THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, May 25, 2026
The Standing Senate Committee on Human Rights met with videoconference this day at 4 p.m. [ET] to study Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places).
Senator Paulette Senior (Chair) in the chair.
[English]
The Chair: Good afternoon, senators. I begin by acknowledging that the land on which we gather is on the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation.
My name is Paulette Senior, a senator from Ontario and chair of this committee.
I now invite senators to introduce themseFlves, starting with our deputy chair.
Senator Bernard: Hello. I am Wanda Thomas Bernard, a senator from Nova Scotia, Mi’kmaq territory.
Senator McPhedran: Good afternoon. Marilou McPhedran, independent senator from Manitoba, Treaty 1 territory, homeland of the Red River Métis Nation.
Senator Arnot: Good afternoon. I am David Arnot. I’m a senator from Saskatchewan.
Senator Karetak-Lindell: Nancy Karetak-Lindell, senator for Nunavut.
[Translation]
Senator Arnold: Good afternoon. Dawn Arnold from New Brunswick.
[English]
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator Ince: Tony Ince, Nova Scotia.
Senator Ataullahjan: Salma Ataullahjan, Ontario.
The Chair: Thank you, senators, and welcome. Welcome to all those who are following our deliberations.
Today, our committee is continuing its study on Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places).
Before we welcome our witnesses, I would like to provide a content warning for this meeting. The sensitive topics covered today may be triggering for people in the room with us as well as for those watching and listening to the broadcast. Mental health support for all Canadians is available by phone and text at 988. For those in Ottawa, a crisis line at 613-722-6914 is available.
Senators and parliamentary employees are also reminded that the Senate’s Employee and Family Assistance Program is available to them and that a dedicated phone line has been set up for this session. These phone numbers are provided in handouts around the room.
This afternoon, we will have four panels. For our first hour, we have the pleasure of welcoming back officials from the Department of Justice: Kristen Ali, Manager and Senior Counsel, Criminal Law Policy Section; Joanna Wells, Senior Counsel and Team Lead, Criminal Law Policy Section; and Marianne Breese, Counsel, Criminal Law Policy Section. Welcome to you all.
We will now proceed right away to questions from senators. You have five minutes for your question, and that includes the answer. I will begin by acknowledging Senator Bernard.
Senator Bernard: Thank you all for being back with us today.
I have a question in follow-up to a question that came up last week. We had a panel of Indigenous witnesses who indicated that there was not adequate consultation with First Nations, Inuit and Métis communities in the development of Bill C-9. Can you speak to this gap and comment on the potential amendment of including residential school denialism to this bill?
Marianne Breese, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question, senator.
I will start by saying that the engagement process is a long-standing one. The bill reflects a lot of the feedback received in Bill C-63. Once the bill was tabled, there were many technical briefings with stakeholders, as well as with Indigenous partners. There were follow-up meetings to hear more from our Indigenous partners on various proposed amendments to the bill. The department has and continues to be very open to hearing from Indigenous partners on amendments. There was also an engagement session in January that was hosted by the minister.
Now, I believe you asked about a potential offence to address residential school denialism. The government recognizes that there is a strong interest in this type of provision. I understand that there was a private member’s bill to this effect. I think, at this point, it would be up to the Senate committee to consider whether such an offence can and should be included in this bill.
Would you like to add anything to that?
Joanna Wells, Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice Canada: No, thank you.
Senator Bernard: Thank you. If I’m interpreting your response correctly, you’re saying that you feel there was adequate consultation with First Nations, Métis and Inuit communities, not just in the development of this bill, but the precursor to it as well. Do I have that correct?
Ms. Breese: I would say that there has been engagement focused after the tabling of the bill. There has been a strong willingness and commitment to continue to hear from Indigenous partners since the bill has been tabled, and that has been ongoing.
I should also note that we have been sending information and newsletters on criminal law priorities for the department, including in relation to this bill, and that we support ongoing engagement in this matter.
Senator Bernard: Thank you. I’ll ask my next question. Hopefully, you’ll have time to answer.
One of the other things we heard last week from a number of panels was about the potential addition of other hate symbols, especially the noose as a symbol of hate and a tool of violence used against Black Canadians.
Would you recommend expanding the list to include the noose?
Ms. Breese: Thank you for the question. If I can respectfully reframe it because I cannot make a recommendation. What I can speak to is that the symbols that are currently included — it is a more limited list — are advanced on the basis of three general criteria: Are they clearly identifiable? Are they harmful? Are they low value from a freedom-of-expression perspective in terms of do they contribute to public discourse?
This is why the bill identifies certain categories of statement: the two Nazi symbols as well as symbols that are principally used by or principally associated with listed entities.
The current list is a starting point. The minister has indicated an interest in potentially exploring other symbols, including as well a process for doing so. Again, if there were consideration to do so, there would be criteria along the same lines as the symbol being clearly identifiable, harmful and low value from a freedom-of-expression perspective.
Senator Bernard: Certainly, the witnesses we heard from last week would argue that the noose meets all of those criteria. Could you see space for adding to that list at this point, say with an amendment?
Ms. Breese: Again, if there is interest in advancing that. I think what I’m hearing, senator, is that, based on your assessment of the testimony, those criteria would be met; then it would be for the Senate to advance such an amendment to the extent that you see it fitting with the purpose of the bill, the purpose of the offence from a policy perspective, yes.
Senator Bernard: Thank you.
The Chair: Thank you. Just a quick follow-up on that, if you might, Ms. Breese or your colleagues. Were these two areas, in terms of residential school denialism and the addition of the noose, issues that were heard during the House of Commons committee deliberations?
Ms. Breese: Yes. Both issues were raised and discussed during the Justice Committee deliberations on the bill.
The Chair: Great. Thank you very much.
Senator Ataullahjan: Thank you for appearing before us. The primary flashpoint with Bill C-9 appears to be the removal of the good faith religious belief defence. What does this amendment practically achieve in terms of increasing protection against hate crimes?
Ms. Breese: Thank you for your question.
This amendment was not put forward by the government. As you all know, it’s something that was advanced by the House of Commons.
Senator Ataullahjan: But it is accepted by the government.
Ms. Breese: As the bill was adopted at third reading, the effect of that amendment would be to repeal a defence that is currently available to the wilful promotion of hatred offences against an identifiable group and also the equivalent offence for the wilful promotion of anti-Semitism offences.
With the repeal, the concern has been what the effects are. I think that has been articulated clearly by the government during the House of Commons deliberations as well as by witnesses last week. The offence has such a high threshold to meet in terms of being “wilful” — the intentional promotion of hatred. Hatred is a high threshold, can note vilification and detestation, and it has to be toward an identifiable group. It has to not be in private communication. All of those steps narrow the conduct that can be captured by the offence.
When we say it would be a good-faith religious expression, it is not consistent with all of those high thresholds. That good faith would negate the wilful promotion of hatred. The effect of removing it, in a sense, would be redundant because the offence already offers protection to the concerns that have been raised. The offence does not criminalize any religious expression. It doesn’t criminalize the reading of scripture in public. Everything has to be understood within the broader offence that this expression is used to promote intentional hatred against a group.
Would you like me to go into the “for greater certainty” clause or just stop there, senator? Is that helpful?
Senator Ataullahjan: One of the criticisms that we’ve been hearing from Canadians through email, phone calls and in conversations with the public is that the language in this bill is really vague and open to interpretation. It’s clear that religious groups are very concerned about removing this defence.
If this defence is left in the Criminal Code, would it make a material difference in preventing the prosecution of hate crimes?
Ms. Breese: Maybe I can address that in two parts, senator.
With respect to the concerns of the effects, I’ve just spoken to how the offence really circumscribes the scope of conduct and wouldn’t capture the conduct concerned. To reinforce that understanding, the bill now includes a “for greater certainty” clause that would make clear that expression, whether on religious topics, political topics, and any topics relating to public interest would not be captured by the offence if it’s not expressed to willfully promote hatred. There’s a safeguard and clarification. The safeguard is the offence. The clarification is provided in that for greater certainty clause.
If the defence was repealed, is there an effect of keeping it in? I understand that concerns were expressed that keeping it in created confusion as to what was actually protected and what speech was exempted from the offence. To the extent that that offence was contributing to misunderstanding the scope of the offence and perhaps influencing law enforcement decisions on whether to proceed or not on charges, I understand that the repeal of the defence was to address those operational concerns.
Again, I want to reiterate that, in doing so, by repealing it, the safeguards are still there through the offence, and to help address some of the misunderstandings about it, the “for greater certainty” clause was added to provide reassurance and a shared understanding of what the effect is.
The Chair: The clarification clause seems to be causing confusion based on some of the testimonies that we heard last week from several witnesses, particularly religious leader witnesses. Did you expect that to happen?
Ms. Breese: Thank you for the question, senator.
I think that this is a very complex area of law. I think whenever we legislate hate, there are going to be many different views and different understandings. This clause is meant to make clear the scope of the offence. I understand that maybe what is needed is not so much a change in the law, but supportive guidance material, training and communication to further explain what the effect is. This clause, what it does, is to make clear that any expression that’s enumerated there will not be caught by the offence unless it is intentionally expressed or made to promote hatred against an identifiable group. That is the purpose and scope of that “for greater certainty” clause.
The Chair: Thank you.
Senator Arnold: Thank you for coming back.
I really wanted to ask about symbols in consultation, as the vice-chair did. One thing that keeps striking me over and over again with this is the devil is in the details. For many of the witnesses we heard from, I think it was generally positive. There’s a realization that something needs to be done. We’re all taking hate speech very seriously.
As people who have worked in the sector for a long period of time, what is the follow-up? How do we measure this? After it becomes part of the law, how do we ensure that all the things that the minister said — education, the judiciary, the police, even from an online harms perspective — actually get done so that we do well and we will not have unintended consequences with this?
Ms. Breese: Thank you for your question.
I guess right out of the gate, I would like to say that some of the follow-up action is not within the responsibility of the federal government. Obviously, we will always work with provincial partners, community groups and so forth to make sure the bill is well implemented.
One of the proposed offences, a new hate crime offence, would assist all levels of government, police and prosecutors to better understand how hate crimes are happening across the country, when they’re happening, and how they’re treated in the judicial system because they will be tracked differently now, categorized for hate crime reporting purposes.
I might not be able to speak to all of how that will be operationalized, but at least we will have a better measure of hate crimes in Canada. That’s one way.
We have existing federal and provincial fora, where we work with our partners on criminal law issues, criminal law reforms, as well as implementation, like supports for law enforcement. That’s not just in the legal sphere. We also have enforcement fora. Those are platforms where we continue to work to make sure that, collectively across the country, we do support proper implementation of the law.
In terms of investments, lastly, I can point to Canada’s Action Plan on Combatting Hate. I think there was $1.5 million earmarked specifically for partners to develop training for prosecutors and to raise awareness of the judiciary on the unique nature of hate crimes.
Senator Arnold: Thank you.
Senator Ince: Thank you all for being here. After hearing testimony from the law enforcement agency, they highlighted two recommendations, specifically: The creation of specialized hate crime units in the provinces and municipal police forces and providing training and resources to law enforcement to ensure proper implementation of the bill in a way that does not obstruct freedom of expression. What are your thoughts?
Ms. Breese: I think it speaks to the importance of how creating a law is one thing, but operationalizing it is key to its success. There are already several hate crime units. I think we have good leading examples in Canada where those have been established. I also know of many prosecution services that are developing extensive guidance on hate crimes and are training police officers. It’s a close relationship from the start to make sure that law enforcement is supported in bringing forward these charges.
The federal government, again, has a more limited role in certain respects, but we work very closely with provincial partners on enforcement to the extent that we can. Again, investments have also been made to support combatting hate crimes more generally.
Senator Ince: Thank you.
The Chair: Ms. Breese, you seem to be the main speaker, so I’ll direct my question to you, and you can punt it, if needed, using some of Senator Ince’s time.
For clarification, the aspect of the bill, in terms of laying charges for hate crimes, that will be approved or not but assessed by the Attorney General, is that just a wilful intention part, or is it inclusive of other aspects of the bill, of charges or other charges? Do you understand my question?
Ms. Breese: Can you repeat it?
The Chair: This is a question that I had following a conversation with one of the witnesses last week from the Ottawa Police Service, in terms of the current practice of laying charges. That will continue without permission from the Attorney General. The only part that will go to the Attorney General before charges are laid would be the “wilful intent” aspect of the bill. Could you comment on that, please?
Ms. Breese: Thank you for your question, and thank you for the clarification.
Right now, the AG consent requirement is specifically for hate propaganda offences; that’s a separate category. That is now in place as passed in the House of Commons. It is in place for the existing and the new hate propaganda offence in subsection 319(1).
With respect to the new hate crime offence — I think that’s what we’re talking about — there’s no AG consent requirement proposed for that offence in the bill. Generally, AG consent is a more specialized and exceptional requirement for either sensitive procedures or offences.
Now, for the hate crime offence, it’s important to note that, in itself, it includes all included offences, so all existing offences in the Criminal Code. Most of those do not have AG consent. Adding it would be a marked departure of how AG consent is used, and that’s why it’s not currently a requirement.
That said, even without AG consent, there’s always a vetting process before charges are laid. That’s determined province by province, but some provinces have pretrial screening as a way to safeguard and ensure that all the essential elements of the offence have been met and that proceeding to prosecution would be in the public interest. That’s one example.
Even without pretrial screening, each prosecutor will do that assessment individually when approached about prosecuting a case.
The Chair: Thank you for the clarification.
Senator McPhedran: In addition to the clarification you’ve just provided to the chair, could you confirm for us that, at the point when a prosecutor makes a decision on whether to proceed, that is essentially the end of a matter in terms of a particular charge?
Ms. Breese: It’s a more fluid process than that. The assessment of whether to continue even after, say, for example, there’s a decision to move forward and prosecute, then the prosecutor will continually assess, based on the evidence presented and so forth, whether there’s still, for example, a reasonable prospect of conviction, whether that’s still valid and whether it’s still in the public interest. It is not a one-time assessment.
I would also say that if it’s declined or not supported in one case, if there’s further evidence discovered later down the road and law enforcement brings it forward again to see if they can advance a charge, well, consideration would be given again.
Senator McPhedran: Thank you. I asked that because, for a lot of folks, there’s a question of where did it go. What happened? They took action, and they thought there would be some follow-up. It’s a bit of a dark hole in terms of understanding that process.
I will also pick up on some of the previous questions asked about terrorism and hate symbols. I have a very particular question about drafting. It relates to subsection 4(2.2):
Everyone commits an offence who willfully promotes hatred against any identifiable group by displaying, in any public place . . . .
And then it goes on, as you know, (a), (b), (c), for more specific and general descriptions.
Can you help us understand, please, the choice of “by displaying” as opposed to, for example, “while displaying”?
Ms. Breese: Thank you for the question. I do recall that coming up in the witness testimony.
I would say right off the bat that, while it might seem like a simple change, it would have significant consequences. It would change the purpose of the offence. It would shift the focus away from how symbols are used to promote hatred, and it would likely have Charter implications. The bottom line is that the display of the symbol would be disconnected from the promotion of hatred.
In terms of why we chose this approach, we modelled this offence to the existing offence that prohibits the wilful promotion of hatred against an identifiable group by communicating a statement. So, “communicating” includes visual representation, and “statement” includes symbols. The new offence is a subset of that offence. It includes the same structure.
If we change “by” to “while,” the display becomes a temporal element. It’s something that happens concurrently to the promotion of hatred and can potentially be disconnected from it. I don’t know if an example would help, but if someone were at a public protest, and let’s say that they are willfully promoting hatred, but, as drafted, if it were “while,” the display of the symbol could be on a website separately for a different purpose. It could be the display of the Nazi Hakenkreuz on a historical account on a public website. It would be disconnected from the conduct at the protest. It would be potentially disconnected from the identifiable group.
It’s just creating uncertainty as to how the elements work together and potentially broadens the scope of the offence significantly.
Senator McPhedran: I probably have a different understanding of the language because I am not able to understand why “by” takes care of that issue. Can you help me understand that better, please?
Ms. Breese: “By” is used in “by communicating,” so we’ll say, “by communicating” and “by displaying.” We’re speaking about the means. How is the promotion happening? By communicating a statement, by displaying a symbol. “While communicating” a statement and “while displaying” a symbol changes that. It’s no longer informing how — the means by which you’re promoting the statement. You’re creating something that’s happening separately while you’re doing it.
Senator McPhedran: It could be happening separately?
Ms. Breese: It could be happening separately.
The other key aspect is this. That’s the narrow issue, but, also, we have to consider the offence within its broader scope with all of the elements. The concern that it’s simply a mere display would be captured? No. Because the whole point is that it’s expressive activity, whether that’s communicating a statement or displaying a symbol for the intentional purpose of promoting hatred against an identifiable group. Right away, that moves us out of the territory of creating a straight ban on certain symbols or criminalizing the mere display of them.
Senator McPhedran: Okay. Thank you.
