Evidence of meeting #138 for Canadian Heritage in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was academic.
A recording is available from Parliament.
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you.
I want to thank Dr. Dea, Ms. Laidlaw and Ms. Grant, our witnesses in the first round, .
We will now take a break before we come back and hear from three witnesses. One will be over Zoom. The game plan is to come back at about 12:25 and go until about 1:50 so that we can get to the House in time.
We'll suspend and come back in about 10 minutes' time.
Conservative
The Vice-Chair Conservative Kevin Waugh
Welcome back, everyone.
We're going to resume with our second hour.
I'd like to welcome our new witnesses.
We have Michael Geist, Canada research chair in Internet and e-commerce law, faculty of law, University of Ottawa. Online is Kathleen Mahoney, professor of law.
With us in person, from the Canadian Media Guild, is Annick Forest, president.
Welcome. I think most of you have been here before. You have five minutes for opening comments. After that, we'll have questions and answers.
First up is Mr. Geist.
Welcome again. You have five minutes.
Dr. Michael Geist Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
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.
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you, Mr. Geist.
We'll move now to Ms. Mahoney, emeritus professor of law, for five minutes, please.
Kathleen Mahoney Emeritus Professor of Law, As an Individual
Thank you very much, Mr. Chair.
I'm very pleased and honoured to be here. It's been quite some time since I've had the opportunity to speak on this topic, so I welcome it.
What I've provided you with is a rather dated paper, but I did that quite deliberately. I think what's important here is that first principles must guide the discussion and guide the thinking on these topics. My presentation is going to go back to first principles, and I'm going to talk about them in that context.
Hate discrimination has evolved, as we know, into a global phenomenon, amplified by technological advancements that disseminate hate speech across borders instantaneously. Once limited to local acts, hate now targets individuals and groups worldwide, undermining personal security, equality and even national peace. This necessitates a nuanced approach to balancing rights such as free speech and equality—a word I haven't heard mentioned in the last hour or so—under both domestic and international law.
Gender-based violence, abuse and harassment have been very pronounced in the technological developments I've mentioned. The key concepts and frameworks I'm going to talk about here are in terms of definition and process, harmful impact and international legal obligations.
It's very important to understand that hate discrimination follows a progression, starting with the identification of a group and moving to discrimination on the basis of immutable traits and societal dehumanization. It manifests itself in speech, in acts and in systemic violence, ranging from exclusionary practices right up to genocidal assaults. Far from mere expression, it is a harmful act in itself.
This is critical to any discussion of expression. Expression can become, and often is, an act as well as an expression. Historical examples like the Holocaust, the Rwandan genocide and other atrocities highlight the role of hate speech in inciting ultimate violence. Modern statistics underscore its prevalence. Rising hate crimes globally are enabled now by digital platforms that bypass traditional jurisdictional limits.
Treaties like the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights require states like Canada to prohibit hate speech that incites violence or discrimination, so balancing competing rights of free expression and protection from harm is central to all frameworks.
In the Canadian context, we have taken a dual legal approach, because Canada employs both criminal and civil laws to address hate discrimination. Criminal provisions target the most egregious acts, such as incitement to genocide, while civil remedies focus on preventing and rectifying discrimination. The Supreme Court of Canada has affirmed that hate speech regulation is compatible with constitutional rights, emphasizing that equality and security are as crucial as freedom of expression.
Challenges in the digital age are the rapid spread of hate online and Canada's inclusion of Internet hate provisions, which demonstrates a commitment to adapting our laws for emerging platforms. Broader implications are that hate discrimination is not just a societal issue, but, as has been said in the earlier session today, a threat to democracy and national security. My paper argues for a balanced, principled approach to maximize freedoms while curbing the corrosive effects of hate.
Just to remind you of the seminal legal decisions, I'm going to quickly describe them.
The Keegstra case was in 1990, 34 years ago. The context was a high school teacher promoting anti-Semitic views in his classroom and requiring students to list and learn his hate ideas. The court upheld the Criminal Code provision prohibiting the willful promotion of hatred against identifiable groups when Mr. Keegstra challenged it, .
