Justice Committee on Oct. 23rd, 2025

[The Chair, Liberal, Marc Miller]

This meeting is called to order.

Welcome to meeting number nine of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of October 1, the committee is meeting to continue its study on Bill C-9, an act to amend the Criminal Code with respect to hate propaganda, hate crime and access to religious or cultural places.

Today's meeting, like several of the previous ones, is being held in a hybrid format, pursuant to the Standing Orders. Members are attending in person in the room and remotely using the Zoom application. I think most members are familiar with it now. We've done the sound tests and everything should be fine.

As there are acting members, I would like to remind all in-person participants to consult the guidelines written on the cards on the table in front of them. These measures are in place to help prevent audio and feedback incidents. Most importantly, they protect the health and safety of the interpreters.

You will also notice a QR code on the card for a short awareness video. You can take that card home and bring it back to the next meeting.

I will remind members and witnesses to please wait until I recognize you by name before speaking. There will be some flexibility there. This is informal enough for people to have a good dialogue back and forth, but do address your comments through the chair.

For those on Zoom, at the bottom of the screen you can select the appropriate language of floor, English, or French. For those in the room, use the earpiece if you need the interpretation.

For members in the room, please raise your hand if you wish to speak. For members online, please use the “raise hand” function. The clerk and I will manage the speaking order as best we can. We appreciate your patience and understanding in this regard.

I want to welcome our witnesses for the first panel. We have one witness in person and the rest are online.

In the room, we have the Canadian Civil Liberties Association.

We have Anaïs Bussières McNicoll, director, fundamental freedoms program.

As individuals, we have Professor Ryan Alford and Professor of Law Bruce Pardy from Queen's University. Both are joining us by video conference.

From the National Council of Canadian Muslims, we have Nusaiba Al‑Azem, director of legal Affairs, who is joining us by video conference.

I will remind the witnesses that they have, at most, five minutes. I'll leave some flexibility at the end if you're finishing your thoughts, but otherwise I might have to cut you off. Please try to stay within that five-minute window.

We'll start with Ms. Bussières who is here in person. We'll then go online and receive testimony from Professor Alford, Professor Pardy and Ms. Al-Azem.

Ms. Bussières McNicoll, you have the floor.

[Anaïs Bussières McNicoll, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association]

Thank you, Mr. Chair.

Good afternoon, distinguished committee members.

Thank you for giving me the opportunity to share the perspective of the Canadian Civil Liberties Association, the CCLA, on Bill C‑9.

The CCLA is an independent, non-governmental, non-partisan national organization founded in 1964. Its mandate is to defend and foster the civil liberties, human rights and democratic freedoms of all people across Canada. The CCLA acknowledges that, while freedom of expression and peaceful assembly are vital to a democracy, they are not absolute and must sometimes be balanced with other rights and interests, including public safety and the right to worship safely, considerations that are already extensively protected under the Canadian Criminal Code.

However, criminal law is not the solution to every social challenge. On October 6, 37 civil society organizations representing members of Black, Arab, Muslim, Jewish and 2SLGBTQI communities, labour organizations, environmental activists and civil liberties groups signed a joint letter urging the federal government to reverse course on Bill C‑9. A copy of this letter was sent to committee members and is attached to the CCLA's submission to the clerk.

The CCLA is here today to urge you to vote against Bill C‑9 for five main reasons.

First, this bill removes the long-standing requirement that the Attorney General consent to the initiation of proceedings for hate propaganda offences. Removing this safeguard eliminates a key institutional check designed to promote a legally informed and proportionate assessment before proceeding with prosecutions in areas where freedom of expression and freedom of conscience are implicated. The requirement to obtain the consent of the Attorney General is also absent from the new offences introduced in Bill C‑9, despite the clear risk that these new provisions will affect freedom of conscience, freedom of expression and freedom of peaceful assembly. We urge Parliament not to go down this path. There is simply no benefit to allowing police officers to file charges that the Attorney General would not have proceeded with in the first place.

Second, the new intimidation offence requires proof of intent to provoke a state of fear in another person in order to impede their access to one of tens of thousands of civic institutions linked to an identifiable group in Canada. The difference between the intent to express unpopular or disturbing opinions through a protest and the intent to provoke a state of fear is unclear. The Criminal Code already prohibits, among other things, participating in a riot, using violence, physically blocking access to property, uttering threats, inciting violence against an identifiable group, forcing people to abstain from doing anything to which they have a lawful right and harassing people by causing them to reasonably fear for their safety.