Senator Arnot: All the witnesses have extensive experience in policy-making, so I’m asking this question to any one or all three of the witnesses.
Will Justice Canada support a statutory three-year review with public data on charges, outcomes, consent, decisions, protected grounds, demographic impacts and Charter litigation? This, to me, I present as a good policy-making practice.
Joanna Wells, Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question.
I would refer back to the minister’s statements when he appeared before you last Friday when he signalled general support for parliamentary reviews, on the whole, whether they were three years, five years, et cetera. From the Department of Justice’s perspective, we will support the minister in whatever the government decides to do with respect to reviewing this legislation or any legislation.
Senator Arnot: Or what we decide to do.
Ms. Wells: Of course.
Senator Arnot: I have a second question. It has been touched upon already, but I would like to hear all the other witnesses speak to this.
Will Justice Canada promote national prosecutorial guidance education before the bill comes into force with the interest we all have in seeing relative uniform enforcement of this should it become an act?
Ms. Wells: As my colleague Ms. Breese said earlier, the Department of Justice continues to work with provinces and territories continually to support the implementation of all of the legislation on which we work on behalf of the government. It would be a difficult constitutional role for the Department of Justice to play in developing prosecutorial guidelines for the provinces, which are responsible for the administration of justice under the Constitution of Canada. Of course, we are always available to work with and support them, as they take any legislation and start to work to apply it on the ground.
Kristen Ali, Manager and Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: I don’t have anything to add, I think. My colleagues have adequately addressed it. Thanks.
The Chair: I have a follow-up to that.
In light of the extraordinarily high public interest in Bill C-9; our inboxes are proof of that. Could you comment on the importance from a policy perspective of making sure there is — based on Senator Arnot’s questions — uniform implementation of this bill, as well as ensuring that a solid educational compendium to this bill be provided? There is utter confusion with some aspects of this bill, so would you not see it as a good practice to put in place as opposed to any other bill?
Ms. Wells: From a criminal law perspective at the Department of Justice, we always want the bill to be interpreted properly. We have always wanted the criminal law to be interpreted as intended. We work with our PT partners and police partners to convey, the best we can, the intention-setting discussions such as this, whether it is a parliamentary record, to help guide the interpretation by the courts. Also, actions by prosecutors and police are all very helpful.
At the department, we really try to support at the front end before legislation is enacted and afterward.
So, I would agree that it is always very important to ensure that any piece of legislation is implemented and interpreted correctly at the outset.
The Chair: Thank you. We will go to the sponsor of the bill.
Senator K. Wells: As defined in this bill, would cemeteries include unmarked burial sites at formal residential schools or ancestral Indigenous burial sites?
Ms. Wells: Thank you for that question.
I recognize this was a significant issue for some of the witnesses last week. In response to some of that testimony, I will clarify that “cemetery” is not defined in Bill C-9, so courts would not be bound by, for example, provincial definitions that are — they have a specific purpose in the law, as provinces need to identify those types of land. So, we would expect courts to rely on the general principles of statutory interpretation, plain meaning and ordinary sense. In that sense, there is space in Bill C-9 for “burial ground” to be considered because “cemetery,” by its general definition, is a place where bodies are buried.
However, there is some confusion as to what powers Bill C-9 has in terms of creating an independent right of access to those places; it does not do that. Someone already has to have lawful access to that place. To the extent that there is a property dispute over who owns the land and who should have access to it, those questions are not addressed by Bill C-9 and would not be something the criminal law would be seized with. Those are civil property considerations that involve much more complex issues.
I hope that helps.
Senator K. Wells: To follow up, when we’re talking about cemeteries, we’re talking about one specific clause of Bill C-9 that deals with intimidation and obstruction. It’s listed along with a series of other gathering spaces that are of significance to identified communities.
Ms. Wells: Correct.
Senator K. Wells: Great, thank you for that.
My second question: Would cultural spaces — what we were referring to — be interpreted to include traditional Indigenous historical and traditional gathering spaces, such as where Sundance ceremonies may be held?
Ms. Wells: Thank you for that question.
As a way of starting, I could provide a short history of why the particular property in obstruction intimidation offences are as they are. It was the property that was and is currently protected by the hate-motivated mischief offence in section 430 of the Criminal Code. It’s specific to buildings and structures. We use the same terminology to ensure that when the bill was introduced, it was proposed to repeal hate-motivated mischief. To ensure no protections were lost, the same property would be protected.
As drafted, the spaces to which people’s access is protected must be buildings or structures. To the extent that there are Indigenous spaces that don’t have a building or structure, they would not fall under the bill as drafted, but other Indigenous spaces where there are buildings or structures — such as Indigenous friendship centres, Longhouses, Teepees, et cetera — in the right circumstances, could fit the definition of a building or structure.
Senator K. Wells: Thank you for that.
Bill C-9 mentions it would also apply to other acts of Parliament — specifically mentioned in relation to this legislation. Could you provide a tangible example of how hate crime charges might be relevant to other acts of Parliament?
Ms. Wells: I will ask my colleague Ms. Breese to take that one.
Ms. Breese: Sure, thank you for the question.
To the extent that this offence would apply to any federal offence, a few examples would be the National Defence Act. There are offences for cruel and disgraceful conduct. There is also an offence for abuse of a subordinate. If motivated by hate, it could be caught by this offence.
There are also human trafficking offences under the Immigration and Refugee Protection Act as well as offences under the Canada Elections Act. That act is a good example — where someone is distributing or publishing unauthorized materials but passing it off, essentially, as being authorized to represent a political party or a political official. Again, if that conduct is hate-motivated, then that could be captured under the new hate-crime offence.
Senator K. Wells: Thank you for those examples.
Senator Bernard: I would like to ask a follow-up question.
In what ways will this bill assist Statistics Canada in collecting, tracking and analyzing data? Specifically, if the list were expanded, would it be easier to track and analyze hate crimes against specific vulnerable groups?
Ms. Breese: Thank you for the question.
One of the key advantages of creating a new, stand-alone hate‑crime offence is that it would fill the data gap we currently have. Right now, hate crimes are primarily addressed through an aggravating factor at sentencing, and that factor is not systematically tracked across different provinces and territories when it comes to the sentencing record.
A new hate crime offence means the charge will be categorized up front, which will enable better tracking of hate‑crime offences, and hate crimes will cover all federal offences. So it has broad application and immediate tracking ability, and, at the end, the bill also provides that a judge will have to include the included offence in the record decision. So not only will it be marked as a hate-crime offence, you’ll also know the included offence. So it was hate-motivated assault. It was hate-motivated uttering threats.
Senator Bernard: Thank you. At our previous meeting, we heard concerns from our witness, Pastor Andrea Anderson, that Black churches and other smaller or more vulnerable faith communities may not have the financial or institutional resources to defend their lawful religious expression if it is challenged under Bill C-9.
You have already talked about this a bit today. While the bill includes the clarification intended to protect good-faith religious discussion that does not willfully promote hatred, what concrete safeguards, guidance or supports will be in place to ensure that under-resourced faith communities are not disproportionately exposed to complaints, investigations or legal costs simply for expressing sincerely held religious beliefs?
Ms. Breese: Thank you for your question. There are different elements that we can address. If we start with purely the criminal conduct, the scope of the offence, it would not capture good-faith religious expression. So, while we would defer to independent police and prosecution services, we would not expect that charges would be laid under the hate propaganda offence for that type of conduct. Regardless of whether the defence is there or not, it would never be caught by the offence in the first place.
If there are concerns about conduct around these institutions, my colleague can speak to the other offences of intimidation instruction, but circling back to what the minister said in the past, it’s not only about the criminal law, but what other measures are in place to protect communities from hate. I’m not an expert on this program, but Public Safety does have a program where it provides funding to different community and religious groups to help physically protect institutions, and we could provide more information on that for you if it is helpful.
Senator Bernard: That would be very helpful. Thank you.
The Chair: Senators, in light of the time, I would like to limit your question and answer to four minutes.
Senator Ataullahjan: The religious text defence has been part of the Criminal Code since 1970. It was not removed in the original version of Bill C-9 but later in the parliamentary process through an amendment that the government accepted. Faith-based communities and civil liberties organizations have told this committee that they were not meaningfully consulted on that specific proposal despite its clear implications for freedom of religion and expression.
If the removal of this safeguard is now set to be such an important improvement, then that raises the question as to why it was not developed in the bill from the onset with advanced input. Can you tell us if targeted consultations were conducted with faith-based communities and civil liberties groups, specifically on the removal of section 319(3)(b)? If so, who was consulted? How were their concerns reflected in the final design of Bill C-9? If that consultation did not occur, can you explain why a change of this scope and sensitivity was not developed in the original text of the bill?
Ms. Breese: Thank you for your question. With respect to why this was not in the bill at the beginning, this was not the government’s proposal. It was advanced by another party during the study of the bill at committee. So that explains in terms of a process perspective why it wasn’t included in the bill at the beginning.
The parliamentary process advanced this; the repeal happened, and it’s reflected in the bill as adopted at third reading.
Given that it generated a lot of views and a lot of feedback, the Minister of Justice held targeted round table discussions with religious-based communities in January. This included several round table discussions, including with Indigenous groups. We can definitely provide the list of stakeholders that were engaged if that is helpful. But the purposes of those round tables were to hear about those concerns and also to help address perhaps some of the misunderstandings around what the repeal of the defence would result in, the effect, and so forth.
In a follow-up to those discussions, and during the House of Commons committee’s consideration of the feedback received, a new “for greater certainty” clause was added to help address those concerns and to clarify the effect of repealing the defence.
Again, repealing the defence would not change the scope of the offence, which is very high. That offence does not criminalize religious expression. It does not ban the reading of scripture. It targets expression that is intentionally made to promote hatred.
Senator Ataullahjan: You said that the removal of the good‑faith religious defence is meant to eliminate confusion as to the scope of the offence. Whose confusion are we talking about? The Supreme Court is clearly not confused.
Ms. Breese: Thank you for your question. If I can clarify my previous statements. We heard at committee the concerns expressed by some external stakeholders that the defence, perhaps, created a sense that a certain expression was protected and exempted from the wilful promotion of hatred offence. That is not what the defence did. To the extent that it was being interpreted that way, repealing it reinforces that the offence’s narrow scope already provides the safeguards and protections needed to avoid criminalizing that speech.
Does that respond to your question?
The Chair: That’s all the time we have.
Senator Ataullahjan: I guess that’s sufficient.
Senator McPhedran: I’m going to go back to the drafting and the particularities of the wording. I listened attentively to your response when I asked for the differentiation between “by” and “while.” I’m respectfully not convinced. In addition to that, I think you were here when we heard from the Canadian Bar Association. This question is really a question of clarity around why we are doing this. What is the outcome that we’re after?
I’m going to paraphrase, but basically, the Canadian Bar Association suggested that the mens rea — the intent, the motive — of this offence should be more specifically curtailed to the display of such symbols — and their recommendation was — “for the purpose of promoting hatred so that the legislation only captures the display of such symbols in circumstances intended to promote hatred against identifiable groups.”
To my mind, this stage of law making is exactly the place where we want to be as clear and as precise as we can be. Whether you say “while” or whether you say “by,” it is really the purpose. It is the mens rea that we’re after here. It is the reason why we’re looking at a bill like this. It is because of the increased promotion of hatred that we are seeing in many sectors of our society through many means.
So my question is this: Why didn’t we just say in the draft, “For the purpose of promoting hatred”?
Ms. Breese: Thank you for your question. That purpose is already built into the wording of that offence as drafted currently. The wording is as follows:
Everyone commits an offence who willfully promotes hatred against any identifiable group by displaying, in any public place . . . .
Then it enumerates symbols. If we look at that wording, the purpose of the display is to promote hatred against an identifiable group. Adding specifically “for the purpose of,” I think it’s really important that this offence is structured on the existing offence of wilful promotion of hatred at 319(2). That offence has been found to be constitutionally valid. All of the elements have been scrutinized very carefully by the court. So if I read that offence, it is everyone who, by communicating statements — other than a private conversation — willfully promotes hatred against an identifiable group.
All of those elements are reflected in the new offence. What differed, and we changed that specifically to tailor the offence to how symbols are generally used. “By communicating” was changed to “by displaying.” Importantly, that’s consistent with how the Criminal Code defines communicating.
If we look at 319(7), communicating includes visible means. Then “statements” was changed to “symbols.” If we look at the definition of “symbols” in the offence, it includes “signs or visible representations.”
What I would say is that the purpose, as you suggested, is already built into the offence. It has been carefully analyzed and scrutinized by the courts. The purpose is willfully promoting hatred, how? By displaying symbols. How? By communicating statements. All of them built on existing definitions and existing thresholds. It is not a new concept.
Senator McPhedran: Okay. Thank you for that.
The Chair: I’ll give you 30 seconds, please.
Ms. Ali: Just to add to my colleague’s excellent remarks, and just to provide the overall frame as a reminder that, for both the proposed symbols offence and the precedent offence that my colleague was speaking of, these are hate-propaganda offences, specifically. The purpose in terms of “by communication” or “by symbol” is specific to the nature of the offence, which is hate propaganda. I hope that it kind of helps in an overall frame.
I would very briefly add, as my colleague has pointed out and I think you heard here from witnesses last week and some of the experts who testified about the constitutionality of our current offences, the way the proposed offence was scoped and the nature of the language and the proposed offence are intended to precisely mirror those aspects that the Supreme Court did look to in R. v. Keegstra and did look to in upholding our current hate‑propaganda offences. The intent is one and the same, as my colleagues would say, to ensure a high mens rea to ensure the constitutionality of our provisions.
Senator K. Wells: A couple more clarifying questions if I could.
It has been raised by some that the notion of this new hate crime stand-alone offence is duplicative of what is already in the Criminal Code. For example, somebody could be charged with assault, and then, as part of enhanced sentencing, the hate motivation would come in.
Is it not true that, in some cases, the sentencing could be more significant if it is charged with, for example, a new hate‑motivated crime from the very beginning rather than waiting for enhanced sentencing at the end? I’m wondering if you could sort of clarify that it’s not necessarily duplicative at all in what already exists in the Criminal Code. Never mind the importance of data tracking and everything else that we have talked about.
Ms. Breese: Thank you for your question. I think that it is a different way of addressing hate motivation in crime that puts it at the front end. It will create a more consistent and clear denunciation of all forms of hate crime, and secondly, it provides a clear, escalating penalty structure to frame how courts can determine appropriate penalties based on the seriousness of the underlying offence. Currently, hat work is not done through the aggravating factor at the sentencing stage.
Senator K. Wells: Thank you. Similar legislation in Quebec requires prosecutorial consent instead of the attorney general’s approval for a charge to be laid as a way to remove any appearance or possibility of political interference in these cases. I am wondering if this was something considered in the drafting of Bill C-9. If so, what are the advantages of having the AG require consent rather than the Quebec model at the prosecutorial level?
Ms. Breese: Thank you for the question. I believe what you’re referring to is pre-charge screening. This is a practice that some provinces have adopted in terms of adding a safeguard to ensure that the standards are met to proceed. For example, a reasonable prospect of conviction and also to ensure that the prosecution would be in the public interest. This is not a requirement. There is no precedent for it in the Criminal Code. This is something that provinces can advance without criminal law reform. It is separate and distinct from the AG consent requirement. Consent by an Attorney General is a higher level of screening, and it can only be delegated down through, we’ll say, in law.
This pre-charge screening is generally done at a lower level by Crown prosecutors assessing the cases.
Senator K. Wells: Thank you.
Senator Ince: Thank you so much. In the past few meetings, we have heard from witnesses who gave us some recommendations. They talked about creating an independent advisory committee to periodically review and recommend updates to the list of prohibited hate symbols. Would the Department of Justice Canada support this decision? How would you work with marginalized groups and communities to implement this?
Ms. Breese: Thank you for the question. What I can do is refer back to the minister’s remarks, where I believe the minister expressed interest in looking at how additional symbols could be added, not just the symbols but the process by which this can be done.
I don’t have more information on how that would be affected or studied, but the minister is interested in exploring that.
Senator Ince: Thank you.
The Chair: Thank you so much to our first panel of the day for taking our questions. I’d like to sincerely thank you for agreeing to participate in this meeting. Your assistance with our study of this bill is greatly appreciated.
Before we begin with our second panel, I’d like to give Senator Ataullahjan the floor.
Senator Ataullahjan: Thank you, chair.
I would like to inform the committee that I hold an honorary advisory position with the National Council of Canadian Muslims, members of which are testifying as part of this panel. I have consulted the Senate Ethics Officer about this, and out of an abundance of caution and to avoid any risk of impropriety, I will not be asking any questions of this panel.
The Chair: Thank you, Senator Ataullahjan. That is on the record.
