Canadian Heritage Committee on Nov. 20th, 2024

[The Vice-Chair, Conservative, Kevin Waugh]

There we are.

Well, welcome, everyone. We have witnesses in front of us here today. Thank you for coming.

As an individual, we have Stéphane Sérafin, assistant professor, University of Ottawa. Welcome.

Then we have, from MediaSmarts, Kathryn Hill, the executive director, along with Matthew Johnson, director of education.

You will have five minutes for your opening remarks, after which we will open the floor to questions.

We will start first with Mr. Sérafin for five minutes. When you're done, we're going to go to MediaSmarts for five minutes, and then we'll open the floor for questions and answers, if you don't mind.

Mr. Sérafin, lead us off for five minutes, please.

[Stéphane Sérafin, Assistant Professor, University of Ottawa, As an Individual]

Thank you, Mr. Chair.

My name is Stéphane Sérafin. I am currently an assistant professor at the University of Ottawa's faculty of law common law section, but I'm speaking here in my own personal capacity, so my views are my own and not those of my employer.

When I was first asked to speak before this committee, I found the framing somewhat odd. I was asked to contribute to a discussion, as the invitation said, “regarding the protection of freedom of expression and the means the government should have at its disposal to ensure its exercise.”

While there are always things the government can do to advance freedom of expression, most of what came to mind were instances in which government action had recently served to undermine it, sometimes significantly.

I could cite many examples, but I'll limit myself to areas within federal jurisdiction. Two come to mind here. The first relates to my own experience as a university professor, and it relates to government funding of research that increasingly prioritizes so-called equity, diversity and inclusion requirements over other concerns or to the exclusion of other concerns.

In the university context, federal funding agencies have, for some time now, created special funding categories for DEI-oriented projects, and they have increasingly, and perhaps more concerningly, mandated compliance or a commitment to DEI as a requirement of obtaining funding.

On the face of it, equity, diversity and inclusion sound neutral and incontestable, and everybody, more or less, agrees with equity in the sense of fairness. Everybody agrees more or less with the value of diversity and the value of inclusion, but beneath these labels are hidden ideological commitments to a particular understanding of what equity means, what it means to treat people fairly, what a particular understanding of diversity means and the particular types of diversity that are valued. So it goes with inclusion as well.

To the extent that these requirements are imposed in the context of funding, it's not straight up censorship, but it does incentivize research to take on particular orientations and provides a strong disincentive for research to adopt alternative orientations, including orientations that might challenge or somehow criticize the premises of the DEI commitments. That's the first area of concern.

The second is more directly pertinent to Canada's democratic culture. It relates to certain bills that are currently before Parliament, in particular, that would serve to regulate speech in a way that is not necessarily content neutral and, worse yet, may criminalize or impose sanctions on the expression of factually true statements to the extent that they are considered inconvenient for the advancement of certain political causes.

One of the two bills I have in mind here is Bill C-413, which is the private member's bill titled, tentatively, an act to amend the Criminal Code with respect to the promotion of hatred against indigenous people. Most people would oppose hate speech. There's a particular concerning aspect of this bill in that it aims to target, as hate speech, or at least it could be interpreted as such, any conduct or any public expression of views that condone, deny or downplay the effects of the Indian residential school system.

The concerning aspect here is that these words—“condones”, “denies”, “downplays” and “justifies”—are all value judgments. We are here touching on the core of political expression, the core of democratic life in this country. To the extent that we are publicly.... Anybody who might inject publicly a bit of nuance in this sense, who might suppose to raise factually true statements, could find themselves criminalized.

The last one I want to raise is the online harms act, Bill C-63, and particularly the provisions that would add jurisdiction to the Human Rights Tribunal to prosecute hate speech complaints against individuals online. This is a civil complaints process that also raises significant chilling effects, in part because here, unlike in the other bill, it's not a criminal act and it's not a criminal sanction, so it could be prosecuted at the instigation of private actors as well.

Thank you. I look forward to your questions.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you very much, Mr. Sérafin.