I personally have been involved in all of the leading hate speech cases, and this is why I have to emphasize them. The significance of the Keegstra case was that the majority ruled that hate speech regulation does align with section 1 of the charter.
While it limits freedom of expression, this limitation is wholly justified to protect individuals and groups from the harmful effects of hate speech, which, in that case, was identified as being on their equality rights, which are also protected by the charter.
The court voted that hate speech—
Conservative
Kevin Waugh Conservative Saskatoon—Grasswood, SK
Thank you, Ms. Mahoney. We're over five minutes for you.
We'll move on to the Canadian Media Guild. The president is with us.
Annick Forest, go ahead, please.
Annick Forest President, Canadian Media Guild
Thank you for giving the Canadian Media Guild the opportunity to express its views on the means the Canadian government should have at its disposal to ensure freedom of expression in this country.
Remember that freedom of the press and other media of communication was enshrined in the Canadian Charter of Rights and Freedoms because it is essential to guarantee Canadians' fundamental right to freedom to conceive and express ideas, to meet with others to discuss them and to disseminate them.
Canadians' freedom of expression therefore depends on the freedom of their press. Let's talk about freedom of the press. Press freedom exists when the media ecosystem includes multiple, diversified independent media, which receive and transmit information and ideas of all kinds, regardless of the medium, and thus contribute to nourishing and shaping public opinion, an essential element of democratic debate.
For freedom of the press, and therefore freedom of expression, to exist in Canada, we need a healthy media ecosystem. For this media ecosystem to be healthy, the Canadian government must have certain means at its disposal.
The government must have the means to ensure a solid foundation for our media ecosystem. This solid foundation begins with a sustainable funding model for its public broadcaster, stable long-term funding that adjusts to the economic realities of the day, a funding model that ensures the public broadcaster has a sufficient budget to fulfill the mandate given to it by Canadians.
The public broadcaster should have sustainable funding, because its core mandate is to support Canadians in exercising their fundamental rights: their freedom of thought, belief and expression, their freedom to conceive and express ideas, and their freedom to gather with others to discuss and disseminate them.
The public broadcaster should have long-term funding, because Canadians' freedom of expression, ensured by freedom of the press, should in no way be influenced by the political vagaries of Parliament Hill.
Stable, long-term funding for the public broadcaster is one more way for the Canadian government to demonstrate that CBC/Radio-Canada is indeed a public broadcaster, not a state broadcaster. A budget commensurate with the public broadcaster's mandate is essential if all Canadians are to have equitable access to freedom of expression as provided by the media.
The democratic discourse of Canadians is not complete when it does not include the concerns of farmers in Saskatchewan, hunters in Iqaluit, outfitters in the Yukon and fishers in Yarmouth, Steveston, Cocagne or Cap-aux-Meules.
To avoid an imbalance in Canadian democratic discourse, journalists must be present in as many communities as possible across the country. In this way, the government can act to give a voice to Canadians whose message runs counter to the popular discourse, to Canadians who belong to minority groups, and to Canadians who live far from areas of influence.
On this note, the Canadian Media Guild believes that, to guarantee freedom of expression for indigenous peoples, the federal government should also provide for the continued existence of a media designed and managed by members of these communities.
One media outlet is not enough to ensure freedom of expression in this country. The more media there are, the more Canadians will be able to express themselves. The Canadian government must therefore take steps to prevent ownership of the country's private media from being concentrated in the hands of a few or held by players outside our borders.
Freedom of the press also means protecting journalists. The government must equip itself with the means to better protect journalists in the performance of their duties.
Not only has it become more common for media workers to be verbally or physically abused by bystanders while in the field; some are also now being personally attacked by influential figures when they try to hold them to account. When influential members of society model these unacceptable behaviours, it opens the door for others to follow. The consequence can be a form of self-censorship on the part of some journalists, and this is another, though less obvious, limitation of freedom of the press.
To foster democratic discourse, journalists hold those in power to account. When the system fails to self-critique, those who witness situations that undermine Canada's democracy should be able to disclose this state of affairs without fear of reprisal. The Canadian government must strengthen the protection of whistle-blowers to better protect them.
Those who do not wish to be held accountable for their acts are the first to target journalists. Impunity comes with the absence of witnesses.
