Canadian Heritage Committee on Nov. 18th, 2024

[The Vice-Chair, Conservative, Kevin Waugh]

I call the meeting to order. Good morning, everyone.

Welcome, everyone, to meeting number 138 of the House of Commons Standing Committee on Canadian Heritage.

Today's meeting is taking place in a hybrid format.

I would like to remind participants of the following points. Before speaking, please wait until I recognize you by name. For members participating in person—thank you, Ms. Dea—or by Zoom, please raise your hand if you wish to speak. The clerk and I will do our best, as always, to maintain the speaking order for you. This is a reminder that all comments should be directed through the chair, as always.

All witnesses have completed the required connection tests in advance of this meeting. I will say that Richard Moon is not with us in the first hour and a half. He had technical issues, so we have only three guests.

Our study is on the protection of freedom of expression, pursuant to Standing Order 108(2) and the motion adopted by the committee on Wednesday, September 18, 2024. The committee shall resume its study of the protection of freedom of expression.

I would like to welcome our witnesses today.

We have with us Shannon Dea, dean, faculty of arts, University of Regina.

We have Emily Laidlaw, associate professor and Canada research chair, cybersecurity law, University of Calgary. She is on video conference.

We also have Ga Grant from B.C., staff litigation counsel with the British Columbia Civil Liberties Association.

Once again, Mr. Moon is not with us. We have only three guests.

We have an extended meeting of three hours today. There's one hour more. My plan today would be, probably, to go until 12:20 to begin the three hours. Then we'll take a break and get set for the second group. That will give us time for a little lunch, maybe a 10- or 15-minute break. Then we'll go from 12:20 to about 12:35, after we get our sound checks for the second group. That's the game plan.

We also have question periods, so maybe we can get out of here by 1:50 to 1:55. We'll see how it goes.

Shannon Dea, dean of the faculty of arts, you have five minutes. Welcome to Canadian Heritage.

Go ahead.

[Dr. Shannon Dea, Dean, Faculty of Arts, University of Regina, As an Individual]

Thank you very much.

Good morning. I'm a philosopher and dean of arts at the University of Regina. I'm here today as a scholar of academic freedom and campus freedom of expression.

As a dean, I have the opportunity to observe and defend academic freedom in practice, but my remarks reflect my own scholarship and do not represent the University of Regina or the faculty of arts.

Academic freedom is distinct from freedom of expression, but they are deeply entwined. Academic freedom enables post-secondary scholarly personnel to pursue, without interference or reprisal, universities' academic mission to seek truth and advance understanding in the service of society.

Academic freedom includes two varieties of expressive freedom. These are freedom of intramural expression, which can include criticism of the university, and freedom of extramural expression, scholarly personnel's freedom to engage in speech in the public sphere. These expressive freedoms are unlimited so long as they are lawful.

By contrast, academic freedom occurs within systems of academic quality control exercised by scholarly personnel. For instance, scholarly referees and editors adjudicate publication decisions and collegial bodies determine curricula.

The first modern implementation of academic freedom was in the establishment in 1809 of the University of Berlin, the first modern research university. Its founder, Wilhelm von Humboldt, enshrined solitude and freedom as twin principles of the university. By “freedom”, he meant unconstrained curiosity-based research, teaching and learning by scholarly personnel, including students. By “solitude”, he meant isolation from outside interference, an early exemplar of what is today termed “institutional autonomy”.

The need to provide protections against external interference, and in particular political interference, was especially important, since German universities were essentially a branch of government. Thus, from 1848 to 1933, German constitutions enshrined academic freedom protections.

In some states, such as pre-1933 Germany and post-apartheid South Africa, academic freedom receives distinct constitutional protection. In others, it receives indirect constitutional protection via freedom of expression provisions.

The two examples of constitutionally protected academic freedom I just gave point to an important fact about academic freedom: It flourishes in democracies. It dies under authoritarian rule.

With Hitler's rise to power in 1933, academic freedom was abolished in Germany. Jewish professors were fired. Remaining professors were forced to teach Nazi race science. By contrast, when the Mandela government sought to rebuild an equitable and democratic South Africa, it enshrined academic freedom in the constitution.

Wherever authoritarianism is on the rise in our own time, we see corresponding attacks on academic freedom and universities' institutional autonomy. In recent years, we have seen government bans on teaching gender studies in Hungary and Poland and on teaching critical race theory in a number of U.S. states.

