Justice Committee on Oct. 30th, 2025

[John Sikkema]

It is a concern. I certainly think it's important to distinguish between the criminal context and the human rights context, as I believe the representative of the Barreau du Québec did.

However, as we've seen with Keegstra and Whatcott, the court will use the same definition of the term, so even if the intent requirement is different, the same definition of the term can apply, and that can have downstream effects. Even when it comes to cities saying, “You can't say that; you can't post that advertisement,” and that kind of thing, they will refer to how their advertising policy municipally says you have to comply with the Criminal Code. Obviously, they're not even claiming to prove that to beyond a reasonable doubt. They're saying it looks like text that might be hate speech, so they can censor that. It can have downstream effects if, at the federal level and in criminal law, you were to loosen the definition of hatred.

[Andrew Lawton, Conservative, Elgin—St. Thomas—London South, ON]

We've heard some very contradictory lines from the Liberal government on this in the course of our committee's work. The justice minister said that there is no redefinition, this is simply codifying the definition that exists in the Supreme Court jurisprudence, despite the change in language. Earlier, in today's meeting, Ms. Lattanzio had said to the contrary that Parliament has to draw the line there, so that indicates that there is a new line being drawn and not the one that is on the Supreme Court.

Just to confirm, is your position that the justice minister's claim that what is in Bill C-9 defining hate constitutes just a replication and a codification of existing jurisprudence? Is you position that this is a misrepresentation of his own bill?

[John Sikkema]

The minister may mean that. There may be an attempt to summarize the law. We, in our written brief—which, again, I don't think is before you—have cited some cases where the courts have said, look, we're not going to assume that Parliament is trying to change the common law unless there's a clear signal to do so. I suspect that if this is litigated people are going to be citing the minister's statement, really hoping that is true. However, the most important thing the court looks at, of course, is the text of the bill, which all of you get to vote on. You don't get to vote on what the minister says. You get to vote on the text of the bill.

Again, if that is indeed the government's intention, to me it seems like it shouldn't be a partisan issue to just make that more clear. Obviously your job is a bit different from that of the courts, but again, if that is the objective, just a few tweaks there would signal more clearly that this is the standard set in Keegstra, in that criminal case.

[The Chair, Liberal, Marc Miller]

Thank you.

Next is Mr. Chang for six minutes.

[Wade Chang, Liberal, Burnaby Central, BC]

Thank you, Chair.

Mr. Sikkema, we have seen far too many examples across Canadian communities, including Jewish, Muslim and queer Canadians, of people facing threats to their safety and security. Bill C-9 represents a strong national standard that hate has no place here in Canada, and that our laws must give law enforcement the clear tools to act when it does occur.

Marginalized groups and 2SLGBTQI+ Canadians continue to face some of the highest rates of hate-motivated incidents in this country. Would you agree that, by maintaining a clear, narrowly defined legal standard for hate, Bill C-9 helps ensure that these communities are protected without infringing on legitimate moral or religious expression?

[John Sikkema]

I do agree, certainly, with the importance of doing that. I think the court, in Keegstra and in Whatcott, does draw.... It's a difficult area of law, but it does draw some helpful lines between, again, expressing moral views versus, again, basically defaming, presenting gay men as a threat to children or presenting a religious group as somehow a threat to society. I think the court is really aiming at these defamatory generalizations, and I think that's a legitimate concern in law.

Again, I raise my concern with Bill C-9 that I think the existing law we have does that. I think Bill C-9, maybe needlessly, particularly in the hate propaganda offence, raises some questions about whether the standard is bring lowered, and that it shouldn't be.

[Wade Chang, Liberal, Burnaby Central, BC]

Thanks.

You have emphasized the importance of precision in the law. Do you see the value in Bill C-9's approach in using the established court-tested definition to uphold freedom of expression while still giving law enforcement the tools to respond when hate turns into intimidation or a threat against marginalized groups or to 2SLGBTQI+ Canadians?

[John Sikkema]

If I understand the question correctly, in terms of the legal tools, one of the things that the minister said about codifying the definition was it was to give law enforcement more guidance and make it easier to lay charges. There's that, and, of course, removing the Attorney General's consent.

If we have laws, I think we should be able to effectively enforce them. I think the Attorney General's consent, when it comes to hate propaganda offences, is there because of the unique nature of the offence. When we have a direct incitement to violence or a direct threat, those are, of course, criminal words, and there's a direct connection with violence.

When it comes to hate speech, the connection is less direct. And there are the potential pitfalls that the court has identified, and so it's having another layer of review to say, hey, are the essential elements, the more complicated mens rea elements, met here?

I agree with Mr. Shack that there could be other ways to deal with the problem if these legitimate charges are not being brought, including guidance for Attorneys General so that this can be dealt with efficiently and consistently. That may be the way to proceed.

[Wade Chang, Liberal, Burnaby Central, BC]

Thanks.

Bill C-9 also reaffirms that legitimate debates and discussions are still protected. Do you think this kind of clarity helps bring people together?

[John Sikkema]

I'll comment on the proposed clarification subsection, which says that something is not criminal “solely because it...humiliates, hurts or offends.” This signals that those are not the only factors but that they may be relevant factors.

In a way, how the victim group feels is understandable, but strictly speaking, the test that the court has set is the subjectivity concern—that it's not the views of the speaker per se, or the views or feelings of the victim group: It's the reaction that is intended to be provoked in others towards the victim group.

I think there are other sections of those cases that would work as better clarification provisions and would not go to targeting the nature of the expression but would get to that objectivity. I know the Christian Legal Fellowship has suggested some language to reinforce objectivity. In our written brief, we've highlighted several passages in which the court identifies those pitfalls and gives guidance on how to stay objective and not interpret the offence too broadly.