The question, then, is what other behaviours would now be prohibited. Would it be triggered when a protest is particularly loud? When hundreds of people are gathered in a public space? When some people chant unpleasant slogans that, while offensive, do not constitute hate propaganda? These disruptive elements could be seen by some as evidence of an intent to instill fear in others. However, these examples are forms of non-violent expression and peaceful assembly protected by the Charter. They should therefore not be criminalized in a democracy.

Third, the new provision relating to preventing or obstructing or interfering with access to a building is duplicative of existing Criminal Code provisions. It should therefore not be adopted.

Fourth, the new prohibition on wilful promotion of hatred through the public display of certain terrorism or hate symbols, at best, duplicates existing provisions and, at worst, paves the way to abuses that risk stigmatizing and criminalizing certain peaceful protesters.

Fifth, the new hate crime offence requires the police to opine on the motives of an accused person at the earliest stage of a criminal proceeding and without upstream prosecutorial oversight by the Attorney General. Maintaining the current practice of considering hatred as an aggravating factor in sentencing avoids imposing a social stigma on a defendant who is still presumed—and may very well turn out to be—innocent. Furthermore, by drastically increasing the penalties applicable in cases of hate-motivated crimes without changing the parameters already set out in the Criminal Code, Bill C‑9 risks resulting in excessive and disproportionate sentencing.

In conclusion, if Parliament decides to codify a definition of hate, despite the limited benefits this would bring from a legal standpoint, the proposed definition should adopt verbatim the Supreme Court of Canada's definition. The definition proposed in Bill C‑9 could be interpreted as lowering the threshold set by the country's highest court.

Thank you for your attention, and I would be happy to answer any questions you may have.

[The Chair, Liberal, Marc Miller]

Thank you, Ms. Bussières McNicoll.

Professor Alford, go ahead for five minutes.

[Ryan Alford, Professor, As an Individual]

Thank you very much, distinguished members of the committee and guests.

My name is Ryan Alford, and I'm a professor at the Bora Laskin Faculty of Law. I have taught, as a tenured professor of constitutional law for over 10 years, the provisions related to freedom of expression.

I'll begin by saying that I can follow up the previous speaker by saying that, in my opinion, which is my expert opinion, this bill does indeed lower the threshold below what is constitutional for a limitation on the right to freedom of expression. However, just because some people will perhaps think that those who can't do, teach and will kind of assess my testimony on that basis, I would also point out that I've been before a parliamentary committee only once before, and that was in 2017. In that testimony, I told that parliamentary committee that a provision of a federal bill, which became a federal statute, was unconstitutional and would be struck down. It was, in fact, struck down in 2023 in an application which was brought by me. The appeal of that judgment ultimately will be decided by the Supreme Court of Canada, and that appeal will be heard in two weeks.

To tell you why I have some issues with the wording, in particular, of subsection 319(7) as proposed by Bill C-9, I'd like to begin by talking about the charter statement. The charter statement, to me, is quite problematic. On its face, I would note that this is being produced as an anonymous statement by someone in the Department of Justice, which reports, in this case, to the sponsoring minister of the bill. There's some kind of a perception here that there's a conflict in the background, and I think it's borne out by the fact that the charter statement really doesn't have any legal analysis of the pertinent issue in it. It's purely conclusory.

Let's take a look at the relevant section here. It says:

The proposed definition of “hatred” has the potential to engage freedom of expression in section 2(b) of the Charter.

That's completely insufficient because it is an infringement of the right to freedom of expression. There's no debate about that. The question is whether or not this is a reasonable limitation on freedom of expression. That's the pertinent issue here.

This is simply a codification. It says:

The proposed amendment would thus codify a definition settled in the leading jurisprudence of the Supreme Court of Canada.

As I said in my speaking notes, this is really drawing upon the imprimatur of the Supreme Court of Canada to suggest that this bill is constitutional. When you actually look—and this is also present in the preliminary legislative statement about Bill C-9—you see that it's really quite different. The Supreme Court, particularly in Whatcott, proposed something quite different.

I think the preliminary legislative summary produced by the Library of Parliament is quite good. It does have a good discussion of Whatcott. It just doesn't line up that definition in Whatcott against what's proposed in clause 4 of Bill C-9, which creates subsection 319(7).

If we look at what's in Whatcott—and this is reflected in the legislative summary—we see that this is the language from the majority opinion penned by Justice Rothstein in 2013 in Whatcott:

In my view, expression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings that were found essential to the constitutionality of s. 13(1) of the CHRA [Canadian Human Rights Act] in Taylor. Those words are not synonymous with “hatred” or “contempt”.