Provincial governments in Ontario, Quebec and Alberta have threatened universities' Humboldtian solitude by imposing on them free speech policies that, far from protecting expressive freedom, actually undercut institutional autonomy, as well as placing censorious limits on student protest, a time-worn form of campus expression that has long been, among other things, a mode whereby students develop their moral and intellectual autonomy.

In the U.S., in December 2023, the United States Congress's hearing on anti-Semitism marked a new chapter in state interference in academic freedom, campus expressive freedom and institutional autonomy. Representatives' interrogation of three college presidents regarding their universities' approach to solidarity statements, institutional neutrality and student protest was deeply chilling, not least because two of the presidents' replies were politically weaponized to force their resignations.

The most aggressive interrogator of the U.S. university presidents was Representative Elise Stefanik, recently tapped to be U.S. ambassador to the United Nations. Representative Stefanik claimed that the hearing resignations were just the beginning of the reckoning and that Republicans will carry out a long-overdue cleansing of higher education.

A week after the congressional hearing, five MPs wrote to Canadian university presidents to exert similar pressure on them. This would have been a wildly inappropriate state challenge to institutional autonomy if it had come from provincial governments. It was even more shocking and unprecedented coming from federal members of Parliament, given that education is under provincial and not federal jurisdiction. Some MPs continue to make public statements aimed at chilling expression about Israel and Palestine within educational institutions.

Canada's universities make crucial contributions to science, society, industry and the economy. Despite recent challenges, academic freedom is healthier in Canada than anywhere else in the world. It is crucial for Canadian lawmakers to reaffirm academic freedom and universities' institutional autonomy so that Canadian universities can continue to contribute to science, industry and society, while preserving the crucial protections of solitude and freedom for the universities of tomorrow, both in Canada and worldwide.

Thank you.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Dr. Dea. You still had another minute, but we'll have lots of questions around the table for you.

We move now to Emily Laidlaw, associate professor and Canada research chair in cybersecurity law, University of Calgary.

Ms. Laidlaw, you have five minutes, if you wish.

[Dr. Emily Laidlaw, Associate Professor and Canada Research Chair in Cybersecurity Law, University of Calgary, As an Individual]

Thank you.

When I teach freedom of expression to my law students, I start with the question of what freedom of expression means to them. Before looking at the law or philosophy, we should all start with the question of what expression means to us personally. It touches every aspect of our lives and democracy, and this meaningfulness is what informs our legal structure.

A commitment to freedom of expression asks a lot of us. It asks us to protect offensive, disturbing and shocking expression in the belief that society as a whole benefits, even if individuals are caught in the crosshairs. However, it is not an absolute right and it never has been.

Canadian courts have generally adopted a negative approach to freedom of expression, assuming that if government just stays out of the way, we'll be free. This, I suggest, is a false assumption. We do not enjoy equal freedom to express ourselves, and law can be an important vehicle to protect and promote freedom of expression.

This is especially important in the area of technology law, which is where I work, where laws targeting private companies are an important vehicle to ensure users' rights are protected.

When I got into this area almost 20 years ago, my focus was on how technology companies had become private arbiters of expression. No matter what we want to do online, we rely on a private company to make it happen. They decide who has access, what content stays up or comes down, the systems of dispute resolution, and how their sites are designed, using persuasive techniques to nudge behaviour, such as endless scrolling, rewards, notifications and “likes”, essentially hijacking our minds.

This means these companies have extraordinary power—more than most states. They are the deciders of global free expression norms, and there's minimal transparency about their practices and minimal legal mechanisms with which to hold these companies accountable. These companies are also soft targets for government pressure to remove certain content, called jawboning.

At its worst, it operates as a form of shadow regulation—government A pressures platform Y to remove certain content. More commonly, law enforcement, for example, investigates whether a post is criminal hate speech. They think it might be, but in the meantime, they think it probably violates the platform's own terms and conditions. Law enforcement notifies the platform of the post, and the platform independently assesses it against its own moderation processes. In this situation, is the state suppressing lawful expression? Generally, no, but it matters how this is done, and informal measures always risk being illegitimate in substance or appearance.

Now, I don't want to give the impression that the companies are bad actors—many are the source of innovation to the problems we face—but in the end, these are just companies. They're not good or bad, but they do have fiduciary responsibilities to act in their company's best interests, so there's only so much they can ever do to act in society's best interests, and some companies elect to do very little.

My message is this: When companies are this powerful and have this much impact on society, it is the government's job to create a legal framework around that.

There are two key steps that are crucial to promote and protect freedom of expression and address online harms. The first is to pass part 1 of Bill C-63 after, of course, careful study and amendments. It proposes a systemic approach to social media regulation.