Our witnesses have been asked to make an opening statement of five minutes each. This will be followed by questions from senators. With us in person, from the National Council of Canadian Muslims, we have Mustafa Farooq, Consultant, and Ahmad Al-Qadi, Government Affairs and Public Policy Officer. Welcome. Next, we welcome Imam Sikander Hashmi, Executive Director of the Canadian Council of Imams. From the Canadian Muslim Lawyers Association, we have with us, in person, Nora Fathalipour, Legal Counsel, and, finally, from the Canadian Muslim Healthcare Network, we have Dr. Nehal Al Tarhuni, Doctor of Dental Surgery, who is appearing virtually; and Dr. Romesa Khalid, family physician.
Over to you, Mr. Farooq.
Mustafa Farooq, Consultant, National Council of Canadian Muslims: Thank you, Madam Chair, and members of this committee. My name is Mustafa Farooq. I am a lawyer and the former CEO of the National Council of Canadian Muslims, or NCCM. I will be splitting my time today with Ahmad Al-Qadi, government affairs and policy officer for NCCM.
I want to first thank all of you for taking the time to thoughtfully and critically examine this piece of legislation and, to so many of you, for your ongoing years of work in standing up for human rights and civil liberties and for standing up for a Canada that’s better for all of us.
At the outset, we wish to affirm that our community has long called for meaningful legislation to combat hate. We understand deeply and personally the cost of hate. We are only weeks away from the fifth anniversary of the London terror attack of June 6, 2021, which claimed a precious family here in Ontario. We remember the six Canadian Muslims lost at the Quebec City mosque massacre in 2017. We must acknowledge that, just days ago, on May 18, three Muslim men were killed in a mass shooting in San Diego, a tragedy that has profoundly shaken our community, and where the shooter, the terrorist, allegedly drew inspiration from the Quebec City mosque massacre and the London terror attack.
Indeed, these are not isolated incidents. It is in this context that we have followed and engaged in conversations across partisan lines, in good faith, looking for change. We acknowledge the meaningful work in the other place that has been undertaken on this bill and the important interpretive clarifications on the record by the minister. We recognize that clarifications and amendments to the text of Bill C-9 have been helpful in minimizing risks to civil liberties.
Nevertheless, we believe that Bill C-9, in its current form, continues to raise civil liberties concerns, and we respectfully bring forward two targeted recommendations.
Before turning to our recommendations, we wish to be clear about what we think Bill C-9 gets right. The new hate-motivated provision is something NCCM strongly supports. This was, in fact, a direct recommendation from the Canadian Muslim community following the London terror attack — a call to establish a free-standing hate provision within the Criminal Code. It gives the justice system the tool to treat hate not as an afterthought but as a central harm that must be addressed. This is meaningful and real progress, and we commend it.
We wish to acknowledge, however, in our first recommendation, that the language governing hate symbols has been substantially improved since this bill’s introduction, particularly through the House committee, to remove the phrase that is likely to be confused with that symbol. This was a positive step.
However, despite attempts at clarification during study in the other place, proposed clause 319(2.2)(c) continues to create interpretive uncertainty. As some previous witnesses — for example, representatives who appeared before you from the Ottawa Police Service — have indicated, this provision will be difficult to enforce in practice. Proposed paragraph 319(2.2)(c), as a reminder, provides that a person commits an offence if they willfully promote hatred by displaying a symbol that so nearly resembles “a symbol that is principally used by, or principally associated with, a listed entity.”
The operative phrase “so nearly resembles” raises a difficult and, we would argue, unanswerable question: Who decides what constitutes a sufficient resemblance?
We offer a practical illustration of how this uncertainty may affect our community. Consider a Muslim displaying a shahada, this declaration that there is no god but God, on a bumper sticker, just like my mother-in-law, or displaying a flag in a cultural celebration. Because, of course, some listed terrorist entities have disgustingly hijacked and appropriated the shahada in their imagery, there is a genuine risk that an officer, without specialized knowledge of Islamic calligraphy or theology, could interpret such a display as resembling a symbol associated with a listed terrorist entity. The provision, as written, risks criminalizing ambiguity, and ambiguity is a problematic foundation for a criminal offence. Our recommendation is, therefore, to eliminate (2.2)(c) in its entirety.
We would also respectfully invite this committee to consider why the symbols of certain well-known hate groups, such as the Ku Klux Klan, fall outside the scope of Bill C-9, although we recognize this more broadly speaks to the legislation’s overall scope.
I will now pass it over to my colleague.
The Chair: My apologies, Mr. Farooq. Your time is up. However, I invite Mr. Al-Qadi to respond to questions, and maybe you will have an opportunity to make your comments then.
We will now go to Imam Hashmi.
Sikander Hashmi, Executive Director, Canadian Council of Imams: Thank you very much, Madam Chair.
[Translation]
Good evening, honourable senators. On behalf of the Canadian Council of Imams and Muslim religious leaders, thank you for the opportunity to appear before you today.
[English]
The Canadian Council of Imams is the country’s only national body representing imams, Muslim religious scholars and chaplains. We represent over 130 faith leaders serving communities from British Columbia to Newfoundland and Labrador, collectively addressing close to 100,000 congregants across Canada. Our membership continues to grow.
Canada’s strength has long depended on maintaining both public safety and principled protections for conscience, religion and expression. These protections are especially important in a diverse democracy where citizens hold deeply different moral, philosophical and theological convictions while continuing to live together peacefully and respectfully.
I appear before you today with sincere concern regarding aspects of Bill C-9. Before outlining our recommendations, I want to be equally clear about what we are not here to do.
We are not here to defend hatred. We are not here to minimize anti-Semitism or any other form of hatred. Nor are we here to politicize or mischaracterize the realities of Islamophobia. We are not here to excuse those who target vulnerable communities. And we are not here to suggest that any community is less worthy of protection than another.
As Canadian Muslims, we know the reality of hate first-hand, sadly.
One week ago today, the tragic shooting at the Islamic Center of San Diego devastated our community. Knowing those attackers were directly inspired by the 2017 Quebec City mosque attack makes the grief even heavier. It is a painful reminder of the violent realities we face — realities underscored by the 11 Canadian Muslims who have been murdered in hate-motivated attacks since 2017, from Quebec City, to a Toronto mosque, to the Afzaal family in London.
It also reminds me of the Pittsburgh synagogue shooting. In its aftermath, I brought members of my mosque community in Kanata to stand guard outside one of Ottawa’s largest synagogues. We did so quietly and sincerely out of genuine concern for our Jewish neighbours.
Whenever synagogues, Jewish schools or Christian churches are targeted, we are deeply troubled.
So the question before us is not whether hate exists in Canada. It clearly does.
[Translation]
We aren’t calling into question the intention of this bill. However, we believe that a bill of this nature must be drafted with the utmost precision in order to avoid unforeseen consequences and to ensure a clear, consistent and Charter-compliant application.
[English]
The question is whether this legislation, in its current form, will meaningfully combat actual hate while preserving the Charter-protected freedoms that allow Canadians to live peacefully and authentically. I will focus briefly on two concerns.
Firstly, we are deeply concerned by the removal of the “good faith” religious defence found in paragraph 319(3)(b) of the Criminal Code.
Many faith communities were surprised by the removal of this long-standing provision, which has served as an important safeguard for our communities. Religious scriptures and traditions often contain historical narratives and theological passages that, when quoted outside their religious context, can be misunderstood or deliberately mischaracterized.
Our concern is not hypothetical. An imam quoting classical jurisprudence on conflict or morality should not have to fear a criminal investigation simply because a bad-faith complainant posted an out-of-context audio clip online.
Many faith traditions maintain theological teachings that may be controversial, countercultural or deeply contested in modern public discourse. A pluralistic society requires sufficient legal space for those beliefs to be expressed peacefully and responsibly without the risk of being weaponized.
[Translation]
We welcome efforts to include a clarification clause. However, we don’t believe that the current wording provides sufficient legal clarity or long-term protection.
[English]
Honourable senators, we have heard encouraging verbal assurances from the government — specifically from the parliamentary secretary on February 23 — that this legislation is not intended to affect worship, sermons, prayer or religious education. We take the government at its word.
However, if the intent is truly to protect these activities in plain terms, then there should be no objection to codifying that exact intent directly into the text of the bill. Our amendment, which is found in our written submission, simply aligns the legislative text with those public assurances, providing the durable, unambiguous protection that Canadian faith communities require.
Secondly, honourable senators, all we ask for is a periodic parliamentary reassessment every five years to ensure that this bill is not impacting the rights and liberties that Canadians enjoy on a daily basis. Thank you very much.
The Chair: Thank you. We’ll now go to Ms. Fathalipour.
Nora Fathalipour, Legal Counsel, Canadian Muslim Lawyers Association: Thank you. Good afternoon. Thank you for inviting the Canadian Muslim Lawyers Association, or CMLA, to speak to you today. My name is Nora Fathalipour, and I am a Toronto-based criminal lawyer. I am honoured to be here with you today.
The CMLA shares the government’s objective to make our communities safer and to combat and reduce hate. Muslims, along with many racialized and marginalized communities, know both the realities and dangers of hate first-hand. Many Muslims are targeted not only because of religion, but also because of race, ethnicity, language and dress, and non-Muslim minorities can be targeted when perceived as Muslim.
The issue before this committee is: What additional value is Bill C-9 proposing to what already exists?
Bill C-9 will not make our communities safer; it will instead likely increase overcriminalization of marginalized populations, encroach on political expression and constitutional freedoms, and cause an overall chilling effect that will deter long-standing traditions of democratic civic engagement on political and social issues. That will not make our communities safer.
It is the CMLA’s position that Bill C-9 should be rejected in its entirety, as this legislation does not reduce, prevent or address hateful acts. The Criminal Code already contains tools to combat and prosecute hateful and hate-motivated acts. For example, the existing section 319 already makes it a crime to promote hatred. Furthermore, section 718.2 mandates courts to take into account, where relevant, whether an offence was motivated by hate when deciding appropriate sentences. The Criminal code also addresses intimidation, threats, harassment, assault, mischief, unlawful assembly, obstruction and so on.
Data from Statistics Canada show that the majority of hateful acts reported target race and ethnicity, primarily Black people but also South Asians and other racialized groups. Despite this reality, none of the proposed amendments here address racially motivated hateful acts, which represent over 60% of acts of reported hate. The proposed legislation does not address typical acts of hate and where they occur, which could be anywhere in the normal course of everyday life.
I invite the committee to read the CMLA’s brief in which we describe in detail our concerns with the bill. I will now specifically focus on the proposed hate symbol offence in section 319(2.2).
This proposed amendment clearly illustrates the “blunt tool” approach proposed here. The language captures symbols and slogans that “so nearly resembles” or are “likely to be” a symbol of a listed entity. Most of these listed entities have Arabic names. The wide discretion here means a police officer may see someone wearing a garment with Arabic writing and think that the writing “so nearly resembles” a listed entity enough to make an arrest.
Highlighting this ambiguity is important because, in a protest setting, police officers make rapid decisions about flags, banners, slogans, clothing and symbols in languages they may not know, and this uncertainty will fall hardest on racialized communities.
Even if charges are withdrawn later, the damage has already been done. An arrest means the loss of liberty, protest bans, public exposure, job loss, immigration and family law consequences and so on. It’s a scary and expensive process to go through. For many people, the rational response is likely to be: I’m just not going to risk expressing myself. So we are gravely concerned about the chilling effect on people’s willingness and ability to engage in Charter-protected activities.
I ask this committee to consider the practical reality of enforcement. The police already use pre-existing tools to address what they think crosses the line at protests. For example, in Toronto, there have been 171 arrests related to protests in support of Palestinians since 2023. At least 100 of those cases have resulted in full withdrawals by the Crown, and there are only three convictions so far.
These numbers suggest a police approach whereby, if there is ambiguity, the response is to arrest first and deal with it later.
That is not an efficient use of resources, and it causes fear in the community. Further increasing ambiguity is not going to help.
Communities are not asking for haphazard legislation that risks criminalizing protest, religious expression and political dissent.
You have heard from various experts, and the overwhelming majority oppose this legislation. Many urge you to reject it wholesale. So do we.
Thank you.
The Chair: Thank you. We’ll now go to Dr. Al Tarhuni and Dr. Khalid, who will be splitting their time.
Dr. Nehal Al Tarhuni, Doctor of Dental Surgery, Canadian Muslim Healthcare Network: Honourable senators, I am here with my colleague, Dr. Khalid, on behalf of the Canadian Muslim Healthcare Network, or CMHN. We are health care workers, educators, volunteers and proud Canadian Muslims.
I came to Canada as a young Palestinian-Lebanese refugee from a country where the state criminalized free speech. As a child, I vividly remember how my normally loud parents would suddenly whisper whenever politics came up out of fear of imprisonment.
Coming to Canada taught me the value of living in a society where people can speak openly and safely. In my chosen home, I embraced my responsibility to serve through compassionate health care, education, community service and advocacy.
As health care workers, we dedicate our lives to healing illnesses and reducing human suffering. As such, we cannot witness systemic injustice without speaking out to end it. Health care professionals across Canada already face intimidation and professional consequences for speaking out against the human suffering of Palestinians.
I witnessed this first-hand when a visibly Muslim dental student was denied mentorship after wearing a watermelon symbol on her lanyard. I also saw my mother verbally attacked while serving as a patient interpreter because the pattern on her hijab resembled a Palestinian keffiyeh.
Canada is strongest when it protects both the safety and fundamental freedoms of its citizens. When vague and overreaching legislation normalizes fear, silence follows — much like the whispers I heard as a child.
That is why Bill C-9 gives us serious concern. It poses serious harms without addressing its primary objective of reducing the rise of hate in our society.
Thank you. Dr. Khalid will take over.
Dr. Romesa Khalid, Doctor, Canadian Muslim Healthcare Network: Good evening, honourable senators. I would like to start by acknowledging two things — that hate crimes must be taken seriously and that we need to be accurate when identifying hate. We worry that Bill C-9 — though well intentioned — will embolden accusations of hate speech against good faith advocacy efforts.
First, with respect to hate symbols, we cannot ignore that the backlash against our advocacy has centred on conflating symbols of solidarity with support for hate or terrorism. For example, CMHN has documented, among others, an incident of a health care worker wearing a locket in the shape of historic Palestine, resulting in mocking by a colleague, inflammatory social media posts accusing them of promoting terrorism and making patients “unsafe” as well as complaints to higher bodies. These allegations cause real harm and moral injury. Misinterpretations of symbols are already being weaponized against peaceful advocacy in our clinics and hospitals. Bill C-9 risks giving this legal force.
Secondly, health care workers have marched in recent protests to voice our opposition to the devastating violence in Gaza and the targeting of hospitals and health care workers. Protest is inherently uncomfortable both for those participating and those institutions being asked to change. It often occurs near places where the message needs to be heard. Broadly expanding hate offences to include a wide range of locations risks allowing peaceful good-faith activity to be mischaracterized as obstruction or intimidation, further chilling free speech.
In summary, repression of advocacy and the punishment of lawful dissent are not theoretical for health care workers. The CMHN supports the intent of the bill. We also appreciate the efforts made in the House to strengthen this bill and Minister Fraser’s reassurances. However, great uncertainty still remains and we cannot support Bill C-9 in its current form. We would like to see more consensus among human rights and civil liberties organizations before an important bill like this is passed.
Thank you for your time.
The Chair: Thank you. Thank you all for your presentations. We will now proceed to questions from senators.
Senators, you have five minutes for your question, and that includes the answer. We’ll begin with our deputy chair, Senator Bernard.
Senator Bernard: Thank you to all of you for your testimony here today.
I have a couple of questions. I’m not sure if I’ll have time for all of them. I’ll start with Mr. Al-Qadi. Because you didn’t get a chance to speak, I wonder if there are maybe two or three main points that you would like senators to hear from you this evening.
Ahmad Al-Qadi, Government Affairs and Public Policy Officer, National Council of Canadian Muslims: Thank you, senator.
Briefly, our second recommendation is to restore the good faith defence in section 319 of the Criminal Code in its entirety or, alternatively, to add the following clarifying language to the “for greater certainty clause” that reads as follows:
For greater certainty, nothing in subsection 319(2) or (2).2 of the Criminal Code shall be construed as prohibiting a person from communicating a statement on a matter of public interest and good faith, including an educational, political, religious or scientific statement made in the course of discussion, publication or debate if the discussion of which was for the public’s benefit and if on reasonable grounds, the person believed them to be true.
We would also urge that an improved greater certainty clause is added as a direct amendment to the Criminal Code versus an interpretive note within Bill C-9.
Briefly, I’ll end there. Our oral submissions have been submitted in their entirety. Thank you.
Senator Bernard: Thank you. My next question is for Ms. Fathalipour.
Thank you for making the link to intersectionality. You talked about the fact that Bill C-9 would likely overcriminalize Muslim Canadians, especially racialized Muslim Canadians. I wonder if you can tell us a bit more about why you believe that so strongly. What are the concerns that you specifically have with regard to that, please?
Ms. Fathalipour: Certainly. Thank you so much for that question, senator.
