The Liberal government’s online harms bill would create a new regulator for illegal content with sweeping powers that critics say raise concerns about secret proceedings and Canadians’ charter rights.
The Digital Safety Commissioner of Canada would be in charge of enforcing rules requiring online platforms to remove illegal content. Its authority would include the ability to send inspectors into workplaces and homes in search for documents, software, and information such as computer algorithms. Inspectors would need a warrant or consent to go into homes.
“This looks like a possible section 8, right against unreasonable search and seizure violation,” said Joanna Baron, executive director of the Canadian Constitution Foundation.
“Leaving aside questions of constitutionality, I’m not sure if raids on Facebook offices are going to yield the desired result,” said University of Ottawa law professor Vivek Krishnamurthy.
The commissioner, along with an appeals tribunal called the Digital Recourse Council of Canada, would be able to conduct in-camera, non-public hearings in cases where “a public hearing would not be in the public interest,” such as those involving privacy, national security, international relations, national defence or confidential commercial interests.
“It’s hard to think of a case that you couldn’t make the claim would be covered by those interests, and so this is giving very broad latitude to order in-camera hearings, which normally should be exceptional, should be like state secrets,” Baron said.
Krishnamurthy said “the open court principle is a very important principle in our laws. The Supreme Court has said that repeatedly.” He noted the government’s proposal also specifies the regulator wouldn’t publish the names of those who made the online posts or those who flagged them, and both provisions are “at least potentially problematic.”
He said there are cases where it’s appropriate to withhold names, such as those involving sharing of intimate content. But the presumption overall should be that the decisions are public, Krishnamurthy said. “This is a body that’s going to be passing judgment on, essentially, the legality of content.”
The details of the bill, which the government said would be introduced in the fall of 2021, were outlined in discussion and technical papers released Thursday. The government will consult on its proposed approach over the next eight weeks, before the bill is finalized.
University of Ottawa law professor Michael Geist said the proposals “pick up where Bill C-10 left off, treating freedom of expression as a danger to be constrained through regulations and the creation of a bureaucratic super-structure.”