What do I mean by a systemic approach? This approach is not concerned about specific content—whether this post or that is hate propaganda and whether a company leaves it up or takes it down. Rather, it targets the system that makes social media tick. What content moderation systems does the company have in place? Does it provide due process? Does the platform address the risks of the recommender system? Does the company have a plan to address inauthentic accounts and manipulation of its systems by bots and deepfakes?

The companies are required to be transparent about their practices, and a regulator can investigate companies for failing to have proper systems in place. In terms of freedom of expression, a systemic approach is the best in class to provide the most protection to freedom of expression while targeting the core problems social media have made so much worse.

The second step is to reform data privacy law and introduce AI legislation, such as some form of Bill C-27. These are data-driven businesses. The design of their interfaces, their practices concerning the collection, use and disclosure of user data, and their use of AI systems provide the keys to our minds and health and our agency to participate and express ourselves freely. Privacy has always been key to the enjoyment of freedom of expression, and therefore Bill C-27, or some version of it, is a key complement to Bill C-63.

Thank you.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you very much, Ms. Laidlaw.

We move to our third and final witness. We have Ga Grant, the litigation staff counsel for the B.C. Civil Liberties Association.

You have five minutes. Go ahead.

[Ga Grant, Litigation Staff Counsel, British Columbia Civil Liberties Association]

Hello, and thank you for having us.

The BCCLA is Canada's oldest and largest civil liberties organization. While we have many concerns about the state of freedom of expression in Canada, I'll focus today on two urgent human rights aspects, because for civil liberties to be real for everyone, we must fight not only for the rights of the privileged but also for those who are most marginalized in our society.

While the charter guarantees everyone freedom of expression, including protest as democratic participation, this right is not applied equally. Evidence shows that certain communities are disproportionately surveilled and targeted by Canada, suppressing their freedom of expression.

First, the BCCLA has long raised concerns about Canada's targeting and criminalization of indigenous land and water protectors. We're one of 60 indigenous and civil society organizations calling for the dismantling of the RCMP's paramilitary unit called the critical response unit, the CRU, formerly the community-industry response group.

Amnesty International's 2023 report highlighted the ongoing human rights violations against Wet'suwet'en land defenders opposing the coastal gas pipeline. The CRU has used unlawful surveillance, disturbingly excessive force, harassment and dispossession, despite the Wet'suwet'en's legal right to oppose projects on unceded land without consent.

Similar violations occurred at the Fairy Creek blockade, where the arbitrary and illegal exclusion zones violated charter rights, including the freedom of expression of the media.

Disturbing recordings played in court revealed that CRU officers were referring to indigenous land defenders as “orcs” and “ogre” while mocking missing and murdered indigenous women. All of these actions contradict Canada's commitments to the United Nations Declaration on the Rights of Indigenous Peoples and have been condemned by a collection of UN special rapporteurs.

The CRU is currently subject to over 500 citizen complaints, serious lawsuits and an outstanding investigation by the chairperson of the Civilian Review and Complaints Commission for the RCMP. The CRU is now collaborating with local police to target Palestine solidarity demonstrations without any public transparency.

This brings me to the second pressing issue: the extreme chill and political expression that we are witnessing on free expression when it is in solidarity with Palestinian human rights or is critical of the State of Israel.

This year, the International Court of Justice ruled that Israel is likely committing genocide in Gaza, as well as committing ongoing apartheid and illegal occupation of Palestine. The UN Special Committee has now found Israel's warfare consistent with genocide, including the use of starvation as a weapon of war, yet Canada continues to support Israel and provide arms to it.

We have written numerous letters to police and Crown prosecutors regarding unconstitutional or disproportionate criminal charges and police response against protesters. For example, the CRU labelled Palestine solidarity protests as “pro-Hamas” and terrorist-supporting, an untrue smear that fuels anti-Palestinian racism. Such language has also been used by many politicians and police. Recently, the Department of Canadian Heritage published the “Canadian Handbook on the IHRA Working Definition of Antisemitism”, which advocates the implementation of policing across society. This deeply problematic and controversial definition of anti-Semitism goes beyond citing anti-Semitism proper—a goal we all share—to conflate political critique of Israel with Jewish people, promoting anti-Palestinian racism.

The BCCLA stands alongside many international and national human rights organizations and Jewish groups, such as Independent Jewish Voices Canada, the United Jewish People's Order and the Jewish Faculty Network. Such a conflation of Jewish people with the State of Israel is itself anti-Semitic and opposes Jewish freedom of expression. The IHRA definition and handbook has disturbing, censorious consequences and needs to be immediately revoked.