Maybe I’ll start with an anecdote. I recently heard about a Crown attorney who was assigned to the hate crime office in their department and was jokingly saying, if this had happened a few years ago, I would have been dealing with five cases per year. Now I’m very busy because this is a larger issue.
Now, I want to connect that with why I think that expanding the Criminal Code the way this bill proposes will lead to overcriminalization of marginalized communities. The reason is that the existing legislation we have surrounding, let’s say, hate motivation or hate crimes in the form that they do exist. The statistics I have seen suggest that currently they are primarily applied to people who are either members of marginalized communities or are perceived to be.
For example, in Ontario, certainly right now, many individuals are announced as potentially hate motivated when they’re arrested if they are engaged in arresting in support of Palestine. Then, at the end, of course, the question comes up again: is this indeed hate motivated.
That’s why I believe that front-loading the question of hate motivation will continue that trend. It will primarily target communities that are currently the subject of enforcement. Of course, there are exceptions, but the vast majority of enforcement that I have seen, and that people are tracking, is in relation to unwanted speech by racialized communities. Thank you. I hope that answered the question.
Senator Bernard: With regard to the tracking, where are the statistics? Do we have access to those statistics? I ask because I think that would be really important for us to know.
Ms. Fathalipour: That’s a very good question, senator. I believe the tracking needs to be better. But we have a few levels of track that already exist. The first is Statistics Canada. I think I brought a copy with me. I believe someone delivered a copy to the Senate that goes over the last eight years of reported hate crimes.
Some police forces, for example, the Toronto Police, carry their own statistics. Then we have community members who track the actual results of cases. If people are alleged to have been charged with hate crimes or hate-motivated offences, there are community members who are tracking the actual outcomes of cases, which is how we know that, out of the 171 arrests in Toronto for pro-Palestine protest, 100 of them have been withdrawn, and there are only 3 convictions. I’m not sure if there are official statistics for some of that, but we certainly have unofficial statistics as well.
Senator Arnot: Thank you to the witnesses. We have a number of national groups here, so I would like the spokesperson for each national group to answer this question.
Would you support a statutory review in five years or three years with a public reporting regime that would address some of the concerns that you have raised, such as uncertainties over policing, et cetera? The purpose of this would be to collect a wide data set with disaggregated data — in other words, effective use of data, which I do not believe really exists at the moment — to measure the effectiveness, or lack thereof, or examine the anomalies or unintended consequences of enacting this act in its current form.
I have asked a number of witnesses that question because I’m thinking of making an amendment to that effect. The National Council of Canadian Muslims, please.
Mr. Farooq: We would strongly support such an amendment.
Senator Arnot: I know the imam has already made the statement, so I accept that. Thank you, Imam Hashmi. Ms. Fathalipour?
Ms. Fathalipour: We would also strongly support such an amendment.
Senator Arnot: From the Canadian Muslim Healthcare Network?
Dr. Khalid: I would look to people with expertise to answer a question like that. We would certainly support the purpose of something like this.
It’s important that we realize that, as Ms. Fathalipour mentioned, when charges go forward, when people are put through charges that are eventually dropped or allegations or accusations that end up resulting in nothing, it’s really not a case of no harm done. There are very real harms and very real repercussions, and I can speak to our experiences in our workplace where these allegations, although not in the same setting that we’re talking about here, have definitely resulted in reputational harms, legal fees, deterioration of mental health, and a breakdown in therapeutic relationships with our patients. There are still costs, but yes, we would support something like this.
Senator Arnot: Thank you.
Senator Martin: Thank you so much for your testimony today. Together, I feel like there are echoes and reinforcements, but you bring your expertise to the table. I’ll keep my questions short. I hope that all the groups can answer.
I share the concerns that you have expressed today. There is often a gap between how laws are debated publicly and how they affect people privately. So, if a good-faith religious defence were removed, what kind of day-to-day impacts do you think communities, religious leaders or even ordinary conversations within places of worship would experience? I know, Imam Hashmi, you mentioned some of that yourself. I would like to hear your responses. Perhaps, Imam, you can begin?
Mr. Hashmi: Certainly. Thank you for the question. For the record, we would certainly, first of all, like to have the good‑faith defence reinstated. If it is not, then we do have a proposed amendment.
On the ground, I believe the day-to-day impact is likely going to be silence. That is not a good thing. We know that the intent to protect is in the current “greater certainty” clause, but mechanically, we believe that, on the front lines, it leaves a procedural gap because the current clause relies on determining wilful intent, which I know is mentioned in the text of the bill.
We know that the Supreme Court has clarified that. A weaponized complaint is a very real thing, unfortunately, because there are a number of teachings in our faith and other faiths that are weaponized against communities. It’s actually a form of Islamophobia that we face on a regular basis. An officer receiving such a complaint cannot simply dismiss it at the door and is, therefore, forced to launch an investigation to figure out what the intent was.
For faith leaders and for our members, that process itself is punishment because we’re talking about the fear of a devastating investigation, publicity and loss of income, which, in many cases, is not very much anyway. Then, on top of that, the costs of the legal process. Unfortunately, without this front-line clarity that we are proposing, there is a real possibility that faith leaders like imams will stop answering complex questions. That has a direct impact on our youth. If our Muslim youth cannot safely discuss difficult theological concepts with a trained leader in a mosque setting, for example, then where will they go? They will take those questions to the internet right into the arms of actual extremists. That’s why we need this amendment to be crystal clear to ensure that faith leaders can continue their vital work, especially when it comes to countering radicalization.
Senator Martin: Very good. Ms. Fathalipour?
Ms. Fathalipour: Thank you for that wonderful question. I echo everything the Imam Hashmi said. The only thing I will add is that Muslim communities have already experienced this sort of over-policing of thought and expression following the devastating events of September 11, 2001. That’s why we believe it’s very likely to have exactly the effect that Imam Hashmi underlined, which is silence. It’s silence. I don’t think that’s what anyone in this society wants. We don’t want people to be silent.
Mr. Farooq: As a lawyer, I always say it depends. To the remarks made by the esteemed panel from the Justice Department before us, it could have very minimal effects. It’s possible. We don’t know how the Charter will be interpreted in front of the courts in relation to this removal.
However, on the other hand, it could have very dramatic negative effects, as noted by my esteemed colleagues here. We have to decide which way we want it. Either the Charter serves as a protection, rendering this section null and void, in which case, why are we removing it? Or removing it is meaningful, in which case, my colleagues are right. Generally speaking, we have to ask ourselves, what are we trying to solve here? This bill is meant to stand up for marginalized communities. We have heard concerns from Christian communities, Jewish communities and Muslim communities about the removal of the section and the chilling signal it sends.
Introducing more ambiguity in a situation where marginalized communities are struggling is not positive. We think that while there have been good, important reassurances put forward, in our view, those perhaps don’t go far enough. That’s why we think we ought to bring back the original version or, at the very least, improve it to reintroduce the language of good faith, put it back in the Criminal Code and address those real concerns.
Dr. Khalid: I speak as an academic. We want to see freedom to discuss. We want to see freedom to debate controversial topics. But we understand, as Muslims, the importance of curtailing hate speech. I would defer to my more experienced colleagues on this matter.
Senator Ince: Thank you all for being here. We’ve heard that the success of Bill C-9 will depend heavily on how it’s implemented in practice, including training and resources provided to law enforcement.
Based on your community’s experiences with law enforcement, what kind of training do you believe would be necessary to help with the new offences? Can I get your opinions on this? It’s open to anyone.
Mr. Farooq: Thank you for your important question, senator. There’s no doubt that, in putting this forward, any new piece of legislation that impacts on the Criminal Code will require a level of training for effective implementation. Unfortunately, I have extremely low faith that our law enforcement agencies will be able to effectively implement provisions of the law. Frankly, it seems many ministers and MPs in the House of Commons — in the other place, rather — can’t seem to quite understand what this bill actually means.
We have heard so many repeated disagreements, like, “Is this verse from Leviticus prohibited,” or, “What does this mean?” If that’s the case and if the folks involved in law making have difficulty interpreting it, how much resourcing will we need to put on the backs of law enforcement agents who are already struggling to keep communities safe and who are already dealing with so much under-resourcing?
Senator Ince: Thank you. Does anyone else have an opinion?
Ms. Fathalipour: Thank you, senator, for that question. Unfortunately, I echo my colleague’s remarks about having low confidence in the effect that training might have. Part of that is because law enforcement already has quite a bit of training on questions about hate. The way we’ve seen it translated into enforcement on the ground has, for our communities, not always been so reassuring.
More than anything, we have heard from other witnesses — for example, Professor Grad — that the empirical evidence shows that the education of the public is effective when it comes to combatting hate. Putting resources into educating the public and providing the social resources to bring unity together might be a more effective use of resources than the blunt tool of criminal law.
Senator Arnold: I think I might know your answer now. Thank you all for being here. My question stems from the fact that other witnesses whom we’ve heard, I would say the vast majority, support the intent of the bill and realize that something needs to be done to combat some of this hate in our world.
But, Ms. Fathalipour, you would like to just get rid of this completely. Besides education, which is lofty and wonderful, and I think we can all agree is something that needs to be done, what would you do to combat this hate in the world where we’re living today?
Ms. Fathalipour: Thank you very much, senator, for that. It is such an important question. It’s the reason we’re all here, right? How can we combat hate? I echo what everyone has said. Hate is real in Canada. It exists, and we do need to deal with it.
Now, I’m not a scholar of this issue. I speak only from what I myself have perceived and read, so I may be incorrect here, but my understanding from what we’ve heard and what I’ve read otherwise is that, when it comes to criminal offences, whether or not they are hate-motivated, a lot of the time, we have social determinants in the background that lead people into situations of criminality.
Addressing a lot of the social and economic issues that people are facing in their everyday lives is also likely to have the effect of reducing hate because hate often comes from ignorance, from desperation and from being in the wrong circles. So addressing those things through education and boosting social services is very likely, I believe, to also reduce hate.
We do live in a polarized world right now. Finding ways of connecting people together, whether that be in spaces where we’re all welcome — it might sound sort of lofty and not concrete, but I believe the data does show that education helps to reduce hate when people meet one another and don’t see each other as abstracts behind a screen. That does a lot to help improve conditions.
Senator Arnold: Thank you.
Senator K. Wells: My question is for NCCM. You mentioned your previous recommendation and support for the new hate crimes charge. Could you speak more to that? Why do you think that’s important? What do you think it will achieve?
Mr. Farooq: Since 2015 and since we’ve seen the Quebec City mosque shooting, there has been a consistently upward trend in police-reported hate crimes. Hate-motivated crimes have particularly devastating effects. They make entire communities feel unsafe. Research suggests that survivors of hate-motivated crime suffer psychological injuries that survivors of non-hate-motivated crimes do not.
Additionally, hate-motivated crimes are becoming a growing public health crisis with increasing attacks on Muslim, Asian, Black, Indigenous, Jewish and many other minority communities.
Amending the Criminal Code by introducing a free-standing provision around hate crimes is critical to fill several gaps. Most Canadians do not realize there is no specific legal provision that deals with what many colloquially might call a hate crime. That means that, if an individual — this is a situation we’ve dealt with many times — walks up to a person on the street and assaults them while yelling racial epithets, and if it is determined that the attack was indeed hate-motivated, there is no specific hate crime in the Criminal Code with which the offender would be charged as such.
I’m from Edmonton, Alberta. Just about two weeks ago, nearby in St. Albert, an individual was in his car with his wife, leaving the mosque. An individual drove up behind them, got out of his car, pulled the individual out of the car and started to beat him on the ground to the point that he almost could have lost his life. His face was severely impacted. This individual, as of yet, has not been charged with a hate crime.
As has been observed, putting forward this new free-standing provision sends a stronger message around penalties, and it also sends a strong signal that encourages denunciation and deterrence.
Senator K. Wells: What are your thoughts on standardizing a definition for hate crimes? Police services sometimes, currently, work with different definitions. We shared the example in Edmonton of having a specialized hate crimes unit that has been working for a couple of decades to build relationships and understand communities, which are very important. We are hoping that will be a model that other jurisdictions will follow.
And the importance of data collection. You’re saying being charged with a hate crime is a message sent to the community about the gravity of the situation. We’ve heard other witnesses talking about the importance of the backhand and the actual statistics that could be captured. Do you have thoughts on whether that is important or ways that could be improved?
Mr. Farooq: Thank you for your important question. All I can say, senator, is that data collection, making sure that we are carefully analyzing these trends, is critically important. But I do think it’s important for folks here at this committee to understand how it plays out on the ground.
On the ground, I can tell you, a few years ago, we had a long debate with Ottawa Police Service about whether they actually had a hate crimes unit. They went back and forth among each other trying to understand whether they, as the Ottawa Police Service, had a hate crime unit. You can look up this story afterward on your phone.
This demonstrates on the ground how challenging it is for law enforcement, who are dealing with all sorts of things, to analyze what is happening.
When we talk about the concern vis-à-vis implementation of this, whether it comes to data or charges, keep in mind that, here, we can come up with abstract ideas that seem reasonable to put forward. On the ground, those who are implementing sometimes don’t even know whether they have a hate crimes unit, so I would just put that forward.
Senator McPhedran: First, thank you for being here both online and in person. Thank you for the thoughtful presentations you have made.
Ms. Fathalipour, I would really appreciate a little bit more about your alternative vision here. If Bill C-9 were not to be enacted, if it were somehow to die somewhere in the parliamentary process, where would you see protections and distinctions around political expression and expression of hate on acts or statements that could be linked to organizations that are listed by Canada as terrorist entities? Does this go to the heart of some of your concerns here that political expression is very much at risk because of this bill?
Ms. Fathalipour: Thank you, senator. Yes, to answer your last question, the main concern is that political expression becomes the main target of this bill in terms of enforcement on the ground.
When it comes to alternatives to Bill C-9, there are a few ways to think about that. The blunt tool of the criminal law is not often helpful when it comes to bringing communities together. I think there are ways to send messages to society about the kinds of behaviours and thinking we tolerate and don’t tolerate without bringing down the hammer of the criminal law.
One thing I do want to emphasize as well is that it must be clear that there are already tools in the Criminal Code. So if there are actual hateful acts that happen, it doesn’t mean that, without Bill C-9, the police are left with no tools, right? They actually do have many tools. They do use them. They use them frequently.
The concern is, will Bill C-9 change this approach to hateful acts and hate crimes, or will it simply accelerate the same approach? My concern is that it will accelerate the same approach. So how can we address acts and incidents of hate by also balancing the need for free speech and protest rights?
Again, I will defer to earlier academic colleagues who have spoken about their view of the empirical evidence in terms of how to combat hate in ways that are alternative to the Criminal Code. But again, I don’t want anyone to leave thinking if we don’t have Bill C-9, if something goes awry at a protest, police don’t have the tools to deal with it. They absolutely do. It is already a crime to threaten or harass someone. It is already a crime to promote hatred. It is already a crime to assault someone.
If any of that is done motivated by hatred, that will be dealt with by the courts in the course of how the case lives.
The CMLA is not concerned that if Bill C-9 dies as it were, that communities are left without any protections. In fact, they are incredibly concerned — and I have to disagree with my colleague here about the new stand-alone hate crime being proposed here. We believe it will lead to an overcharging of people. People will be charged with assault, then they will also be charged with a separate hate crime. Keep in mind that when people are first charged, they are innocent, right? They have to be proven guilty. But they will live with the stigma of being charged with a hate crime without being proven to have been hate motivated for years while the case makes its way through the courts.
As we have already seen, the majority of those cases are withdrawn, and they don’t go anywhere. So, there is a serious risk that all it does is create stigma.
Senator McPhedran: Thank you.
Senator Simons: Thank you very much. I’m a guest of the committee today.
Mr. Farooq raised the question of the fact that there are a lot of common hate symbols that are not on the list. One of the problems is that we’re using as a proxy a list of terrorist entities, many of which are Muslim. I wonder if Mr. Farooq and Ms. Fathalipour could speak to the issue of the imprecision of using the terrorist list as the hate crime list.
Mr. Farooq: Thank you very much for the question.
I think what you have raised is, precisely, a significant challenge that we find ourselves faced with. One of the things that we have been thinking about around the question of Bill C-9 is how it could have been improved. Perhaps through those broader consultations with Indigenous communities, Black communities and many others who have been dealing with the issues around the KKK and many others that you refer to. Maybe this is something we could have dealt with up front. What I would suggest is that if you are going to fly a symbol in a way that is going to willfully promote hatred, under section 319, that is already a criminal offence. To an extent — and I think this was well observed by the Ottawa Police Service when they came and testified before you — we’re sort of creating a problem that doesn’t exist, right? If you are standing outside a mosque and you’re waving a swastika and you’re screaming things, you can already be charged.
My suggestion is that when we’re thinking about how to deal with this, we really need to think about how do we make sure that law enforcement has the tools to currently challenge things that are already illegal. Otherwise we get into this conversation that was heard in the other place, which is, should we name the hammer and sickle as a listed terrorist symbol. Then there was a whole back and forth about does this mean undergrads who are reading The Communist Manifesto are going to suddenly be charged because they have the hammer and sickle on a copy of their book. We go down this path of paradoxical nonsense. We already have a Criminal Code. It allows these types of things to be addressed. Let’s use those.
