Thank you, Chair.
Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law. I appear in a personal capacity, representing only my own views.
I'd like to start by emphasizing that freedom of expression is rightly and widely recognized as foundational to robust, accountable and inclusive democracy.
That said, there's always a balance to be struck. I'm sure we would all agree that there are limits where expression is viewed as so harmful that it should be restricted or rendered unlawful. Obvious examples include child pornography, defamation and terrorism-related offences.
The difficulty generally doesn't lie with these kinds of cases. I'd like to focus on two cases that are much tougher: digital policy and the challenge of when expression chills other expression.
First I'll address digital policy.
Bill C-11, Bill C-18, Bill C-63 and Bill S-210 all intersect with expression, either directly or indirectly. The direct examples are Bill C-63 and Bill S-210. These bills, by design, have expression implications.
Bill C-63 identifies seven harms that are defined as a kind of content, but each is a form of expression. This expression can cause harm—revenge porn, inciting terror or bullying, for example. While I have some enforcement concerns, I think the bill identifies real harms and at least in part seeks to establish a balance in addressing them.
More problematic are Criminal Code and Canadian Human Rights Act provisions that are overbroad and that may weaponize the human rights system and have a chilling effect. Bill S-210 is even more direct in limiting expression, as it literally provides for the Federal Court to order the blocking of lawful content and envisions Canadian Internet providers as doing the blocking. This is a dangerous bill that should go back to the drawing board.
I think Bill C-11 and Bill C-18 both have indirect effects on expression.
In the case of Bill C-11, supporters were far too dismissive of the implications of regulating user content, with some going so far as to deny it was in the bill, only to later issue a policy direction that confirmed its presence.
Bill C-18 not only led to the blocking of news links but also failed to recognize that linking to content is itself expression. The net effect has been to cause harm to news-related expression in Canada. We need to do better when it comes to digital policy, as we haven't always taken the protection of expression sufficiently seriously in the digital policy debate.
Second, there is expression that chills other expression. This can occur when expression includes harassment or strikes fear in some communities, invariably leading to a chill in their ability to express themselves.
My own community, the Jewish community, is a case in point. The rise in anti-Semitism, in a manner not seen in Canada in generations, has sparked safety fears and chilled expression. No group has faced and been the target of more hate crimes than the Jewish community. On campuses, this manifests itself in students and faculty concealing their identity by hiding their religion and political beliefs, or fearing to speak out in class. I'm wearing a “bring the hostages home” pin today—a form of expression. Many would be reluctant to do so on our streets and campuses.
Encampments, graffiti, vandalism, doxing, online threats, the abandonment of institutional neutrality and the exclusion of those who believe in Zionism from classes or parts of campus have become too commonplace and have had a corrosive effect on those targeted, undermining their expression rights. Universities, workplaces and other communities have long recognized the harm of expression chilling other expression. That's why we have codes designed to ensure not just physical safety but also freedom from abusive or demeaning conduct that constitutes harassment and may limit the expression of others.
In a committee focused on protecting freedom of expression, there are many things that can be done: ensuring we have clearly defined policies, such as the IHRA definition of “anti-Semitism”; active enforcement of campus policies and codes; principled implementation of institutional neutrality; and leadership in speaking out against conduct that creates fear and chills speech.
In our broader communities, time and place restrictions—such as those included in the court ruling involving the encampment at the University of Toronto—preserve both the rights of those who want to protest and those for whom the encampment created real harms and chilled their expression. Similarly, bubble-zone legislation to safeguard schools, community centres and places of worship strikes a much-needed balance.
This past year has served as a wake-up call for many.
Taking action against hate enhances expression rather than detracts from it, and we must all do our part in this fight.
Thank you for your attention. I look forward to your questions.