We move now to MediaSmarts. I think, Kathryn Hill, you're going to speak first, even though you have Mr. Johnson with you. Your opening comments are only five minutes, so please go forward with that.

[Kathryn Hill, Executive Director, MediaSmarts]

Thank you, Mr. Chair.

Good afternoon, members of the committee. Thank you for the invitation to speak to you today.

My name is Kathryn Hill, and I'm proud to serve as the executive director of MediaSmarts. I'm joined today by our director of education, Matthew Johnson. While I'll be making our remarks, Matthew, who's our resident expert, will join me in responding to questions.

MediaSmarts is Canada's centre for digital media literacy. We're a not-for-profit charitable organization, and our vision is for people in Canada to be empowered to engage with media confidently and critically. To achieve this goal, we advance digital media literacy through world-class research, education, public engagement and outreach. Digital media literacy is essential to an informed and engaged populace and electorate. Canada is especially in need of a coordinated approach that moves beyond an only access- and skills-based understanding of digital media literacy.

Each of the four competencies of digital media literacy—the ability to access, to use, to understand and to engage with media of all kinds—is essential to freedom of expression. In a digital environment, both our thoughts and our actions are influenced by the design of the tools we use, whether that's a recommendation algorithm that preferentially feeds us outrage-provoking content or a user interface that prompts us to react without thinking.

At MediaSmarts we believe, based on our own research and work done around the world, that these three things are true: People should be free to express their opinions online; however, there are circumstances when limits on online speech are warranted—for example, if it endangers or harms others—and we need to educate people on how to have respectful and responsible dialogue online. While most people would agree there are circumstances when limits on online speech are warranted, we believe, and research shows, that promoting digital media literacy education is a complementary approach that is less intrusive and more likely to foster freedom of expression.

It was taken for granted that networked media would be a boon for freedom of thought and expression and would democratize access to media creation and distribution. The past decade has shown that censorship can take less overt forms, for example when members of marginalized groups are kept silent in online spaces for fear of harassment, or when the tactic—just one of many—known as the “heckler's veto” is used, when points of view are drowned out by harassment and abuse and then amplified by the algorithms.

Another impact of digital media on free expression is polarization. While research suggests that Canadians are actually not deeply polarized, media, specifically digital media such as social networks, make us believe that we are. The result of this false polarization is that when we try to engage with someone online, we start by assuming they hold more extreme views than they probably do and are more hostile towards us than they actually are. This threatens freedom of expression, because, if we believe people on the other side of an issue hold extreme views, we are less likely to engage with them in reasonable discussion. That's why we not only educate young people on how to shape the social norms of their online communities, but also teach them how to spot arguments that are based in hate and how to tell these hateful arguments apart from real debates. We help them to learn how to question their own beliefs and assumptions.

Civic engagement is happening online, so it's more vital than ever to ensure that all Canadians have the skills, knowledge and understanding needed to be ethical digital citizens. It is not sufficient to teach these skills only to young people. The constantly changing nature of technology in the media ecosystem makes lifelong learning essential. Whether our primary concern is disinformation, hate speech and harassment or polarization, a strong commitment to digital media literacy and education is necessary to ensure that freedom of expression is balanced with critical thinking and positive civic engagement. We need a media-literate populace that can identify cases when regulation and legislation are appropriate and understand why the legislation or regulation may be critical to protecting human rights.

While the Internet has not turned out to be the utopia for free thought and expression that was once promised, it has, nevertheless, become where our politics and lives happen. We cannot cede this space to those who promote hate and deliberately spread disinformation, nor do we want to see heavy-handed limits on freedom of thought and expression. By prioritizing digital media literacy, we can create a more informed, respectful and engaged society, ensuring that the Internet remains a space for free and meaningful expression for all Canadians.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Ms. Hill, for those comments.

The first round, as always, is six minutes.

We'll start with the Conservative party and Mr. Gourde.

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

Thank you, Mr. Chair.

Thank you to the witnesses for being here.

It is quite a broad study. When we talk about freedom of expression, we are also taking about the limits on it, and in that regard there can be as many differences as there are individuals.

