Unfor­tu­na­te­ly the Tru­de­au Libe­rals belie­ve otherwise

By Peter Menzies
Con­tri­bu­tor
Troy Media

Cana­da did not build pro­tec­tion of cer­ta­in rights and fre­edoms into its Con­sti­tu­tion becau­se, as some might think, they are sau­cy sym­bols of pop vir­tu­es. They are the­re becau­se serio­us people under­sto­od that witho­ut the Char­ter of Rights and Fre­edoms the nation would fail to be a modern libe­ral democracy.

The fun­da­men­tal fre­edoms – tho­se upon which eve­ry­thing else is built and all other rights depend – are listed in Sec­tion 2 of the Char­ter as fre­edom of con­scien­ce, fre­edom of reli­gion, fre­edom of tho­ught, fre­edom of belief, fre­edom of expres­sion, fre­edom of the press (and other media of com­mu­ni­ca­tion), fre­edom of peace­ful assem­bly and fre­edom of association.

To be cle­ar, the­se are not abso­lu­tes. Govern­ments – which pose the gre­atest thre­at to them – may infrin­ge upon them but only if they can pro­ve to the courts that the­ir need to do so is “pres­sing and sub­stan­tial” and “demon­stra­bly justi­fied.” In other words, the­re had bet­ter be a dar­ned good reason and, becau­se tho­se who govern us gene­ral­ly actu­al­ly belie­ve in the­se rights, they are very, very care­ful to avo­id infrin­ging upon them.

Not so, it appe­ars, when it comes to our cur­rent fede­ral govern­ment, at least as it con­cerns the actions of the jaun­ty Heri­ta­ge Mini­ster Ste­ven Guil­be­ault. His war aga­inst fre­edom of expres­sion con­ti­nu­ed recen­tly when he rol­led out what was misle­adin­gly label­led as a con­sul­ta­tion (it was more a sta­te­ment of intent) on Bill C‑36, his so-cal­led onli­ne harms bill.

Guil­be­ault, you will recall, was the master­mind behind the inten­se­ly con­tro­ver­sial Bill C‑10, a ham-fisted effort to pan­der to an enti­tled seg­ment of Canada’s cre­ati­ve indu­stry by pla­cing the Cana­dian Radio-tele­vi­sion and Tele­com­mu­ni­ca­tions Com­mis­sion (CRTC) in char­ge of regu­la­ting the enti­re glo­bal Inter­net. The CRTC was also to be tasked with redi­stri­bu­ting Inter­net wealth to the nation’s self-ano­in­ted cul­tu­ral eli­te. If that wasn’t eno­ugh to catch your eye, C‑10 even gave the CRTC the right to order social media com­pa­nies to favo­ur con­tent of the government’s liking and take down con­tent of which its appo­in­te­es at the CRTC might disapprove.

The fol­low-up act, C‑36, is adver­ti­sed as an effort to ensu­re social media com­pa­nies remo­ve from the­ir plat­forms cri­mi­nal acti­vi­ty: hate spe­ech, ter­ro­rist acti­vi­ty, child porn and non-con­sen­su­al distri­bu­tion of inti­ma­te ima­ges etc. Never mind that Face­bo­ok et al alre­ady do so as quic­kly as they can. Guil­be­ault says only the govern­ment can be tru­sted with this respon­si­bi­li­ty and wants to cre­ate a Digi­tal Safe­ty Com­mis­sio­ner to patrol social media and ensu­re – never mind due pro­cess – remo­val of pro­ble­ma­tic posts within 24 hours. Face­bo­ok, Twit­ter, YouTu­be, Tik Tok and the like will all face mas­si­ve fines if they fail to comply.

Cara Zwi­bel, direc­tor of the Cana­dian Civil Liber­ties Association’s fun­da­men­tal fre­edoms pro­gram, told the Natio­nal Post the like­ly out­co­me would be that tho­se com­pa­nies will pro-acti­ve­ly remo­ve con­tent that risks being cap­tu­red by the C‑36 defi­ni­tion of hate, which is defi­ned as spe­ech that “expres­ses dete­sta­tion or vili­fi­ca­tion of an indi­vi­du­al or gro­up of indi­vi­du­als on the basis of a pro­hi­bi­ted gro­und of discrimination.”
For the record, this is not the Cri­mi­nal Code defi­ni­tion of hate spe­ech, which sets a much higher bar. Guilbeault’s intent, the­re­fo­re, is to regu­la­te and have social media com­pa­nies ban what would other­wi­se be legal speech.

To fur­ther expla­in, Guil­be­ault says spe­ech that “expres­ses disli­ke or dis­da­in, or that discre­dits, humi­lia­tes, hurts or offends” wouldn’t meet the hate stan­dard. Left to our ima­gi­na­tions is whe­re his new Digi­tal Safe­ty Com­mis­sio­ner will draw the line betwe­en “dete­sta­tion,” which is bad, and “dis­da­in,” which is still OK.

