Omnibus Crime Bill Raises Concerns About Privacy And Free Speech

Matt Lonsdale is a JD candidate at Dalhousie University.

When Parliament was dissolved on March 25, 2011, over a dozen criminal justice related bills died with it. During their subsequent election campaign, the Conservative party announced plans to bundle the unpassed bills into an omnibus crime bill, and pass it through Parliament within 100 days of returning to work on June 2.

Now armed with a majority government, they stand poised to make good on their promise in what one criminal defence lawyer has called “the most comprehensive agenda for crime reform since the Criminal Code was introduced”.  Stoking the fires of public concern is a legislative summary produced by the Parliamentary Information and Research Service of the Library of Parliament.

Currently, section 319 of the Criminal Code makes it an offence to incite hatred against an identifiable group by communicating statements in a public place. Clause 5 of Bill C-51, the Investigative Powers for the 21st Century Act, modifies the definition of “communicating” to mean “communicating by any means and includes making available”. The legislative summary for the bill states that this could include “creating a hyperlink that directs web surfers to a website where hate material is posted”. The notion that the omnibus crime bill might make it a crime to link to web sites which contain hate speech has raised concerns about the “Internet police” and has been called “an attack on our liberty”. However, legislative summaries are not binding interpretations of legislation and a conviction under section 319 would still require that the accused purposefully incited hatred by posting the link.

Hyperlinking is not the only aspect of the Internet that would be affected by the omnibus bill. The original bills, which were sponsored by Minister of Justice Rob Nicholson and Minister of Public Safety Vic Toews, can be found on Parliament’s LEGISInfo site here and here. In addition to C-51, they include C-50 and C-52, the “lawful access” bills which prompted an open letter from the Federal and Provincial Privacy Commissioners expressing their concern over the extent which the bills expanded police surveillance powers. The bills would place new obligations on Internet Service Providers to design their networks in ways which facilitate surveillance, and make it easier for police officers to obtain subscriber information from ISPs or to require ISPs to preserve data without a court order. They would allow judges to order ISPs to release transmission data to police when there are “reasonable grounds to suspect” that an offence has been committed. Lawful access continues to draw criticism in its bundled form, with one commentator suggesting that the omnibus bill will be pushed through Parliament too quickly and without sufficient debate over its consequences.

Clause 11 of C-51 removes the reference to specific technologies contained in section 371 of the Criminal Code, which prohibits the sending of a “telegram, cablegram or radio message” under a false name. Similar references are removed from section 372, which is concerned with the sending of false information intended to alarm or harass, bringing messages sent through email or social networks into the sphere of conduct prohibited by the sections.

Beyond the privacy and technology context the bill would, among other things, eliminate pardons and house arrest for perpetrators of serious crimes and create mandatory minimum sentences for drug laws. Now that they have a majority government, the Conservative’s motivation for bundling the bills together is not clear. Presumably it is simply to speed up the process; after all, they no longer need to force opposition parties into supporting the bill in its entirety in order to avoid looking soft on crime.

  1. I would think Clause 5 of this Bill likely won’t cause a huge issue with internet policing. This is criminal legislation after all. The Crown still has the burden to satisfy beyond a reasonable doubt that the poster has the intent to spread hate speech.
    Has there been any judicial interpretation of “making available” should mean? That would seem overly broad if read literally and can even extend to the electricity provider for the hosting company hosting the website.

  2. The numbering of bills starts over again every time there’s an election and we get a new Parliament. The Food and Drugs Act was the 51st bill introduced into the House of Commons during the 39th Parliament, and The Investigative Powers For The 21st Century Act was the 51st bill to be introduced into the House of Commons during the 40th Parliament. So they were both Bill C-51 in their time, and since both died on the table due to an election being called, both are still referred to as “Bill C-51”.

    Although since the Conservatives have a majority now, the Investigative Powers Act will almost certainly be making a comeback in one form or another.

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