Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees "freedom of thought, belief, opinion and expression." It's one of the oldest, most carefully reasoned commitments in Canadian law, and I believe it's currently being eroded — not through one dramatic law, but through a sequence of bills that, taken together, hand the state and a small number of unelected commissioners far more power over what Canadians can say than I'm comfortable with.
"A government that cannot constitutionally ban speech outright should not achieve the same result indirectly by pressuring private platforms through a regulator."
1Getting the Timeline Right
It's worth being precise here, because this history gets mangled constantly in political commentary. The original Online Harms Act (Bill C-63) was introduced in February 2024. It never passed. When Justin Trudeau prorogued Parliament on January 6, 2025, every bill still on the order paper — including C-63 — died automatically.[1] It is not law, and treating it as a live threat today gets the facts wrong in a way that actually weakens the argument against what came next.
What came next is the part I think deserves real scrutiny. The government split C-63's most contentious pieces into two successor bills:
2Bill C-9 Is Now Law — And It Goes Further Than Its Defenders Suggest
Bill C-9 passed with broad institutional support, including from the federal Ombudsperson for Victims of Crime and groups representing communities that have genuinely experienced rising hate-motivated violence — police-reported hate crimes rose 169% in Canada between 2018 and 2024, and that increase is real and well-documented.[5] I don't dispute the underlying problem the bill claims to address. I dispute that the specific tools it creates are proportionate to it.
The bill removed the long-standing requirement that hate-propaganda charges receive the consent of a provincial Attorney General before proceeding — a safeguard that has existed since 1970 specifically to filter out politically motivated or vexatious private prosecutions before they reach trial.[6] It also removed the "good faith religious expression" defence from the Criminal Code's hate speech provisions. The Canadian Constitution Foundation — a non-partisan legal advocacy group, not a government opponent reflexively against any hate-crime law — has pointed out that reciting a religious text verbatim could now, depending on context and characterization, expose someone to prosecution in a way the old defence would have blocked.[7] The bill also creates a new offence for displaying symbols associated with listed terrorist organizations, which the Centre for Free Expression and 36 co-signing civil society groups warned could sweep in flags associated with Kurdish, Tamil, or Palestinian political movements depending on how Canada's terrorist-organization list is applied — a list whose designation process has limited transparency and few avenues for appeal.[8]
I want to give credit where it's due: the version of C-9 that ultimately passed was narrowed from its first-reading form after the Canadian Bar Association and others raised exactly these concerns — Parliament added language requiring "extreme" vilification or detestation rather than mere offense, and the Attorney General consent requirement for hate crime charges specifically (as opposed to hate propaganda charges) was retained.[7] That's the legislative process working as it should, and I don't think it's honest to pretend the final bill is identical to the one first tabled. But the propaganda-offence consent requirement is still gone, the religious-expression defence is still gone, and the symbol-display offence is still in the law as of today. Those are not minor details.
3Bill C-34: The Part That Isn't Law Yet, and Why That Matters
Bill C-34 is still working through the House of Commons. It hasn't been enacted, and a fair critique has to say so plainly rather than describe it as settled policy. But I think it's worth taking seriously now, before it's finished, rather than after.
The bill would create a Digital Safety Commission of Canada — three to five members appointed by the Governor in Council — with power to investigate complaints, summon witnesses, enter premises under warrant, and issue compliance orders enforceable by the Federal Court.[9] Platforms found non-compliant face fines up to the greater of $10 million or 3% of global revenue in administrative penalties, rising to $20 million or 5% for penal sanctions.[9] The bill targets seven categories of "harmful content," including content that "foments hatred" and content that "incites violence" — both defined in the bill text, but defined broadly enough that legal commentators, including Osler and DLA Piper in their client advisories, note that "nearly every key component… is left to regulations that do not yet exist."[10] University of Ottawa law professor Michael Geist, who has tracked this file closely and supported parts of the original platform-duty framework, called the bill an "everything-all-at-once approach" and a "risky trust us bet" specifically because so much of what will actually bind platforms and users is deferred to future regulation rather than written into the statute Parliament is being asked to vote on.[11]
I think that structure is the core problem, separate from any specific provision. When a bill's most consequential mechanisms — what counts as a "regulated service," how age verification will actually work, what "adequate safeguards" means for the under-16 exemption — are left to be decided later by an appointed commission rather than debated and voted on by elected representatives, Parliament is being asked to approve the shape of a power without knowing how it will be used. The Canadian Constitution Foundation's plain assessment is that the bill effectively "outsources" content judgment to platforms, which will rationally over-remove "lawful but awful" content to avoid the financial exposure, since erring toward deletion is cheaper than risking a multi-million-dollar penalty.[12] I think that's exactly right, and it's the same structural critique that applied to the original C-63: a government that can't directly ban speech achieves a similar chilling effect by making private companies the ones who have to decide, under financial duress, where the line is.
4The Common Thread
I don't think C-9 and C-34 are identical bills, and I've tried not to write as if they were. C-9 is now law and targets specific criminal conduct with defined penalties decided by Parliament. C-34 is still a proposal and is structured around a regulator that will write much of the substantive rule later. But both share something I find genuinely troubling: each expands the range of what the state — directly through the Criminal Code, or indirectly through a commission and the platforms it regulates — can treat as off-limits speech, in ways that go beyond the narrow categories (true threats, direct incitement, child exploitation material) that were already criminal before either bill existed.
I think Canada already had the tools to prosecute the worst, most clearly criminal version of online harm. What both of these bills add is discretion — for prosecutors freed from a consent-of-the-AG check, for a future Digital Safety Commission writing rules that don't exist yet, and for platforms deciding, under the threat of nine-figure fines, to delete first and ask questions later.
5What I Think Should Happen Instead
- Keep prosecutorial discretion checks in place. The Attorney General consent requirement for hate-propaganda charges existed for 55 years for a specific reason — restore it, rather than relying on the narrower fix Parliament settled for in C-9.
- Write C-34's substantive rules into the statute, not into future regulations decided by an appointed commission. If Parliament can't agree on what "adequate safeguards" or a "regulated service" actually means, it shouldn't pass the bill and let a commission decide later.
- Tie the terrorist-symbol offence to a transparent, appealable listing process, so the line between "supports a banned organization" and "displays a flag tied to a political movement Canada hasn't banned" isn't left to prosecutorial judgment after the fact.
- Enforce the laws that already exist — direct incitement, true threats, child exploitation material, harassment — before adding new categories of discretion on top of them.
I think Canadians can take hate crime seriously — and the real rise in hate-motivated violence documented by Statistics Canada deserves to be taken seriously — without handing prosecutors, regulators, and platforms this much room to decide, after the fact and largely outside public view, what counts as a problem.