Thank you, Mr. Chair.
Thank you for inviting representatives of the Barreau du Québec to testify on Bill C‑9.
Given the sharp rise in hate crimes in Canada, mostly those with racist overtones, the law must provide courts with effective tools to combat hate, while respecting the principles of fundamental justice and Canadian constitutional requirements.
Bill C‑9 is a continuation of Bill C‑63, which was introduced in February 2024 and on which the Barreau du Québec also made recommendations. We are pleased that some of them were included, including removing the possibility of life imprisonment for hate-motivated crimes.
Overall, Bill C‑9 presents a more nuanced regime than the one proposed in Bill C‑63. That said, a number of fundamental issues remain, and that's why the Barreau du Québec would once again like to contribute to the discussion.
Let's start with the definition of hate. We agree with the principle of codifying a definition of this concept. On the one hand, it would encourage reporting by giving communities a clear understanding of what is prohibited. On the other hand, it would help all stakeholders, including police officers, to act based on well-defined rules.
However, we have reservations about the definition that was retained in the bill and inspired by the Whatcott decision. In that case, the Supreme Court of Canada ruled on the constitutionality of a provision to prohibit hateful publications in a civil human rights context.
We maintain that, in criminal law, the key decision is the Keegstra decision, which was rendered in 1990 and the analysis of which was repeated in the Mugesera decision in 2005. In those decisions, the Supreme Court interpreted the concept of hatred with respect to the provisions of the Criminal Code, specifically, and held that it “connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation.”
In order to reduce the risk of challenges to the constitutionality of this provision given the stark distinctions between the criminal law context and the civil law context, we suggest that the bill adopt this definition.
The bill also makes it a hate crime for an individual to commit an offence under the Criminal Code or any other federal law while being motivated by hate. We invite Parliament to reconsider introducing this new offence into the Criminal Code, which has the effect of creating a parallel prosecution regime to the one currently in effect.
The current provisions of the Criminal Code already make it possible to prosecute hate crimes by considering the motivation of hatred at the sentencing stage. The new provision proposed in the bill introduces a paradigm shift by erecting hate as a component of the offence itself. We question the appropriateness of creating a new hate crime prosecution regime that would coexist with the current regime. For the reasons set out in more detail in our brief, we believe that this is an ineffective measure that could undermine the principles of parity and harmonization of sentences.
The Barreau du Québec proposes instead to amend the existing provisions of the Criminal Code by enhancing sentencing tools in order to achieve the objective, which is to crack down on hate crimes.
Finally, we'd like to point out that three of the new offences proposed in the bill are likely to raise issues of compatibility with the exercise of fundamental rights guaranteed under the Canadian Charter of Rights and Freedoms. First, the new offence of wilfully promoting hatred by displaying certain symbols in a public place may restrict the right to free speech. Second, the two new intimidation offences relating to access to a building used for religious worship, among other things, could restrict free speech and freedom of peaceful assembly.
While the courts recognize that these fundamental rights are not absolute and can be limited, a restriction like this must be minimal, proportionate and accompanied by sufficient safeguards to avoid undue infringement.
However, it's not solely up to the courts to ensure that this balance is maintained. It is also up to the legislator, from the moment the provisions are drafted, to clearly define the scope of the offences and defences, in order to achieve the objective of cracking down on hate crimes, while minimizing the risk of a constitutional challenge.
With that in mind, we recommend that the legislator pay close attention to the comments made by the various groups that will be heard during the consultations on the bill. These stakeholders, including fundamental rights groups, will be able to provide concrete examples of situations in which the new offences could interact with the legitimate exercise of protected rights.
We believe that, at the conclusion of these consultations, it would be appropriate to conduct a new review of the scope of the new offences and the exceptions provided for. Based on the comments received during the consultations, this exercise could help better define the application of the new offences and ensure their constitutionality.
Obviously, we've included other comments in our brief. We're now ready to answer your questions.