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—