Friday, 9 May 2014

Alberta's Municipal Anti-Bullying Laws are Deeply Flawed

One of the easiest ways for a municipal politician to keep his constituents happy is to give them what they want. Sometimes this means enacting popular yet dubious bylaws.

Perhaps this is the impetus behind the Town of Airdrie's push to amend its Public Behaviour Bylaw to prohibit bullying. After all, nearly everyone will rally behind politicians who enact laws to protect children from harm, regardless of those laws' faults.

And Airdrie is not alone. Many other municipal governments in Alberta have already enacted similar bylaws. For instance, Consort, Grand Prairie, Hanna, and Rocky Mountain House each already prohibit bullying. Oyen's Town Council has discussed it. There are likely many others.

Each of these bylaws is similar. Bullying will not be tolerated at any place in town to which the public has access. In some municipalities, bullies can be fined up to $1,000 plus costs, and be imprisoned for six months on default of payment. These are significant penalties.

Regardless of their goal, each of these bylaws is flawed. They are redundant and viciously subjective, they make some acts illegal that they shouldn't, and they are outside of the jurisdiction of any Alberta municipality.

Consort's bylaw considers "harassment of others by the real or threatened infliction of physical violence and attacks" and the "extortion or stealing of money and possessions" as bullying. But harassment, extortion, and theft are already illegal. How will enacting yet another law solve the problem when there's an apparent lack of will to enforce current laws?

Grand Prairie's bylaw defines bullying as an "objectionable or inappropriate comment, conduct or display" directed at an individual "which causes or is likely to cause physical or emotional distress". Simply put, this is vague and hopelessly subjective. By relying on words like "objectionable" and "inappropriate" and requiring those enforcing the law to find the line between behaviours that are likely to cause emotional distress and those that are not, this bylaw will inevitably function as a proxy for the personal views of those enforcing it. This could easily make all sorts of otherwise excusable behaviours illegal. For example, a fine could be issued for a single hurtful comment uttered in anger even though "bullying" is generally understood to mean repeated hurtful behaviour.

Rocky Mountain House's bylaw, like the others, applies in all locations that the public has access, including schools, public parks, recreational facilities, and even sports grounds. Don't taunt the umpire at a baseball game in Grand Prairie--even in jest--because if it could be construed as likely to cause emotional distress and you could be fined for single offhanded remark. And while in Hanna, it's best to avoid verbally taunting your opponents if you are playing in the game.

At their core, these bullying bans are unadulterated attempts to restrict freedom of expression and are therefore outside of municipal jurisdiction. Alberta's Municipal Government Act lists three municipal purposes, none of which grants municipalities the power to enact laws for the sole purpose of restricting expression. Further, the Province of Alberta cannot delegate to municipalities the authority to restrict expression. Under the Constitution Act, 1867, provincial laws may only incidentally restrict expression provided those laws are otherwise within provincial jurisdiction.

But it's not all bad. There is some good in these bylaws. Each demonstrates that bullying is not acceptable and should not be tolerated, and issuing fines may be a quick and efficient means to curb hurtful behaviour. And to be clear, no one endorses or excuses real bullying. It can have devastating and lasting effects, particularly on children.

Regardless, the flaws in these bylaws cannot be ignored. Each needlessly duplicate other laws, some make excusable and non-reoccurring acts illegal, and all overstep municipal and constitutional authority. Think of the problem this way. What these bylaws do--they should not. What they should do--they cannot. Relying on bad laws to prevent bullying is similar to believing that two wrongs somehow make a right.

This piece was first published in the Huffington Post on September 24, 2013.

Canada's Hypocritical Blasphemy Law

On September 30, 2005, the Danish newspaper Jyllands-Posten published the now notorious cartoons of the prophet Muhammad. The cartoons were republished by newspapers around the world and over 200 people died as protests and riots erupted in response. Prime Minister Stephen Harper issued a statement that he regretted that Canadian newspapers had also published the cartoons, but that Canadians had a right to freedom of expression.

On February 19, 2013, the Canadian government opened the Office of Religious Freedom within the Foreign Affairs and International Trade department and mandated the new office to protect and advocate for religious minorities, oppose religious hatred and intolerance, and promote the Canadian values of pluralism and tolerance around the world.

But there is some irony here. While the Canadian government publicly defends the freedom to publish cartoons that mock a religious figure and looks abroad to protect religious minorities from oppression, section 296 of the Criminal Code makes it an indictable offence to publish blasphemous materials in Canada. If an accused is convicted under section 296, he or she is liable for up to two years of imprisonment. In other words, Canada is promoting tolerance and the freedom to speak freely about religion abroad while restricting each domestically.

Most Canadians probably do not know what blasphemy is, let alone that publishing blasphemous materials is a criminal offence. To blaspheme is to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, the prohibition on blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute. The courts held it to be a criminal offence to publish any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if done with the intent to shock or insult believers, or mislead the ignorant and unwary. Even though the most recent decision on section 296 arguably generalized the prohibition so that it may now be illegal to blaspheme other religions as well, this has not been tested in court and the prohibition has fallen into disuse.

