Bill C-10 threatens freedom of expression in Canada

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Appeared in the National Post, June 7, 2021
Bill C-10 threatens freedom of expression in Canada

You make a video and post it on YouTube. Nobody watches it. It does not pop up on searches or on “recommended” lists. YouTube has buried your video, not on its own initiative, but at the direction of the Canadian Radio-television and Telecommunications Commission (CRTC)—perhaps because your video was not “Canadian” enough or because its message offended government policy. If Bill C-10—which authorizes the CRTC to regulate online media platforms such as YouTube, Facebook and Spotify—becomes law, this is a scenario Canadians could face in the not-so-distant future.

Bill C-10 will not directly regulate individual Canadians who use those services but will regulate the content they post and thus empower the CRTC to require tech companies to do the dirty work. The companies will regulate their users and manipulate the “discoverability” of content in accordance with CRTC policies. Bill C-10 will not supervise online speech directly, but indirectly threatens to strangle it.

In its original form, C-10 would not have regulated the speech of ordinary Canadians at all. The bill excluded “programs that are uploaded to… a social media service by a user of the service,” meaning that the CRTC would not have had the power to supervise the content of individual users.

However, in April, the heritage committee removed this exception from the bill. And last week, the Liberal, NDP and Bloc Québécois members of the committee defeated a Conservative motion to put it back. On Friday, the Liberals, backed by the Bloc, moved to limit debate on the bill.

According to Internet law guru Michael Geist, Bill C-10 is an unconscionable attack on the online free expression of Canadians, but government lawyers have dismissed constitutional concerns with a shrug. An updated “charter statement” from the Department of Justice acknowledges that the effect of removing the carve-out for individual users does indeed mean that their content will be subject to regulation under the act, but says that “unaffiliated users of social media services would not be subject to broadcasting regulation in respect of the programs they post.”

That’s technically correct, according to University of Calgary law Professor Emily Laidlaw who said, “The government does not propose to regulate users directly. But it does propose to regulate the platforms that then must regulate users… In other words, by outsourcing the obligation to private companies, the state does indirectly what it can’t do directly.”

That used to be a constitutional no-no. For instance, in 1928, the Supreme Court of Canada struck down a section of the federal Fisheries Act that prohibited operating a fish cannery without a federal licence. Section 91 of the Constitution Act, 1867, gave the feds jurisdiction over fisheries. However, regulating canneries—whether fish, fruit or vegetable—is a matter of “property and civil rights” reserved for the provinces.

Therefore, the court said the federal government has no power to regulate putting fish into cans under the guise of regulating taking fish out of water. According to Justice Edmund Leslie Newcombe, writing for the court, and quoting a Privy Council judgment, “What cannot be done directly cannot be done indirectly.”

Yet governments have become adept at getting around the Constitution by doing exactly that. Under the Charter of Rights and Freedoms, the state cannot lock you away without due process, even for public safety, yet has been quarantining asymptomatic people in the name of public health. The state cannot discriminate against religious beliefs, but the law societies of Ontario and British Columbia refused to accredit the graduates of a private religious university because they disapproved of its Christian beliefs.

Moreover, provinces have jurisdiction over natural resources, lands, mines, minerals, property and civil rights, but the federal government can impose carbon levies on a province in the name of “peace, order and good government.” The state cannot prevent citizens from entering or leaving Canada, or impose medical procedures without consent, yet now requires returning travellers to submit to invasive tests when they cross the border. Under Section 121 of the Constitution Act, 1867, goods from any province shall be admitted freely into any other, but provinces can erect barriers that inhibit trade if that’s not their primary purpose. The Constitution does not mean what it appears to say.

Since its inception in 1982, the charter has been less a constitutional bedrock than a political and judicial plaything, its roster of rights having been compromised by its own text. Section 1 says charter rights are guaranteed subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society,” which the Supreme Court has said means governments can infringe rights if they do so “proportionately”—that is, no more than necessary to achieve their pressing objectives. The charter has become not so much a bulwark against government interference as a flexible judicial instrument for managing the priorities of the pervasive administrative state.

Bill C-10 is an autocratic piece of legislation. As Michael Geist put it, “Is there any reason for Canadians to trust that their online speech will be safeguarded?” Worse still, the Liberals promise to introduce another bill that will police online “hate speech.” Directly or indirectly, Canadians’ freedom of expression is in peril.

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