THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Monday, June 1, 2026
The Standing Senate Committee on Human Rights met this day at 4 p.m. [ET] for clause-by-clause consideration of Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places); and, in camera, for consideration of a draft agenda (future business).
Senator Paulette Senior (Chair) in the chair.
[English]
The Chair: Good afternoon, honourable senators. I declare this meeting of the Standing Senate Committee on Human Rights in session.
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, senator from Ontario and chair of this committee. I invite my colleagues to introduce themselves, starting with the deputy chair.
Senator Bernard: Wanda Thomas Bernard, independent senator from Nova Scotia, Mi’kmaw territory.
Senator McPhedran: Independent Senator Marilou McPhedran from Manitoba, Treaty 1 territory and the homeland of the Métis Nation, Red River.
Senator Arnot: David Arnot. I’m a senator from Saskatchewan.
Senator Karetak-Lindell: Nancy Karetak-Lindell, Nunavut.
Senator D. M. Wells: David Wells, Newfoundland and Labrador. I am the critic of Bill C-9.
Senator Martin: Yonah Martin from British Columbia.
[Translation]
Senator Arnold: I am Dawn Arnold from New Brunswick.
[English]
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
Senator LaBoucane-Benson: Patti LaBoucane-Benson, Alberta, Treaty 6 territory.
[Translation]
Senator Moncion: I am Lucie Moncion from Ontario.
[English]
Senator Pate: Kim Pate. I live here on the unceded, unsurrendered and unreturned territory of the Algonquin Anishinaabeg.
Senator Osler: Flordeliz (Gigi) Osler, Manitoba.
The Chair: Thank you, senators.
Honourable senators, we are meeting to conduct clause-by-clause consideration of Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places).
We are joined in the room by officials from the Department of Justice Canada, who are available to answer technical questions, if needed.
Colleagues, joining us today are 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.
Before we begin clause-by-clause consideration, I’d like to remind senators of a number of points. If, at any point, a senator is unclear where we are in the process, please ask for clarification so we can ensure a shared understanding.
When more than one amendment is proposed to modify the same clause, they should be moved and considered in the order of the lines of a clause. If a senator opposes an entire clause, the proper process is to vote against the clause standing as part of the bill rather than moving a motion to delete it.
Some amendments may affect other parts of the bill. Senators moving amendments should identify any related clauses to help ensure consistency in the committee’s decisions. Because no notice is required to move amendments, they may not have been reviewed in advance to identify related or conflicting proposals.
If members have questions or disagree about the process or the proceedings, they may raise a point of order. As chair, I will hear the arguments, determine when there has been sufficient discussion and rule accordingly. Any ruling of the chair may be appealed to the committee by asking whether it shall be sustained.
Finally, I remind honourable senators that if there is any uncertainty about the result of a voice vote, they may request a recorded vote to obtain a clear result, whereas a tie vote defeats the motion.
Are there any questions? Seeing none, we will now proceed.
Senators, is it agreed that the committee proceed to clause-by-clause consideration of Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, stand postponed?
Hon. Senators: Agreed.
The Chair: Shall clause 2 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 3 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 4 carry? We’ll go first to Senator Bernard.
Senator Bernard: Thank you.
Chair, I have a motion that has been circulated to the committee that clause 4 be amended. Should I read the amendment?
The Chair: Yes. Please do.
Senator Bernard:
That Bill C-9 be amended in clause 4, on page 2,
(a) by replacing line 5 with the following:
“also known as the SS bolts, or a noose, a burning cross or a white pointed hood;”;
(b) by replacing line 8 with the following:
“symbol described in paragraph (a) or (b); or
(d) any other symbol that is used or associated with the promotion of ideological violence based on race, ancestry or ethnic origin.”.
The Chair: On debate.
Senator Bernard: Do you want me to speak now or should we hear from others first?
The Chair: We can hear from Senator D. M. Wells first.
Senator D. M. Wells: Thanks, chair. Thank you, Senator Bernard, for putting this amendment forward.
Under paragraph (d), at the end of your amendment, is:
any other symbol that is used or associated with the promotion of ideological violence based on race, ancestry or ethnic origin.
This is unlike the initial ones, where you have SS bolts, a noose, a burning cross and a white pointed hood, where we all know what they are; they’re very clear. But in paragraph (d), it’s not clear what else might be a symbol. I have a slight concern over something that could be seen as a symbol for something your amendment does not intend. I think of the old symbol for peace, which was later adopted by the Germans as a swastika. There are many instances where I’ve seen that as the symbol for peace.
How would that be addressed if it’s not specific to the current meaning of the swastika as we know it today?
Senator Bernard: Thank you, Senator D. M. Wells, for the question.
The wording of this was the wording proposed by the legal folks who worked with our recommended changes. I believe that the wording is likely tied to a lot of the evidence that we heard about the fact that it’s really challenging to have a specific list that won’t change very frequently. That’s why the wording was left in that vague way with regard to race, ancestry or ethnic origin.
Senator D. M. Wells: Thank you, Senator Bernard. I understand.
My only concern on that is if something is going to be challenged, it will be challenged based on something concrete, and this is less than concrete. That’s my only concern, but I do understand your point.
Senator McPhedran: With the greatest of respect and support for the goal, the vagueness of this wording really concerns me.
I think it just opens a pathway for both subjective and arbitrary enforcement against the public display of flags, emblems and symbols. Again, it adds greatly to the on-the-ground interpretation by authorities, including police. I fear that it would rapidly become an encroachment on freedom of expression. Even though I very much support the goal, the vagueness of it is very concerning.
Senator Bernard: Senator Ince is not here yet, but Senator Ince and I proposed this together. Certainly, in our original wording, our proposal was that there be specific inclusion of the noose, the burning cross and the white pointed hood, which we clearly heard from a number of witnesses.
Senator McPhedran: I would support that. I don’t support the big expansion that follows after it.
Senator Bernard: I respectfully hear that.
Senator Arnot: This is kind of a basket clause or a catch-all clause. It’s designed so that if something becomes a symbol of hatred that we may not know today, this can be used in a prosecution in the future, I think.
Second, overall, whatever symbol is used, the Crown would have to prove the case beyond a reasonable doubt. So, if it’s a symbol or not a symbol and it can’t be proven beyond a reasonable doubt, the prosecution would be defeated.
Senator McPhedran: My concern goes to what happens before the formal prosecution. There is a lot that occurs, including de facto silencing that could occur because this is so vague and so open to interpretation.
I’m also unsure about the term “ideological violence,” whether we have, in law, a definition of that term. I’m not aware of one, but that may be my shortcoming.
Senator K. Wells: I also wonder about that term, “ideological violence,” and also the fact that it is only lists here “. . . based on race, ancestry or ethnic origin,” which would appear to be underinclusive when we’re talking about other protected grounds that are subject to ideological violence.
I thought maybe this would be a point where we could ask our Department of Justice officials, in particular, how the promotion of ideological violence is defined? Is that based on political, moral or religious components? And, to Senator McPhedran’s question, is there a definition that already exists in the law? Would we be opening up the law to something entirely new here?
