Two things must be considered.
First, there is the notion of emotion, that is, the degree of emotion expressed by the person in their statement, whereas the Supreme Court, as I mentioned earlier, referred to an “emotion of an intense and extreme nature”.
Second, some words are different. According to the new definition proposed in the bill, it is an “emotion that involves detestation or vilification”, whereas in the Keegstra decision, it is referred to as an “emotion…clearly associated with vilification and detestation”. So the terms used are not the same. For example, the word “vilification”, which is proposed in the new definition, does not mean the same thing as “slander”. Slander is a type of vilification. According to the definitions provided by the Government of Canada, vilification “consists of deliberately making false accusations against someone in order to discredit them”.
The reason it is important to return to the definition presented in the Keegstra decision is that the latter was precisely a test to verify the constitutional validity of this definition and the offence provided for in sections 318 and 319 of the Criminal Code. At that time, it was examined whether it respected the right to freedom of expression.
Currently, by changing the term and the definition, we risk subjecting this definition to review by the courts once again to determine whether it complies with the charter.