Young children, for example, behave with more transparency and say what they think, without realizing that it may please or displease others. As we get older, we realize or learn that what we say does not always please others. So we set limits for ourselves for the sake of decency.

In terms of our study, I want to know if there is an ideal framework for limits on freedom of expression. There is nothing perfect in the world of course, but how could we come up with such a framework?

My question is for both witnesses.

[Matthew Johnson, Director of Education, MediaSmarts]

One of the reasons we promote digital media literacy as a response is that it is so difficult to determine what the appropriate limits of free expression are, and, as we noted in our remarks, most people feel that the number of cases in which expression should be regulated by law should be few.

What our research has found is that the more young people, and, we believe, people in general, are empowered to shape the social norms of their own spaces and to speak out both to express themselves but also in response to expression they feel is inappropriate for their spaces, the less we need to rely on law or regulation.

That being said, we also know that the youth in our study appreciate having that as a recourse. We know, for instance, that in cases of cyber-bullying, a vanishingly small number are likely to turn to law enforcement or, indeed, any kind of authority in the first incident, but with each attempt to resolve it failing, they're more and more likely to turn to authorities such as teachers and, with enough failed attempts, significantly likely to turn to police.

It is important to have that sanction available. It is important to the youth in our study that the law be available as a tool, but we also know that, in general, they don't want to turn to it unless there is no other option. We also know that they want to have more opportunities to speak out, both in their own right and in response to speech they consider inappropriate in their spaces.

[Stéphane Sérafin]

That is a particularly tough question because it is a kind of metadiscussion. In a legal challenge or legal dispute on any other subject, rights can be discussed without discussing the framework of the rights themselves. Here we are debating the right to debate, which in itself raises questions.

What is available? What can we question in the public space? That is the question.

The challenge now is that we are witnessing a rather subjective conceptualization of what constitutes a prejudice. We do hear the word “prejudice” a lot.

I don't have an answer as to what would be an ideal framework in absolute terms, but I think we have to resist the temptation to label every disagreement or every opinion we don't like as harmful. That idea has to be rejected. If nothing else, we have to discuss the guidelines or objective criteria we can use to strike a balance between one person's freedom of expression and another person's rights.

Promoting violence, for example, is something objective. I think everyone would agree that inciting people to commit acts of violence is a limit to freedom of expression. To my mind, that would be part of the ideal.

As to subjective criteria, such as reading certain things on social media that might make a person uncomfortable or displease them, I think we should resist the idea that this is a basis upon which freedom of expression should be limited.

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

With the advent of artificial intelligence, we are seeing completely fabricated videos. You could see me on social media, for instance, saying things that I never actually said.

Is fake news starting to infringe on freedom of expression?

[Stéphane Sérafin]

If I can address that in 45 seconds, I would say it isn't necessarily freedom of expression that is at issue.

To regulate that, we have to ask some questions about freedom of expression. For example, if obviously fake news is used for parody or satire, we can discuss imposing limits on that. For someone who produces or uses that kind of content, it is not necessarily their right to freedom of expression that is at issue, in my opinion. There are other rights, individual ones, in play.

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

I think my time is up so if the witnesses have anything further to add, please submit them in writing to the committee.

[The Vice-Chair, Conservative, Kevin Waugh]

Thank you, Mr. Gourde.

We go to the Liberals for six minutes. Mr. Noormohamed, go ahead, please.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Thank you, Mr. Chair.

Thank you to the witnesses for being with us.

Professor Sérafin, I am interested in your statement, and I'm curious whether you can walk me through.... I actually think what you're talking about provokes a series of interesting questions related, in particular, to the notion of freedom and the way in which we deal with expression.

You have seen the good and the bad of conversations on campus. I've read some of your work. Campuses have become very interesting places for debate and discussion over the last little while. Briefly, I would like your honest opinion about what we hear as polarizing natures of conversation. We have Jewish students who feel that they can't speak their mind. We have students who are supporting the Palestinian cause saying that they feel their freedoms are being stifled in expression. In all of this, we are grappling with communities that are hurting, angry and frustrated. At what point does this whole notion of freedom, particularly of expression, become something that we need to be looking at differently, or are those debates, discussions and confrontations healthy for our democracy?

