TDF sounds the alarm over the Government's proposed speech regulation.
Toronto— TDF lawyers have analyzed Bill C-9 and warn that, if passed into law, it will restrict Canadians’ free speech rights.
The bill amends the Criminal Code to criminalize the display of symbols of certain terrorist "listed entities." However, the wording of the section is vague, capturing symbols that are "principally used by or principally associated with" listed entities, or symbols that are confusingly similar to such symbols. As with most legislation, this vague terminology will restrict speech as speakers self-censor to avoid criminal prosecution.
While exemptions exist for symbols displayed for the purposes of journalism, religion, education, or art, these exemptions are ambiguous and may be interpreted narrowly by courts, further restricting the speech of artists, religious and secular educators, and journalists on important social and moral issues.
As with the previous Online Harms Bill, Bill C-9 imports the definition of “hatred” from leading case law as an "emotion that involves detestation or vilification and that is stronger than disdain or dislike." However, courts have interpreted "hatred" differently at various times, indicating that the definition is not stable. The definition in the bill lacks precision and provides only an illusion of clarity. There is no analysis of the concept of hatred, simply a recitation of various linguistically similar words.
The bill also creates a "hate crime" offence. This "hate crime" arises when someone commits an offence motivated by hatred of an identifiable group. However, since the underlying offence includes offences from “any Act of Parliament,” non-Criminal Code offences may be used to sustain a secondary "hate crime" charge. For instance, an individual who throws flyers containing hateful messages out of her vehicle while driving in a national park has committed an offence pursuant to the Canada National Parks Act that is arguably “motivated by hatred.” This individual could, in theory, be charged with a "hate crime," introducing potential jail time under the secondary hate crime offence. The ability to threaten additional jail time when there is any evidence of "hatred" gives police and Crown counsel an incentive to up-charge defendants, thereby pressuring them to plead guilty to a lesser charge.
Finally, the bill introduces new offences of obstructing, interfering with, or intimidating to impede access to a place of worship or other structure. The maximum penalty for committing such an offence is 10 years in prison. However, there are existing laws - including mischief to property or person, intimidation, uttering threats, causing a disturbance and trespassing - that already criminalize such conduct.
Mark Joseph, TDF litigation director, noted that much of the bill is superfluous and vague. "The legal definition of hatred has always been a problem for jurists: this bill exacerbates that problem. To the extent that bad actors are attempting to interfere with the speech and conduct of other Canadians, laws already exist to sanction that behaviour. This bill gives the government more power to censor speech at a time when we need the public forum to remain free and peaceful so that Canadians can discuss difficult issues."
Founded in 2021, The Democracy Fund (TDF) is a Canadian charity dedicated to constitutional rights, advancing education, and relieving poverty. TDF promotes constitutional rights through litigation and public education and supports an access to justice initiative for Canadians whose civil liberties have been infringed by government lockdowns and other public policy responses to the pandemic.