Thank you, Mr. Chair. Thank you, committee members.
It's my privilege to appear on behalf of the Association for Reformed Political Action, ARPA, where I serve as legal counsel.
Thank you all for your thoughtful review of this bill. My remarks today will focus mainly on the hate propaganda provisions of the bill. Our written brief, which you may not have yet, also addresses the proposed hate crime and intimidation offences.
ARPA is a Christian, non-partisan, policy and legal advocacy organization with considerable experience as a friend of the court in charter cases. ARPA believes that every person has inherent dignity as an image-bearer of God and that we have a moral duty to honour each others' reputations. That duty is reflected in our laws on defamation and criminal libel, among other areas. That moral duty applies not only in relation to individuals, but to groups as well.
Legally, however, group libel is more complicated. As our Supreme Court has identified, one danger is that laws meant to stop malicious attacks on a group's reputation and basic social standing could be used to silence criticism of beliefs or practices associated with the group.
Let me illustrate the difference. The late atheist wit and writer Christopher Hitchens said that the Christian doctrine of vicarious atonement was evil. That is a core Christian doctrine, but Hitchens was expressing a moral and, one would even say, a theological opinion. He was rightly free to do so. Today in Canada, people are being accused—often by government officials—of promoting hatred simply for expressing moral or political views.
My own organization, ARPA, was accused by the mayor of Hamilton of promoting hatred because we put up a sign that said, “LetKidsBe... [End] medical transitions for minors.” The city had it taken down.
The city also claimed that another sign from a different group, which said that women are, by definition, female also had to be censored due to hate speech concerns.
Earlier this month, the British Columbia legislature condemned ARPA as hateful for opposing medical transitions for minors and for supporting moderate pro-life laws. One B.C. government MLA even told a very sad story about a same-sex couple being harassed in a public place and then called ARPA and its supporters “the harassers in that story.” It is blatantly false, but I guess it's justified because Christians hold the traditional view of marriage.
The member's statement, to be clear, defamed and vilified Reformed Christians as criminal harassers, which seems like a way, frankly, to stir up hatred against this group, while at the same time accusing these Christians of promoting hatred for the views that they hold. I trust that I don't need to point out the hypocrisy.
This kind of ideological bias is what the Supreme Court warned about in Keegstra and which Parliament must guard against here.
Bill C-9, with respect, risks blurring the long-established definition of hatred. If the goal is simply to codify the common law, then the bill should mirror the stringent test set out in Keegstra and Whatcott. Those cases cautioned against two key errors, among others. The first is focusing on the content of what is said rather than its anticipated harmful effects. The second is focusing on the feelings or views of either the accused or the victim group.
Bill C-9 risks both errors. First, it uses “hatred” in one place to the refer to the feelings that the accused intends to promote in others—part of our established test—and in the new hate crime offence, it uses “hatred” in reference to the accused's own feelings and motives.
Second, the bill's clarification clause blurs whether courts should consider the feelings or views of the identifiable group using the words “solely”, “hurting”, “humiliating” or “offending”.
ARPA therefore recommends that the committee either remove both the definition of hatred and the clarification clause to make clear that the common-law standard still applies or amend both to clearly reflect Keegstra and Whatcott.
Hatred could simply be defined as an “emotion of an intense and extreme nature that is clearly associated with vilification and detestation.”
The clarification clause could say that a statement is not criminal because it is considered “offensive”, “repugnant” or “distasteful”, or because it “ridicules, belittles or...affronts the dignity of” a group. Those are both phrases taken from Keegstra and Whatcott.
Because of the analytical pitfalls I have noted here—and others that the court has warned about and that you've heard other witnesses highlight—the requirement for Attorney General approval remains.
As an intervenor in a hate speech case, I noted the Crown making some troubling arguments—again, going to the substance of the views, the person's moral views, rather than to what they're trying to promote, the emotional reaction they're trying to promote in others.