our free speech, and without any kind of resistance, and we're supposed to think this is about protecting children, although, as you pointed out the other night, all of these laws are already in place to protect children from child pornography and from revenge porn.
00:03:45.860And for that matter, hate speech. We've already got laws against hate speech. So what is going on with this? We need to do it again. We need to replicate these laws in this online harms package. What are they up to?
00:04:00.880Well, currently, we've got section 319 of the criminal code makes it illegal to willfully promote hatred against an identifiable group. And that means a section of the public that can be identified on the basis of race, ancestry, ethnicity, skin color, national origin, religion, gender, sexual orientation, gender expression, gender identity.
00:04:29.040And I might be missing one or two, but it's on these enumerated grounds. So, by the way, it doesn't apply. If you were to willfully promote hatred against bankers, for example, and apologies to any bankers that are listening or watching this.
00:04:45.080But if you were to say that bankers are a bunch of vile scum and the world would be better without them, or really nasty words like that. Or if you said that, excuse me, if you made hateful comments about people
00:04:58.980that did not get the COVID injection back in 2021, and if you said that they were racist, extremist, anti-science, misogynist, it wouldn't apply. So section 319 makes it illegal to promote hate willfully against an identifiable group based on those characteristics of race, ethnicity, gender, religion, sexual orientation, etc.
00:05:23.980Now, it's hard to measure, but it probably does not have a huge negative impact on free expression because most people are staying clear of breaking that law. And there are four defenses available, the defense of truth, the defense of expressing an opinion based on a religious text, and so on.
00:05:48.920Now, what the Online Harms Act would do, okay, so you've got criminal code hatred is illegal. That's already a crime. But what the Online Harms would do is they would empower the Canadian Human Rights Commission with new powers to prosecute Canadians for non-criminal hate speech.
00:06:13.500And here, the definition of hate. And here, the definition of hate gets very, very subjective. Because who knows the difference between hate versus dislike or hate versus disdain. And so you're going to get the Canadian Human Rights Commission with, they're going to have bureaucrats that can prosecute.
00:06:34.860You could be ordered to pay up to $50,000 to the federal government, plus up to $20,000 to the complainant, plus complaints can be anonymous.
00:06:46.140And so this casts the net a whole lot wider than the law that we have right now, the criminal code prohibition on hate speech, where, by the way, the Crown has to prove beyond a reasonable doubt that what you said was hateful, and that you intended to say something hateful, that you did it on purpose, prove it beyond a reasonable doubt.
00:07:09.180But with the new law, if the Online Harms Act, if Bill C-63 passes, you're going to get the Canadian Human Rights Commission to prosecute for non-criminal hate speech, where you don't get a criminal record, but it's also, it's very subjective.
00:07:25.380You'll be at the mercy of bureaucrats subjectively deciding what hate means, because it's not at all clear.
00:07:33.840Now, the bill states, or at least the Attorney General has said, Ava Verrani has said, that this definition of hate will be defined by the Supreme Court.
00:07:48.420Is this a definition the Supreme Court has already promulgated, or is this going to be a new definition that they promulgate?
00:07:56.380So the Supreme Court of Canada dealt with a human rights case arising out of Saskatchewan.
00:08:02.340So this was like a non-criminal human rights prosecution against a fellow by the name of Bill Watcott.
00:08:09.700Some of the viewers and listeners may have heard the name.
00:08:12.440He's a socially conservative activist who distributes flyers and pamphlets, which a lot of people find very offensive.
00:08:24.240A lot of people might agree with his viewpoint, but they don't like the way he expresses it.
00:08:27.620Anyway, he was getting prosecuted for distributing flyers in Saskatchewan that denounced gay sex as sinful and in very polemical, strong language.
00:08:41.400And so when this ultimately got before the Supreme Court, the Supreme Court tried to come up with a definition of non-criminal hate speech.
00:08:52.160And I actually did a cut and paste of that section of the judgment, and they devoted over 4,000 words to trying to hair split by saying, well, promoting disdain and dislike is okay, but promoting detestation and vilification is not okay.
00:09:12.860How do you know if what you're saying is going to be okay because it's promoting dislike of a particular group, but it's not crossing the line into disdain and vilification?
00:09:28.520And so even after 4,000 words, the Supreme Court did a miserable job and failed to come up with any clarity.
