Good morning. Thank you for the opportunity to appear before you today.
My name is Kyla Lee. I am speaking on behalf of the Canadian Bar Association’s criminal justice section and its sexual and gender diversity alliance. The CBA is a national association of over 40,000 lawyers, law students, notaries and academics. Our mandate includes seeking improvements in the law and the administration of justice. The criminal justice section represents both Crown and defence counsel from across Canada, giving us a balanced perspective on criminal law reform.
Bill C-9, the combatting hate act, addresses a deeply concerning rise in hate-motivated conduct across our communities. We support the intent of the legislation, which is to protect historically targeted groups and to respond to the reality of hate in Canada. At the same time, we believe some provisions would benefit from clarification to ensure that the bill achieves its purpose without unintended consequences for charter-protected rights and without unintended consequences for the historically marginalized people it seeks to protect.
The first is with regard to the definition of a hate-motivated crime offence. The definition of “hatred”, while derived from the Supreme Court of Canada’s Keegstra and Whatcott jurisprudence, becomes confusing in the bill’s clarification. The proposed subsection states that discrediting, humiliating, or offending alone is insufficient to meet the definition. This language, when taken out of context from the case law, risks narrowing the concept in a way that will cause uncertainty in prosecutions and defences alike. Hate crimes inherently discredit and humiliate their victims. Clarifying that those elements are insufficient creates ambiguity rather than guidance. We recommend removing or redrafting this proposed subsection to more accurately reflect the jurisprudence.
Second, we have concerns about the new offence of intimidation or obstruction of access to certain places. The sections agree that people must be free to access places of worship, education and community life without fear. Our concern lies in the breadth of the proposed language. The actus reus “obstruction” and “interference” is undefined. This could encompass peaceful protest or assembly, particularly surrounding complex issues for which there is no clear political or social consensus. Section 2(c) of the charter protects the right to peaceful assembly. Without clearer wording, individuals engaged in legitimate protest near such sites could face prosecution simply because their presence or expression causes discomfort. We suggest that Parliament more precisely define what constitutes unlawful obstruction or interference to make it clear what conduct specifically is being addressed. Parliament should also strengthen the exemption for “communicating information”.
Third, we have concerns regarding the provisions surrounding the display of terrorism or hate symbols. The intention, to prevent glorification of hate and terror, is indisputably laudable. That being said, our concern is proportionality and certainty. Only two specific symbols, the Nazi swastika and SS bolts, are enumerated in the Criminal Code. Leaving the determination of other prohibited symbols to regulation is simply inadequate. This offence directly engages freedom of expression rights. As such, fulsome parliamentary debate, study and discussion are necessary to ensure that anything specified as a hate symbol is properly and thoroughly considered. We need look no further than our neighbours to the south to see ways in which a government’s regulatory power can be misused to quash free speech. We also recommend that the offence require proof that the symbol was displayed for the purpose of promoting hatred. This ensures that legitimate educational, religious or artistic displays remain protected, consistent with the bill’s own defences.
The CBA sections share the government’s goal of addressing hate-motivated violence and intimidation. Our suggestions aim to make these new provisions both effective and constitutionally sound, targeting conduct that spreads real harm while safeguarding the rights and freedoms that are the foundation of our democracy.
Thank you. I would be pleased to answer any questions.