In December 2019, the Canadian government co-sponsored the most recent UN General Assembly resolution on the safety of journalists. The Canadian Media Guild believes that the protection of freedom of expression for media workers is best served if Canada follows through with what is proposed in this resolution.
In conclusion—
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you, Ms. Forest. That's five minutes. We'll move on.
The opening round is always six minutes. We'll start with the Conservative Party and Mr. Jivani, please.
Conservative
Jamil Jivani Conservative Durham, ON
Thank you, Mr. Chair.
Mr. Geist, thanks for being with us today. I'd like to ask you some questions about digital policy and in particular about some of the legislation that many Canadians have called Justin Trudeau's censorship agenda. Some of it is the legislation you referred to, like Bill C-11 and Bill C-18, for example.
Bill C-11 gets misrepresented very often by Liberals here in Ottawa as an attempt to push back on big businesses, big corporations, social media companies and American influence, but you wisely pointed out that in a policy directive, they did make clear that included in Bill C-11 is a measure regulating user-generated content.
I'd like you to elaborate on why that's significant and why Canadians should be concerned about that being included in a Liberal policy directive.
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
Well, it's déjà vu all over again, as I had a chance to appear before the committee on that bill.
The core of the bill does involve the notion of trying to bring large streaming services into the Canadian broadcasting framework, and we're seeing how some of that plays out before the CRTC now with, I think, some real concerns, frankly, about consumers ultimately paying the price on some of the increased costs.
With respect to the inclusion of user-generated content, the policy directive actually directs the CRTC not to regulate users. The CRTC has followed that directive, but throughout the process, there were continual denials that this even existed in the legislation, when I think it was readily apparent to just about everybody that it did.
The concern there was that some of the powers that were vested in the regulator could have an impact on the expression rights of those creators. I'll note that the policy direction says not to do this, but the legislation at least opened the door to things like elevating, through algorithms, certain content over other content. Canadian digital creators made the case that they were finding success online and were deeply concerned that having a regulator step in and have an impact on how their stuff would appear on some of these large platforms could have an impact on their livelihood and what Canadians are able to see.
Conservative
Jamil Jivani Conservative Durham, ON
What is the significance, in your view, of the fact that the legislation opened the door, to use your phrasing, for the federal government to regulate user-generated content?
Also, do you think that the concerns raised during the process about the possibility of that regulation of user-generated content were appropriately weighed in the process of putting this legislation forward?
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I should note that the legislation actually initially did not include user content. It was during clause-by-clause consideration of an earlier iteration of the bill that the bill was changed to remove an exception that had previously excluded it.
I think the concerns were real. In fact, once the bill left this committee, left the House and went to the Senate, the Senate conducted extensive hearings on that same bill and actually proposed an amendment to try to directly address that issue. I thought it was unfortunate that government or the House ultimately rejected that proposed amendment, sent it through as they did and now have been forced, essentially—if they really do want to exclude user content—to put this in a policy direction.
For the moment, the policy direction rules, but a policy direction, of course, doesn't have the same kind of power that the legislation does. I think that's why many had raised this issue. Sometimes we're told there was really nothing to be concerned about, yet the reality was that it was quite clearly there. There were easy fixes, quite frankly, that I think would have maintained the policy objectives that the government and other groups had, while at the same time ensuring that there were better safeguards about including user content within the scope of the law.
Conservative
Jamil Jivani Conservative Durham, ON
When Canadians see this pattern of legislation that's been put forward by the current government, I think a lot of the time they're being gaslit by the Liberal government to not be concerned and to sort of downplay legitimate concerns about concentration of power in the hands of bureaucracies to control what Canadians can see and hear online and consequently what they can say online.
When you see those attempts to sort of say to Canadians, “Don't worry about it. Don't even raise a red flag. Trust the government”, how do you respond to that phenomenon we're observing here in Ottawa?
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I suppose at the end of the day my concern here—and I mentioned it in my opening—was that I don't think we've taken the expression-related issues seriously enough as part of the digital policy.
I should be clear that this isn't just about Bill C-11 and Bill C-18. The opposition parties, unlike the government, have been supporting Bill S-210, which raises real concerns about expression rights as well.