[Stéphane Sérafin]

Part of this is going to depend on the sorts of values you bring to it. If we're committed to pluralism and democracy, which I think most people or everybody here probably should be, then there are very difficult conversations we have to have. In particular, the question of Jewish and Palestinian groups, or pro-Israel and pro-Palestine groups, on campus has been a very difficult issue for universities.

There are two approaches you could take to this. You could take a heavy-handed approach. You could also take an approach that....

One concern I would have, let's say, with the online harms bill, is that the groups most likely to weaponize this are actually both of those groups in particular, at least in the current context. The moment that provision comes into effect, if it comes into effect, I would anticipate a number of complaints filed on both sides, by Jewish and pro-Palestine groups. I would suggest that having this mechanism that requires the state to decide these disputes as an expression of hate on one side or the other, is not a healthy approach to resolving these issues. There need to be more means-based approaches to dealing with these issues. For example, on-campus protests should be permitted, but we should also recognize that there are limits to what on-campus protests can do.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

This is what I was getting at. If you look at the notion of limits, then this goes to the question of.... You talked earlier about language that is.... Somebody gets to be the arbiter of that. How do we decide or who gets to decide what is the arbiter of reasonableness? Different colleges and universities have different accordions of what in their view is appropriate and what is not.

I actually tend to agree with you. I think that, on campus, it's really important for us to create environments in which people can have very thoughtful, healthy debates. If we take that away from young people and we don't create the environments in which they can have those conversations in a thoughtful, meaningful way, I think it can have profoundly negative impacts, not just on their learning but on society at large. I'd love your thoughts on how you think about limits in that context.

[Stéphane Sérafin]

The problem of who decides is a fundamental problem. All these terms, regardless of what you put in the statute, always have to be interpreted by someone.

What I would suggest is that, if you want to avoid needlessly polarizing these debates, using “hate speech”, for example, as a concept to police what people can and cannot do is probably not the appropriate way of doing it. No one likes to have their political views labelled “hateful”, especially when they're expressing views that are held by, in some cases, a plurality or a majority of Canadians. To have those views labelled “hateful” is something that leads to needless polarization. If you want to resolve these issues in a healthy way, then things like, for example, restricting who can use public spaces in a viewpoint-neutral way would be a preferable solution.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Let's talk, then, about workplaces. What would you say to people who are being told by their managers that what they say is going to be monitored by them, what they say is going to be checked on to make sure that the managers are okay with it, and those managers are not going to let them say certain things or express their concerns or their advocacy for something in a certain way? What would you say to people in those workplaces?

[Stéphane Sérafin]

I mean, it depends on the workplace. Fundamentally, this is a question of what's relevant to the workplace. If it's essential to maintaining a collegial workplace that certain views not be discussed in the workplace, then there's a legitimate reason for the employer to do that. Now, it depends on what type of position is involved. As an academic, the expectations for me are different from those for someone who works a standard office job.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

What about for elected officials?

[Stéphane Sérafin]

For elected officials, generally speaking, you should have fairly broad discretion in what you can say.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Would you say that a leader of a political party should say to their members of Parliament that they're going to monitor every word they say and they're going to punish them if they say something, and/or that they cannot advocate on behalf of their communities?

Would you say that's a reasonable thing for them to do, or do you think that stifles their freedom of expression?

[Stéphane Sérafin]

Well, that's a legitimate decision for a political leader to make, insofar as I'm not privy to the internal conversations. I'm assuming that they've decided, for all sorts of reasons, that they would prefer to have these conversations internally rather than airing them in the public sphere. It's a decision—a political decision.

[Taleeb Noormohamed, Liberal, Vancouver Granville, BC]

Do you agree with it?

[Stéphane Sérafin]

I don't disagree with it. I don't think there's an issue with it in principle, so long as the members.... If the members feel like they are in conscience unable to tolerate this, then they can always just decide to leave caucus. Isn't that right?

[The Vice-Chair, Conservative, Kevin Waugh]

I have to move on.