Senator Simons: Is it a problem that it just so happens that so many of the groups on that list, as you said, they either have Arabic names or, in some cases, they don’t have an Arabic name, but are still a Muslim-affiliated terrorist entity, some of which are not active anymore, but are historical legacies on that list?
Ms. Fathalipour: Thank you for that question. I looked at the list of terrorist entities for the first time in my life for this. Some of these I have never heard of before. I’m not sure if they have any activities in Canada. Parliament has its own purpose for this list, right? That purpose doesn’t necessarily overlap with the intention behind this legislation. I do think it’s problematic to use this list.
One specific example I can think of is I looked up the Pakistani Taliban. Their flag is almost identical to the flag of Saudi Arabia. So how is a police officer on the ground going to know whose symbol is that?
The other thing is that the current list of entities is subject to regulation and doesn’t go through the same sort of rigorous legislative process as legislation or a statute would. That’s incredibly problematic as well. We want to make sure that there is oversight if there is going to be a list, which we don’t think is necessary. There needs to be adequate oversight, input from stakeholders at the right times and a clear record of why something is on the list, and why not?
Senator Simons: Thank you very much.
The Chair: Thank you, senators we’re now at second round. I do have one question remaining, and there are all of two minutes left, Senator Martin, over to you.
Senator Martin: This is regarding the language that could have broader implications for public gatherings, processes and activities surrounding places of worship. So, for example, if a group regularly meets at a park or a public building, that park or public building becomes protected under this bill. Do you think there is a risk of overreach when it comes to criminalizing interruptions, demonstrations or organized activity in public spaces? Perhaps the lawyers on the panel?
Ms. Fathalipour: It looks as if everyone asked me to go first. I do think there is a risk here. We’re trying to balance the idea that everyone should be able to use public spaces in productive ways and do so safely as well. I can foresee a situation where a group of people use a certain park or gathering space to hold regular events or meetings, and then it may very well be that a protest group happens to go by, and something happens that suddenly invokes what this legislation appears to target. There is a risk of that. I can only speak for Ontario, but I can tell you that we’ve already seen that. We have questions about why certain protests happen in certain communities or neighbourhoods.
The reality is that everywhere in Canada is fairly diverse. We’re going to have overlaps of communities. There’s no one space that necessarily belongs to one community or another. I think it’s going to be a real struggle to balance those rights. I’m concerned that it may even unintentionally lead people into testing the limits of that law. Is there a way to prevent protests by establishing a space where that’s now ours? That’s my great concern.
Mr. Farooq: I’d be happy to chime in. I’ll generally say that I don’t really see the value of these particular provisions, enumerating a whole bunch of categories of protected geographical spaces when we already have things in the Criminal Code in relation to intimidation and obstruction. What we actually do is create more confusion, and it leads us to the next kid who decides he wants to block the school entrance doors to protest the cafeteria food, and I wonder if that’s being captured by the obstruction provisions of the Criminal Code. We create these situations of inherent ambiguity.
Senator Martin: Thank you.
The Chair: Thank you so much to our witnesses. On behalf of the committee, I would like to sincerely thank you for being here, sharing your expertise and your perspectives, and for taking the time to appear before us. Your testimony will be very helpful as we continue to deliberate this bill.
For our third panel, our witnesses have been asked to make opening statements of five minutes each. This will be followed by questions from the senators.
With us in person, please join me in welcoming Eric Freeman, Senior Staff Lawyer, Egale Canada. We also welcome Bonnie Brayton, Chief Executive Officer, DisAbled Women’s Network of Canada. Finally, joining us by video conference, we have Anuradha Dugal, Executive Director, Women’s Shelters Canada.
I invite Mr. Freeman to make his presentation, followed by Ms. Brayton and then Ms. Dugal.
Eric Freeman, Senior Staff Lawyer, Egale Canada: Thank you, honourable members of this committee.
My name is Eric Freeman. I use he/him pronouns. I am a senior staff lawyer at Egale Canada.
This committee has heard extensive testimony on Bill C-9. What I hope to offer is the perspective of a community that sits in a unique position. 2SLGBTQI people stand to benefit from some of this bill’s protections while being at real risk of harm from others.
At the outset, I want to emphasize that we are deeply concerned about violence against and safety for 2SLGBTQI communities, and we welcome Parliament’s attention to this issue. Anti-2SLGBTQI hate crimes have risen sharply in recent years and remain at historically elevated levels. Drag story times are protested from coast to coast. Pride flags are being removed from public spaces across the country. Trans and non-binary youth are nearly twice as likely as their peers to experience cyber victimization. The need for federal action is real. However, we are concerned that Bill C-9, as drafted, does not meet the needs of our communities.
The bill offers meaningful advances. The stand-alone hate crime offence carries genuine symbolic weight, and naming the harm matters for data collection and nationally consistent reporting. We welcome the safeguards restored during the House committee process, and we support the removal of the good faith religious defence, which was never successfully invoked.
Our primary concern is with intimidation and obstruction offences, which remain overly broad and vague, and which grant significant discretion to law enforcement — discretion that risks inconsistent application, creates uncertainty for the public about what conduct is prohibited and opens the door to potential abuse.
On our reading of the bill, if a church or community centre allows an anti-queer extremist speaker to use their space, non-violent 2SLGBTQI protesters could be charged with a hate crime offence simply because of the speaker’s chosen venue. Unlike bubble zone laws, these new offences provide no clear guidance on the conduct they criminalize.
On hate symbols, I note that the offence also covers any symbol associated with a terrorist entity, and that list can be expanded by future governments through a process that lacks transparency and offers limited avenues for challenge. For 2SLGBTQI communities, this matters. Our symbols — the Pride flag, the lambda and the pink triangle — are used for connection, inclusion and protest. However, in a political climate where there are increasing calls to label trans organizations as terrorist entities, the listed-entity provision could put our communities at risk.
Finally, I want to emphasize that the criminal law alone will not reverse the tide of hate facing our communities. Beyond this bill, we call on the government to address the root causes of surging hate, starting with denouncing the anti-trans rhetoric infiltrating Canadian politics and firmly opposing the use of the “notwithstanding” clause to strip constitutional rights from gender-diverse people. And we call for investment in what works: funding for 2SLGBTQI organizations, mandatory competency training across the criminal legal system and harmonized national reporting standards.
Thank you.
The Chair: Thank you, Mr. Freeman. We will now go to Ms. Brayton.
Bonnie Brayton, Chief Executive Officer, DisAbled Women’s Network of Canada: Honourable senators, thank you for the opportunity to appear today.
I want to begin with a simple but important observation: Disability-related hate and devaluation in Canada remain both widespread and insufficiently recognized within our legal and policy frameworks.
When we discuss hate in Canada, public attention often focuses on the most visible and explicit forms — vandalism, threats, extremist rhetoric or physical violence. Those harms are serious and must be addressed. But many disabled Canadians, particularly women and gender-diverse people with disabilities, experience harm differently — through systemic devaluation, exclusion, coercion, and institutional neglect.
The data strongly suggest that this is not a marginal issue. Statistics Canada data show that women with disabilities experience significantly higher rates of gender-based violence than women without disabilities: 55% of women with disabilities report experiencing intimate-partner violence, compared to 37% of women without disabilities. Nearly 40% of women with disabilities have reported being sexually assaulted since the age of 15.
At the same time, disability is consistently the most common ground cited in discrimination complaints before the Canadian Human Rights Tribunal. In 2025 — and this is a long-time pattern — 58% of accepted complaints cited disability discrimination.
These are distinct legal categories. Discrimination is not the same as a hate crime. Gender-based violence is not the same as hate propaganda. But when these indicators are viewed together, a broader pattern becomes more difficult to ignore.
Across multiple systems — violence, employment, housing, access to services and human rights protection — disabled people are consistently overrepresented among those experiencing harm, exclusion and diminished protection.
In other words, we are not simply looking at isolated incidents of prejudice. We are looking at the cumulative effects of systemic devaluation. This creates what I would describe as a legal threshold mismatch.
Our legal frameworks tend to recognize hate primarily when it is explicit, intentional and extreme. But many disabled Canadians, particularly women with disabilities, experience harm in ways that are structural, normalized and cumulative. For example, persistent assumptions that disabled lives are burdensome, the normalization of dependency through inadequate supports and policy environments where autonomy becomes conditional rather than fully realized. These forms of harm rarely meet the threshold for criminal prosecution, yet they shape the lived reality of everyday lives.
This broader context matters when Parliament considers legislation connected to vulnerability; dignity; autonomy; and life-and-death decision making, including MAID Track 2.
To be clear, this is not about relitigating MAID itself. It is about recognizing that policy does not operate in isolation.
When people lack adequate housing, income supports, accessible health care and community-based care — while simultaneously existing within a social environment where disability-related devaluation remains pervasive — we must ask whether our legal frameworks are adequately recognizing the conditions shaping vulnerability and choice.
Bill C-9 represents an opportunity to strengthen that recognition. I would respectfully suggest several areas for consideration.
First, improve recognition and tracking of disability-related hate and discrimination across justice and public safety systems. I know you heard from the Federal Ombudsperson for Victims of Crime, and I know he shared a great deal of data with respect to this very issue.
Second, strengthen national data collection regarding disability-targeted violence and hate incidents.
Third, expand justice system training to better recognize non‑traditional and systemic forms of hate and devaluation.
Finally, undertake a deeper examination of how structural inequities intersect with broader legislative and policy environments affecting disabled Canadians.
I’m going to close with this remark. The point I want to make to everyone here is that intersecting discrimination in the forms that I am discussing is equivalent to hate crimes, but we don’t talk about them as hate crimes. While I understand there’s a focus on this particular change in legislation, I felt it was important to take this opportunity to bring this back to the panel, back to Parliament and back to the Senate for consideration. Thank you.
The Chair: Thank you, Ms. Brayton. We will now go to Ms. Dugal, Executive Director of Women’s Shelters Canada.
Anuradha Dugal, Executive Director, Women’s Shelters Canada: Thank you, Madam Chair and honourable senators, for the invitation to speak with you today.
The Women’s Shelters Canada, or WSC, is an organization bringing together 16 provincial and territorial shelter organizations and supporting over 600 shelters across the country for women and children and gender-diverse people fleeing violence.
This testimony comes at a time of increased hate targeting women, girls and gender-diverse people. Statistics about the level of misogynistic violence are incredibly high and worrying. Because of the intersection of misogyny with racism and ableism, transphobia and homophobia, the numbers are much higher for Indigenous women, Black women, women with disabilities and 2SLGBTQIA+ people.
However, only 10% — maximum 20% — of women and gender-diverse people report these experiences to law enforcement, even though these offences and crimes exist on statute books. Even fewer reach sentencing.
Survivors don’t report because they are not believed, or their fear is dismissed or trivialized — because the protections currently in place for their safety do not afford them greater safety; because reporting often leads to greater harms, either from increased threats from the initial attacker or from the system itself; and finally, they do not get justice when they do report.
Misogyny and patriarchy are at the heart of this violence — the belief that women are not equal to men, and the traditional belief that men should be in charge.
In today’s cultural landscape, hateful ideologies are disseminated online through incel communities and men’s rights groups. They recruit vulnerable youth and reinforce traditional stereotypes. This rhetoric affects public perception and bleeds into institutions like the judiciary, the police and the social work system.
In thinking about this, it is important to recognize that these trends build on histories of colonialism and gendered violence. Canada as a nation is a project rooted in violent control of territory through any means. Our systems, including how laws are written and applied, continue to replicate these power dynamics.
The Criminal Code in Canada includes provisions that protect victims and survivors from hate-related crimes that are the result of rising bias against women and feminist ideologies. But the real challenge lies in how law enforcement, legal professionals and the judicial system identify and respond to these, ensuring that perpetrators are held accountable and that survivors receive justice.
Our recommendations are threefold. They touch on implementation, training and oversight.
If Bill C-9 is going to make a difference, it must be applied so that legal systems do not continue to replicate harms. This should include clear definitions, examples, case studies and measures to track implementation. There must be a defendable and measurable mechanism to interpret what constitutes fear and what symbols are used to increase that fear.
Honestly, when it comes to violent misogyny, there are so many symbols that could be used. This must be put in the hands of those with responsibility and authority to apply and interpret the law, and they must be held accountable.
There must be additional support for training and clearly defined expectations on how this will be applied. This should include members from communities most affected by the crimes committed. Given the intense threat and fear that hate crimes engender, this training must include trauma-informed approaches to supporting victims and witnesses through all processes, including funding so that community services can also support them.
Women’s Shelters Canada recommends that implementation includes established procedures and objective mechanisms external to political power to add new symbols or organizations.
Finally, Bill C-9 proposes new means to prevent intimidation and obstruction to various physical spaces. While WSC agrees that there should always be freedom to practise our respective faiths in all parts of Canada, our concern is the danger that this will be used to halt peaceful, meaningful protest, which is a cornerstone of a thriving democracy. It should not be used to shut down and silence expressions of legitimate protest in defence of human rights.
We can see a direct correlation in the rise of anti-feminist movements online and the shrinking space and safety for feminist organizing. Now is not the time to hamper legal protests on legitimate concerns about rising hate and propaganda in any space. Thank you.
The Chair: Thank you, and thank you to all our witnesses for this panel.
We will now proceed to questions from senators. Senators, you have five minutes for your question, and that includes the answer. We will begin with our deputy chair, Senator Bernard.
Senator Bernard: Thank you to all of the witnesses. I appreciate you being here.
A theme that I’m hearing here from your testimony is to look at gender and gender-based hate crimes and the intersections of misogyny, misogynoir, ableism, racism, homophobia, transphobia — those intersections and the intersections of power. Does the bill really capture these realities for people on the ground who will be experiencing one of those, or maybe multiple, lived realities through their intersectional identities? If it does not, do you have specific recommendations that would strength the bill to address those gaps, if you see gaps?
I’d like each of the witnesses to respond, please. We will start online.
Ms. Dugal: Thank you, senator.
In the first instance, when it comes to incel culture, we have certainly seen at least one case, the Crown Spa case, where the Ontario Superior Court used the court case to bring forward that this was an act of ideological terrorism. While the offender pleaded guilty to first-degree murder and attempted murder, he received a life sentence. This was the first time that a Canadian court classified an incel-motivated crime as a terrorist activity. I believe there’s another case starting in Wellington, Ontario.
Right now, the idea of some of this being covered by existing legislation is a good starting point. However, there are so many cases where hate against women is exactly what you named — an intersectional violence, which includes statements about their race, statements that are ableist and statements that are transphobic. If it does not adequately cover those intersections, it will not be successful, and it will not capture all the hate.
One of the concerns I have about the current Bill C-9 on the books is that it seems to say that using a symbol is more serious than not using a symbol. I would like to get clarity on that. If that is exactly what it is saying, then I would have to disagree. That would be a gap. The symbols that I mentioned that can be used to identify hate propaganda against women are multiple, and their number is growing all the time. No one can keep up with them if you include memes and all the online hate that women experience.
Ms. Brayton: Thank you for the question, senator.
I want to really express my appreciation for the intervention of my colleague, Ms. Anu Dugal. Again, this is where I wanted to go also, around this idea that understanding intersectional discrimination is critical for us in the context of hate crimes and based on some of the information I mentioned earlier. I understand there are different legal categories. But when we think about women with disabilities, statistically, they are one in seven Canadians, so 30% of women in this country. How under‑represented are we? How often are we victims of crime? How often are we victims of sexual assault? How human rights claims do we have? All of these things accumulate to tell us that this legislation, as it stands now and as they are proposing it, remains an important problem and a gap that is not present in what we have seen so far.
I agree with Ms. Dugal completely on the idea that the symbols thing is very confusing, the way it is presented right now and based on what Eric Freeman had mentioned and plenty of other examples that have been given. I do think it needs to be clarified.
Two of the things we absolutely need are much more training and education, especially for front-line people, whether they are police or victims’ services, for all of them to understand, again, that, in the context of people who are marginalized, their ability and their comfort with reporting a hate crime are very low. They have to be supported and encouraged to make those.
The reason there aren’t more hate crimes reported by women with disabilities is simply because of that. It’s not because it’s not occurring. As I said, there’s plenty of evidence that they are experiencing hate in many ways in our society. Thank you.
Mr. Freeman: I would agree with what my friends have said as well.
I would add, too, for the 2SLGBTQI communities, many of the harms we are currently facing relate to online harms. Many of those harms aren’t directly addressed currently by Bill C-9. While Bill C-9 has important steps to address some harms, there are others that are felt disproportionately by other members of the community.
I also just reiterate the importance of listening to intersectional voices and racialized communities, many of whom have different experiences with police and policing than other communities. I would encourage the committee to be mindful of that as well.