I'm not sure that anybody comes here with fully clean hands about addressing some of those kinds of issues. I wish that all parties would take some of these issues more seriously.
To your point about gaslighting, when there are voices—sometimes voices that aren't the typical people who appear before a committee—raising these kinds of concerns, those concerns are taken more seriously. I think there was a sense among many that this simply wasn't the case through the process in Bill C-11.
Conservative
Jamil Jivani Conservative Durham, ON
Would you say there is an appropriate amount of concern as you observe this legislation, any one of the four bills that you mentioned? As you see that legislation, do you see an appropriate amount of concern over state overreach? Do you think that's something that needs to be emphasized more?
Canada Research Chair in Internet and E-Commerce Law, Faculty of Law, University of Ottawa, As an Individual
I think we always need to be cognizant of what it means to have government intervene in this way. I think we are, as you heard in your earlier panel, increasingly appreciating the concern of overreach from platforms as well, and that's part of what we're trying to grapple with here.
Sometimes, as we venture into some of these newer spaces and these newer kinds of regulation, you often get new voices coming forward as well, and at times there has been a bit of reticence to include some of those kinds of perspectives as part of the discussion or perhaps even as part of the policy development.
Conservative
Conservative
The Vice-Chair Conservative Kevin Waugh
Thank you.
Next is Mr. Coteau for the Liberal Party. Michael, go ahead for six minutes.
Liberal
Michael Coteau Liberal Don Valley East, ON
Thank you very much, Mr. Chair.
Thank you to all of our participants today.
Our guest from the Canadian Media Guild said, “In conclusion”, and then didn't have the ability to finish.
Do you want to take 30 seconds to conclude?
President, Canadian Media Guild
Thank you for the opportunity to do that, and I will do so.
In conclusion, to ensure freedom of the press, Canadian media workers must not fear for their physical, mental or financial safety.
Liberal
Michael Coteau Liberal Don Valley East, ON
That's perfect. That was 10 seconds. I appreciate it.
Ms. Mahoney, your presentation used a term that sums up a lot of the challenges we have with freedom of expression as a whole, and it's that there has to be a balance between equality and safety and the freedom of expression. If I heard you correctly, I believe that's what you said.
We have to admit that this is not a one-sided issue. There are concerns about finding that balance between safety, equity and equality and not taking away someone's ability to express themselves. It is a very sophisticated, very challenging discussion that one has to embark on in order to find a balance.
On the weekend, I saw on social media that in Columbus, Ohio, there was a march of neo-Nazis with flags, and they were using all of these words. I was thinking that yes, they're expressing themselves, but to what extent, and what are the safety issues and how are people feeling?
Could you talk a little bit about the challenge of that balance, just as a society as a whole?
Emeritus Professor of Law, As an Individual
The question is a very good one. Thank you for it. I think this is really an important area to keep in mind.
The courts were very clear that Canada has a unique way of protecting rights. We have freedom of expression, but it's not a paramount freedom. It has to be read with the others, and this is what makes Canada special.
We have section 27, which says we protect multiculturalism. That's an interpretive device. We have section 15, which has four equality guarantees: equality for and under the law, equal benefit and equal protection of the law, and we can't see freedom of expression in isolation.
That even comes up in Bill C-63, for example. There's a portion of that bill that talks about freedom of expression and says that we have to be very careful not to make unreasonable restraints on freedom of expression. It seems to me that this provision should also say we have to be very careful about protecting the equality of the people who are targeted by these hateful or very harmful expressions.
In order to maintain what the Supreme Court of Canada has taught us in a series of freedom of expression cases—that equality is as important as freedom of expression—freedom of expression cannot dominate the other rights. Otherwise, that's when you get these problems of children and women and other marginalized groups, such as indigenous peoples, suffering from their lack of access to the megaphone. They don't have the billions that are invested in media. They don't have the political sway that others do in order to express themselves. That's what's very important, it seems to me.
In my opinion, Bill C-63, although there are some laudable provisions in it, doesn't go far enough.
Liberal
Michael Coteau Liberal Don Valley East, ON
I'm going to ask you a question that may sound a bit naive from my side. What does it mean when someone says they should have the ability to express themselves?