[Wade Chang, Liberal, Burnaby Central, BC]

Thank you.

My next question is for Mr. Shack.

First of all, thank you so much for being here and for your continued focus on and fight against anti-Semitism and hate in all its forms.

Jewish Canadians have faced a troubling rise in hate incidents. From your perspective, why are strong, clear laws like Bill C-9 so important for protecting Canadians?

[Noah Shack]

I think, as I mentioned, that reinforcing the imperative of dealing with the harassment and intimidation that Jewish Canadians have been facing is a very important signal to be sending, especially in light of the fact that all too often the enforcement hasn't been there.

Laws need to be enforced, but they can also be used to send a clear message of what needs to be taking place. That's what we need more than anything: a consensus message coming out that these crimes need to be taken seriously.

I think that having a clear definition of hate will help to clarify the response to it and ensure that hate motivation isn't just something to be considered at the sentencing stage but something to be considered as fundamental to the crime itself, and that it will be more likely to be considered at things like bail hearings, where we've seen all too often that people who have committed multiple offences are released immediately—

[The Chair, Liberal, Marc Miller]

Thank you, Mr. Chang—

[Noah Shack]

These are people like the individual I mentioned in my testimony, who was arrested with three loaded handguns and a switchblade knife and was posing a clear threat to the community.

[The Chair, Liberal, Marc Miller]

Thank you.

Mr. Fortin, you have the floor for six minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Thank you to all the witnesses who are with us today. My first questions are for the representatives of the Barreau du Québec.

Bill C‑9 proposes to remove the requirement for prior consent of the Attorney General to prosecute hate propaganda.

I'd like you to tell us about that, Mr. President. In your opinion, is it a good idea to eliminate the pre-authorization stage, or should we keep it instead?

[Marcel-Olivier Nadeau]

I will let Mr. St‑Jacques answer that question.

[Nicholas St-Jacques, Member, Criminal Law Expert Group, Barreau du Québec]

Thank you very much.

As mentioned in our brief, at the Barreau du Québec, we believe that it is not a good idea to remove the requirement for prior authorization from the Attorney General. We are talking here about offences that are sensitive in nature and likely to generate public controversy. An institutional filter must be maintained to prevent complaints from being upheld and leading to prosecutions that may not necessarily be justified.

The role of the Attorney General is to analyze the overall situation and assess the public interest. When police officers receive a complaint and submit it to the Attorney General, the latter is able to assess various factors: the elements constituting the offence, but also the public interest. In this context, the requirement to obtain prior authorization from the Attorney General means that private complaints are not possible.

In Quebec, for example, if a person files a complaint and it is not accepted by the Crown prosecutor, that person still has the option of filing a private complaint, which can be brought before a justice of the peace.

When prior authorization is required, this type of complaint is not possible. A private complaint cannot be filed. This reduces the number of complaints or prevents an increase in the number of complaints that could be brought before justices of the peace in the province or elsewhere in Canada.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

If I understand correctly, a private complaint may be filed as long as the Attorney General authorizes it.

[Nicholas St-Jacques]

That’s correct. It is to the extent that an Attorney General authorizes it. In the case of Quebec, that would be the Director of Criminal and Penal Prosecutions.

That said, we must be very careful and understand exactly what we mean when we talk about private complaints. When a citizen goes to the police station to file a complaint, it is first handled by the police and then by a prosecutor. Private complaints refer to a kind of parallel system that allows a citizen, despite the refusal of the police and the prosecutor to pursue their complaint, to continue the process and present it directly to a justice of the peace. This situation is not possible when there is a requirement for prior consent from the Attorney General.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. St‑Jacques.

There is something that does not appear in Bill C‑9 that I would like to talk about.

Currently, section 319 of the Criminal Code provides that no one shall promote hatred or incite hatred. However, there are two religious exceptions, as they have been called, which specify the cases in which “no person shall be convicted of an offence,” including where “in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text.”

In your opinion, is this defence based on the religious exception likely to encourage a prosecutor, whether it be the Director of Criminal and Penal Prosecutions in Quebec or the Attorney General of another province, not to allow legal action to be taken in cases such as that of Adil Charkaoui, which you may have heard about? About a year ago, last fall, Adil Charkaoui said: “Allah, do something about these Zionist aggressors. Allah, do something about the enemies of the people of Gaza. Allah, identify them all, then exterminate them. And spare none of them!” This was said publicly in Arabic. Many of us believe that this should have been prosecuted as hate propaganda. However, this did not happen.

In your opinion, could the religious exception found in section 319 of the Criminal Code have played a role in the Attorney General’s decision not to authorize prosecution?

[Marcel-Olivier Nadeau]

Obviously, we are not in a position to answer your question as to whether or not it played a role—

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I’m sorry to interrupt you, Mr. President, but I have about a minute left, so I’ll clarify my question. I understand your answer. I am well aware that you cannot answer on behalf of the Attorney General. However, I would like to hear your opinion.

From a technical standpoint, is a defence provision such as this one likely to prevent proceedings that might otherwise be brought?

[Marcel-Olivier Nadeau]

What I must tell you is that this exception is not absolute. It is limited by the public interest. This exception may be invoked, but in deciding whether or not to lay charges, the Attorney General must also take the public interest into consideration. He must weigh the rights, and the tools to do so exist.

Obviously, at the Barreau du Québec, we are concerned about such statements, but we are also concerned about respect for rights and freedoms. This provision of the Criminal Code currently provides for such an exception, but it must also be weighed against the public interest. So the tools for balancing rights are in place.

Obviously, we will not comment further on specific situations.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. President.