Dr. Ge's testimony before this committee is but one example of the regular calls we receive from people who are losing their jobs or are facing discipline, harassment or unjust police charges for exercising their charter rights. I, myself, personally have fear of speaking publicly before the committee on this issue. As a person who is half Jewish and half Lebanese, I believe that human rights and the liberation of all people are never in opposition but are interconnected, because suppressing one group's rights leads to suppression of everyone's rights.

Controversial debate is essential and healthy for democracy. A true democracy is measured by how it handles dissent, particularly when that dissent challenges the government or entrenched political interests. We call on Canada to abolish the CRU, improve police accountability, respect the rights of indigenous people, stop political and policing efforts to suppress expression and solidarity with the people of Palestine, and revoke the IHRA definition of anti-Semitism so that we can have freedom of expression for all.

Thank you.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Ms. Grant. You're right on time.

The first round of questioning will be six minutes long, and we'll start with Mr. Gourde of the Conservative Party.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

I thank all the witnesses for being here.

This is a really important study for us and for Canadians. When we talk about freedom of expression, we're also talking about freedom of conscience.

My question is for the three witnesses, and they can answer it one after the other.

What can interfere with freedom of expression?

Can you give us examples, from the last five or ten years, of situations that might have harmed Canadians' freedom of expression and freedom of conscience?

Ms. Dea, you may answer first.

[Dr. Shannon Dea]

Thank you very much.

There has never been a time in human history when freedom of expression hasn't been under threat. That's precisely why we need to enshrine protections for it. If it were not threatened, it wouldn't require protections.

The particular threats change from one era to another and from one place to another. From my perspective, in the past five to 10 years, we've seen increased polarization and weaponization of.... Again, polarized tropes, for instance, represent universities as hotbeds of radicalism and as harmful to society.

Also, there is increasing culture war combativeness on social media. We don't take into consideration the degree to which social media can exacerbate and further polarize debate. The debate we used to be able to have 20 years ago in the town square is now made worse and more polarized by harmful algorithms.

Maybe I'll stop there so others can respond as well.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Ms. Laidlaw, would you like to answer my question?

[Dr. Emily Laidlaw]

Thank you very much.

I'll comment in the context of social media, which is where I do a lot of my work. I've done quite a bit of work on this recently.

Our freedom of thought and opinion is being essentially hacked by the algorithms and ads on social media. They structure the spaces in a particular way. The algorithms push certain information at you. It might be repetitive information. It's the idea that you end up down a rabbit hole. It undermines your own agency to freely develop your thoughts. We're seeing that to the extent that everyone ends up in their silos when it comes to the political information they're consuming.

In the context of children, I look at the wider gamut of these issues. We're seeing it pushing eating disorders and self-harm content at children, etc.

From a broader perspective, I thought it was interesting that you asked a question about what harm freedom of expression has caused. I want to bring us back to that legal threshold, because freedom of expression causes all kinds of harm.

We believe in the importance of freedom of expression. It's so key that we're willing to put up with that. Legally, there is a threshold in all kinds of circumstances where that harm is too great and the law intervenes. The law is used to defend reputations, but there is quite a high threshold in defamation law when it comes to finding that reputational harm is actually a legal issue, and where the law will intervene in some way to shut that down. We see this in criminal law, whether it's hate propaganda or fraud.

We're in a complex space now. This is always highly contextual. In social media, we have this massive volume. We can't deal with it at scale.

This will be my last comment: “From the river to the sea” has been a point of controversy. Meta's oversight board did an entire investigation of that and made a determination on whether it fell afoul of their terms and conditions of service, looking at it through international human rights. These issues are being decided in all kinds of corners.

I'll leave it there for now.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Ms. Grant, would you like to continue?

[Ga Grant]

I apologize. I only figured out how to turn on the translation after your question.

Would you be able to repeat the question?

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

In the past five or ten years, have you witnessed any events or situations that may have affected freedom of expression in Canada?

[Ga Grant]

I'm sorry. Is it what I experienced or witnessed?

I think we've witnessed very concerning state suppression of particular groups, which is the subject of my statement today. Canada disproportionately surveils and targets certain communities, suppressing their freedom of expression and charter rights. The two examples I gave is of people exercising indigenous rights—indigenous land and water protectors—and Palestine solidarity. We saw these being quite targeted in the past year. There are numerous examples of people being charged for expression that is not hateful—that does not meet the stringent standard we have in the case law.