Marianne Breese, Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question. To the senator’s point, the clause in question would be introducing a new concept that is not currently found in the hate propaganda provisions in the code. In terms of that impact, it is hard to assess on the spot what that would be, but further analysis would likely be recommended to understand how this would interact with other hate propaganda offences. For instance, the committee may wish to consider whether it is adding, for example, a new conduct requirement within the definition of symbols in addition to the prohibited conduct within the offence itself. That’s one consideration you may wish to look at.
The Chair: Thank you, Ms. Breese.
Senator D. M. Wells: Senator Bernard, with respect to that part of the clause we’re discussing, if someone gave the middle finger — which is a clear expression that we are all familiar with and regularly see on the streets and in society — would that also be considered a symbol associated with the promotion of violence or hatred? I think that may be even more obvious than anything else we might see in society.
Senator Bernard: I don’t think that the middle finger would be seen as a hate crime under the definition. That might be where we would draw the difference, whereas we heard in evidence clearly about the noose, the burning cross and the white pointed hood as clear symbols of anti-Black racism. We also heard very clearly in evidence the impact of that. We also heard in evidence the significant increases in anti-Black hate.
Some of the statistics are actually quite staggering. We heard from the Chief Executive Officer of the Black Opportunity Fund, for example, that, while national hate crimes spiked 32% to 4,777 incidents annually, which is a doubling since 2019, Black Canadians remain the most targeted racial group at 37% of said offences despite comprising just 4.3% of the population.
So the numbers of targeted hate crimes using those symbols, the current list that’s there being seen as totally inadequate and the impact that not including those symbols would have on Black Canadians were the clear messages we were hearing.
Senator D. M. Wells: Senator, because of the ambiguous nature of the second part of the amendment, are you comfortable with this being decided by a judge? Because it’s not decided here. I think it is too ambiguous. However, would you feel comfortable if it were decided in the courts rather than in Parliament?
Senator Bernard: That’s debatable, Senator D. M. Wells. It’s a really interesting question. When this comes to addressing anti‑Black racism in this country, finding a comfort level with how these are decided is something that I hope we might see in our future. I don’t see it in our present.
Senator McPhedran: I kind of hinted at this, but now I have to ask the question outright: Would you consider just suggesting an amendment that has the specificity of those three symbols, which are clearly used in acts of hatred and anti-Black racism?
Senator Bernard: Following the evidence that we received, yes, I would. And, based on my responses to the questions that have been posed to me, I would say yes.
Senator McPhedran: I appreciate that.
Senator K. Wells: Related to that question, I’m wondering if I could ask the Justice officials this: Would the concern that’s being raised by this particular amendment not perhaps also be addressed under subsection 319(2), which would cover those proposed offences?
Ms. Breese: Thank you for the question. That offence — wilful promotion of hatred against an identifiable group — will capture any symbol that is used to promote hatred because the definition of “statement” includes gestures, signs and visible representations.
To the extent that a symbol may not be explicitly captured in the new offence, there is always a 319(2) provided that all the elements of the offence are made out. Does that respond to your question? Thank you.
The Chair: Senator Bernard, in light of the discussion and how it has developed, are you or anyone else proposing a subamendment?
Senator D. M. Wells: I was going to say that it was a subamendment because there is an amendment on the floor. I wanted to say to Senator Bernard that I am supportive of this. I am supportive of the intent, especially the first part, but if you removed the second part at paragraph (b), I would be fully supportive of voting in favour of the amendment.
Senator Arnot: In light of what Senator Bernard is saying, there could be a subamendment to remove paragraph (b) from the amendment, which would include paragraph (d), I believe. So, if the senator is in agreement, I believe there could be a subamendment removing paragraph (b). Then it would be just the three symbols.
Senator Bernard: And just leaving paragraph (a)?
Senator Arnot: Yes.
The Chair: Am I hearing a subamendment from you, Senator Arnot?
Senator Arnot: I will make that amendment if Senator Bernard is in agreement.
Senator Bernard: Yes, I agree.
The Chair: In light of the subamendment, we will take a brief pause to get this in writing and then come back to it.
Senator Arnot: I was making a subamendment to delete paragraph (b) from WTB-C9-4-2-5.
I’m not sure why the word “hood” or “with hood or” is in there. This isn’t what I said.
The Chair: I’m assuming it’s maybe because it has to do with other parts.
Senators, we will stand the subamendment while the lawyers are drafting it and move to the next one.
Is that agreed?
Hon. Senators: Agreed.
The Chair: There are some additional discussions in terms of having Senator Arnot do his full subamendment. That is the reason for the redrafting at this stage. So, is it agreed?
Hon. Senators: Agreed.
The Chair: Thank you. As a result, we will go to the next amendment.
Senator Karetak-Lindell: Thank you.
Senators, I move:
That Bill C-9 be amended in clause 4, on page 2, by adding the following after line 14:
“(2.4) Everyone who, by communicating statements other than in private conversation, wilfully promotes hatred against Indigenous Peoples by condoning, denying or downplaying the Indian Residential Schools System
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.”.
The Chair: Is there anything else that you would like to add, Senator Karetak-Lindell?
Senator Karetak-Lindell: Did you wish me to go through the rationale for that?
The Chair: Yes.
Senator Karetak-Lindell: As currently drafted, Bill C-9 addresses multiple manifestations of hate, but it does not explicitly address residential school denialism, despite increasing public concern surrounding anti-Indigenous hate and historical revisionism.
This committee has heard testimony from witnesses representing First Nations across the country who have emphasized to us the significance and importance of including an amendment that addresses the increasing prevalence of residential school denialism in Canada.
I would like to quote Regional Chief Terry Teegee, who stated:
. . . the bill must reflect the realities that First Nations face, particularly growing in anti-Indigenous racism, violence and rhetoric surrounding the lasting harm of the Indian residential schools . . . and the ongoing spread of denialism and hate that is having real impacts on many First Nations communities and First Nations across this country.
I share that concern. There is no question in my mind that residential school denialism has placed doubt among Canadian citizens and has paved the way for outright racism toward Inuit, First Nations and Métis peoples. I would also like to note that this concern is not a new one. In a 2023 report published by the Standing Senate Committee on Indigenous Peoples, Honouring the Children Who Never Came Home: Truth, Education and Reconciliation, the committee explicitly recognized the growing threat posed by residential school denialism.
Recommendation 6 of the report reads, “That the Government of Canada take every action necessary to combat the rise of residential school denialism.”
The amendment before you today is consistent with that recommendation in the report. It represents an opportunity for Parliament to move beyond recognition of the problem and take concrete legislative action to address it.
Residential school denialism is more than disagreement about historical interpretation. It can involve denying, minimizing or justifying the documented abuses, deaths, forced assimilation and intergenerational harms experienced by Indigenous people through the residential school system.
I also call your attention to the fact that the Assembly of First Nations have expressed their support for legislation linking residential school denialism to anti-Indigenous hate and have endorsed protections against anti-Indigenous hate speech and denialism.