For there to be a reasonable limitation, the definition of “hatred” has to exclude not merely what it excludes now, but also, in particular, speech that “otherwise affronts the dignity of” persons or groups, and that's not what's currently in proposed subsection 319(7). Therefore, it is not a codification of the pertinent leading case that comprises what the Supreme Court of Canada had said is necessary for reasonable limitation to be constitutional under section 2(b) of the charter.

This is a very serious issue, and it needs to be addressed. This is just one point to be made about its constitutionality, in addition to others. I would just direct you not only to what was said previously by Ms. McNicoll but also to what's going to be said by Mark Sandler in the next session. He points to the fact that instead of the language found in Whatcott or Keegstra, you have language that talks about “detestation or vilification”. That's what the language says in the bill now, but the relevant jurisprudence says “and”. It is necessary that it be both “detestation and vilification”.

I'm not going to step on Mark Sandler's toes and deal with that in any detail. I'm just saying there are a number of constitutional infirmities with the definition of “hatred”, in addition to other parts of this bill. It's going to lead towards policy problems.

I don't understand. Some people might say that this is a paraphrase. Why are you paraphrasing rather than just putting in that language in the Supreme Court except if not to create that gap and except if not to say that this is constitutional, when in fact it is not?

There are going to be serious consequences for this. We see in the United Kingdom—

[The Chair, Liberal, Marc Miller]

Professor Alford, you're at your five minutes.

Could you please briefly wrap up? Thanks.

[Ryan Alford]

Yes. I just need 30 seconds, Mr. Miller.

In the United Kingdom right now, there are 30 arrests per day for what is on social media. Most of it comes precisely in that area of speech that is an affront to the dignity of individuals but is not “detestation or vilification”.

Unless we're trying to create the kind of regime that exists in the United Kingdom and permits those kinds of arrests, I suggest that we really need to revisit the language of 319(7).

Thank you, Mr. Miller.

[The Chair, Liberal, Marc Miller]

I think we'll have a chance to examine your thinking in detail in the next hour and a half, as well. My apologies for cutting you off; we just have to stick to the five-minute plan.

Professor Pardy, it's over to you.

[Bruce Pardy, Professor of Law, Queen's University, As an Individual]

Thank you, Mr. Chair.

I do agree with the comments of the previous two speakers.

In February 2022, The Globe and Mail published a column with the title, “It's time to end the sedition...by enforcing the law and following the money”. It said, “people have been terrorized for more than a week”. Seditionists and terrorists: Who was the author talking about? This was in February 2022. Yes, of course, they were talking about the truckers. There was no violence, no weapons, no assault and no storming of Parliament, but there were parking violations, road hockey, dancing in the snow and unkind words about the government—seditionists and terrorists. Who was the author of this column? Can you guess? It was one Mark Carney, now the Prime Minister.

In 1992, American political theorist Samuel Francis coined the term “anarcho-tyranny”. Anarcho-tyranny, he said, is a kind of government dysfunction. The dysfunction occurs when a government is simultaneously unable or unwilling to deal with serious crime, leading to a kind of anarchy while, at the same time, being ruthlessly oppressive in punishing minor transgressions of law-abiding people. The government allows violence, theft, political corruption and foreign interference while it is obsessed with controlling what ordinary people say, think and feel.

In Bill C-9, the government seeks to criminalize an emotion: “hatred means the emotion that involves detestation or vilification and that is stronger than disdain or dislike”. It is criminal to detest but legal to dislike, but to detest, of course, means to intensely dislike—that's the meaning of the word—so it will be legal to dislike but criminal to intensely dislike. Where is the line between dislike and intensely dislike? Of course, nobody knows that. The line will be drawn wherever the authorities want it to be drawn to punish speech that the government hates.

Bill C-9 also criminalizes protests that “provoke a state of fear”, but not the fear of violence, as we have offences for that already. No, Bill C-9 will prohibit protests that provoke a state of fear of offensive ideas.

That is what the truckers were accused of. That's why Mark Carney described them as seditionists and terrorists.

Bill C-9 will be used to prohibit peaceful protests—like that of the truckers—that the government hates.

In a free country—and I mean in a genuinely free country, which we once claimed to be—you are allowed to hate other people and you are allowed to say that you do.

Thank you very much.

[The Chair, Liberal, Marc Miller]

Thank you, Professor Pardy.

Ms. Al-Azem.

[Nusaiba Al-Azem, Director of Legal Affairs, National Council of Canadian Muslims]

Thank you, Mr. Chair and members of the committee.

My name is Nusaiba Al-Azem, and I serve as the legal director for the National Council of Canadian Muslims.