It should be surprising that Canada has any sort of law prohibiting blasphemy. First, blasphemy is everywhere. It is not difficult to find all sorts of published material that break this law -- movies, music, books, magazines, video games, visual art, etc. Second, the Canadian Charter of Rights and Freedoms guarantees everyone the right to freedom of expression -- this includes the right to speak freely about religion. And third, any sort of restriction on what the government will allow us to say on religious topics seems a potentially dangerous limitation on freedom of expression.

There have been few blasphemous libel prosecutions in Canada, and none since the 1930s. It is likely that section 296 is effectively dead even though it remains in the Criminal Code.

But being effectively dead is not truly dead. The UK had a similar criminal prohibition with much the same story as Canada's -- it languished unused for a significant period of time. Yet in the 1979 case of Whitehouse v. Lemon, Mary Whitehouse resurrected the UK's blasphemous libel prohibition in a successful so-called "private prosecution." The accused was convicted but did not have to serve the prison term. The UK repealed its blasphemy law in 2008.

Aside from the previous point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296.

First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance, and more so now that Canada has an Office of Religious Freedom intended to promote religious tolerance. Remember that famous admonition to take the plank out of your own eye first?

And second, there is no certainty that the Charter's guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel. That remains an unanswered question yet to be tested in court. Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression, and there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech. The answers to such questions are inherently uncertain and court decisions can often yield surprising results.

For these reasons, it's best to repeal section 296 rather than to leave it in force and assume that it will never be used for ill-purposes in the future.

This piece was first published in the Huffington Post on October 1, 2013.

Bill C-13: The Encore Performance of Bill C-30

If at first you don’t succeed, try, try, try again. Perhaps that’s the federal government’s motto regarding Bill C-13 — the Protecting Canadians from Online Crime Act. It represents yet another attempt by this government to pass legislation that will open the door to undue state intrusion.

The currently proposed legislation is a more palatable but still troubling restatement of the unpopular Bill C-30 — the Protecting Children from Internet Predators Act. That bill, tabled in February 2012, mentioned neither children nor predators and was likely so-named only to sway the public toward accepting the legislation. It attempted to do precious little of what its title purported, mostly dealing with giving the police new powers — including making it mandatory for Internet service providers to disclose subscriber information to police without court oversight.

Vic Toews, then minister of justice, famously rebuked critics saying, “either stand with us or with the child pornographers.”

The public saw through the rhetoric and the outcry was immediate. Organizations opposing undue state intrusion on individual liberties recognized this as an unwarranted expansion of police powers to snoop on Canadians.

The outcry was merited. After all, the best way to evaluate legislation is to examine how it can be abused, not what the government says its goals are. In the end, Bill C-30’s flaws were too great and it never reached a second reading in the House of Commons.

With Bill C-13, the government is at it again.

Debate around Bill C-13 has cast it as dealing with cyberbullying — especially relevant after the tragic stories of Amanda Todd and Rehtaeh Parsons. The cyberbullying label is less disingenuous than the previous legislation’s title — Bill C-13 does make it illegal to distribute intimate images without consent. But just like Bill C-30, it deals with far more. Of the 60 plus pages in Bill C-13, the majority grant new powers to police and do not deal with cyberbullying.

Peter MacKay, the current justice minister, justifies this as a modernization of the Criminal Code. In a news release, the Department of Justice says Bill C-13, “would ensure that the same type of information that is currently available to law enforcement agencies for telephone calls would be available to police for newer technology such as computers, smart phones and the Internet.”

In fairness, there are some important differences between Bill C-13 and the failed Bill C-30, and many of the most egregious opportunities for undue state intrusion have been removed. For example, gone is Bill C-30’s requirement that telecommunications service providers have real-time data intercept capacity. And the mandatory disclosure of subscriber information to police without court oversight appears to be gone, too.

But appearances can be deceiving.

Buried within Bill C-13 is a clever mollifying of Bill C-30’s mandatory disclosure provision. The legislation clarifies that the police may request the voluntary disclosure and preservation of data or documents, and that someone in possession of that information can choose to comply with the police request, provided that it is not otherwise illegal to do so.

This alone seems innocuous. But the very next provision says that anyone who voluntarily provides such information to police upon request is absolved of all criminal and civil liability for the disclosure.

This absolution is problematic because it undermines the incentive to await court oversight before disclosing information to the police. Without the fear of incurring liability, Internet service providers possessing information wanted by the police may be more likely to comply with baseless disclosure requests. Fishing expeditions and snooping may become more common. Further, it’s not unreasonable to question whether a so-called voluntary disclosure can ever be completely without coercion, especially when you risk losing the goodwill of police.

Even though protecting Canadians from the harms of cyberbullying may be a laudable goal, we must ask how these new police powers in Bill C-13 could be abused. The mandatory disclosure provision from Bill C-30 may be gone, but Bill C-13 contains a subtle means of accomplishing much the same. And we should not be too quick to give up our right to privacy, because once we do, it will be difficult to get back.

This piece was first published by the Toronto Star on March 26, 2014.