I am bringing this amendment forward because, as a residential school Survivor myself, I understand and empathize deeply with the positions of Survivors and their families, who continue fighting for their right to be protected from hate, denialism and the ongoing minimization of their lived experiences.
Meaningful reconciliation cannot occur if the foundational truths of the residential school system are publicly denied, grossly minimized or justified in ways that foster hatred toward Indigenous Peoples.
This amendment aligns with the spirit of the Truth and Reconciliation Commission’s Calls to Action by affirming the importance of protecting Survivor truth and confronting ongoing forms of anti-Indigenous discrimination.
Inarguably, it pours salt into an already very deep and ongoing wound carried by the Survivors and families of Inuit, First Nations and Métis communities across this country.
I would also note that Holocaust denialism is already recognized within Canadian criminal law as a form of hate propaganda, again, subsection 319(2.1) of the Criminal Code, which prohibits the wilful promotion of hatred against identifiable groups. Legislative amendments in recent years have further clarified that this includes the denial, condoning or gross minimization of the Holocaust when such expressions amount to the promotion of anti-Semitism. This establishes a clear legislative precedent for addressing denialism as a form of hate speech within Canadian law.
Drawing directly from the language and findings of the final report of the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools, the Honourable Kimberly Murray, this amendment recognized denialism as a contemporary form of anti-Indigenous hate.
The special interlocutor specifically recommended that the federal government must amend the Criminal Code, making it an offence to:
willfully promote hatred against Indigenous Peoples by condoning, denying, downplaying, or justifying the Indian Residential School System or by misrepresenting facts related to it.
The rationale for this amendment is further strengthened by the Government of Canada’s commitments under the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan. Action measure 107 commits the federal government to:
Support the ongoing work of the Independent Special Interlocutor for Missing Children and Unmarked Graves and Burial Sites associated with Indian Residential Schools and act upon her recommendations, including with a view to aligning federal laws within the UN Declaration.
As the Government of Canada has expressly committed to acting upon the special interlocutor’s recommendations recognizing and addressing Indian residential school denialism is consistent with the UNDRIP Act Action Plan and broader efforts to combat anti-Indigenous hate, this recommendation reflects the conclusion that Indian residential school denialism is not merely a disagreement over historical interpretation but can function as a form of anti-Indigenous hate that undermines Survivors, their families and the truth-telling necessary for reconciliation.
This form of denialism has contributed to public doubt, undermined reconciliation efforts made by the Canadian government and created space for outright racism and hostility toward Inuit, First Nations and Métis children, youth and their families.
By explicitly addressing Indian residential school denialism within Bill C-9, this amendment closes a significant legislative gap and ensures it is expanded in its present intent in combatting hate while addressing truth, accountability and reconciliation within our country.
Thank you.
The Chair: Thank you, senator. On debate, we have Senator McPhedran.
Senator McPhedran: First, I wish to thank you and your team for the way you have captured so much of the evidence that we have received at this committee and how you have addressed what is very clearly a gap in this bill.
I do have a concern. I would like to understand from your perspective how you address the lack of consultation on this specific part of the bill. We were informed of a considerable amount of time and outreach. It still was not considered sufficient. However, in this case, arguably, there’s been no consultation in relation to this bill. I wonder if you could help us understand how is that adequately addressed.
Senator Karetak-Lindell: I relied heavily on the recommendations that are already on record and some of the witnesses who came before this committee addressing this. I quoted from the report by the Standing Senate Committee on Indigenous Peoples Honouring Children Who Never Came Home: Truth, Education and Reconciliation. It was already recommended there.
People referred to the Assembly of First Nations, who have expressed their support that this amendment be made, and also the Truth and Reconciliation Commission called for the same amendment.
So, in light of all the support that we’ve received on this matter, it seems that sometimes the government tends to use the duty to consult as maybe a way of delaying an already-known fact. I’m not saying that I don’t support duty to consult in times when we have significant pieces of legislation that we have not had a part in discussing or proposing how that amendment would be. I find it quite straightforward that very important documents have been referred to, including UNDRIP, and that this is something that we need to see for this legislation.
Senator McPhedran: I just wonder if I could ask whether you would include in that response the international tribunal that just concluded, which was held in Montreal over the past five days. It heard testimony from Kimberly Murray and reached the conclusion that Canada is still committing genocide.
Senator Karetak-Lindell: I did read that, and I forgot to include it in this one. I was very pleased to see that they addressed it also. Thank you.
The Chair: Are there any other questions?
Senator K. Wells: Thank you, Senator Karetak-Lindell, for bringing this important issue forward. I share the concern that we’re seeing far too much residential school denialism in society and the concerns around what that means for anti-Indigenous racism and discrimination. I certainly call out many of the comments that we’ve heard from various leaders across the country in different capacities. There should be no place for this in Canadian society, so we do have a pressing problem here.
I would pick up on Senator McPhedran’s conversation around consultation. It’s my understanding that previously the government was committed with parties across lines in the House of Commons looking at, I think, Bill C-254, Leah Gazan’s bill, as a pathway for this. It wasn’t originally intended to be in Bill C-9, and there should be more consultation done around this issue.
I wanted to ask the Justice officials in particular if you’re aware of any consultation or cooperation that has been consistent with the UN declaration and the UNDA.
Has the government undertaken that with Indigenous Peoples, not on Bill C-9 and on hate crimes in general, but this specific proposal of residential school denialism?
Ms. Breese: Thank you for your question.
I can’t speak more generally outside of Bill C-9 what the government has or has not committed to. What I can say, though, is that throughout this legislative process, and as I alluded to in my previous testimony, there has been ongoing engagement and invitation on engagement to discuss residential school denialism.
Senator D. M. Wells: To the point that Senator McPhedran was making, in putting a clause in a bill or an amendment to a bill, it is not a necessity to have consultation. There is no necessity to even have evidence at committee. Unlike studies that we do, it’s generally regarded to have evidence at committee be included in a report. But for legislation, there is no requirement for consultation to have an amendment included.
Senator McPhedran: I’m asking this question on behalf of Senator McCallum. I spoke to this in a previous meeting where, as the only residential school Survivor sitting in the Senate, Senator McCallum speaks to the internalized oppression and the fact that there are, according to her — I don’t know this personally — a significant number of residential school Survivors who deny the amount of damage that has been done to them.
Do you feel that this amendment would protect those Survivors — that it is narrow enough and specific enough to do so?
Senator Karetak-Lindell: Can you clarify? I’m not sure I’m understanding. Protect them from what?
Senator McPhedran: If they are engaging in denialism, which can be a state for some Survivors. I said to her we have to have evidence of hate, and she said back that the evidence is there; it’s internalized.
Sharing that concern is really to ask this: Do we have here wording that will protect those Survivors who may be at that stage in their process and may, in fact, be in that stage permanently? I don’t know. I don’t have the expertise to speak to it, but I did say I would raise it.
Senator Karetak-Lindell: I went to residential school, so I’ve lived through it. I’ve had people say to me, “Well, you got educated. Isn’t that a good thing to come out of having gone to residential school?” But it only points to one section of our experience.
