This article originally appeared in the National Post.
By Bruce Pardy, June 3, 2024
Elon Musk called it insane. Critics cited in the Telegraph described it as “draconian.” According to global law firm Norton Rose Fulbright, it is “the most significant expansion of Canada’s hate speech laws.” “It” is Bill C-63, the Liberal government’s online harms act. It will crush Canadians’ online freedom of speech. How is this possible? From the beginning, we have made a naïve constitutional mistake.
Once passed, the act could have you hauled before the Canadian Human Rights Tribunal for social media posts that “detest or vilify” a person or group on a protected ground. You might not be told who made the complaint. New “digital safety” agencies would make rules and impose penalties for online platforms. Courts could order house arrest for those who, “on reasonable grounds,” risk uttering hate speech in the future. Even minor offences motivated by “hatred” could be punished with life imprisonment. Yes, you read that right.
They’re all in on it. Parliament will pass the bill. Bureaucracies will enforce it. Courts will hear the criminal cases and give the bill’s censorship of speech a pass under the Charter of Rights and Freedoms.
The Supreme Court of Canada is largely to blame. In the United States, “hate speech” is constitutionally protected under the First Amendment. But in Canada, our Supreme Court has said that governments can censor speech that “detests or vilifies” a person or group. The Liberals have cleverly used that language to draft C-63. The court, not the Charter, is in charge. If the Charter was honest, it would say something like, “Everyone has the fundamental freedoms that courts decide, from time to time, that they should have.” This is essentially what Section 1 of the Charter, the “reasonable limits” clause, has come to mean anyway.
Kings once ruled England with absolute power. Their word was the law. In a long and difficult process starting in England, perhaps with the Magna Carta in 1215, power was taken from the king and given to legislatures. The English Bill of Rights of 1688 provided that the monarch could not suspend laws without the consent of Parliament. Parliament was elected — by some of the people, at least. Legislative supremacy became the foundation of British constitutional democracy.
But legislatures can be tyrants too. Once supreme, legislatures could pass any laws they liked. They could do, and sometimes did, similar sorts of bad things that kings could do. They could take your property. They could criminalize your private relationships. They could invade your privacy without a warrant. They could eviscerate rights found in the common law. They could censor your speech.
To counter the power of legislatures, the newly independent Americans created their Bill of Rights in 1791. It took power from legislatures and gave it to courts. Two hundred years or so later, the Canadian Charter did the same. All the Charter does — all that it does — is shift the final call on certain questions from legislatures to courts.
Our mistake is not that we gave power to courts. Indeed, both the courts and the legislature have returned power to the king, albeit in a different form. What was once the monarch has become the administrative state, the modern Leviathan. It consists of every part of government that is neither legislature nor court: cabinets, departments, ministries, agencies, public health officials, boards, commissions, regulators, law enforcement, inspectors and more. It also includes the human rights tribunal and “digital safety” agencies that Bill C-63 would empower.
The legislature delegates power to these public bodies, and courts defer to their decisions. These agencies control our lives in every conceivable way. They supervise our speech, employment, bank accounts and media. They indoctrinate our children. They locked us down and directed our personal medical decisions. They control the money supply, the interest rate and the terms of credit. They track, direct, incentivize, censor, punish, redistribute, subsidize, tax, license and inspect. Their control over our lives would make the kings of old blush.
We expected that these institutions would act as checks and balances on each other. No doubt they have their disputes and quarrels. But for the most part, they are now on the same page. They are unanimous in their dedication to the management of society. They believe in the necessity for an expert bureaucracy to guide ordinary Canadians through their lives. Legislators, as Frederic Bastiat put it, must in turn “make plans for the people in order to save them from themselves.” Together, their power over us is absolute. There is nothing they cannot do.
Over these centuries of reform, all we have ever done is move power around. From king to legislature. From legislature to courts. From legislature and courts to the administrative state. Our mistake is that we did not go far enough. We did not take power away from institutions to rule over us. Today, as in the days of kings, the law is based upon the authority of those who govern, not upon the consent of the governed.
We trusted that these institutions would commit to their own restraint. We believed that vague language in constitutional documents would preserve our liberty. Bill C-63 is but one of many illustrations of the error of our thinking. We have been tragically naïve.
Bruce Pardy is a Senior Fellow with the Macdonald-Laurier Institute, executive director of Rights Probe and a professor of law at Queen’s University. This column is adapted from an article that first appeared in C2C Journal.