We are seeing a chilling effect on speech. Chilling one group's rights has impacts more broadly on people's confidence to exercise their own rights, no matter what the speech is. When they see people being criminalized and they see what happens to other people exercising their rights, it impacts more broadly.

I apologize if I didn't quite understand the question.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you.

[The Vice-Chair, Conservative, Kevin Waugh]

Mr. Gourde, thank you very much. That was six minutes.

We'll go to the Liberal Party.

Welcome, Mr. Noormohamed. You have six minutes.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Thank you, Mr. Chair.

Thank you to our witnesses for being with us.

I wanted to talk a bit and hear from all of you about the topic of the consequences of freedom of expression, because we've heard a couple of comments to this effect. I want to focus specifically on when political leaders lie to cause people to believe something that is untrue or to the detriment of not necessarily the government or the opposition, but of Canadian society.

Recently we had an example of a member of Parliament from the Conservative Party using her freedom of expression to say the cost of living crisis had driven parents to traffic their own children. We then had the Leader of the Opposition make a very public statement that prayer had been banned from Remembrance Day services.

These were proven to be out-and-out lies. I'm using that word specifically because a lie is something that is not true, and both of those things were proven to not be true.

What are the consequences of those types of freedom of expression?

[Damien Kurek, Conservative, Battle River—Crowfoot, AB]

On a point of order, Chair, it's my understanding.... In fact, when I called the Prime Minister a liar in the House of Commons, I was kicked out because it was unparliamentary. The Prime Minister had lied. I called him out on that. I got kicked out.

I'd suggest that Mr. Noormohamed is treading on the grounds of unparliamentary language and should use his words more judiciously to ensure that he is.... This is not to get into debate, but it's conjecture and opinion, as opposed to the discussion we're having about freedom of expression.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you.

Go ahead, Mr. Noormohamed.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Thank you, Mr. Chair.

I'll turn that question over to Professor Dea first, and then I'll go to Professor Laidlaw.

[Dr. Shannon Dea]

I'm not a lawyer, but my understanding is that freedom of expression does not have the quality control that academic freedom has, for instance. People get to lie. There may be parliamentary rules that I'm not aware of—you're more aware of those than I am—but freedom of expression does not come with quality control. That's the first thing.

It's important to note as well that when people say things that aren't true, they're not necessarily lying. Not to be too much of a philosopher, but we say lots of untrue things sincerely out of sincere error all the time. It's important to disambiguate between misinformation, which might be a sincere error, and disinformation, which is an intentional lie.

Obviously, though, the consequence of both misinformation and disinformation is a confused public who can reason badly about important matters of the day.

I will add—this may be, again, too philosophical a point—that people can also say true things that are selective and will mislead people. Utterances in general have consequences, whether they are true or false, or sincere or insincere.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Go ahead, Professor Laidlaw.

[Dr. Emily Laidlaw]

Thank you.

I appreciate Dr. Dea weighing in on the philosophical side, because I think it is a philosophical question, no matter what.

For the most part, we're allowed to say and express false things. There are only narrow circumstances, legally, where falsity is a problem, whether criminally or civilly. These are circumstances of fraud, criminally, or defamation, civilly. I guess that's criminal too.

You were talking about narrow circumstances in which an individual's reputation is harmed. That space between misinformation and disinformation is really difficult to deal with, because the Supreme Court has made it very clear that we protect false information because it might be the ideas of the future. This is because, as Dr. Dea said, we might believe it to be true, and part of that process of expressing ourselves is how we all figure out the truth.

The challenge we're facing is that there's no doubt that it causes harm and that social media amplifies that harm because it reaches greater audiences. Some of the work I am exploring and I talk about a lot with my students is how elected officials are both the targets of attacks and face extraordinary harassment, but they also have tremendous power. When they say something, especially now with social media, it reaches an audience that is unprecedented, so falsity takes on a characteristic that we did not see before and [Inaudible—Editor] doesn't help us solve it.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

That's really what I was trying to get at. I mean, I think we all agree that people have the right within the constraints you've identified to say what they like, make up whatever they want to make up and mislead if they choose to mislead.

The question that I have is this: In a world where information or disinformation is flowing at this kind of rate and pace, how do we start to think about actual consequences of it? It drives people to do things or to act in ways that then can cross the line that perhaps were not intended. Isn't that right? I can't imagine that when people make statements, they intend for people to go out and do terrible things.

How should we as politicians think about how to manage the things that we say without regulating what we say? Nobody's trying to take people's freedom away. What obligation should we have to think about the consequences of our words and the actions that they might inspire in others? That is the question, really, that I want to get to.