I think every Survivor experienced it in a different way. We lost a lot of family time. We lost our chance to grow up in our culture and with our language. Yes, I did get educated, but I also lost out on a parallel education that I would have got if I had been able to stay home. There were eight of us siblings, and seven of us went to residential school. No one can tell me that our family life didn’t change because of going to residential school. We were never home at the same time. We never got a chance to be a family of eight siblings together with our parents.
It affects us all differently. I don’t want to generalize, but I would hope that acknowledging in Canadian law that denialism is a crime would give assurance to many of us that this is not acceptable behaviour. To deny that residential schools harmed people is not right, and people who have never gone through the system should not dictate to us whether we were harmed or not.
It’s a very individual experience, but whole communities were changed. We talk about Survivors a lot, but it also affected our parents. It affected our grandparents. If you’re living in a community and, all of a sudden, every September to June, there are no children in your community, that affects everyone.
How we deal with it is all very individual, but I would hope that legislation like this would help people feel acknowledged that this has been harmful.
Senator McPhedran: Thank you. I would like to also thank you for sharing your personal experience and to apologize because I did not know that. I should have been able to acknowledge that.
Senator Osler: Thank you, senator, for bringing this conversation forward.
When I read your amendment and then referred to the Criminal Code, section 319, I noticed that the language was paralleled with the wilful promotion of anti-Semitism. I also noted that the Holocaust is defined in the code, but the Indian residential school system isn’t defined in Bill C-9; I don’t believe it’s defined in the code anywhere.
My question through you to the officials is this: Is it a problem if there is no definition of “Indian residential school system,” either in the Criminal Code or in this bill?
Ms. Breese: Thank you for the question. Is it a problem? No. There are often terms in the Criminal Code and offences that are not defined, but that will be determined through judicial determinations, through the courts. The courts would look at the body of factual evidence, such as the reports, for example, produced by the special interlocutor as well as other findings. So it’s not, in and of itself, an issue.
Senator K. Wells: I’m wondering if there has been thought or if you’ve heard from other Indigenous communities or groups about whether this is the right place in the Criminal Code for this.
By putting it in this section, it’s limited to two years, and it requires consent from the Attorney General of Canada, or AG, which gets back to some of the earlier conversations we had at the committee about how sometimes there is concern about that being politicized. We could probably think of many situations from news headlines where an AG just might simply say, “It’s not in the public interest,” even though it is in the code, thereby creating further conflict in a community now against a government for not pressing charges or moving forward. Does two years meet the gravity of the situation and the historical trauma that we’ve been talking and re-traumatization?
If we’re going to do this — and we should do it — we should think about doing it in the right way, with the right consultation to ensure that the gravity fits the situation. What are your thoughts on that if you’ve heard about that or if that’s sufficient?
Senator Karetak-Lindell: That’s not an area in which I have a lot of expertise, so maybe one of the officials can help me with that one too.
Ms. Breese: Thank you for your questions. As drafted, it is a hate propaganda offence, and it tracks very closely and consistently with how other existing hate propaganda offences are in terms of the wilful promotion. So it is a hybrid offence, and on indictment, it is a two-year penalty.
In terms of consistency, if we’re targeting hate speech — and I believe that is the intent of this amendment — then it would be consistent with existing provisions. In terms of other conduct, I would remind you that the new hate crime offence could capture more broadly other conduct that has a nexus to residential school denialism, whether that’s through uttering threats, criminal harassment or assault. So you would also have hate-motivated crime addressed through that new offence in the event that it also targets Indigenous Peoples.
Senator McPhedran: I also wanted to ask about the extent to which, in developing this amendment, you looked at how the act and the bill treat Holocaust denial and whether you see an alignment there.
Senator Karetak-Lindell: Yes. We looked at definitions of the process they went through to get that in the current code and it becoming a crime. We based our amendments very much on how the process was for getting Holocaust denialism into legislation: the definition of genocide, the criteria and how they were able to get denialism of the Holocaust into legislation. That was very much in our research.
The Chair: Do you have something to add, Ms. Breese?
Ms. Breese: I just wanted to clarify one of my statements. The proposed amendment tracks the existing hate propaganda offences — subsection 319(2) — but not in full, and there are some general provisions that are not included in the amendment that we would normally find with other hate propaganda offences.
The first is that the AG consent requirement has not been added to this amendment. The defences are not in that amendment. Also, there are existing forfeiture provisions that are applicable to all hate propaganda offences.
The Chair: I believe that’s in another amendment.
Ms. Breese: Oh, is there another amendment? Then the “for greater certainty” clause was added. Thank you.
The Chair: In light of the discussions so far, I’m now led to ask senators as follows: Are you ready for the question?
Senator D. M. Wells: Could we have a recorded vote, please?
The Chair: Okay.
Senator McPhedran: Could we have the question clarified, please?
The Chair: Okay. The following amendment is moved by the Honourable Senator Karetak-Lindell:
That Bill C-9 be amended in clause 4, on page 2, by adding the following after line 14:
“(2.4) Everyone who, by communicating statements other than in private conversation, wilfully promotes hatred against Indigenous Peoples by condoning, denying or downplaying the Indian Residential Schools System
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.”.
Senator McPhedran: Senator Karetak-Lindell, picking up on the point that was raised by Ms. Breese, where I said that we’re looking at a two-part amendment, they’ve been presented to us as separate, but if we look at your next proposed amendment, it really does address this question of what you’re capturing.
I wondered if you could help me understand the way that they’re separated and whether you considered having the whole story together. I ask because, on the one hand, you’re talking about the offence, and on the other hand, you’re then going into your exceptions.
Senator Karetak-Lindell: We took the advice of the Law Clerk, who said that it depended on whether my first amendment passed or not whether we would go into what they call the consequential amendment. It was the advice of the Law Clerk that we do it in two steps.
Senator McPhedran: So, if I understand that correctly, if this first proposal of yours does not succeed, then that obviates the second part.
Senator Karetak-Lindell: Yes, it does.
Senator McPhedran: Okay.
Senator LaBoucane-Benson: Residential school denialism is a very important issue, and I know the government was working with Leah Gazan on her bill on it.
The question about where this is being placed in the act is important from a consultation perspective because relying on the attorney general to give consent is — I’m just not sure that without consultation, we know that Indigenous leaders and Elders are on board for that, that the other option that would carry a greater consequence, and not require consent, might be something that, upon consultation, we find is preferred.
Because we have a situation where everybody agrees that residential school denialism has to be addressed but there is an option A and an option B, and reasonable people could disagree about each one or make a case for each one, it would point to a lack of consultation.
I look at a draft resolution of the Assembly of First Nations, or AFN, for example, that happened in December, and they specifically said that they:
Direct the Assembly of First Nations (AFN) to work with survivors, Elders, and First Nations leadership across the country though the AFN’s Advisory Councils to ensure the drafting or amending of such legislation reflects lived experiences, provides clear legal definitions, and withstands constitutional challenges.