Senator McPhedran: I want to just be clear on what’s been conveyed here today, so I’m asking each of our witnesses: Is there any way in which you see Bill C-9 effectively protecting your respective populations on which you focus?
Ms. Brayton: No. I could expand on that, but I wanted to make the point: No.
Mr. Freeman: There are some ways in which it is for 2SLGBTQI communities. The stand-alone hate defence has symbolic value and can assist with a common and consistent definition of hate and statistics. There’s obviously a lot more to be done. I would reiterate that I know many other witnesses before this committee have said that criminal law is a blunt instrument. It will not solve complex social problems by itself. Hate is an incredibly complex social problem, so this is far from a panacea. Thank you.
Ms. Dugal: I would agree with what my colleagues have just said. It will not really address the level or the specificities of the hate and the intersecting hate that women receive because they are women. There are so many concerns about how it will be applied by law enforcement who can already be quite overwhelmed or, in some cases, under-resourced and who are, unfortunately, part of the problem sometimes.
Senator McPhedran: Thank you very much.
Senator Ataullahjan: My question for you, Mr. Freeman. In your public analysis of Bill C-9, you note a significant rise in police-reported hate crimes and an increase in protests targeting vulnerable communities and their spaces. You also warn that the bill’s new intimidation and obstruction offences are overly broad, risk criminalizing peaceful protest and could amount to an expansion of police powers with a high-risk of misuse.
What specific narrowing changes or safeguards would you recommend so that Parliament targets truly threatening conduct without giving law enforcement a tool that can be used, now or in the future, to suppress lawful dissent and moral or religious advocacy by any community?
Mr. Freeman: Thank you for the question. There are several things that can be done to more specifically tailor the law. That could be by ensuring consistent application across the country by requiring the Attorney Generals’ consent before any charges are laid. I have referenced before in my opening statement “bubble laws,” which have critics, but they have defined areas in which certain activities are more prohibited. Clear guidelines for protesters can be important.
Senator Ataullahjan: Do you expect that the new hate crime offences and the intimidation access provisions will meaningfully enhance safety for women with disabilities, or do they risk reinforcing over-policing by giving authorities another motive-based tool in complex situations involving protests, access to services or institutional conflict?
Ms. Brayton: It doesn’t feel like it’s an “either or” for me. The larger point that I am really trying to make here is that women with disabilities are a very large population group. I have shared the data about women having the highest rates of poverty and the highest rates of hate. The data just piles on for women with disabilities. I don’t think it’s realistic at all to suggest that this legislation, or any legislation, will make a difference until we face the fact that we live in a country that is deeply ableist. We don’t own that as a country, and we need to. The country has begun to own some of the issues. We understand sexism and racism, but I really don’t think the country, the mainstream media or people in general understand even what the word ableism means. I would like to reiterate that the number of human rights complaints — well over 50% — involves that group, year after year after year. It doesn’t go down at all. Thank you.
Senator Ataullahjan: Ms. Dugal, from a front-line shelter perspective, does Bill C-9, in its current House-passed form, strike the right balance between deterring genuinely threatening conduct at or near these locations and preserving space for peaceful protests, picketing and survival-led advocacy against institutions that may have failed them?
Ms. Dugal: I have serious concerns about how a survivor, victim or shelter that is the target of specific forms of hateful propaganda would be able to defend themselves using Bill C-9 as it is described currently. The existing law does support them, and they are able already to defend themselves using what is already in place.
The additions of Bill C-9 don’t necessarily increase those protections for those particular examples. I am concerned that Bill C-9 will reduce the ability for certain forms of protest in spaces that had been designated as being of a religious nature.
One of the previous witnesses described how, if a park is used regularly by the same religious group in a particular way, then it would be protected. While I can see that it is extremely important for a group like, for example, Falun Gong, which is trying to express their faith in public areas in Canada, I can imagine spaces, by contrast, where there is hateful language about women and about deliberate ways that people are trying to force people to believe certain things about women in a public space that would not be acceptable. Protesting that would not be possible.
The Chair: Thank you.
Senator Arnot: My question is for each one of the three witnesses, but it’s in this context: I’m thinking of perhaps making an amendment to have a statutory review in three to five years. It’s based on the point that data needs to be collected in order to track the implementation, and if something isn’t measured, it’s an issue that doesn’t get attention.
I have a question for Mr. Freeman. What data should be collected to measure hate targeting LGBTQSIA communities in this bill?
Ms. Brayton — you have already answered some of this — but should annual reporting identify disability-based hate separately and intersectionally?
Thirdly, Ms. Dugal, what data should be collected on gendered hate, threats and harassment affecting Canadian women’s shelters?
Mr. Freeman: In terms of specific data that should be collected, I would suggest that having a consistent standard about what a hate crime is, I do think, is just valuable in and of itself in terms of data collection. Hate crimes, reported instances of hate crimes as well as prosecution charges brought and convictions are all helpful data in that regard.
I referenced online harms earlier, which isn’t directly addressed currently in Bill C-9. Greater reporting and data on instances of online harms would be very valuable to our communities.
Ms. Brayton: Thank you, senator. I loved your idea. I really appreciate your approach, which is to understand that this is exactly where we need to go next. There needs to be a review. It’s quite clear, based on the data I have shared about human rights complaints, that intersectional hate crimes are extremely important. We have heard that really clearly from a number of human rights organizations here today and, of course, some of the other ones I know you have heard from.
It’s quite clear that, yes, both of the things that you have suggested would be really important amendments to make to this toward the idea that this is not, by any stretch, a perfect piece of legislation, but if it should go forward, it should go forward with the idea that, from a convention on the rights of people with disabilities, disability is an evolving concept. In this country, intersectional human rights is an evolving concept that we are beginning to understand finally because we are finally collecting some good data. But the data that we’re not collecting on folks in terms of those experiences that we are talking about today is long overdue. So I want to thank you very much for that.
Ms. Dugal: Thank you, senator, for the question. Although this overlaps a little with the response from my colleagues, information online is often released. Doxing is a fairly common and dangerous activity that will release information about confidential shelter settings and locations and encourage people to go and potentially harass those institutions and those parts in the community. Unfortunately, there is overlap. It’s not just a hate crime. There is also overlap with gender-based violence because that could also release information about who was staying in those shelters even though that information is confidential, which can lead to increased stalking and harassment post-separation and potentially could even lead to femicide.
While that is not all hate crime specifically, to my mind hate propaganda that identifies shelters as places that should not exist or that damage Canadian society because women go there, or any kind of threat that undermines the existence of shelters and puts everything that they do at risk, crosses over into propaganda that demonizes or de-legitimizes their very important work.
Senator Arnot: Thank you.
The Chair: Thank you.
Senator Simons: Mr. Freeman, I wonder if you can help me with a question I’ve been wrestling with. That is not the propagation of hate symbols but the erasure of positive symbols. I’m not just talking about the premier of my province, who has banned Pride flags in schools, but I suppose somebody makes a Pride crosswalk in their small town, and somebody comes in the night and erases or defaces it. It’s not just about a Pride symbol. Suppose someone rips down a hanukkiah that a Jewish community put up for Hanukkah. Or takes a crucifix down. You can imagine all kinds of things.
Is there a way, do you think, that could capture that? Or is that just something that can be safely captured by other kinds of hate legislation? I don’t know how one deals with hateful acts that are not putting up a symbol, but taking down a symbol.
Mr. Freeman: Thank you very much for the question, senator.
I think this is actually an instance where the stand-alone hate offence could truly have some value in that if you are sort of vandalizing something, but it is hate motivated, then the severity of it can be captured in that offence. So the stand-alone hate where you might have an existing criminal offence that doesn’t reference hate, but the stand-alone offence can then sort of help to amplify the severity of taking away certain symbols. So it’s not necessarily captured in the hate symbols one, but I think actually might be more broadly captured in the stand-alone offence.
Senator Simons: I wanted to come to this issue about the good-faith exemption. What a lot of people have been pussy footing around is what people want to be exempted from is punishment for saying homophobic things. That they attempt to bolster by quoting or misquoting or misapplying works of scripture.
Uncomfortable though I am with any kind of trespass on religious speech and freedom of conscience, I wonder if you could speak to the fact that a lot of this is driven, frankly, by homophobia.
Mr. Freeman: I agree. A lot is driven by homophobia. Obviously, there is a balance to be struck in any sort of regulation of speech and between the principles of free speech as well as the importance of denouncing and sanctioning the promotion of hate.
I would emphasize that there is a spectrum, obviously, of conduct and speech from propagating hate that is incredibly harmful to other forms of homophobia, which, again, I don’t want to diminish the harm of them, remains incredibly harmful, but wouldn’t rise to the level of criminal.
Senator Simons: I think about Alberta’s political history. I remember the last time that Danielle Smith was attempting to become premier, she had a candidate who was an evangelical minister. On a church blog, he had written that he thought homosexuals should burn in a lake of fire. It took a very long time before she finally asked him to step back as a candidate. I don’t know what she would do today in a similar circumstance.
I would never want someone prosecuted for saying that, although I certainly didn’t want him to be a member of the Alberta Legislature. So at what point do you think we say a minister is allowed to say something truly awful, but is protected because that is his personal religious belief?
Mr. Freeman: I would follow what has been said by the Supreme Court of Canada, including in Whatcott around hate speech. I think that following sort of the example from that decision and how they defined it would sort of be my recommendation. I agree that there is a distinction to be made from conduct and sort of speech that I think is abhorrent, but obviously legal, and which I encourage all political leaders to denounce and then speech that rises to the level of criminality as well.
Senator Simons: Thank you.
The Chair: Thank you.
Senator Ince: Thank you so much, everyone, for bringing your perspective and participating in this. My question is going to be for Ms. Dugal.
If you could please, just expand on your comments about implementation and practice, training, resources and so on.
Ms. Dugal: Thank you, Senator Ince. I would, first of all, say that, for implementation, there must be training that includes all parts of the process from which a person would first report a crime through the court system, all the way through to post, after the event, regardless of the outcome of whatever legal or court procedure they go through, there needs to be a victims’ services support system in place, including community groups. Very often, we find that community groups are actually better — that you need both advocate and legal support, both need to be trained, both need to be funded, and both need to be adequately resourced.
When new laws come in, and I’ll use just a very small example recently about the changes to firearms and red-flag laws — shelters actually don’t know what to do right now about red-flag laws because there has not been consistent resourcing to give them all the information they need.
I am worried that if Bill C-9 passes, again, it will be back on the community sector to inform themselves to educate each other and to move forward with this kind of legislation, working in a way that is collaborative, as we always do, but unfunded.
Senator Ince: Thank you. Anybody else have anything to say about that?
Ms. Brayton: I certainly agree with everything that Ms. Dugal has recommended. I was going to say we work closely with Women’s Shelters Canada because they take a very intersectional approach to how they provide their services.
Training is a really critical part of the implementation. I would simply reinforce that. You can think back to when we first started talking about systemic Black racism and how difficult it was for people to acknowledge systemic Black racism and systemic ableism again is sort of climbing that hill, if you will, at this point. I think the Accessible Canada Act, along with, unfortunately, MAID Track 2, has amplified that conversation in terms of where we are as a country, in terms of this context.
I’ll just say again that is a really critical part of how we’re going to get to a place where hate crime is one, properly defined and two, properly addressed. Thank you.
Senator Ince: Thank you.
The Chair: Thank you.
Senator K. Wells: My question is for Mr. Freeman. Building a bit on what Senator Simons had to say, in your opening remarks, you mention that had Egale has taken the position and has for some time about the removal of the good-faith defence from the Criminal Code.
I am wondering if you can give a little bit of the history and background as to why Egale has had that position. Then, do you feel that the greater-certainty clauses that have been added are sufficient to alleviate some concerns about the removal of the good-faith provision?
Mr. Freeman: Thank you for the question, senator. In terms of the good-faith-exception defence, I don’t have the whole history on Egale’s position, but I can say that we’re aware, and other witnesses have testified that it hasn’t been successfully invoked. I can’t envision a scenario in which there is a sort of good-faith religious defence that could also validly be invoked.
I agree that having a good-faith public debate on a variety of issues can be significant and important, but a stand-alone, good‑faith religious defence for espousing hate that is designed to vilify, I don’t think that is borne out.
Senator K. Wells: It echoes what the Justice Minister said before this committee — that you cannot promote hate in good faith.
Ms. Breese: A much more eloquent and brief way than what I just said but was trying to convey.
An Hon. Senator: Nailed it.
Senator K. Wells: Thank you for clarifying that position.
A question for all of our panellists: You talked about how Bill C-9 addresses, maybe one would say, hate on the ground but is more complex than addressing the realities of hate online. I am wondering about your thoughts on the tools or the laws that are needed in place to complement Bill C-9 to address online harms and online hate if you have perspectives. Maybe we can start with Mr. Freeman and work our way around to the rest of the panellists.
Mr. Freeman: Online harm is possibly a more complicated and challenging topic. There are a host of different issues that would arise in terms of anonymity, enforcement and resourcing, which we acknowledge.
I would look at the current enforcement and reporting. Encouraging that and legislation that would allow ease of reporting for online harms would certainly be valuable. It’s been said by other witnesses as well, but building trust between law enforcement and targeted communities remains a priority and remains something that is very significant. If individuals don’t feel like they can report harms, including online harms, then they won’t be reported.
Continuing to build trust between marginalized communities and vulnerable communities and law enforcement and other members of the justice system is important, as is a trauma‑informed approach to dealing with victims and those who have been the recipients of hate. I would encourage that as well.
Ms. Brayton: Everything he said. All I want to add is what you’re speaking about, too, that tech-facilitated gender-based violence is an absolute epidemic. Ms. Dugal made lots of references to the incel phenomenon. Again, this legislation probably isn’t going to get us there, but the fact is that we are having this conversation and recognizing it.
Ownership of some of this must go to tech companies and AI — that whole cohort. Look what just happened with the CRTC and the 15%. They are all up in arms about the idea, but they are making billions of dollars and not taking any responsibility for the harm. They absolutely own responsibility in this context. I think about what happened in Tumbler Ridge.
I’m really pleased you brought that up, senator, because I do think it probably will not be addressed here, but it is an important thing to put right.
Again, we talk about reviews and keeping this as a piece of legislation; that has to continue and has to expand because our understanding of hate expands. So, thanks.
Senator K. Wells: Time for Ms. Dugal?
The Chair: You have 30 seconds.
Ms. Dugal: Very briefly, first, the harms are the same whether they happen online or not. I would also say, as Ms. Brayton said, that the levels are incredibly high and growing.
The effects for women are chilling, so it keeps them offline. In fact, we’re trying, at Women’s Shelters Canada, not to identify that the technology is the problem but that the perpetrator is the problem. That is where we need to put more attention. So, yes, in 30 seconds, those would be my three things.
The Chair: Admirable. Thank you, Ms. Dugal.
The final question of round two goes to Senator Bernard.
Senator Bernard: I have a question for Ms. Brayton. I am wondering if you could expand on this. I know we have talked about tracking and data gathering.
This bill includes improved tracking of hate crimes. Could you elaborate on how this tracking and analysis could impact the disability community? Can you elaborate on how intersectionality will be a key component of this process?
Ms. Brayton: Well, it’s going to be a process that has to be co-designed. We have to think about what we have heard here a lot, which is if you don’t talk to the people who are experiencing it, then you won’t understand how to hear from them. You won’t understand what they need to tell you. You won’t know what they need in order to be able to do that safely. Because, again, the issue that has been raised over and over here is that women with disabilities aren’t reporting. That’s because they don’t have any faith that the system will do something for them.
If we’re going to do that, a strong component must be outreach to the community that is being harmed. That is the first process; outreach to key people from the community, so you can get some strong feedback on a process. Build it from there. That’s the only way you can do this in a way that has any meaning. Otherwise, it will be an exercise in ticking boxes, and it won’t really work.
There have been too many instances of that being the process, rather than there being a real connection. Thank you, senator. I really appreciate you thinking about it that way.
Senator Bernard: Thank you.
The Chair: Thank you so much to all our witnesses for being here, for sharing your expertise and for contributing to our process as we review Bill C-9. Your testimony will be helpful as you continue to deliberate on this bill.
For our fourth and final panel of the day, our witnesses have been asked to make an opening statement of five minutes each. This will be followed by questions from the senators.
With us, by video conference, we welcome Dwight Newman, Professor of Law and Tier 1 Canada Research Chair in Rights, Communities, and Constitutional Law. We also welcome Wesley Crichlow, Professor of Criminology, Black LGBTQ Critical Race Theory Scholar, Black LGBTQ Justice Canada. Finally, we welcome, also in person, Sophie Xiaoyi Liu, PhD Candidate in Sociology, University of British Columbia. Thank you all for being here.
I invite Professor Newman to make his presentation, followed by Professor Crichlow and finally Ms. Liu. Over to you, Professor Newman.
