Canadian Department of Justice Rules C-10 Does Not Violate Free Speech

The Canadian Justice Department has ruled that Bill C-10 does not violate the charter. Critics were quick to call the development disappointing.

Black is white. Up is down. Short is long. Censorship is freedom. Bill C-10 does not violate the Charter on free speech grounds. We’re seeing another seemingly logic-free development on Bill C-10. Yesterday, digital rights advocates thought that they’d score a victory of sorts when the Canadian Justice Department was going to review the new version of Bill C-10, you know, the same version where lawmakers stripped out protections afforded to every day Canadians.

Today, the Justice Department ruled that the legislation does not violate free speech. From CTV:

In the new analysis, the department states that because a separate regulation exemption for individual users remains intact in the current draft of Bill C-10, people who post to social media or streaming services who are not the province of said service, “would not be subject to broadcasting regulation in respect of the programs they post.”

Further, the Canadian Radio-television and Telecommunications Commission’s (CRTC) new regulatory powers in the bill “would be limited… and these requirements could only be imposed upon the social media service,” and would have to “be interpreted and applied in a manner consistent with freedom of expression.”

Ultimately, in the justice department’s view, its initial Charter statement findings “remain valid,” and are not impacted by the proposed changes to Bill C-10.

In a statement to CTVNews.ca, David Taylor, a spokesperson for Minister of Justice David Lametti, said the minister “is confident that both the bill as tabled, as well as the proposed amendments, are consistent with the Charter.”

It’s a bizarre ruling and it makes you wonder if they bothered to read the legislation with the amendments in question. If they did, they would read this as being part of the regulation:

9.1 (1) The Commission may, in furtherance of its objects, make orders imposing conditions on the carrying 30 on of broadcasting undertakings that the Commission considers appropriate for the implementation of the broadcasting policy set out in subsection 3(1), including conditions respecting:
(i.1) in relation to online undertakings that provide a social media service, the discoverability of Canadian creators of programs”;

Basically, the amendment completely debunks the Justice Departments assertion. What’s more is that the comments first says that user generate content isn’t regulated, then turns around and says that they are, but don’t worry, it’s limited. Then, the Department says that, OK, the content is regulated, but don’t worry, we’re sure that the CRTC will pinky-swear not to regulate that content. Honest question, who wrote that? The Minister himself?

Michael Geist offered some early takes on the statement:

Here’s my initial take on the Bill C-10 Charter statement:

While I’m not surprised the govt maintains Bill C-10 is consistent with the Charter, it is disappointing the review does not engage with the central concern that has emerged in recent weeks. Under Bill C-10, all user generated content is treated as a program subject to CRTC regulation. Never in Canadian history has the expression of so many people been treated as falling within the jurisdiction of a broadcast regulator. No other country regulates UGC this way. There are limits to CRTC power, but the fact it can prioritize or de-prioritize content in the name of discoverability has an impact on the expression of millions of Canadians. That necessarily invokes Charter considerations, but the statement doesn’t grapple with the issue. Rather, it places faith in the CRTC to rule in a manner consistent with the Charter. I don’t think that’s good enough and believe that if enacted, Bill C-10 will be subject to a Charter challenge, leading to years of delays in implementation as the courts consider the issue.

In other words, the Justice Department decided to not do its job in this case. Instead, they decided to just rubber stamp some of the talking points by the Liberals and called it a day. Geist is right on another front: there’s going to be a legal challenge against this legislation, ensuring that implementing this will get tied up in the courts anyway. At this stage, any one who says that this does not represent a threat to free speech is just not paying attention to the facts of this story.

What’s more, Bill C-10, if passed, can always be amended to crack down further on Canadian content. It may or may not be this current government, but future governments might decided to start tacking on what they feel is the ills of the day and further crack down on free speech online. Already, with this legislation, you can sick the CRTC on someone for not being Canadian enough. You know there will be other excuses to crack down on users further down the road.

Just for the record, here is the statement that was made:

So, right now, best case scenario is that the clock runs out on this legislation. At the very least, it will eliminate a huge amount of headache. Failing this, there is the potential court challenge which would mean years of litigation. So, freedom expression isn’t yet failing in Canada, but it did take a potential hit thanks to the Justice Department. We’ll keep monitoring the situation for developments.

Drew Wilson on Twitter: @icecube85 and Facebook.



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