Canadian Heritage Committee on Dec. 4th, 2024

[Bruce Pardy, Professor of Law, Queen's University, As an Individual]

Thank you, Madam Chair.

Your committee is studying how the government should protect free speech. This seems to me to be quite a strange question for you to be studying, because the answer seems obvious and because, for years, the federal government has been doing the opposite. Free speech is a right we hold against government. Free speech means the right to be free from government limits on speech. If governments did nothing, we would have free speech. Governments protect free speech by getting out of the way.

Therefore, if you want to protect free speech, stop limiting speech. Defeat Bill C-63, the online harms act. Repeal Bill C-18, the Online News Act. Repeal Bill C-11, the Online Streaming Act. Repeal the gender amendments to the Canadian Human Rights Act from the old Bill C-16, and so on. If you want to protect free speech, stop limiting speech. As Winston Churchill put it, there is nothing government can give to you that it hasn't taken from you in the first place.

[The Chair, Liberal, Hedy Fry]

May I point out that this study is not on freedom of speech? The study is on freedom of expression. I just want to remind you of that, Professor Pardy.

[Bruce Pardy]

Thank you, Madam Chair. Free speech and freedom of expression are essentially the same thing in the law. I am using free speech to mean freedom of expression.

We have freedom of expression because we are free people. Speech is free not only if it is beneficial, in the public good, serves democracy or helps discover truth in a marketplace of ideas. You also have a right to express your thoughts, whatever they are, for the sole reason that your thoughts are yours. If you are free, you are allowed to hate other people, and you are allowed to say you do. If you are free, you are allowed to vilify, detest, discredit, disrespect, discriminate, speak falsehoods and spread lies.

Now, of course, free speech is not absolute. What are the limits that we can impose upon speech and still call it free? Well, other people are free, too. That means you can't coerce them. You can't threaten them with imminent violence or counsel a crime. You can't defame. You can't harass. You can't defraud. You can't release private information you don't own. These limits make sense, because they protect the liberty of other people—the same liberty that provides you with the right to free speech in the first place. However, that's about as far as it goes, if you want to claim to have free speech.

Therefore, by all means, Madam Chair, protect free speech. Do it by getting the government out of the business of supervising speech.

Thank you.

[The Chair, Liberal, Hedy Fry]

Thank you very much, Professor.

We will now go to Chaire de recherche France-Québec sur les enjeux contemporains de la liberté d'expression.

There are three of you under this rubric. I would like you to choose who is going to speak for five minutes, or how you will divide your five minutes. As a group, you have five minutes only.

Can somebody put up their hand and tell me they're first?

[Martin Champoux, Bloc, Drummond, QC]

Mrs. Lefebvre, you're on mute.

[The Chair, Liberal, Hedy Fry]

We don't hear her.

Is there someone else who is going to speak?

[Martin Champoux, Bloc, Drummond, QC]

Mrs. Lefebvre, if your computer sound is on, check to see if there is a button on your headset.

[Solange Lefebvre, Co-Chair, Chaire de recherche France-Québec sur les enjeux contemporains de la liberté d'expression]

Can you hear me now?

[Martin Champoux, Bloc, Drummond, QC]

Yes, we can.

[Solange Lefebvre]

Madam Chair and members of the committee, thank you for inviting us to testify before the committee. Mrs. Potvin, Mr. Gaudreault‑DesBiens and I will all speak briefly.

We represent the Chaire de recherche France-Québec sur les enjeux contemporains de la liberté d'expression, or COLIBEX, which is funded by the Fonds de recherche du Québec.

With me are Professor Maryse Potvin, co‑chair and head of the area that focuses on academic freedom, and Jean‑François Gaudreault‑DesBiens, co‑researcher and legal expert. I am a co‑chair and head of the area that focuses on religion.

We will briefly outline a few recommendations, which are described in detail in the brief that will be submitted after the meeting. I'm going to introduce the first part, which deals with religion. It includes two recommendations related to section 319 of the Criminal Code, which deals with public incitement of hatred.

The first recommendation is as follows. We agree with Bill C‑373, which calls for the repeal of paragraph 319(3)(b) of the Criminal Code. The paragraph protects an opinion on a religious subject. In our view, that should not be the case. If any elected officials oppose the repeal of the paragraph, they should explicitly justify the reasons for their opposition.

