Proposed Tory omnibus crime bill raises concerns of civil liberties

Published On:  J-Source, May 26th, 2011

With a new parliamentary majority, Stephen Harper hopes to pass an omnibus crime bill (consisting of at least eleven individual bills) in order to re-write current legislation, and deliver on the government’s tough-on-crime platform.

Unofficially referred to as the “lawful access” bill, it is the most important piece of legislative business for the Tories after the budget. Debate has arisen in regards to its far-reaching implications, from increased police powers to issues of freedom of expression.

Analyzing the package, Toronto Star columnist Michael Geist emphasized its“three-pronged approach focused on information disclosure, mandated surveillance technologies, and new police powers.”

Combined with its proposition to extend police powers (a matter not yet debated extensively in parliament, nor subjected to committee hearings), “lawful access” would require service providers to disclose customer information (i.e. phone number, address, email, etc.) without judicial approval and for each service provider to adjust for “real-time surveillance.” In other words, law enforcement officials will be able to intercept personal online communication.

In an opinion piece for the Toronto Sun, Brian Lilley noted that the omnibus bill is being promoted as a bill that would allow police to track child-pornographers more proficiently. However, Lilley notes that “lawful access” would also make it illegal for anyone to link to any website that “promotes hatred.”

According to a summary of the bill on the Library of Parliament’s website, “Clause 5 of the bill provides that the offences of public incitement of hatred and wilful promotion of hatred may be committed by any means of communication and include making hate material available, by creating a hyperlink that directs web surfers to a website where hate material is posted, for example.”  The issue of hyperlinks in connection to defamation charges isbeing explored in a case currently before the Supreme Court, and some of the same concerns apply.

Thus, in addition to a lack of parliamentary deliberation, proper judicial oversight, “lawful access”—if passed in full—would have substantial effect on the legal perceptions/definitions of “hate speech.” The omnibus form of the bill reduces the possibility of it being fully examined, thus leaving concerns of privacy and free speech unevaluated. Furthermore, the administrative and technological costs are high, but there has been no mentioning of where the funding will come from.

Concerns over whether “lawful access” will amount to internet policing are high in circles worried about the freedom of expression and speech. Interpretation of such broad legislation will undoubtedly vary between groups and persons.

Sections 318 and 319 of the Canadian Criminal Code explicate “hate speech” or “hate propaganda” within an expansive framework. Anything from promotion of “genocide” to incitement of “hatred against any identifiable group” that may lead to a “breach of the peace” are categorized as illegal. The application and interpretation of these laws vis a vis cyberspace will surely become more frequent if the omnibus bill is passed. How will the surveillance apparatus deal with this challenge?

According to the omnibus bill, if one were to link to a website that contained hate propaganda, one could be subject to jail time. This then raises the question of context. What if a journalist is reporting on a case of hate speech and links to a particular “hateful” webpage in order to provide evidence or to cite his or hers assertions?  Will the surveillance apparatus set up to enforce these laws be able to distinguish between something like this, and an actual case of “hate speech” endorsement? The omnibus bill does not seem to distinguish between such matters of context.

If simply linking to a page that may qualify for “hate speech,” questions regarding issues of civil liberties and free expression become even more urgent and acute. Canada’s wide legal definition of “hate speech” compounds the problem.

A citizen’s right to express his or her opinion is liable to come under attack, regardless of whether one agrees or disagrees with the actual statement. For journalists specifically, the dissemination of crucial information could be curbed. In any case, the enshrined right of Canadians to express their opinions freely may be undermined.