Dwight Newman, Professor of Law and Tier 1 Canada Research Chair in Rights, Communities, and Constitutional Law, as an individual: Good afternoon, honourable senators. I’m happy to appear in this committee, as I’m always happy to be of public service in the consideration of legislation where I may bring some useful perspectives to bear.
I am Professor of Law and Tier 1 Canada Research Chair in Rights, Communities, and Constitutional Law at the University of Saskatchewan.
I have three key points in these opening comments. One is on the likely limited effectiveness of these provisions; a second is on the role in policy making of chilling effects on expression; a third is on how aspects of Bill C-9 could be made clearer and more transparent to the public.
First, I will say that while the bill in question has admirable motives of responding to concerning issues of hatred in Canada, I see many of the provisions that will ultimately exist in the Criminal Code as cumbersome and challenging to use, perhaps so much so that the bill may just muddy the waters without achieving constructive change.
That might be unavoidable in the context of balancing responses to hate with constitutionally protected freedoms like expression and association and determining what can properly be criminalized. What follows from that, of course, isn’t to give up. It’s just to say that it’s important that efforts to combat hatred not be confined to this legislation. There need to be various efforts at healing our social fabric in these challenging times. There also needs to be enforcement of existing laws.
In terms of the provisions of obstruction and intimidation being introduced by this bill, we already have virtually identical provisions elsewhere in the Criminal Code that are actually more accessibly used but are simply not playing out effectively. Putting something in section 423.3 when it’s already in section 434.1 in a slightly different form is unlikely to achieve anything if there is no readiness to enforce what is already in section 434.1 of the Criminal Code. So there needs to be effort to enforce these provisions if they’re going to be meaningful.
Second, I want to reference the role of chilling effects on expression, notably those that can come from public misunderstandings of the legal effect of hate speech provisions.
Earlier Supreme Court of Canada case law emphasized the chill on permitted expression as a key part of the reasoning of Justice McLachlin in the Keegstra case. It has been part of other cases as well. Later case law became skeptical of putting constitutional significance on misunderstandings of the law when considering chilling effects. The key passage in the Supreme Court of Canada’s Khawaja decision of 2012 on that point has only a few dozen words of reasoning for abandoning something that was previously important in case law.
I would suggest that chill effect on expression should still be pertinent in good policy making and that Parliament should try to make its hate-related offences as clear as possible so that the public actually knows what faces criminal sanction.
That gives rise to my third point. To some extent, the bill has admirably sought to do what I’ve just suggested as good policy making in trying to reduce chilling effects. The incorporation of key distinctions from the case law into the definitions on what actually amounts to hate is positive, but I would suggest an amendment for further clarity and transparency. I know there’s a larger debate going on about section 4 of Bill C-9 and the removal of the good faith religious expression defence.
My assumption is that that removal stays in the bill. Assuming that it does, while there’s a clarification in section 11.1 of the present bill, it’s not done in a particularly clear way or important way. It emphasizes what section 319 doesn’t prohibit, but section 11.1 of Bill C-9 doesn’t modify anything in section 319 of the Criminal Code’s text. It will remain a section of law that is enforced, but lawyers or the public who need to find it will have to go search for section 11.1 of the act to amend the Criminal Code rather than be able to find it in section 319 itself.
In the context of principles of clarity and transparency that are appropriate and applied elsewhere in the bill, my suggestion is that section 11.1 of the bill should actually be amended so that it also adds a subsection to section 319 of the Criminal Code.
I thank you, and I’m open to questions in due course.
The Chair: Thank you, Professor Newman. We’ll now go to Professor Crichlow.
Wesley Crichlow, Professor of Criminology, Black LGBTQ Critical Race Theory Scholar, Black LGBTQ Justice Canada: Madam Chair, deputy chair, honourable senators, members of the committee, good evening. I am here to speak to Bill C-9, specifically its proposed definition of hatred within the Criminal Code.
Black LGBTQ Justice Canada is a non-governmental, non-partisan national organization founded in 2023, with a mandate to pave the path to better justice outcomes for Black LGBTQ communities. We achieve this through enhanced legal rights, promoting self-determination and driving systemic change through public education, policy changes and tailored initiatives that advance equity and public policy dialogue awareness.
The purpose of my submission is to address respectfully the proposed codification of hatred within Bill C-9 and to add that the definition must explicitly recognize anti-Black racism and its intersection with Black LGBTQ identities to reflect the evidence-based realities of hate-motivated harm in Canada.
Accordingly, I emphasize that the current iteration of Bill C-9 does not explicitly recognize anti-Black racism, nor does it account for the intersections of race with Black LGBTQ gender identities and sexual orientations. This gap warrants attention, given the clear evidence that in Canada, anti-Black racism constitutes one of the most significant drivers of hate crime. In 2022, hate crimes targeting Black communities increased by 28% and accounted for 43% of all race-based hate crimes. What we don’t know is what percentage of those folks were Black, queer, trans, et cetera.
In 2023, I did a nine-month study funded by the Social Sciences and Humanities Research Council, or SSHRC, in which we surveyed more than 200 formerly incarcerated Black gay, bisexual and queer men and gender-expansive individuals. What we found in speaking with some of the folks during interviews is that over 40% of the Black gay men we spoke with spoke of experiences of victimization and hatred toward them due to their race, gender identity, carceral stigma and sexual orientation. Often, these are not visible within the context of the data that we read.
These findings align with the Supreme Court of Canada’s recognition in Hansman v. Neufeld in 2023, at paragraphs 84 to 86, that transgender people are a marginalized group shaped by a long history of discrimination and systemic disadvantage. The court notes that transgender individuals occupy a uniquely vulnerable position rooted in harmful medical practices that once conflated transgender and other 2SLGBTQ+ identities with mental illness and imposed conversion therapy to resolve gender dysphoria and reduce cross-gender behaviour. It further affirms that transgender people are frequently subject to public scrutiny and stigma, unlike other groups.
Moving to paragraph 86, the court highlights the broader material impacts of this marginalization, emphasizing that transgender people experience discrimination across multiple areas of life. Statistics Canada has found they face increased risks of violence and report higher rates of poor mental health, suicidal ideation and substance abuse as coping responses. Studies also show systemic disadvantages in housing, et cetera.
This acknowledgement is critical for Black transgender and broader LGBTQ minority communities, as it contributes to the identification of how overlapping systems of domination and marginalization intensify the intersectional experience and impact of anti-Black racism, anti-Black transphobia, anti-Black homophobia, anti-Black gender non-conformity, vulnerability and exclusion. The affirmation of these realities at the highest level of our courts underscores the need for stronger protections, equitable access to justice and meaningful social change for those most affected by intersecting forms of discrimination.
Interestingly, Canadian law defines hate crimes in terms of discrete categories of race, sexual orientation and gender identity, among others. While we recognize that race, sexual orientation and gender identity are already included as categories, current law treats them as separate categories, thereby ignoring the intersectionality of harms that compound each other, such as anti-Black racism, anti-Black misogynoir, et cetera.
For Black LGBTQ individuals, harm is not segmented or disarticulated, nor is it primary harm or secondary harm. Rather, it is intersectionally compounded.
What is missing is the realization that hatred often operates across multiple identities simultaneously, a claim supported by substantial evidence and by lived experiences. Without addressing the linkages, there is a danger that anti-Black hatred and harms for Black LGBTQ communities will continue to be under-identified and, therefore, not disaggregated in official statistics. This omission ensures that Black LGBTQ victims of hate will remain under-protected, and enforcement will fall short of the realities that the law and civil society are meant to address.
I will move to a couple of recommendations quickly, in the interest of time.
That the definition of hatred explicitly recognizes anti-Black racism as a core example of race-based hate, the legislation should include an interpretive clause clarifying that hatred can be motivated by intersecting forms of bias, including the combination of race, transphobia, biphobia, sexual orientation and gender identity.
The implementation of this law is accompanied by improved disaggregated and intersectional data collection so that the impacts of hate crimes against Black communities will be understood in their intersectional complexity and not just simply the Black community.
Bill C-9, therefore, requires a definition of hatred that can capture these forms of intersectional and compounding marginalization. Without such recognition, the hate-crime laws will remain conceptually incomplete, with potential for harming those it aims to protect, as they fail to account for the modes through which hatred is produced, experienced and maintained at the intersections of anti-Blackness, LGBTQ and gender identities.
I will move to my conclusion, in the interest of time.
As Saidiya Hartman demonstrates, anti-Black violence has historically functioned through forms of domination that are indifferent to the categories of male and female, where the erotics of terror inhabit the captive body. This emphasizes that anti-Black racism is not only racial but inherently and intersectionally gendered, sustained through the interlocking logics of hate.
Consequently, hatred as contemplated in criminal law cannot be coherently defined without recognizing that anti-Black racism and gender violence are structurally produced. To define hatred without addressing this relationship risks reproducing the very order the law seeks to confront, grounded in the regulation of Black bodies. I’ll stop there. Thank you so much.
The Chair: Thank you very much. We will now go to Ms. Liu.
Sophie Xiaoyi Liu, PhD Candidate in Sociology, University of British Columbia, as an individual: Good evening. Thank you for the opportunity to appear as a witness before this committee.
I am Sophie Liu, and I research the misalignment between legal protections against hate and the realities of those targeted by hate-motivated acts in Canada, focusing on victims of Asian descent.
Canada already has multiple criminal provisions designed to address hate, including sentencing enhancements for bias‑motivated offences and statutes that criminalize hate propaganda. Yet, despite these legal tools, Vancouver was labelled the “anti‑Asian hate crime capital of North America” in a May 2021 Bloomberg article. Statistics Canada recorded over 2,600 police‑reported hate crimes in 2020 — at the time, the largest number since comparable data became available in 2009.
More fundamentally, do these laws meaningfully serve the communities they intend to protect? From my research, the answer is, unfortunately, no.
Four barriers prevent victims from accessing justice. First, the law recognizes only extreme, deliberate hate, leaving everyday encounters, such as slurs, spitting and intimidation, outside criminal reach. It leaves police powerless and sometimes reluctant to intervene.
Second, perpetrators are strangers in 83% of cases against the East and Southeast Asian population, making perpetrator identification nearly impossible.
Third, even when cases proceed, evidentiary demands and cultural distance between law enforcement and victims constrain prosecution.
Fourth, the justice system focuses on retribution, not on what victims actually need, such as recognition, healing and safety. This gap between victims’ lived experiences of being targeted and the legal system’s ability to recognize that targeting as hate‑motivated is a critical problem. The consequence is that racialized victims often feel their experiences are invisible to the legal system. They anticipate their justice-seeking requests cannot be fulfilled despite the re-traumatization and the temporal, emotional and financial cost the process demands. As a result, they withdraw from the legal system.
In a national survey, only one in four Canadians who experienced a hate incident in the preceding year reported it to police or another authority. The most cited reason is that it would not make a difference.
Section 718.2(a)(i) already provides sentencing enhancements for bias-motivated offences. Creating another provision will not fix the underlying problem that the legal system frequently fails to recognize the nuances of hate-based victimization. Addressing this gap does not necessarily require an amendment to the Criminal Code but rather improving how hate-based harm is documented and acknowledged.
While I appreciate that Bill C-9 recognizes hatred as a serious form of motivation, what is needed are approaches that move beyond conventional procedural enhancements. Collecting self‑reported victimization data would allow victims’ experiences to be acknowledged even when those experiences do not meet the threshold for Criminal Code charges.
By decoupling healing from conviction, victims may be able to access recognition and resources even when a perpetrator cannot be identified. A unified reporting and referral system that integrates community-based data into national frameworks would allow third-party data collected by community organizations to contribute responsibly to official hate-crime statistics, which helps address current reporting gaps.
Partnerships between police, civil society organizations, researchers and data specialists may assist in standardizing classification criteria, validating trends and ensuring that non‑police-reported incidents are not systematically excluded.
These are necessary directions. Whether they are sufficient, I cannot say. But what I can say is that Bill C-9, without accompanying institutional change, will not serve the communities it intends to protect.
Thank you for your attention. I look forward to your questions.
The Chair: Thank you all for your presentations. We will now proceed to questions from senators.
Senators, you have five minutes for your question, and that includes the answer. We will begin with our Deputy Chair, Senator Bernard.
Senator Bernard: Thank you to all of the witnesses who are here with us this evening. We appreciate you taking the time to be here.
My first question is for Dr. Crichlow. You talked about how intersectionality is ignored when it comes to hate crimes against Black, trans and queer people. Can you share more about the importance of intersectionality in tracking and analyzing hate crimes? You’ve noted in your opening remarks that the bill, in its current form, does not deal with anti-Black racism as a hate crime. What recommendations would you make to our committee to ensure that the bill addresses the concerns you’ve raised?
Mr. Crichlow: Thank you for the question, senator.
I think the whole legal instruments around intersectionality have been widely explained in numerous cases. When we look at the Supreme Court of Canada’s decisions that speak about anti‑Black racism, it often talks about it in ways that do not engage gender per se, sexuality and disability.
When we move this definition to capture these forms of intersectional compounding marginalization, what we’ll end up having is a more complete picture of the way in which anti-Black racism or hate is impacting communities.
Now, the other piece that I didn’t speak about, which ties into this, is the carceral system. Within the carceral system, many trans folks experience hate crimes that are not reported because we don’t collect that data. In my research, that was an area in which we found there was no reporting of the official statistics that spoke about hate crimes in prisons toward trans bodies, et cetera.
I think there are ways in which, when we speak about the Black community, we have to be more deliberate and clear that we are not speaking of these intersections and that these intersections warrant some work to better understand how complex it is and who is missing.
Then there’s the issue around the rates of criminalization and injustices. Black trans sex workers don’t really have an opportunity to speak to the hate they experience as sex workers on the streets. When they report an issue, it’s often reported as an assault, and it stops there. It doesn’t go beyond that Black, trans hate crime. There are ways in which I think the definition — and education, of course, is part of that — has to be enhanced.
In terms of making those changes, it has to be a community effort, of course, to some degree, which is happening here right now. Certainly, I think the education around what constitutes hate and what constitutes racism is not clear. I think there’s ongoing confusion between racism and hate. I would often say when I’m attacked with any sort of dislike to me, I often call it race. I never reached the point of calling it homophobia as a gay man.
There are ways in which we need to develop a language that recognizes the intersections of when a Black, queer, trans person experiences this; they have the right to that experience, to name it and to say it. The current legislation steals that experience away and does not give one the comfort to do so, in particular with notions of high homophobia and transphobia in society.
Race and language are not separate. Race and language can incite violence. When we do this work, we have to be cautious about how the work invites and incites more violence.
Senator Bernard: I was going to ask a follow-up question in terms of potential unintended consequences. I think you’ve just touched on that. Can I ask you to take the minute to expand on that, please?
Mr. Crichlow: Okay. There’s an assumption that Black, queer or trans bodies have this right to the same benefits of living their lives through these instruments of human rights. We need to understand that we don’t live our lives human rights. We live our rights trying to thrive. That thriving does not rely on the law to navigate the everyday tropes of the way the insidious practices of homophobia and transphobia operate when my body is attacked.
I’m often left, as an educated person, saying I was attacked because I was Black. I have never reached that point and have never been able to say I was attacked because I was queer. There are ways in which the stealing of that pain and depriving of that identity need to be made more explicit where Whiteness does not determine queerness and Blackness does not over-determine heterosexuality.
Senator Arnot: Thank you. This question is for Professor Newman.
I have three questions, actually. Professor, does Canadian constitutional law require religious speech to receive more protection than political, academic, journalistic or artistic speech?
Mr. Newman: I would say, yes, insofar as freedom of religion has a separate protection from that of freedom of expression, which does extend to all of these categories of expression. I don’t want to say that in an outright and un-nuanced way, but there is a special protection for freedom of religion that may give rise to additional protection for religious expression.
Senator Arnot: How would you propose to prevent a religious exemption from being used to shield hatred directed at LGBTQ2SIA people, Muslims, Jews, women, and other Canadians?
Mr. Newman: If a religious exemption continues to be included — right now, it’s being removed — I think I agree with the comments that were made earlier, that good-faith religious expression isn’t going to lead to the promotion of hatred. It’s very difficult to see how that current exemption exempts something that would actually amount to the offence.
There’s a lot of symbolism here, more than actually dealing with a real change in the law.
If that comes out, I would just say the clarification in section 11.1 does much of the same thing; although it probably should actually go into the Criminal Code rather than just sit in a lost provision.
In general terms, I would say that there was a relatively clear balance struck, and there can be a similar clear balance struck now that it, in essence, says people can engage in religious expression, talk about tough issues, quote challenging passages and then argue about those, but they can’t go and promote hatred based on religion, because that’s not a good-faith expression of religion.
Senator Arnot: Thirdly, I have been asking a lot of witnesses the same question. You’re a long-time researcher in these areas, and I’m wondering: Would you support a three- or five-year statutory review of the implementation of this act should it be implemented such that there would be a measurement, really, of the success or the intention around this act? In other words, collect enough data to measure it and, perhaps, make important amendments to it after three or five years?