The second recommendation is as follows. Given the complexity of the issues surrounding incitement to hatred and how it can be expressed publicly, we recommend that the government develop public guidance to better interpret the concept of “identifiable group”, a concept defined in subsection 318(4) of the Criminal Code.

I will now give the floor to Professor Maryse Potvin.

[Maryse Potvin, Co-Chair, Chaire de recherche France-Québec sur les enjeux contemporains de la liberté d'expression]

In the second part of our brief, we looked at two types of problems related to knowledge, science, scientific freedom and academic freedom. The first concerns the protection of institutions of knowledge, and the second will be presented by Jean‑François Gaudreault‑DesBiens.

We consider that the institutions of knowledge are essential components of constitutional democracy. They play a fundamental role in the development of and access to science as a common public good and a component of cultural life. We believe that this is based on the articulation of a set of rights, including freedom of research, academic freedom, the right to education, freedom of expression and, of course, science. As some people have said previously, science and scientific and academic freedoms are under numerous attacks worldwide. They could take the form of ideological attacks, disinformation, harassment and so on.

Drawing inspiration from the document entitled “Report on the right to participate in science”, we recommend that the Parliament of Canada and the Government of Canada, in the standards they establish and the actions they take, recognize science, institutions of knowledge, and scientists as essential components of Canadian constitutional democracy, in order to strengthen their protection, in line with Canada's international commitments. The recognition of the autonomy of these institutions vis‑à‑vis the government can be embedded in their respective founding laws. Furthermore, such laws may, to some extent, be protected from untimely political interventions by requiring a reasonable qualified majority for amendments—which is known in constitutional law as a “manner and form” requirement—without this constituting an unconstitutional abdication of parliamentary sovereignty.

We also recommend that the Parliament of Canada and the Government of Canada adopt a human rights-based approach to science in their standards and public policies, addressing all aspects related to science and consider science as a public and common good, including the right to participate in science and access scientific progress. For public authorities, this entails respecting, protecting, and promoting the right to academic freedom and research freedom.

We also propose that in the founding laws of federal institutions of knowledge, such as Statistics Canada, and in those that help guide the work of government scientists, such as the Public Service Employment Act, the government and the Parliament of Canada recognize the right to know and the right to scientific freedom, including by reducing the duty of loyalty imposed on scientists working in the government. This will allow them to more freely report scientific evidence with a view to the common good.

Finally, all federal institutions involved in the funding of research, arts and creation should ensure, both in the development of their policies and their implementation, that they always respect scientific or artistic freedom and, where applicable, academic freedom—

[The Chair, Liberal, Hedy Fry]

Excuse me, Madame Potvin, but I think you have a third speaker and you're running out of time. You only have 15 seconds left. I will extend that to 30 seconds for your third speaker, so could you please wrap it up? You can elaborate on this during the question and answer period. Thank you.

[Jean-François Gaudreault-DesBiens, Co-Researcher, Chaire de recherche France-Québec sur les enjeux contemporains de la liberté d'expression]

Madam Chair, we also make recommendations regarding social media, social media oversight, disinformation and cyberbullying.

In this context, we would like to see regulatory frameworks that impose obligations on digital platforms, particularly in relation to algorithmic transparency. The goal is to ensure that fewer echo chambers are created and that citizens' attention integrity is protected. In this way, citizens will be able to participate in an informed way in the political and social decisions that affect them and in the search for the truth, two of the values underlying freedom of expression according to Supreme Court of Canada case law.

I'll leave it at that. The details are in our brief.

[The Chair, Liberal, Hedy Fry]

Thank you very much. I'm sorry, but you can elaborate when questions are being asked.

That ends the hearing of witnesses' opening statements. We will now move on to the question and answer segment.

I wanted to remark that Ms. Hunter had informed us she would be departing at 5 p.m.

Is that still so, Ms. Hunter?

[Mitzie Hunter]

Madam Chair, I have nine minutes before I have to depart, so I am available to the committee until then.

[The Chair, Liberal, Hedy Fry]

Thank you. I hope someone will ask you a question in that time. I cannot tell you who is going to ask questions of whom. That's not my jurisdiction.