That’s only the AFN. Speaking as an Albertan, the Alberta Treaty Chiefs would probably say something in their own words because they very rarely agree with the AFN.
I don’t know how the Métis Nation within Alberta might feel. Without consultation, I worry that we’re taking the lesser one, and leaders and Indigenous People across Canada might want the stronger one.
It’s for that reason that I can’t support this. While I agree with you wholeheartedly — I did my doctoral research on this — I’m afraid that we might be watering our wine and not going for the full force of what should happen with residential school denialism.
I just wanted to say that before we voted.
The Chair: I believe that is the final comment. We are doing a recorded vote.
Honourable senators, there has been a request for a recorded vote. I will first ask the clerk to name all of the senators present who are entitled to vote at this time.
Ms. Woodward: The Honourable Senator Senior, the Honourable Senator Arnold, the Honourable Senator Arnot, the Honourable Senator Bernard, the Honourable Senator Karetak-Lindell, the Honourable Senator LaBoucane-Benson, the Honourable Senator Martin, the Honourable Senator McPhedran, the Honourable Senator Osler, the Honourable Senator D. M. Wells and the Honourable Senator K. Wells.
The Chair: Thank you.
If any member present does not wish to vote, you may withdraw from the table now.
Senator Martin: A clarification, chair?
The Chair: Yes.
Senator Martin: For those abstaining, is that who you are referring to?
The Chair: I believe abstentions —
Senator Martin: Are part of the vote. Okay. Thank you.
Senator Simons: Madam Chair, would you like those of us who are only observing to withdraw from the table for clarity?
The Chair: You don’t need to.
The clerk will now call the members’ names, beginning with the chair and followed by the remaining members’ names in alphabetical order. Members should verbally indicate how they wish to vote by saying, “yea,” “nay” or “abstain.” The clerk will then announce the results of the vote. The chair will then declare whether the motion is carried or defeated.
Ms. Woodward: The Honourable Senator Senior?
Senator Senior: Yea.
Ms. Woodward: The Honourable Senator Arnold?
Senator Arnold: Yea.
Ms. Woodward: The Honourable Senator Arnot?
Senator Arnot: Yea.
Ms. Woodward: The Honourable Senator Bernard?
Senator Bernard: Yea.
Ms. Woodward: The Honourable Senator Karetak-Lindell?
Senator Karetak-Lindell: Yea.
Ms. Woodward: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Nay.
Ms. Woodward: The Honourable Senator Martin?
Senator Martin: Abstain.
Ms. Woodward: The Honourable Senator McPhedran?
Senator McPhedran: Yea.
Ms. Woodward: The Honourable Senator Osler?
Senator Osler: Abstain.
Ms. Woodward: The Honourable Senator D. M. Wells?
Senator D. M. Wells: Yea.
Ms. Woodward: The Honourable Senator K. Wells?
Senator K. Wells: Abstain.
Ms. Woodward: Yeas, 7; nays, 1; abstentions, 3.
The Chair: The amendment is carried.
Senator Karetak-Lindell, will you please read your second amendment?
Senator Karetak-Lindell: Yes. Thank you, everyone.
I move:
That Bill C-9 be amended in clause 4,
(a) on page 2,
(i) by adding the following after line 15:
“(1.11) The portion of subsection 319(3.1) of the Act before paragraph (a) is replaced by the following:
(3.1) No person shall be convicted of an offence under subsection (2.1) or (2.4)”,
(ii) by adding the following after line 16:
“(1.3) Paragraph 319(3.1)(d) of the Act is replaced by the following:
(d) if, in good faith, they intended to point out, for the purpose of removal, matters producing or tending to produce feelings of antisemitism toward Jews or hostility toward Indigenous Peoples.”,
(iii) by replacing line 30 with the following:
“tion (1), (2), (2.1), (2.2) or (2.4) or section 318, anything by ”;
(b) on page 3, by replacing line 3 with the following:
“(2), (2.1), (2.2) or (2.4) or section 318.”.
That is my consequential amendment.
The first amendment recreates a new offence under proposed subsection 319(2.4). This amendment then updates subsection 319(3.1) so that the existing statutory defences apply not only to subsection 319(2.1) but also to the new subsection 319(2.4).
This amendment is necessary to ensure that the same legal protections and defences apply to Indian residential school denialism and anti-Indigenous hate as they do for Holocaust denialism and anti-Semitism. It ensures consistency within the current code and provides clarity that the proposed offence is to be interpreted and applied within the same legal framework already established by Parliament. It also strengthens the amendment’s Charter defensibility by incorporating existing statutory safeguards.
By extending the same defences to subsection 319(2.4), this amendment promotes fairness, maintains parity within the existing framework and ensures that individuals accused under the proposed provision have access to the same protections already recognized in law.
This amendment does not create new limitations on lawful expression or expand criminal liability beyond what Parliament has already accepted. Rather, it ensures that the proposed offence is subject to the same legal safeguards, evidentiary standards and statutory defences that already govern comparable hate propaganda provisions within the Criminal Code.
Senator McPhedran: Thank you very much for the initiative.
My question is to the officials. There have been some very strong assurances that Senator Karetak-Lindell gave us about protections.
May I ask if you see any difference between the protections we already have in the Criminal Code around freedom of expression and what this amendment would do?
Ms. Breese: Thank you for your question.
Provision 319(3.1), which is the one that is referenced here, has four existing defences. As you know, one of them — the good faith/religious opinion defence — has been repealed through Bill C-9, as proposed. There is a difference in the proposed amendment in paragraph (d), and that is the defence. I will read the existing paragraph 319(3.1)(d):
if, in good faith, they intended to point out, for the purpose of removal, matters producing or tending to produce feelings of antisemitism toward Jews.
The amendment would add the language “or hostility toward Indigenous Peoples.”
I understand the intent, but the term “hostility” is not a concept that we find in hate propaganda offences. Alternatively, the committee could look to the defences for the offence at 319(2); those four defences are there also, worded slightly differently.
You will see that paragraph 319(3)(d) has the language of “. . . hatred toward an identifiable group . . .” so there might be a way to find alternative wording where we stick to the concept of “hatred” as opposed to “hostility.”
Senator McPhedran: Thank you. That actually captures my concern.
The Chair: Okay. Are there any further comments or questions?
Senator Pate: I have another question for the officials.
Given the issue raised early by Senator McCallum, the only other residential school Survivor we have in the Senate, has there ever been a situation where someone who is Jewish has been charged with anti-Semitism? If I understand, the concern that was raised by Senator McCallum is the fact that if someone who went to a residential school who has been encouraged or indoctrinated — there could be all kinds of words used — to believe that it was a positive space, the last thing we want to see is this used against an Indigenous person, particularly in the context where the numbers of Indigenous people being criminalized and imprisoned is going through the roof.
Ms. Breese: Thank you for the question. This is a very complex issue to address.