00:09:36.480And that's not the fault of the Supreme Court.
00:09:38.240That would be you or I, anybody else, try and write a concise definition of hatred that people can look at and actually know whether they're in line with the law or not.
00:09:49.760And it's going to be impossible because hate is an emotion.
00:10:39.240This is a parody of Justin Trudeau at its worst, suggesting that we're going to have thought crimes in Canada.
00:10:45.960And, of course, we'll get to that in a minute because I think your thoughts on that are excellent.
00:10:51.060But my old friend Steve Forbes is jumping on the bandwagon, and he released this video a couple of days ago, and I think it's excellent.
00:11:00.120And I'm just going to watch it because he not only brings up the thought crimes aspect, he brings up something interesting about Canada's Charter of Rights, which I'd like you to comment on.
00:11:10.880Hello, I'm Steve Forbes, and this is What's Ahead, where you get the insights you need to better navigate these turbulent times.
00:11:18.120Freedom of speech is a bedrock right for Americans.
00:11:21.280It is guaranteed in the First Amendment of our Constitution.
00:11:24.980We tend to think other democracies enjoy the same privilege.
00:11:30.120The First Amendment is truly unique to us.
00:11:33.640Just look at our neighbor to the north, Canada.
00:11:36.440There, free speech is under Cuban-like assault.
00:11:40.220If the government of leftist Prime Minister Justin Trudeau has its way, not only will your right to write and speak what's on your mind be severely restricted,
00:11:50.100but also the government can jail you if it suspects you might say something that is unlawful.
00:11:57.580The mere suspicion that you might mouth or write words or phrases that the government deems to be unlawful is grounds to arrest you.
00:12:06.000Who could have imagined that what George Orwell labeled thought crimes in his classic novel 1984, about nightmarish life in a totalitarian world, would be pursued by Canada of all places?
00:12:19.180Ostensibly, Canada protects free speech in what it calls, quote, the Canadian Charter of Rights and Freedoms, end quote, which is part of the Canadian Constitution.
00:12:29.800In the Charter, quote, freedom of expression, end quote, is indeed guaranteed.
00:12:35.740But then comes the killer qualifier, as long as it remains, quote, within reasonable limits, end quote.
00:12:42.500You could drive a convoy of dump trucks through that loophole, and Canada's national and local governments have done just that.
00:12:51.080Over the years, people expressing politically incorrect observations have suffered serious legal assaults by government.
00:12:58.540Trudeau's new bill targets so-called hate speech on the Internet.
00:13:04.080Anyone could file a complaint against someone or a business.
00:13:07.820The targeted individual could end up getting hit with house arrest, even if he or she hasn't actually committed a speech crime.
00:13:15.880But a judge decides there is a likelihood that such a person would do so.
00:13:23.600If Canada can suppress free speech, don't be surprised if more and more entities here in the U.S. try to emulate our neighbor to the north.
00:13:32.720I'm Steve Forbes. Thanks for listening.
00:13:34.860Do send in your comments and suggestions.
00:13:37.280I look forward to being with you soon again.
00:13:40.660So, Forbes, of course, media mogul, a former Republican presidential candidate.
00:13:48.040He's saying that this could happen in the U.S. because if it happens in Canada first, it can happen here.
00:13:55.220But he raises that question about our Charter of Rights and the phrase reasonable doubt.
00:14:01.340Has this left us in a very precarious position that we can't challenge this Online Harms Act as being unconstitutional?
00:14:11.920Does that put us in a precarious situation?
00:14:17.620And I have to agree with what Steve Forbes said.
00:14:20.740One of the provisions that he mentioned was preemptive punishment.
00:14:26.280So if your neighbor fears that you might commit a speech crime in the future, you would have to appear before a provincial court judge.
00:14:34.300And if the judge believes your neighbor and fears that you might commit a speech crime, you could be ordered to place under house arrest and wearing an ankle bracelet and observing a curfew.
00:14:45.620And if you don't agree to abide by those conditions, you could spend up to two years in jail.
00:14:50.260All of that without having committed any crime whatsoever, but preemptive punishment.
00:14:58.040But I just want to say what Steve Forbes said is correct.
00:15:01.020Under Bill C-63, you could end up in prison without having committed a crime.
00:15:06.560It is possible under this legislation.