Would you see that as a less intrusive safeguard than just reopening the religious defence?
Mr. Newman: I think the idea of reviewing this in three or five years seems valuable. It’s an important element of Canadian law to have a law that deals with hatred, and it isn’t a problem that’s going away in three or five years, unfortunately. Looking at the effectiveness of it is important.
I heard you asking this in the last round. I’m glad you did not ask me what data to gather because I’m not an empiricist who can speak to that.
The one thing I would say is that it’s important to review what is happening with what is already there. When the obstruction and interference offence is being introduced here and overlaps very significantly with what is already present in section 430 of the Criminal Code, is there a review of Section 430 of the Criminal Code and why it’s not being enforced to offer the kinds of protection that it’s meant to offer?
Senator Arnot: Thank you.
Senator Arnold: Thank you to all the witnesses for being here with us. You have all brought a whole new dimension to this debate, so I really appreciate that.
My question is for Professor Newman. It strikes me that you have dug deeply into communications. You mentioned that. I’m curious if you have any insight on how — should this bill go forward — it is properly communicated to the Canadian public.
Mr. Newman: The bill, presumably, goes forward in some form, and there are going to be various details worked out.
I’m not sure that these details are going to change the fundamental communications to the Canadian public, because I think people are actually in a lot of agreement on a lot of things in terms of wanting to stamp out hatred. I hope everyone is in agreement with that.
I don’t think every little detail of this bill is going to be the crucial part to that so much as what is going to engage Canadians more generally in the effort to work against hatred. You can have this bill, and it doesn’t matter how many police officers you have out there trying to enforce it if, in their daily interactions, Canadians aren’t speaking up against the person who engages in hateful expression or even something short of hateful expression that can’t be criminalized but that also shouldn’t be tolerated in our normal social interactions, such as when people engage in discriminatory conduct to one another or discriminatory language.
I’m not an expert on how to engage the public in that, but that’s what I would like to see is that every member of the public be of assistance in trying to make a better society.
Senator Arnold: That’s excellent advice. Thank you.
Professor Liu — or candidate for professorship, soon to be.
I am curious. From the research that you have done, do you see merit in a bill like this that can put more of an emphasis on it so that maybe some of the victims will feel more empowered to report and to believe that a difference would come of it?
Ms. Liu: Thank you so much, senator, for your question.
I think the main finding from my research is that we cannot just expect criminal law to be the only answer to this broad commitment and initiative to combat hate.
I did ask my participants whether they were aware of, for example, subparagraph 718.2(a)(i) or other hate-related provisions and tried to explain it to them. They expressed skepticism about the law’s effectiveness in addressing hate.
They also noted, for example, that perpetrators may lack the rational decision-making that the law assumes. Also, laws cannot address the social structures that instill racist beliefs.
There are other things that would be great for society to do to combat hate, for example, building this critical allyship for bystanders to safely intervene, but these are the things that cannot be enforced by criminal law.
The point is that having the law itself as a symbolic power and as a signal of a stance against hate is important, but itself, without any accompanying on-the-ground measures, it is not going to do the work of combatting hate.
If we continue to pursue law as a symbolic gesture instead of accompanying it with on-the-ground measures, my concern is that this will reinforce an already deep-rooted conception that a lot of marginalized groups already have that the legal system is not built with their best interests in mind. Because, even with the amendments, their experiences may still prove to be invisible to the system.
In general, I get the sense that they feel their interests are not fully represented, and I don’t think it is an issue that can only be combatted by criminal law. Like the other witnesses have already mentioned, we need to engage with other resources as well. That’s why, in my opening statement, I talked about data collection, engaging with community partners and also providing better victim support.
Thank you for the question.
Senator Ince: Ms. Liu, my question is for you also.
In your paper, Prosecutorial Challenges in Hate-Related Cases in Canada, you make recommendations specifically on the creation of a national standardization of enforcement protocols and specialized prosecution teams for hate crimes and hate speech.
We have had a couple of witnesses here who sort of agree with you. They have similar recommendations — the Canadian Police Association, the Canadian Association of Chiefs of Police and the Ottawa Police Service. Based on your research, why do you believe that these two recommendations are important to consider for Bill C-9?
Ms. Liu: Thank you very much for the question. I want to start with this contention here that we do not only have hate‑motivated crimes. We also have everyday encounters with hate that I would refer to as hate-motivated incidents that fall outside the scope of criminal law.
I would argue that as a society, we want to combat hate. Responding to these hate-motivated incidents is as important as tackling hate-motivated crimes because of the nature of hate‑motivated incidents. They are intended to send messages to the groups that they are targeting, so regardless of the form it takes, whether it is a random street assault or something more violent, the in terrorem impact it creates is strikingly similar for the at‑risk groups.
That’s why I am stressing that criminal law should not be the only solution to combatting hate in general because we cannot expand a hate crime offence to such a degree that we start to create a chilling effect and start to incorporate everyday encounters that may be ethically wrong into what can be criminalized.
I will give an example in terms of data collection. It has been discussed a lot. There is hope that, with this Criminal Code definition of a hate crime offence, we will get the kind of high‑quality standardized data about hate that will better inform decision making. But that’s not naturally going to happen, even if this definition is implemented, because if we look at Bill C-9, we are using hatred to define a hate crime offence. But then who gets to decide and flag and categorize what is a hatred-motivated offence and, therefore, considered a hate crime offence? They are police officers. Research shows that police officers’ judgments are actually impacted by their perspectives, especially how they view race and racism.
Even if we implement this Criminal Code definition of a hate crime offence, without accompanying training for police officers to reduce the subjective variation — and also, of course, the broad, trauma-informed training that they need to incorporate in their services — we just can’t naturally get the kind of high‑quality data we want, which is, I believe, the intention of this bill. Thank you so much for your question.
Senator Ince: Thank you.
Senator Ataullahjan: My question is for Professor Newman. The primary flashpoint with Bill C-9 appears to be the removal of the good-faith religious belief defence. In your view, will the removal of the good-faith defence improve and increase protections against hate crimes? It is clear that religious groups are very concerned about removing this defence.
If this defence were left in the Criminal Code, do you think it would impede efforts to prosecute hate crimes?
Mr. Newman: We’ve also heard that this defence has never been invoked in a case. Whether it’s removed or not removed, I’m actually not sure it has as much impact as is sometimes being suggested in terms of what will be prosecuted or not.
Where religious groups seem to have concerns is, in part, over the idea that they wouldn’t be able to quote and engage with passages of different sacred texts that have a very problematic sound to us today, and they couldn’t argue about difficult questions within religious traditions. You need to hear from those groups as to the significance of that and to consider that.
I think that most religious groups can be on side with the effort to work toward lessening hatred in society. They should be invited into that challenge, as opposed to being portrayed as trying to promote hatred. But whether that particular change is made or not, if the clarification in clause 11.1 is there, things don’t change dramatically. It’s an offence that isn’t prosecuted all that much. It’s a defence that’s never been used successfully. It’s all something of a hypothetical discussion in some ways, except for the symbolism. If the symbolism is troubling to some one way and troubling to others the other way, at some point, Parliament just needs to make a choice and then try to deal with that as best as possible.
Senator Ataullahjan: Professor Newman, it begs the question: If it has never been used, then why remove it?
Mr. Newman: It does. Those that are advocating removing it have said it’s never been used, but it does raise the question: Well, is it actually causing a problem if it’s never been used? What is the need to remove it? I would say it goes back in some ways to questions of symbolism. Different perspectives on that symbolism are just arguing this out in different ways.
Having that balance or the balance and the clarification in clause 11.1, if those were brought into section 319, they can accomplish some of the same thing. But it does raise the question: Why remove it if it’s not causing any problem to have it as is and to show respect for freedom of religion as a Charter right that warrants particular attention? That may be a reason to leave it in.
There is no simple answer. I know this has been a hotly debated question.
Senator Ataullahjan: My question to you, sir, is, under Bill C-9, hate propaganda and new hate symbol offences apply where a person willfully promotes hatred against an identifiable group, defined as a section of the public distinguished by characteristics such as race, religion, age, sex, sexual orientation, gender identity or expression or disability.
From an intersectional perspective, does the single-ground, identifiable-group framework capture the lived reality of Black and LGBTQ+ communities adequately, or does it risk obscuring compounded forms of hate and discrimination?
Mr. Crichlow: Thank you for the question. As I indicated, these are separate categories, so it forces one to choose an identity for reporting. Often, when folks try to get police or Crowns or defence lawyers to engage intersectionally, they are often told it’s easier to use one form of prosecution over the complex intersectional one.
So, if the bill is more explicit about the fact that these are intersectionally compounding multiple grounds, which can happen and which human rights do, as well, you would be complementing the human rights laws as they already exist in this area. However, the challenge goes back to education. Are Crowns and police officers educated enough to understand how to engage in an intersectional analysis of compounding effects without engaging in an additive form of intersectionality? No. Folks tend to go, “One is Black, one. One is gay, two. One is disabled, three,” and they stop there. Three strokes — this is how oppressed you are. One is Black; one is gay; two strokes. That in itself compares oppression. The objective of an intersectional analysis is not to compare and contrast oppression but to recognize oppression in its totality. Stressing that piece will be critical.
Senator Ataullahjan: Thank you.
Senator K. Wells: It has been a fascinating conversation. Thank you to all of the panellists. My question will touch on parts of what everyone has raised. I’ll put it out there, and we can see who would like to respond.
An important role of criminal law is to denounce and deter and, ultimately, hold perpetrators accountable. In Bill C-9, the new hate crime offence may serve to more effectively denounce a hate crime when it happens and will also allow for a more standardized definition for more uniform national tracking and collection of hate crimes, including the possibility of disaggregated data that may be collected. That data might actually get at the issue for Canadians of who is actually being targeted for hate. We talk about intersectionality, and a big portion of that is the importance of disaggregated data. We know people don’t live their lives in one particular tick box, as you said, Professor Crichlow.
Do you see opportunity or value with this new hate crime offence? Also the standardized definition of a hate crime — will that get at some of what we’re talking about here in getting the better data? Of course, this is only what was raised as police‑reported hate crimes. Some research shows that, maybe, only 1 in 10 hate crimes that actually occur are ever reported to police. Also, inevitably, will be the importance of community-based data collection on this for all the reasons that have been identified on the panel about why people may not feel comfortable coming to police in the first place — revictimization, racism, et cetera.
I am just wondering what your thoughts are on some of those changes being significant in Bill C-9. Will they live up to some of the expectations that we have? I’ll start with Professor Crichlow.
Mr. Crichlow: Thank you, Senator Wells. The term hate crime provides a ground for suffering. But that ground for suffering, in and of itself, the seductive nature of it, is where I think where education has to really push around this idea that we are looking for degrees of suffering.
I think it is the degrees of suffering trope we have to stop when we collect the data and look at the intersectional effects of the harms that a person is complaining about. How do we begin to address disaggregated data, for example, in carceral settings for prisoners who are queer or trans, who often are not accounted for, who may join gangs in prisons to survive and then get labelled as a security gang threat member?
How do we make sense of those complex pieces it has a lot to do with who would intervene to get that answer?
The expertise has to come from some of the folks in this room. The expertise has to come from the people with lived experience. There is an assumption that all data leads to good policy changes when, in fact, sometimes too much data can lead to a slowing down of the process. The question is how to balance data collection with policy changes, so you’re not only looking for data to implement change, but to recognize that some of the changes we want to see happen. I’m not sure most folks who are Black, queer and trans will be comfortable going to a police officer to talk about these issues. We know there will either be no reporting there or underreporting.
Community agencies have to play a major role in the judicial system, the courts, police stations, and all aspects of society. It’s not just the Crowns and the police. Community people who are pushing these issues must be given a place of legitimacy, not seen as activists. Because often they are seen as activists within these institutions to help advance a more coherent understanding of the complex nature of the issue.
Senator K. Wells: Thank you.
Ms. Liu: Thank you so much for the question. I want to offer another data point for observation. Intersectionality effects actually happen to my participants as well. I ask them why do you think you are targeted. Is it because of your race, or does gender also play a part? They say to me, “It’s because I’m an Asian female, and they think I’m an easy target, so that’s why they are picking on me.” This intersectionality actually exists outside of not just one but many marginalized communities.
Another point is the broad discussion on training and education. I want to highlight a point about the training and the cultural distance between some of the legal actors and the victims. My participants are telling me how they need to do a lot of heavy lifting and explaining to the legal actors, seeking to help them to understand why and what they have encountered is hate motivated instead of just a minor exchange of words.
After being victimized, imagine that whether that victimization counts as valid will be decided by legal actors who are not necessarily familiar with the cultural underpinnings of hate. That’s something that requires a lot of emotional bandwidth, and that is why a lot of the participants decide not to engage with the system at all. They feel like, after what they’ve gone through, they’re not even going to get what they want, which is simply safety to be able to walk around the city without having to be concerned about being targeted.
As to the symbolic value of law and also its deterrence effects, thank you so much for raising that point. But my concern is that we already have hate-related provisions that work as symbolic denunciations of hate. We already have something there, but that did not prevent the rise of hate crimes, for example during COVID. That points to another reason why the legislation itself should not be the only solution.
My concern is that, by creating another provision without accompanying systemic change, society risks reinforcing among that the very groups the laws are meant to protect, skepticism of the legal system. I think we, as a society, need to open up more channels outside of criminal law. For example, community-based engagement and other ways to at least document and recognize the everyday encounters of hate that these marginalized groups are experiencing.
The Chair: I would like to add a question. Then I have Senator Ince on second round. Hopefully, we can get to that.
I’m wondering about the ability of Bill C-9 to capture the most harmful kinds of hate, if not the kind of hate that takes lives. I’m thinking about the trans men in Toronto who were murdered and how long it took the police to be able to accept that this was happening after several racialized trans men were murdered.
I’m wondering if that is a possibility, based on some of the work that you have done, Mr. Crichlow. And then I’m also wondering about whether being able to present such crimes is possible with Bill C-9 and how that could then be coupled with other forms of addressing hate through community engagement, as Ms. Liu referred to.
Mr. Crichlow: Tough question. There are ways in which queer or LGBTQ issues sort of present themselves as subhuman. I think the question around if one is considered subhuman, then there will be less interest in investigating. The subhuman aspect of queer crimes — of hate crimes — has to be turned around. We have to find ways to address this not necessarily from the standpoint of horrendous crimes in ways that sort of categorize these categories, but ways that rupture the current understanding of hate in so far that when we speak about the present seriousness of any kind of challenge to these issues — like when we look at the racialized men in Toronto you spoke about, or queer bodies in Toronto — is it hate, is it homicide? We pose these questions, and often most people will tell you it’s not hate. It’s racism.
How do we capture that understanding? It’s important for the kind of education we need to do in the public. I think hate crimes are a very intellectual, academic discourse that I can engage in. But hate doesn’t capture Islamophobia, anti-Black racism, and anti-Asian racism in the way those communities understand Islamophobia, anti-Asian racism and anti-Black racism. There has to be some community collaboration in terms of these different communities working together, not just forming allyship but forming what I call structural relationships of addressing harms and structural relationships. There is too much allyship work going on. We need to talk about structural change.
How do we bring these communities together to engage with structural change with the proper tools? Why? Because Black Muslims, Indo-Caribbean Muslims and the complexity of Islam will tell you that there are different ways in which Muslim communities will approach this question of hate if you come from the Caribbean, or if you came from the continent.
Those conversations are not a part of this. But those are the conversations that have to happen. How do we understand Islam differently? How do we understand Christianity differently? Those questions are not central to the education that goes into what we are defining as hate.
We need to go back to the fundamentals of communities and develop a language that is accessible, not a language that is alienating and incriminating, because many queer trans folks do not subscribe to the words “hate crime that are racialized.” White queers may use the term hate crime, but then they will turn around and tell you, “hate, homophobia, transphobia.” But Black and racialized folks will tell you “racism” and stop there.
So we need to find a way to avoid the disarticulation of humanity in bodies that are not considered human.
The Chair: Thank you.
Senator Ince: Thank you. My question is for Professor Newman.
From your experiences, what are some effective approaches used by international jurisdictions to address hate crimes that could be integrated into Bill C-9?
Mr. Newman: That’s a big question because I’m not sure that there are easy solutions to that in terms of other jurisdictions that strike me as doing far better, or that could be easily integrated into Bill C-9. I’d say the use of other mechanisms in other types of laws apart from the criminal law — there are jurisdictions doing interesting things, but so is Canada in the different human rights codes. It’s taking other steps apart from those in Bill C-9.
I don’t have an obvious suggestion for you, I’m afraid, in terms of something that could easily be integrated into the criminal law context that jumps out as working much better. I think it’s a struggle for all countries to find something that works well. We just have to keep going with this challenge.
Senator Ince: Thank you so much.
The Chair: Thank you to all our witnesses in our final panel for the day. Thank you for hanging in there with us. We would like to express our appreciation to you for coming to add to our deliberations on Bill C-9.
Thank you, all.
(The committee adjourned.)