Good morning, everyone. Thank you for inviting me to speak to Bill C‑63.

I apologize for my appearance. I had surgery yesterday, which is why I'm wearing a bandage. Although I have a few scars on my head, my mind is working fine. I should be able to make this presentation and answer your questions.

As a constitutional lawyer, I mainly want to draw your attention to the issue of freedom of expression and, since I'm from Quebec, I also want to draw your attention to the fact that Bill C‑63 is very similar to Bill 59, which was studied in Quebec in 2015 and 2016.

For those who, like me, fought against Bill 59, it's a bit like Groundhog Day, since Bill C‑63 contains extremely similar elements, including the prohibition on hate speech. This reminds us of the extent to which Quebec and federal jurisdictions are not always sufficiently exclusive and that there is a lot of overlap. I will stop my digression on Canadian federalism here, but I would like to point out in passing that I have just tabled a report with the Quebec advisory committee on constitutional issues within the Canadian federation. If you're interested in this issue, you should know that a report has just been submitted to the Government of Quebec.

Bill 59, which was studied in 2015 and 2016, banned hate speech, and it was considered very problematic in terms of freedom of expression. In the end, the government of the day decided to set aside part of the bill and not adopt the hate speech component of the bill in order to keep the other part of the bill, which was much more consensual and dealt in particular with the regulation of underage marriages. With respect to Bill C‑63, I hope we are preparing for a similar outcome.

I think the bill contains a lot of interesting things about sexual victimization and “revenge porn”. I believe the equivalent term in French is “pornodivulgation”. I think this whole area of protecting minors and protecting them from sexual victimization is very important. However, everything to do with hate seems much more problematic to me.

Sometimes, people talk about splitting the bill, saying that part 1 isn't a problem, and that parts 2 and 3 are more problematic. For my part, I draw your attention to the fact that, even in part 1, the definition of harmful content includes content that promotes hatred. Even in part 1, there's this mix between the issue of protecting minors from certain elements of pornography and the issue of hate. In my opinion, if we want to rework the bill properly, we must not only not adopt parts 2 and 3, but also eliminate hate from part 1.

The problem with everything to do with hate in the bill is that the definition is very vague and very broad. Hate is defined as detestation and defamation, but the definitions of detestation and defamation often include a reference to hate. It's all a bit circular. It's very vague and, for that reason, it's very difficult for litigants to know what their obligation is, to know what they can and cannot say.

I understand that this definition is inspired by the Supreme Court's Whatcott case, but there are two problems in this regard.

First, this definition was given in a human rights case, but here we want to use it as a model in criminal law. In terms of evidence, in particular, these two areas are very distinct. Second, I understand why we are taking our cues from the Supreme Court when it comes to definitions, because that means that the provision of the act is less likely to be struck down. I understand it on a technical level, but on the substance, a definition that isn't clear and isn't good isn't clear and isn't good, even if it comes from the Supreme Court.

I want to repeat this famous sentence: The Supreme Court is not final because it is infallible, it is infallible because it is final.

As legislators, you really have to ask yourself whether the definition is clear rather than just whether it is the Supreme Court's definition. Ultimately, if you absolutely want to have a definition inspired by the Supreme Court, I would recommend the definition in the Keegstra decision, which is more of a criminal decision. It's a little clearer and a little less problematic than the Whatcott inspired definition.

That said, if you go along with what I'm proposing and remove the hate component from the bill, it will raise the following question: If we create a bill that is more targeted on sexual victimization and the protection of minors, will we need a commission, an ombudsperson, an office and all the bureaucracy that is planned when the purpose of the act is more limited? We will therefore have to rethink the bill so that it is less bureaucratic.

Finally, I draw your attention to the fact that the bill should include the abolition of exemptions that allow hate speech in the name of religion. We were talking earlier about Bill C‑63 and Bill C‑412, but there's also Bill C‑367, which I invite you to study.

Thank you.

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