For over two decades, Muslim Canadians have watched as laws written in the name of public safety have crept quietly into the corners of our lives, into our mosques, our charities, our border crossings and sometimes even into the classroom. To be clear, public safety never seemed to apply to our communities. To my knowledge, no law was changed after the Quebec City mosque massacre, when a gunman opened fire on a congregation, leaving 17 children fatherless. To my knowledge, no law was changed after members of my own local community, our London family, were massacred by an Islamophobe, who took three generations with his vehicle in an instant. There have been more Muslims killed in hate-motivated murder than any other community in this nation. We as Muslims know what the cost of hate is.

Were Canadians consulted about the full contents of this bill? Sadly, the answer is a stark no. We're here today because this bill ostensibly attempts to take a stand against hate, but in its reach, it risks lowering the line between fighting hate and legitimate free speech.

Let me begin with what works in Bill C-9. The new hate-motivated offence provision, proposed section 320.1001 is something NCCM supports, generally. In fact, after the London terror attack, this was a clear recommendation by the Canadian Muslim community to legislate a stand-alone hate crime provision.

That said, the bill has many shortcomings that are alarming for our organization. Much of this bill looks like attacking the freedom of the 64% of Canadians who believe that Israel has committed a genocide in Gaza and have taken to the streets over the last two years to protest Canada's complicity. In practice, it will end up impacting every Canadian.

Proposed paragraph 319(2.2)(c), the clause criminalizing symbols resembling those set out in that section, is particularly concerning. On paper, the language within that clause may sound tidy, but in practice it's dangerous. Who decides what “nearly resembles” means? Who decides what confusion looks like?

Let me tell you what that looks like from our side of things. It looks like a [Technical difficulty—Editor] flying a black flag with a [Technical difficulty—Editor], a simple declaration of [Technical difficulty—Editor] Muslims and someone calling [Technical difficulty—Editor].

It looks like a [Technical difficulty—Editor] police officer unsure that this flag might resemble something on a watch-list because [Technical difficulty—Editor] organizations like ISIS [Technical difficulty—Editor] in their imagery [Technical difficulty—Editor] sacred texts.

It looks like police receiving a phone call that a protester is wielding a terrorist flag, when in fact, the flag in question is the national flag of the state of Palestine, a state recognized by Canada. That's a true story, by the way, but because we didn't have a law like this on the books, the individual was merely detained at that time. With a law like this, that person would likely have been charged.

Suddenly, the burden of proof doesn't fall on the person making the accusation; it falls on the Muslim or Palestinian advocate who dared to be visible, as long as the officer is confused and thinks that they're trying to cause fear, including online. This clause would criminalize confusion, and this also means that things like the KKK hood remain entirely legal, as the KKK is not a listed terrorist entity.

We agree with those on this committee, including the Conservative members, who have said that these kinds of provisions are fundamentally dangerous. It is an undue restriction on free speech. For instance, if a Canadian wanted to suggest that a certain policy is oppressive by comparing it to a policy of the Taliban and wanted to make a visual representation of that using symbols on their Twitter account, suddenly, they're at risk of being charged. That is what is at stake here.

We've been here before. After 9/11, entire communities were surveilled in the name of security. Muslim charities were audited into oblivion. Families lost livelihoods. Mosques were raided. Children watched their parents humiliated at airports, all because fear had been legislated.

Each time it begins the same way with language that seems small, almost reasonable. Each time it was said that this law was only about them, about the extremists, the dangerous few. However, the line between them and us has always been easier to move than to defend. When the state starts legislating resemblance, when it criminalizes “looking like” or “sounding like”, it's no longer protecting Canadians.

Here's what we're asking this committee to do.

One, strike proposed paragraph 319(2.2)(c), and remove the “nearly resembles” language entirely.

Two, halt the passage of this bill until true consultation can take place with communities that have actually been massacred by hate.

Three, expand funding for education and prevention programs that counter hate before it becomes violent.

Let's make sure that the next generation learns that safety doesn't come from censorship but from understanding.

Thank you very much.

[The Chair, Liberal, Marc Miller]

Thank you, Ms. Al-Azem, and indeed to all the witnesses for your succinct presentations.

People are familiar with how these rounds work. The first round is six minutes per MP, and then there will be a second round, and we'll probably get into a third round. We're going until five o'clock with this set of witnesses, so we'll probably get deep into the third round.

We have MP Lawton going first for six minutes.

Mr. Lawton has the floor.

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

Thank you, witnesses, for your time and analysis on this.

