OTTAWA — The Liberal government is proposing “draconian penalties” in the Criminal Code as part of its sweeping plan to target online hate, the Canadian Civil Liberties Association warns.
Justice Minister Arif Virani tabled the long-awaited bill earlier this week, billed as a way to address dangers that children face online.
It also includes the introduction of stiffer penalties for hate offences.
The bill proposes increasing the maximum punishment for advocating genocide to life imprisonment, and allowing sentences of up to five years in prison for other hate propaganda offences.
The national civil liberties group says higher sentences risk chilling free speech and also undermine “the principles of proportionality and fairness” within the legal system.
Noa Mendelsohn Aviv, its executive director and general counsel, said in a statement Wednesday that the bill needs significant changes, including to the proposed digital safety commission that would be given powers to regulate social-media giants.
University of Windsor law professor Richard Moon, who specializes in freedom of expression, said the sentencing changes are “troubling” because there’s no reason to believe they will work as an effective deterrent.
And it’s unclear, he said, how the government’s plan to create a new stand-alone hate crime offence would work, since hate can already be used as an aggravating factor in sentencing.
As proposed, the new offence would carry a potential sentence of life imprisonment.
“The idea that this could possibly carry with it life imprisonment … makes little sense to me,” Moon said in an interview Wednesday.
He pointed to an example of mischief or vandalism that could be motivated by hatred and seen as a hate crime.
It’s unlikely that a judge would consider handing a person accused of such a thing life imprisonment, Moon said.
But “just the idea that is in theory an available sentence seems surprising, shocking to me,” he said.
“The dramatic increase in available (sentences) for hate crimes seems to me to be quite a troubling development.”
Jewish advocacy groups have welcomed the proposed changes, citing a sharp rise in antisemitism since the Israel-Hamas war began last fall.
In unveiling the potential life sentence for advocating genocide, Virani said he heard through consultation with stakeholders that the penalty should be increased.
He also said creating a new hate crime offence is meant to give police and Crown prosecutors more options.
To lay a hate propaganda charge under current Criminal Code provisions, such actors need to get permission from attorneys general. The new offence would not require that.
Virani said after the release of the bill that there had been some “misunderstanding” around the proposed offence and whether it would carry a punishment of life imprisonment.
He said the intention is not for the offence to be used alone, but rather in conjunction with other offences.
“Think about a theft, think about an assault, think about a rape, think about a murder — in certain contexts, what this will make available to a judge is that when they twin the fact of a murder with hate motivation, they could potentially apply something as significant as a life sentence,” he said.
A life sentence under Canadian law is 25 years long.
Virani said judges have discretion on how and whether to use that level of sentencing.
“It is not a mandatory minimum. It is a potential maximum.”
This report by The Canadian Press was first published Feb. 28.,. 2024.
Stephanie Taylor, The Canadian Press