Accor­ding to Zwi­bel: “I think we will pro­ba­bly see people making com­pla­ints that pro­ba­bly shouldn’t go for­ward and the­re may be a chil­ling effect on people who were con­cer­ned abo­ut expres­sing them­se­lves and whe­ther they’ll cross some sort of line.”
Fro­stier still is that the Com­mis­sio­ner of Digi­tal Safe­ty will be empo­we­red to over­lo­ok the arti­fi­cial intel­li­gen­ce (AI) units of social media com­pa­nies that seek to iden­ti­fy beha­vio­ur deemed pro­ble­ma­tic and alert the police.

Dr. Micha­el Geist, Uni­ver­si­ty of Otta­wa law pro­fes­sor and Cana­da Rese­arch Cha­ir in Inter­net and E‑commerce Law, puts it this way:
“The (social media com­pa­nies) would face a man­da­to­ry repor­ting requ­ire­ment of users to law enfor­ce­ment, leading to the pro­spect of an AI iden­ti­fy­ing what it thinks is con­tent cau­ght by the law and gene­ra­ting a report to the RCMP. This repre­sents a huge incre­ase in pri­va­te enfor­ce­ment and the possi­bi­li­ty of Cana­dians gar­ne­ring poli­ce records over posts that a machi­ne tho­ught was cap­tu­red by law.”

At this point, you sho­uld pau­se and read that last sen­ten­ce over aga­in slow­ly. The possi­bi­li­ty. Of Cana­dians. Gar­ne­ring poli­ce records. Over posts. That a machi­ne tho­ught was cap­tu­red by law.

But, hey, don’t wor­ry, once you’ve been repor­ted to the poli­ce for say­ing you detest Mexi­can soc­cer play­ers for flop­ping abo­ut on the pitch eve­ry time some­one bre­athes on them, the­re is an appe­al pro­cess you can access thro­ugh some­thing to be cal­led the Digi­tal Reco­ur­se Coun­cil, altho­ugh some­ti­mes it will hold its deli­be­ra­tions in secret.
It and the Digi­tal Safe­ty Com­mis­sio­ner will be sup­por­ted by some­thing cal­led the Digi­tal Safe­ty Com­mis­sion, which will be paid for by fees char­ged to the social media com­pa­nies. That means that, some­whe­re along the line, social media con­su­mers and adver­ti­sers will have to pay up. And, seeing as the Com­mis­sio­ner will have the power to order the remo­val of websi­tes (at con­si­de­ra­ble cost to Inter­net Servi­ce Pro­vi­ders), this legi­sla­tion is also like­ly to for­ce upward pres­su­re on Cana­dians’ alre­ady hefty Inter­net and mobi­le bills.
In short, Guil­be­ault and the staff at Heri­ta­ge Cana­da have suc­ce­eded in scan­ning the glo­be, iden­ti­fy­ing the most inva­si­ve and inef­fi­cient regu­la­to­ry prac­ti­ces in pla­ce and bun­dling them all into a sin­gle pie­ce of legi­sla­tion that very like­ly has no hope of survi­ving Char­ter chal­len­ges. Not that they appe­ar to care.

We can all agree that some people beha­ve very badly on social media and that genu­ine harm can be done to people thro­ugh can­cel cul­tu­re, swar­ming and other hyste­ri­cal mani­fe­sta­tions of human beha­vio­ur. As far as I am con­cer­ned, pri­va­te ope­ra­tors can and sho­uld cre­ate as many stan­dards of beha­vio­ur as they like, pro­vi­ded they are not in a posi­tion to abu­se mono­po­ly power. It’s the­ir house. They can set the rules pro­vi­ded they are even­ly applied and in accor­dan­ce with the law.

And, of cour­se, ille­gal acti­vi­ty sho­uld be trac­ked down and remo­ved. But it alre­ady is and has been for years. Poli­ce regu­lar­ly char­ge people who enga­ge in ille­gal onli­ne acti­vi­ties. Courts convict them. But Guil­be­ault doesn’t care abo­ut reali­ty. He has his mar­ching orders. And so, as with C‑10, Bill C‑36 stomps all over Cana­dians’ right to free expres­sion and the­re isn’t the sli­gh­test real pro­of that tho­se rights must be infrin­ged upon due to some “pres­sing and sub­stan­tial” pro­blem solved by an infrin­ge­ment of rights that can be “demon­stra­bly justified.”

Bill C‑36’s apo­lo­gi­sts cla­im, in what can only be descri­bed as a cre­epy Orwel­lian twist, that demo­cra­cy can only tru­ly thri­ve if a core fre­edom such as spe­ech is regu­la­ted by a govern­ment agen­cy that, essen­tial­ly, will deci­de which tru­ths may be spo­ken. Guil­be­ault and many within the Pri­me Minister’s Offi­ce seem per­fec­tly com­for­ta­ble with that.
No one else sho­uld be.

Peter Men­zies is past CRTC vice cha­ir of Tele­com, a past publi­sher of the Cal­ga­ry Herald, and a Natio­nal New­spa­per Award-win­ning journalist.

This com­men­ta­ry was sub­mit­ted by Convi­vium, Car­du­s’s onli­ne maga­zi­ne. Car­dus is a leading think tank and regi­ste­red cha­ri­ty. Convi­vium is a Troy Media Edi­to­rial Con­tent Pro­vi­der Partner.
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