I'd like to start with you, Professor Pardy.

Because you are joining us virtually, you didn't have the privilege of seeing the Liberal members of this committee snickering as you were talking about the Liberal government's assaults on civil liberties in the past. However, I think that is important context for what we're seeing here, because in your opinion, these are not benign provisions. These are significant expansions of the power of the state to regulate thoughts, emotions and expressions. Is that correct?

[Bruce Pardy]

That's correct. Yes.

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

I'll ask you this as well afterwards, Professor Alford.

First, Professor Pardy, in your analysis of legislation in the past and your knowledge of statutes, when words are omitted from jurisprudence, that is not what codification of jurisprudence is. Is that correct?

[Bruce Pardy]

That's correct. Yes.

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

If you are a police officer who is doing an investigation or a judge weighing in on this, explain in practice how significant the omission of the words “extreme manifestation” is from the definition of hate that exists in the common law now to the one that Bill C-9 puts in law in the Criminal Code.

[Bruce Pardy]

This is really Professor Alford's point. You have a jurisprudential context. The Supreme Court of Canada, in the 2012 case of Whatcott, described what was a reasonable limit on freedom of expression. Let's just underline this. They said that this was a reasonable limit, but they also said that this was infringement of freedom of speech.

What you have to start with in Bill C-9 is an infringement of freedom of speech. This definition does infringe freedom of speech. That's what the Supreme Court says. This is an infringement from a government that claims to be a government of the charter and of rights, so we start there. Then if you fiddle with the wording, if you leave words out and if you make it “detestation or vilification”, and not “and”, for example, then you are downgrading the threshold above which you need to get in order to find that this is established.

It's a little bit of playing around with the words so as to appear as though you're doing exactly what the Supreme Court said, while you're not really doing that at all.

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

I'll go to you on this, Professor Alford. I believe you reviewed the Minister of Justice's testimony on Bill C-9. I'll quote directly from what the minister remarked. When he was asked about the definition, he said:

This was not an attempt to dilute the definition. It was an attempt to make good on the spirit of that definition and provide clarity to law enforcement.

What is your view on the minister's characterization of his own bill, Professor Alford?

[Ryan Alford]

It's incorrect.

I would say the problem is that the courts are going to look at the decision to use this particular language that omits the language from Whatcott that I cited in my testimony and say that it's clearly an intentional decision, that you made the decision, seeing what was written in Whatcott, to leave this out.

The most ominous possibility here is what's going on behind the scenes, that the government is actually seeking a ruling from the Supreme Court in due course that would lower the threshold to what they're putting forward in this bill. They're saying that you said that in 2013, and if you uphold what we wrote into this bill, which intentionally left out some of the language that Justice Rothstein—since retired from the court, of course—included in that judgment, you will then say that this is a reasonable limitation on the freedom of speech. I think that's particularly dangerous.

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

Professor, I realize that hate is inherently subjective, which is the problem we've been identifying with this, but explain to me—if you could—what the practical application would be, in your view. What would be captured by this new definition that isn't captured under the existing definition, just to demonstrate how this dilution and this lowering of threshold is actually happening, or is there no way to make such a prediction right now?

[Ryan Alford]

Well, I think there is, Mr. Lawton.

Look at what's happening in the United Kingdom right now. Remember, there's no entrenched right to freedom of expression in the United Kingdom. They don't have anything like the charter, which creates that right. There, you have speech that purportedly abrogates the dignity of individuals or groups. That's the basis for complaints to the police. Arrests are being made on that basis.

That's what the language in Whatcott, which is left out of the definition in proposed subsection 319(7), would allow. It's precisely that people can make complaints that what someone is saying is hatred. The reason why it's hatred is that it's an intentional attempt to infringe on their dignity as an individual or member of a protected group.

We've seen quite a lot of this in the United Kingdom, particularly with very charged issues, such as competing rights around what's called gender identity issues and women's rights. They have had many people who felt like they were engaging in good faith and are now the subject of visits from the police and arrested because of a complaint that what they said and the way they engaged on this issue is detrimental to the dignity of the people with whom they engage.

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

It's a valid point, Professor. I know Minister Fraser mentioned to my colleague Mr. Baber that it is “far-fetched to imagine U.K.-style tweet policing in Canada. Then, moments later, he admitted that Bill C-9 will cover what people say on the Internet.

Very quickly, is that a legitimate concern for Canadians if Bill C-9 passes, Professor?

[Ryan Alford]

It's eminently legitimate, Mr. Lawton.

[The Chair, Liberal, Marc Miller]

You have 10 seconds.

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

Thank you.