If we return to what the offence is about, again, there are very high thresholds. We would obviously defer to the police who are investigating and the prosecutors who are prosecuting. However, we’re looking at someone who is intentionally promoting hatred, so I’m not quite sure. We would hope that a vulnerable person who is maybe engaged in that type of conduct — if there is denialism for their own experience — I do not know how that would necessarily translate for the purpose of the offence. I’m not sure that the high thresholds of the offence would be met for that specific situation.
Senator Simons: Senator Pate, I don’t think many Jews have that inculcated sense of cultural self-loathing that residential schools inflicted intergenerationally on Indigenous Peoples. I know a lot of Jews, and I have never met one who ever said, “Gosh, those great old days at Auschwitz.” I think this is one of the times that the parallel breaks down.
Senator McPhedran: I have a question for Senator Karetak-Lindell.
On the point of using the term “hostility,” could you help me understand the choice there as opposed to “hatred” or terms already in the law?
Senator Karetak-Lindell: [Technical difficulties] I’m at the mercy of someone who might want to suggest something else. Changing legislation is not my everyday thing.
Senator McPhedran: For any of us.
Senator K. Wells: [Technical difficulties] if it were the intention to parallel this to Holocaust denialism. Earlier comments said maybe the words weren’t quite written in the same way.
The question is this: Is there anything critical that is missing if the intention was to parallel, or is it satisfactory the way it is written?
Ms. Breese: If I return to the four items, as drafted right now — and even this amendment — there is no AG consent requirement that we find for other subsections 319(2) and 319(2.1) offences — the other two wilful promotion offences.
However, I see that the amendment addresses the forfeiture provisions, so that is captured. Then, there is the clarification clause in Bill C-9, which I think is clause 11.1. That is another area where, if the committee were to advance this, that offence should be captured in that clause, too.
Senator Senior: From what I’m hearing, we are looking at a potential amendment. Is there anyone who would like to put that forward?
Senator McPhedran: I am just wondering if Senator Karetak-Lindell needs more time to think about that.
Senator Karetak-Lindell: I would be open to any amendments that would clarify or make it easier to understand or be within the same example I am trying to use.
Senator McPhedran: To align with —
Senator Karetak-Lindell: Yes, thank you.
Ms. Breese: To be helpful, we also have to keep in consideration the defence that has been repealed. Right now — to ensure that, yes, good faith — there is coordination or alignment with that amendment, too, in Bill C-9.
Senator Martin: I was wondering if you could further clarify what you just said, because the next amendment in line is related to the good faith religious expression repeal that has happened — the Bloc amendment.
I was listening to see how an adoption of this amendment, once amended, would impact the next amendment.
Ms. Breese: The next amendment would carry through this new offence if the committee were to support it. For example, if there is an amendment proposing not to repeal the defences, then no changes would be required to this amendment; it would carry through the provision. That was more my comment — to make sure, just to align — yes.
Senator Senior: [Technical difficulties] how it is now. Is that correct?
Ms. Breese: [Technical difficulties]
Senator Senior: Yes, okay.
Senator Karetak-Lindell, would you like some time to consider an amendment?
Senator Karetak-Lindell: Would that be changing “hostility” to “hatred”? Is that what we are talking about?
Senator Senior: It sounds like that might be where we are going, although there might be a bit more complexity, as we had with Senator Bernard’s amendment.
Senator Karetak-Lindell: Okay.
The Chair: So, we could refer that to the lawyers to work on if such an amendment is being proposed.
Senator Karetak-Lindell: If it would better align with —
The Chair: If a subamendment is being proposed, excuse me.
Senator Karetak-Lindell: If it would make it align better with the example that I am using to base my amendment on, then I’m totally open to suggestions.
The Chair: We would need another senator to move that for you. Senator McPhedran? So moved.
We will suspend. However, we know that we have the wording for the first proposed amendment.
We could come back to that while that subamendment is being looked at. If it is agreed, we will proceed.
We will shift our brains a little bit. I want to make sure we are all on the same page here.
We will now shift back to the first amendment, the subamendment to the first amendment. I will just go to Senator Arnot.
Senator Arnot: So if you look at page 2 of the actual act, (2.2), but on the top it is “(a) a symbol that is principally used by . . .” Then what I am proposing is an amendment to paragraph (a) of the amendment of Senator Bernard, which is to insert the words “or a noose, or” after the words “also known as the SS bolts.” In other words, the “also known as the SS bolts” remains, but you insert “or a noose, or.”
I want to be clear on that.
In the writing here, it says “and (b)” and it should — it is a typo, “and by deleting paragraph (b)” in Senator Bernard’s amendment.
That is absolutely clear to everybody, I can see.
Senator LaBoucane-Benson: To confirm, what you are proposing is that it will read now, “Also known as the SS bolts, or a noose, or . . .” and everything else is taken out from the amendment that Senator Bernard proposed.
Senator Arnot: That’s correct.
Senator LaBoucane-Benson: That’s correct? Thank you for the clarification.
Senator Arnot: It is a semicolon instead, but the clerks will take care of that.
Basically, the whole intent of my subamendment is to have the words “or a noose” in the act and then to delete paragraph (b), which we have already discussed.
The Chair: Yes. On debate, Senator McPhedran.
Senator McPhedran: Thank you. This is a question to Senator Arnot, really to ask for assurance or reassurance that the reference that only had “race, ancestry or ethnic origin” is gone.
Senator Arnot: Correct.
Senator McPhedran: Thank you.
Senator Arnot: That whole piece is gone.
Senator McPhedran: Thank you.
The Chair: Are there any other questions or comments?
Senator Arnold: For clarification here, “a burning cross, a white pointed hood,” that is gone now?
Senator Arnot: Correct.
Senator Arnold: Why?
Senator Arnot: It is just a noose.
Senator Simons: I’m not supposed to say anything; I’m observing. However, I’m curious if Senator Arnot could explain why he has chosen to remove the burning cross and the Klan hood.
Senator Bernard: Do you wish to respond to the question, Senator Arnot?
Senator Arnot: No, I think you are best placed to do that.
Senator Bernard: Thank you for the question, senator. I was about to put my hand up to speak to that, so this is good.
Further reflection and consideration of the evidence we received is the reason for the removal of those other two symbols. The noose was specifically the symbol that we repeatedly heard about in evidence. Although some people referred to other symbols, they weren’t specifically named by most of those witnesses.
I am supporting the subamendment.
The Chair: I would like to call the question.
Senator D. M. Wells?
Senator D. M. Wells: It may be necessary to have a recorded vote.
The Chair: Okay.
We’re asking for a recorded vote.
Is it your pleasure, honourable senators, to adopt the subamendment?
Some Hon. Senators: Agreed.
The Chair: We’re doing a recorded vote.
Ms. Woodward: The Honourable Senator Senior?
Senator Senior: Yea.
Ms. Woodward: The Honourable Senator Arnold?
Senator Arnold: Yea.
Ms. Woodward: The Honourable Senator Arnot?
Senator Arnot: Yea.
Ms. Woodward: The Honourable Senator Bernard?
Senator Bernard: Yea.
Ms. Woodward: The Honourable Senator Karetak-Lindell?
Senator Karetak-Lindell: Yea.
