Government Finally Splits the Online Harms Bill: Never Too Late To Do The Right Thing…Or Is It?

Justice Minister Arif Virani yesterday finally bowed to public pressure by agreeing to split Bill C-63, the Online Harms bill. The move brings to an end the ill-conceived attempt to wedge together Internet platform responsibility with Criminal Code provisions and the potential weaponization of the Canada Human Rights Act that had rightly sparked concerns from a wide range of groups. I wrote about the need to drop those provisions two days after the bill was introduced last February. By the time the fall had rolled around, it was hard to find anyone who supported the bill in its current form.

The decision to split the bill is the right thing to do, but it may have come too late. The Criminal Code and Human Rights Act parts of the bill will be placed on a “separate track” better described as a road to nowhere, while the Standing Committee on Justice and Human Rights will start a “pre-study” of the rest of Bill C-63 later today (the use of a pre-study reflects the fact that the bill has not passed second reading in the House and has not yet been sent to the committee for study). Given months of delays, the government will be tempted to rush through the study with a parade of supportive witnesses that describe the urgency of addressing online harms and offer little critique of how the bill can be improved. That strategy was evident with Bill C-11 and C-18, leaving behind disastrous legislation that is now subject to lengthy administrative processes as well as facing multiple legal challenges.

The removal of the most problematic aspects of Bill C-63 should only be viewed as the first step in putting the online harms initiative back on track. The provisions related to Internet platforms still requires careful study, particularly the enforcement structure that vests enormous power in a new Digital Safety Commission that will have primary responsibility for enforcing the law. The breadth of powers granted to the Commission is remarkable: rulings on making content inaccessible, investigation powers, hearings that under certain circumstances can be closed to the public, establishing regulations and codes of conduct, and the power to levy penalties up to 6% of global revenues of services caught by the law. There is an awful lot there and questions about Commission oversight and accountability is essential. 

Failure to engage in a comprehensive study at the House will invariably increase pressure on the Senate to fill in the gaps with its own study featuring witnesses excluded from the House process. There are no short cuts in crafting legislation that addresses online harms, passes constitutional muster, and properly safeguards freedom of expression. The committee needs to hear supporters of the legislation, but also ensure there is time for critics, companies that will be asked to implement the rules, and international experts that can offer comparative analysis and identify potential reforms. The committee may be hard pressed to get this done within the confines of a rapidly expiring Parliamentary calendar, but a poorly crafted and studied bill should not be an option.

Meanwhile, if the government is finally open to splitting overstuffed bills, how about taking the same approach to Bill C-27, the privacy and AI bill? While it is further advanced than Bill C-63, it has been mired at clause-by-clause review at the Industry committee for many months. The problem is not dissimilar to the online harms. There is general consensus that the government should prioritize long-overdue privacy reforms and go back to the drawing board on AI regulation. The insistence on pushing through the two issues together in a single bill jeopardizes both. Digital policy has not been a strength of this government and its strategic mistakes on Bills C-27 and C-63, alongside its intransigence when confronted with criticism of its approach, may ultimately doom important legislation. It is often said that it is never too late to do the right thing, but after months of doing nothing, that may not be the case for privacy and online harms reforms in Canada.