The Feds’ “Combatting Hate Act” (C-9) Should Be Withdrawn Now

Occasionally, governments introduce legislation that get things wrong. That certainly is the case for the Liberal Government’s Bill C-9: The Combatting Hate Act. Every aspect of it is flawed.

This is a special concern because it is a bill that restricts free expressive rights. Expressive freedom is never without limits, but our courts have been very clear that any restrictions must minimally impair our fundamental democratic freedoms. 

C-9 fails to do that. The bill has four main parts. The first makes a criminal offense of wilfully promoting hatred against an identifiable group if you display a flag or other symbol associated with a listed terrorist organization. Innocent as this may sound, it opens a Pandora’s box of problems. 

Whether or not a group is placed on the Canadian list of terrorist organizations is a highly political process with no transparency and very limited rights to appeal. An open letter which our Centre for Free Expression signed along with 36 other civil society organizations observed, “Grounding speech-related criminal offences in this flawed system risks sweeping in flags or emblems associated with Palestinian, Kurdish, Tamil, or other liberation movements, even when displayed as part of peaceful political expression rather than the promotion of hatred.” The law, as written, implies that having any such symbol is, by definition, wilfully promoting hatred.

This provision also brings cops into the policing of flags and banners in protests. As Justin Ling has written in his recent Toronto Star article on C-9, “Can we trust them to spot the difference between the flags of Saudi Arabia and the Hamas military brigades in the middle of a protest? Both are green with a white shahada in the centre.” Besides, when the symbol is that of a well-known, reviled movement, like the Nazi Swastika (specifically banned in the proposed law), those displaying it do more to disgrace themselves and their cause than anything the police could do. As we saw in the truckers’ convoy in Ottawa, the immediate public outrage over the display of a swastika caused it to disappear for good.

The second part of the bill is also a serious mistake. It would remove the longstanding requirement that hate speech charges can only proceed with the consent of the Attorney General. This has been a valuable part of Canada’s hate speech law since it was introduced in 1970. It is there for good reason – to help ensure that only legally-appropriate charges in the public interest go forward in these cases where the public’s right to freedom of expression are at stake. Requiring the Attorney General’s consent also prevents vexatious, malicious, or vindictive private prosecutions from going forward.

The third part of the bill introduces a new “hate crime” – described as “an offense motivated by hatred.” The new crime is committed if someone violates any provision of the Criminal Code or any other Act of Parliament (it could be violating litter laws in a National Park) and is deemed to have been motivated by hatred. For example, under C-9, if a person shoplifts and if the police feel they were motivated by hatred (say of the shopkeeper’s religion), the person is charged both with shoplifting (theft) and with the new hate crime. While one is presumed innocent to the charge of theft during the trial, one can only imagine the insidious effects of also having been labelled a hatemonger from the start. 

The penalties for the additional hate crime are based on the penalty for the original offense but are always longer. When the original offense (in this example, theft) has a maximum term of two or more but less that five years, the maximum term of the additional hate crime is five years. Where the originating offense has a maximum of 14 or more years, the hate crime can mean a separate term of life imprisonment.

Currently, evidence that an offense was motivated by bias, prejudice, or hate during the commission of a crime is treated by the courts as an aggravating factor at sentencing. The new double crime approach that C-9 would bring in would further clog our court system, give police inappropriate discretion, and add to the overcrowding of our already packed jails with no evidence that it would result in an increased deterrence of expressions of hatred.

The fourth part of the bill is equally worrisome. It denies Charter-protected freedom of expression and freedom of peaceful assembly rights near 30,000 - 40,000 buildings in Canada regardless of what activities are occurring within them. One part of this section would criminalize obstruction of access to the buildings – a strange addition since obstructing or impeding access to buildings is already illegal in Canada under Section 430(1)(d) of the Criminal Code. The other part of this section proscribes the much more nebulous “creating a state of fear” in those entering a specific category of buildings.

The buildings that would be protected by C-9 are those used primarily for religious worship, and the many buildings used by “identifiable groups” [those “distinguished by colour, race, religion, national or ethnic origin, age, sex, sexual orientation, gender identity or expression, or mental or physical disability”] for administrative social, cultural, sports activities or events, or as an educational institution, including as a daycare centre, or as a seniors’ residence. 

A particular concern is that C-9 applies regardless of whether the activities within the buildings are related to their primary purposes. The prohibition against chiding people entering the building (potentially “causing a state of fear”) would apply even when a church, mosque, or synagogue, or a school is being used for a political event, as when a Jewish group protested outside a synagogue at which Israeli real-estate firms were marketing illegal West Bank settlements? Or when Muslims picketed an event at a mosque held by a marginal group known to glorify terrorism? 

Opposition to Bill C-9 is widespread in Canada. Public letters calling for the Liberal government to withdraw C-9 have come from a cross-section of civil society organizations, including the following: 

Alliance for Trans Youth (Windsor, Ontario)
Amnistie internationale (Canada francophone)
Arab Canadian Lawyers Association
Association des juristes progressistes du Québec
Black Legal Action Centre
British Columbia Civil Liberties Association
Canadian Civil Liberties Association
Canadian Council for Refugees
Canadian Labour Congress
Canadian Muslim Healthcare Network
Canadian Muslim Lawyers Association
Canadian Muslim Public Affairs Council
Canadians for Justice and Peace in the Middle East (CJPME)
Centre for Free Expression, TMU
Chinese and Southeast Asian Legal Clinic
Chinese Canadian National Council Toronto Chapter
Coalition for Charter Rights and Freedoms
Community Justice Collective
Democracy Watch
Etobicoke South for Palestine
Grandmothers Act to Save the Planet (GASP)
Harm Reduction Action Collective
HIV Legal Network
Horizon Ottawa
IfNotNow Toronto
Independent Jewish Voices
Institute for the Humanities, Simon Fraser University
International Civil Liberties Monitoring Group
Jewish Faculty Network
Jews Say No to Genocide 
Just Peace Advocates/Mouvement Pour Une Paix Juste
Law Union of Ontario
Le Centre de Réfugiés / The Refugee Centre
Ligue des droits et libertés
OCASI - Ontario Council of Agencies Serving Immigrants
Open Media
Palestinian Canadian Congress 
Palestine Solidarity Ottawa Centre
Pax Christi Toronto
Progress Toronto
Refugee Lawyers Association
Saskatoon Chapter of Canadians for Justice and Peace in the Middle East
Science for the People Canada
Seniors For Climate Action Now!
South Asian Legal Clinic of Ontario
Spadina-Fort York for Palestine
The Canadian BDS Coalition and International BDS Allies
Toronto & York Region Labour Council
Toronto Environmental Alliance
Toronto Palestinian Families
TTCriders
United Church of Canada
United Network for Justice and Peace in Palestine and Israel
Women’s Legal Education and Action Fund
York University Professors for Palestine

If you would like to add your voice, you can click here to be taken to the Canada’s Parliamentary website where you can enter your postal code and be taken to the page of your MP, with all their contact details.