Good afternoon. Thank you for the opportunity to present before this committee.

I represent the Canadian Constitution Foundation, a national legal charity that defends fundamental freedoms. We have participated in Whatcott, Fleming, Ward and other seminal Supreme Court of Canada decisions on freedom of expression. We view this bill, Bill C-63, as posing a grave threat to all Canadians' right to free speech and a flourishing democracy.

We welcome the minister's announcement that he intends to split the bill with regard to parts 1 and 4, but we remain concerned about the constitutionality of aspects of part 1, as well as parts 2 and 3 in their entirety.

First I'll address portions of the bill that expand sanctions for offences related to hate speech, including “harmful content” and “content that foments hatred”. I am referring to both the mandate of the new digital safety commissioner, created in part 1 of the bill, and the expanded penalties for hate crimes in part 2.

Part 1 of the bill imposes obligations on an operator to “implement measures that are adequate to mitigate the risk that users...will be exposed to harmful content”. This includes “content that foments hatred”. This office will cost around $200 million over five years and impose fines up to the millions of dollars on platforms.

Part 2 of the bill, meanwhile, increases penalties for existing hate crimes, including promoting genocide, now punishable with up to life. It also creates a new stand-alone offence, in proposed section 320.‍1001, for any federal offence motivated by hatred, now punishable up to life.

As the previous witness mentioned, and I agree with many of his comments, hate speech is an inherently subjective concept. These expanded penalties and regulatory obligations pose a risk of gross disproportionality and excessive chill of protected expression. In Whatcott, the Supreme Court of Canada said that hatred encompasses only the most “extreme manifestations [captured] by the words 'detestation' and 'vilification'”. Only that type of speech can be penalized without violating the charter.

Bill C-63 adopts this language in proposed subsection 319(7): “hatred means the emotion that involves detestation or vilification”. But “detestation” is really just a synonym for “hate”, and vilification is a highly subjective concept. We are in a present moment of passionate and often fraught disagreement in our society, where a lot of claims are made that are understood differently depending on context.

For example, calling someone a Zionist currently may land as vilification or, more dubiously, promotion of genocide, or as praise, depending on the speaker and the audience. Just a few days ago, a former CBC producer, Shenaz Kermalli, accused MP Kevin Vuong of hateful expression for posing with an individual wearing an “F Hamas” sweatshirt on social media. That's the problem with criminalizing language. It's subjective. It shifts depending on context.

These concerns become pressing with the expanded sanctions proposed in part 2. Even if our judges can be relied upon to respect the principles of proportionality when sentencing an offender under section 320, for example, the range of available sentences in the law will now include life imprisonment. It's not a frivolous possibility that prosecutors can refer judges to a range of sentencing up to life imprisonment for a crime such as vandalism if it is alleged that the crime was motivated by hate.

The reality is that it's virtually impossible to identify in advance, predictably, a line that separates the merely “awful but lawful” from criminal hate speech. This lack of clarity poses an urgent threat to online discourse, which is our current town square and should brook this type of passionate and adversarial disagreement. When these types of sanctions are in play, everyone has an incentive to err on the side of caution. Platforms will flag and remove content that is actually protected expression, and individuals will self-censor.

Finally, I will briefly address part 3 of the bill. It brings back a civil remedy for online hate speech, which allows members of the public to bring complaints before the Canadian Human Rights Commission. This would be disastrous. You should not go forward with this proposal. Even if most alleged instances are dismissed for not meeting the threshold of hate speech, the penalties for individuals found liable—up to $50,000 paid to the government plus $20,000 to the victim—are severe enough that we can infer that the new regime will lead to large amounts of soft-pedalling of expression for fear of skirting the line. It will interfere severely with press freedom to publish controversial opinions, which are necessary for a flourishing civil society. Finally, process is punishment, even if the case does not proceed. We will see more people punished for protected expression.

Thank you. I welcome your questions.

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