Ms. Woodward: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yea.
Ms. Woodward: The Honourable Senator Martin?
Senator Martin: Abstain.
Ms. Woodward: The Honourable Senator McPhedran?
Senator McPhedran: Yea.
Ms. Woodward: The Honourable Senator Osler?
Senator Osler: Yea.
Ms. Woodward: The Honourable Senator D. M. Wells?
Senator D. M. Wells: Yea.
Ms. Woodward: The Honourable Senator K. Wells?
Senator K. Wells: Yea.
Ms. Woodward: Yeas, 10; nays, 0; abstentions, 1.
The Chair: Thank you, senators.
The subamendment has been carried. So we will now resume with the main motion or main amendment.
Shall the motion in amendment, as amended, carry?
Hon. Senators: Yea.
The Chair: I’m hearing overwhelmingly it is “yea.” Thank you, senators.
We will now go to Senator McPhedran to read the subamendment.
Senator McPhedran: Thank you, Madam Chair.
I would like to move that the motion in the amendment be amended in subparagraph (a)(ii) by replacing “hostility” with “hatred,” and I would also ask if Senator Karetak-Lindell could confirm that she considers this a friendly subamendment.
Senator Karetak-Lindell: Yes, I do.
Senator McPhedran: Thank you.
The Chair: Thank you.
Is it your pleasure, honourable senators, to adopt the subamendment?
Hon. Senators: Agreed.
The Chair: Carried.
Shall the motion in amendment, as amended, carry?
Hon. Senators: Agreed.
The Chair: Great.
We are moving on to the next amendment, by Senator Martin.
Senator Martin: Thank you, chair and colleagues.
I have an amendment that is in clause 4, page 2. I move:
That Bill C-9 be amended in clause 4, on page 2, by deleting lines 15 and 16.
The Chair: Senator Martin, could you provide us with a rationale?
Senator Martin: Yes. Colleagues, this amendment does one simple thing: It restores the long-standing good faith religious expression defence in section 319 of the Criminal Code. It does not weaken Canada’s hate laws. It does not protect hate speech. It does not shield violence, intimidation or dehumanization.
It preserves a narrow, existing safeguard while leaving intact the high threshold required to prove the wilful promotion of hate.
The central question is whether we should remove a protection that has existed for decades when there is no clear evidence that it has caused harm or impeded prosecutions. Based on the evidence before this committee, that case has not been made.
We heard clearly that this defence has never successfully been used to defeat a hate propaganda prosecution.
Professor Kenneth Grad told us his research has found no such cases. Mark Sandler put it even more plainly, saying, “There has never been a case where that defence has successfully been invoked — not one.”
If the defence has had no practical impact on prosecutions, removing it does not strengthen the law.
Justice officials reinforced this point. They acknowledged that the offence already has a very high threshold and that good faith is fundamentally incompatible with the wilful promotion of hatred. In their words, removing the defence “. . . in a sense, would be redundant . . . .” So if repeal does not improve prosecutions, what does it do?
The evidence we heard suggests it creates uncertainty. We heard that concern across faith communities and civil liberty organizations. The Anglican Church warned that repeal would introduce new uncertainty around religious teaching and discussion. Muslim organizations, including the National Council of Canadian Muslims, called for the defence to be restored.
Witnesses from Black faith communities spoke about the chilling effect that can arise not from convictions but from the complaints, investigations and legal costs, especially for smaller or marginalized groups. That is an important point.
The criminal process itself can have consequences. Even without a conviction, the risk of investigation or public accusation can discourage lawful, good faith religious expression.
We also heard from witnesses who strongly support protections for vulnerable communities, including LGBTQ Canadians, yet still supported keeping this safeguard.
Reverend Cheri DiNovo told us that theological disagreements should not draw in the “. . . heavy hand of the law . . .”
Others described restoring the provision as the simplest way to maintain balance.
This amendment reflects that balance. It preserves strong tools to combat real hate. None of those provisions are affected while maintaining a clear, statutory assurance that good faith religious expression is not the target of criminal law.
A “for greater certainty” clause is not an adequate substitute. If clarity is the goal, it should be in the Criminal Code itself, along its other four legs. We’re removing a leg from the four corners of this important section.
It should be in the Criminal Code itself, not left to interpretation or future guidance.
In the end, the question is straightforward: What problem does repeal solve? We have not seen evidence that the defence has enabled hate. We have seen evidence that removing it creates uncertainty and concern.
In a pluralistic society, Parliament should not remove clear protections for lawful expression without a demonstrated need. That need has not been shown here during the study by the committee.
This amendment restores a careful balance. Hate will be prosecuted, and good faith religious expression will remain protected.
For those reasons, I urge my honourable colleagues to support the amendment.
The Chair: Thank you, Senator Martin.
Senator McPhedran: I would like to express my support for this amendment.
I think the most powerful argument that you have made, Senator Martin, is probably with respect to balance, and that it really is a constitutional balance that our courts have consistently found. The uncertainty part of this is uncertainty around what greater encroachment on personal freedoms and expression could potentially happen with this amendment because we know the limitations on it in the current context.
Thank you for the amendment. I will support it.
The Chair: Are there other comments or questions?
Senator K. Wells: Respectfully, I would take a different approach than Senator McPhedran on that — the fact that this defence is legally redundant and, as was stated, has not been used in the past successfully. The Supreme Court in Keegstra used it as an interpretive aid, not a stand-alone protection. Since it has never successfully been invoked but in practice has been used almost exclusively to defend against anti-LGBT expression, the opposite example that you gave there, I know that many communities, for decades, have been asking for this to be removed. And the “for greater certainty” clauses actually provide greater legislative intent, not to mention the fact that the House has already voted to remove this defence with Liberal and Bloc support. So the government’s position has been very clear and stated numerous times in the Hansard in that adding the “for greater certainty” clause confirms the educational, religious, political and scientific expression on matters of public interest is not going to be caught by these offences provided there is no intent to promote hatred.
So it has been said repeatedly, and I think the minister said this very well, that you cannot wilfully promote hatred in good faith. That is what the removal of this clause actually clarifies.
Senator Martin: I wasn’t here for all of the committee meetings, but I have followed it carefully. I know that critics and legal experts argue that the “for greater certainty” clause added to Bill C-9 is an inadequate replacement for the original religious defence because it relies on circular logic and provides no protection against the initial threat of investigation. That is where the uncertainty will be created — if it is in the law but not within the code — the “for greater certainty” clause fails to define what constitutes the wilful promotion of hatred in a religious context. It does not offer guidance on where the legal line is drawn between a traditional, deeply held religious teaching and criminal hate speech. And the fact that we’re removing a statutory shield that has a high threshold, but it is something that provided that certainty, that without that explicit defence, like a pastor, imam or a believer who quotes a controversial sacred text — we can obviously agree that in a pluralistic society, we cannot all agree to various texts, but just even that they could be subjected to police investigation, hate crime complaints and costly trials because on the front end it would be seen as an offence.