00:15:08.620Now, section one of the charter says that governments can, so governments would be the federal government, provincial governments in Canada, can violate your charter rights and freedoms if they show demonstrably with persuasive evidence that the freedom violating law is a reasonable limit that can be demonstrably justified in a free and democratic society.
00:17:01.940You could defend yourself on the basis of truth.
00:17:04.760There was a religious defense that if you were articulating an opinion based on a religious text.
00:17:11.680And so, but three out of seven said, no, they would have struck it down as an unreasonable limit and not justified.
00:17:18.120So this is, if the Online Harms Act passes into law, it could certainly be challenged by citizens and it would be possible to get a court to strike down parts of the Online Harms Act or all of it as an unreasonable limit.
00:17:41.360Well, well, I'm not in the business of making predictions, but the court could go either way on this quite easily and could uphold legislation like that.
00:17:54.520Possibly the court could strike it down, but that's hypothetical.
00:17:57.140Well, I think Steve latched on to the thought crimes component of this legislation, which I think most people that I've spoken to are most alarmed by.
00:18:10.360That it's not just hate speech, it's hate thought or what the government or your neighbor down the street thinks you might be thinking.
00:18:20.120I find that frightening, that we could come to that kind of juncture in this country that used to believe in free speech and is now literally echoing the darkest chapters of George Orwell's 1984.
00:18:43.440The opposition leader, Pierre Poilievre quipped the other day, he says, does Justin Trudeau view George Orwell's book titled 1984?
00:18:55.280Does he view 1984 as a warning or as an instruction manual was the question that was asked.
00:19:01.560But if the justice minister, Arif Varani, was a third person on the show, if we were having a three-way discussion,
00:19:10.120he would say, well, you know, you're getting upset over nothing because a judge would only order house arrest and curfew and ankle bracelet
00:19:19.420if the judge believed that there were actual reasonable grounds to support your neighbor's belief or your neighbor's fear.
00:19:31.740It's not like your neighbor files a complaint and the next thing you know, you're placed under house arrest
00:19:36.840because the neighbor would have to have well-founded grounds, would have to have a good reason for fearing that you're about to commit a hate crime.
00:19:47.540And if the and there's a good chance that your neighbor would fail to persuade the judge and then you would be on your way.
00:19:54.940Now, I would respond to the justice minister and say, well, you might be right.
00:19:59.840Maybe 90% or maybe 99% of these complaints will get dismissed.
00:20:09.640And this is something that we have to take into account.
00:20:12.040So a lot of Canadians, if the Online Harms Act, if C63 passes, they're not going to necessarily be afraid of being placed under house arrest
00:20:21.060because, you know, the chance of that's pretty slim.
00:20:24.000But there's a far bigger chance that you're going to be, you have to appear before a judge
00:20:29.940and hopefully persuade the judge that you're not going to commit a speech crime.
00:20:36.000And it's that fear, people don't, and it's the same with the human rights complaints.
00:20:39.240You're going to have a lot of frivolous human rights complaints.
00:20:42.580When Scotland passed hate speech legislation just a few weeks ago, on the first day they were flooded with,
00:20:49.500I don't know what the number was, 5,000.
00:20:51.120And there were so many complaints that it's going to be hard to get through it.
00:20:55.420So same thing with the Online Harms Act.
00:20:58.220If the Canadian Human Rights Commission gets the new powers to prosecute non-criminal hate speech,
00:21:05.400if they get flooded with 10,000, 20,000 complaints, they might get so bogged down that,
00:21:11.060so it's not, it's not the high risk of being ordered to pay $50,000 to the federal government
00:21:20.360and being, and on top of that, $20,000 to a complainant.
00:21:23.660It's not the risk of having to pay $70,000 that's frightening.
00:21:27.860It's the risk of getting prosecuted that if you don't watch what you say,
00:21:32.240you're going to get a letter in the mail or a letter by email saying, you know,
00:21:35.640dear Mr. Creighton, you know, it's been reported to us that you said such and such on this date,
00:21:42.060this time, this forum, this venue, this podcast, or, you know, on your website,
00:35:46.580And if there's anything we can do here and for the organs that I write for,
00:35:51.720I tell you, they're dedicated to stopping this legislation because they know it's tantamount to ending free speech in Canada and a free press.
00:36:02.920And without either of those, we're not a democracy.