Thank you. I will speak specifically about proposed changes to Bill C-51.
In general, as you've heard, we're in favour of the advocacy and promotion of terrorism becoming an offence. We would like to see, and we appreciate through Bill C-51, a re-equilibration of the balance between freedom of speech and protecting victims of terrorism in light of the enhanced terrorist threat with which the planet in general and Canada in particular have been confronted.
There are three specific suggestions we have that we believe are consistent with the spirit of the bill.
One is to import a defence for the offences of promotion or advocacy, which already exist for the offence of promotion of hatred. The Criminal Code now provides that no person shall be convicted of wilful promotion of hatred who, in good faith, intended to point out for the purpose of removal, matters tending to produce feelings of hatred toward an identifiable group. Something similar should be drafted for the offences of advocacy and promotion of terrorist activity.
Second, the proposed offences prohibit promotion and advocacy of terrorism offences in general without indicating what those offences are. We assume that this phrase “terrorism offences in general” refers to those offences found in section 83.01 of the Criminal Code, but whether this assumption is correct or not, the phrase “terrorism offences in general” should be defined so it is clear which offences are intended.
Our third suggestion relates to the consent of the Attorney General. For clause 16 of the bill, the seizure of terrorist propaganda and their deletion from computer systems requires the consent of the Attorney General. However, prosecution for promotion or advocacy of terrorism does not require that consent, and the absence of consent means that private prosecution is possible. We are reluctant to endorse the possibility of private prosecution for speech offences because our experience has been that once that sort of prosecution becomes possible, it is used for frivolous purposes to harass those with whom the private prosecutor disagrees.
While frivolous prosecutions are inevitably dismissed, it's no small matter to be dragged through the criminal courts, even if the result is acquittal. Attorneys General, we realize, have the power to direct a stay of private prosecutions, but mobilizing any Attorney General to exercise that power takes time and effort; and criminal private prosecutions, unlike civil lawsuits, do not allow for the awarding of costs against the unsuccessful prosecutor.
A requirement of the Attorney General's consent has, we acknowledge, its own problems. The relevant Attorneys General for these offences are the provincial Attorneys General, except for the territories. Our experience with the offence of wilful promotion of hatred has been that some Attorneys General were most reluctant to consent to prosecution of this offence, even in clear-cut cases. So we would suggest, in addition to the requirement of Attorney General consent, that there be guidelines for the use of that consent. In our written materials, we suggested several guidelines, but just as suggestions. The guidelines could be policy instruments of the Government of Canada, which they could publish after the legislation is enacted, and a committee could recommend that the government draft these guidelines. Alternatively, the legislation itself could incorporate these guidelines, somewhat like the sentencing guidelines already in the Criminal Code.
Well, that's all I wanted to say, but I just would conclude by saying that our general approach, both in proposing the requirement of Attorney General consent and suggesting guidelines is that a law criminalizing advocacy or promotion of terrorism should not be too easy to invoke, but it should not be a dead letter either.
Thank you very much.