We also have Ms. Off and Ms. Shephard, who are leaving at 5:30. I just wanted the committee to know that. If you want to ask questions of these three witnesses, you will have to do so quickly.

Thank you very much.

Now we begin a six-minute round with the Conservatives and Mr. Kurek, please.

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

Thank you very much, Madam Chair.

Mr. Pardy, there was a bit of an exchange during your opening statement that talked about whether there's a difference between freedom of expression and freedom of speech. I know that the charter does talk about “expression”, but could you outline what that means for speech? I'm wondering if you could unpack a little bit what freedom of speech is in Canada and the reflections of what that means in the context of the Canadian Charter of Rights and Freedoms.

[Bruce Pardy]

Just on the terms, yes, the charter uses the term “freedom of...expression”, and that is the proper legal term, but the term “free speech” is basically a shorthand for that. “Expression” includes more than speech—I mean, the clothes you wear on your back could be a form of expression—but the two terms are essentially used synonymously when you're talking in this kind of context.

That right in the charter has been interpreted by the Supreme Court in, I would say, a utilitarian way, which is unfortunate. What I mean by that, as I alluded to in my statement, is that the Supreme Court has tended to say that free speech is free when it is useful to society. That, of course, means that it's not really free speech at all, because the right to free speech, like all charter rights, essentially, is supposed to act as a space for individuals to resist the interests of the group in the form of the government. If it is allowed that we infringe on these rights because the group wants to, then they're not really functioning as rights at all. They're functioning as something else, as a means to establish a collective interest.

In that sense, I think we have the wrong end of the stick in this country about what our charter rights mean, in particular the right to free speech.

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

If I could follow up on that, we often hear about what the limits of free speech are in the context of the charter as well. I'm wondering if you could expand on that a little bit, because that's often used, I would suggest, as a justification to silence free speech because there is the interpretation of that section of the charter that's often used by government in different ways.

Could you expand on what limitations are reasonable versus not?

[Bruce Pardy]

Yes, sure.

Here's the irony. Your mandate seems to be to inquire into protecting freedom of expression. The asks that I'm hearing are all about governments doing things, subsidizing things or creating more rules and more restrictions. Those things are the opposite of free speech.

If you want free speech, as I alluded to, have government out of it. That's what it means. If you're asking for government to intervene, you're talking about something else altogether. Again, we have this upside down. It's—

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

I apologize. Time is short, but I just want to nail down....

One of the aspects of Bill C-63 is that it changes the definition of hate speech. It moves it from the current objective measure, which is causing violence or harm to.... It could be things that involve offence or the feeling of hurt.

I'm wondering if you could unpack that a little bit in about a minute, and then I have one follow-up question that I want to make sure I get in before the six minutes are up.

[Bruce Pardy]

Sure.

In the text of Bill C-63, they have tried to draw a line between hate speech on the one side and offensive speech on the other, saying that offensive speech is okay but that hate speech is not okay. That sounds reasonable, but of course, nobody knows where the line is.

If you are speaking in a way that some people would regard as offensive, there is no guarantee whatsoever that on a particular occasion, a tribunal or a court is not going to say, “Well, no, that is hate speech, and you're liable.” As soon as you go down the road of the government deciding that you're not allowed to say certain things—which don't violate anybody else's rights, as you're not threatening violence—you're into dangerous territory in which freedom of speech is actually not being observed.

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

Thank you.

I have about a minute left.

A common topic of conversation before this committee has been Bill C-11 and Bill C-18, the Online News Act and the Online Streaming Act.

In about 45 seconds, I'm wondering if you could share your opinion of those two bills with the committee.

[Bruce Pardy]

These are terrible pieces of legislation. They are interfering with both the speech and also the listening of Canadians.

You can think, in some contexts, of freedom of expression as an exchange between speaker and audience. Both have the right to conduct the exchange—the speaker to speak and the audience to listen. What these two bills do is give powers to administrators, bureaucrats and offices to interfere in that exchange and to dictate to Canadians what it is they can access and listen to online.

They are terrible pieces of legislation.

[The Chair, Liberal, Hedy Fry]

You have 15 seconds.