The “for greater certainty” clause does not provide that protection. I think we’ll end up with potentially unnecessary complaints that are filed, reputations at risk and people pushing the boundaries. We heard that too. With smaller organizations and churches with very limited funding — it puts a lot of these groups at high risk.
So the protection that was in the Criminal Code has a very high bar that will be used and has been used for over 50 years. I don’t see the proof that this is causing harm. What the bill intends, rather than protecting from harm, will cause harm to those who are in good faith expressing those beliefs.
I think in Canada, we need that.
The Chair: Thank you.
Senator Arnot: I agree with Senator K. Wells on this point. I think the defence has not been used. It seems that it’s redundant and not required by law. I’m not sure why we would put it back in, since the House of Commons took it out after great debate. We usually give deference to the House of Commons. There are a lot of hypotheticals that have been proposed that are possible but not very probable at all.
Senator K. Wells: I think we heard the minister and the government both repeatedly state that the ordinary quoting of scripture would not meet the threshold required under the Criminal Code, and so perhaps there isn’t that concern. Maybe there is a perception, but that’s not actually how the code would be applied. It’s clearly the wilful promotion of hatred that has to be met.
My question is to the Justice officials. We have seen how the good faith religious defence has been used or brought as a defence in the code. It’s not a prosecutorial guideline. Could you maybe clarify the difference there?
Ms. Breese: I’m not sure I understand the question, but what I can say is the defence serves to reinforce the narrow scope of the offence. What was said earlier is that you cannot wilfully promote hatred at the same time as being in good faith. Again, the offence does not criminalize religious expression. It is an expression done to promote hatred. The courts have been clear as to what that would be, and we discussed that hatred is vilification and detestation, but case law has also set out hallmarks of hate. So someone even reading a controversial text, in and of itself, unless it is accompanied by, for example, hallmarks of hate, intentionally promoting hatred against an identifiable group —
I can give examples of hallmarks of hate if that is helpful, but it’s only to inform the scope, again, that the defence does not protect a category of expression that would otherwise not be captured by the offence if it’s wilfully promoting hatred — that you cannot in good faith read scripture and, at the same time promote hatred in a certain context. They negate each other.
Senator Martin: In a perfect world, I could not think about unintended consequences, not think about the chilling effect and not think about all the witnesses that we heard. The government claims the clause shifts religious protection to the beginning of the legal process so that faith practices are not considered a hate crime to begin with. However, by stripping out the concrete words “good faith,” the new text strips away the subjective legal protection of a speaker’s sincere, non-malicious intent. It leaves individuals entirely at the mercy of how a Crown prosecutor or a judge defines “hatred” on any given day.
So I really believe that removing the protection, the good faith religious expression that we’ve had and that provides the balance constitutionally that we’ve heard from many witnesses, from the overwhelming number of appeals from faith communities across the board, as well as civil liberties organizations and even lawyers themselves — I just really believe that the “for greater certainty” clause is not enough and that we need to keep this protection in the Criminal Code.
Senator K. Wells: Maybe just a question for clarification to our Justice officials, if I have this correct. But that the good faith religious act offence only applies to two narrowly defined offences, wilful promotion of hatred and wilful promotion of anti-Semitism, and both of those require the Crown to provide specific intent to promote hatred in addition to the Attorney General’s consent. These are already very high legal thresholds, some of the highest in the Criminal Code, and repealing the defence would not change that at all. Is that correct?
Ms. Breese: That’s correct: Repealing the defence would not change the scope of this offence.
Senator Martin: I do have one question. Earlier, Senator Arnot was saying this is what the House sent to us, but we just amended the bill. So there is an opportunity to do the right thing based on witness testimony. My question to the officials is this: How do you respond to the concern raised by constitutional experts that removing this defence undermines its constitutionality? We’ve had this very important balance over the past 50-plus years. The experts are asking this question.
Ms. Breese: Thank you for the question. I think that different experts have different views. The minister and officials have been quite clear. To the extent that this provision has been constitutionally scrutinized, the offence threshold is so high, it is very difficult to meet.
The court alludes to this in Keegstra. The good faith negates wilful — it does inform the scope of the offence. So, to the extent that religious expression is already protected by the Charter, to the extent that the wilful promotion of hatred offences establishes high mens rea requirements, a high threshold for hatred, that it has to be promoting hatred against an identifiable group, these are safeguards that are built into the offence that the defence does not serve to change those. You can’t meet that high threshold and, at the same time, be in good faith.
I understand there are different views. I think we’ve tried to explain —
Senator Martin: There are such differing views by the experts themselves. I don’t understand removing it and taking the rise. Given some of the unintended consequences and concerns that we have heard, why are we subjecting Canadians to these concerns rather than continuing with what we have and targeting the acts of hate that we know this bill attempts to target?
I’m not convinced, and I’m asking my colleagues to remember all the testimony that we heard at committee. Thank you.
The Chair: Okay. Thank you, senators. In light of the fulsome discussion, we will now go to the question.
Are senators ready for the question?
Hon. Senators: Agreed.
The Chair: We will have a recorded vote. Is it your pleasure, honourable senators to adopt the motion in amendment?
Ms. Woodward: The Honourable Senator Senior?
Senator Senior: Abstain.
Ms. Woodward: The Honourable Senator Arnold?
Senator Arnold: No.
Ms. Woodward: The Honourable Senator Arnot?
Senator Arnot: No.
Ms. Woodward: The Honourable Senator Bernard?
Senator Bernard: Abstain.
Ms. Woodward: The Honourable Senator Karetak-Lindell?
Senator Karetak-Lindell: Abstain.
Ms. Woodward: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Nay.
Ms. Woodward: The Honourable Senator Martin?
Senator Martin: Yes.
Ms. Woodward: The Honourable Senator McPhedran?
Senator McPhedran: Yes.
Ms. Woodward: The Honourable Senator D. M. Wells?
Senator D. M. Wells: Yes.
Ms. Woodward: The Honourable Senator K. Wells?
Senator K. Wells: Nay.
Ms. Woodward: Yes, 3; no, 4; abstentions, 3.
The Chair: The motion is defeated.
Senator D. M. Wells: I must have miscounted because I had it as four yeas and three nays. I accept that I may be wrong.
Ms. Woodward: I will read the yeas and the nays for clarity. For yeas, I have the Honourable Senator Martin, the Honourable Senator McPhedran and the Honourable Senator D. M. Wells.
For nays, I have the Honourable Senator Arnold, the Honourable Senator Arnot, the Honourable Senator LaBoucane-Benson and the Honourable Senator K. Wells.
For abstentions, I have the Honourable Senator Senior, the Honourable Senator Bernard and the Honourable Senator Karetak-Lindell.
The Chair: Senators, we are now moving on. Shall clause 4, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall clause 5 carry?
Senator D. M. Wells: I have an amendment. I’m not going to read out the amendment first. I’ll read out the amendment last. First, I’ll give you the “why” and the “what.”
This amendment would keep the new hate crime offence tied to the Criminal Code. Colleagues, you will recall that the wording in the bill calls for hate crime to be in effect for any other act of Parliament. My amendment puts hate crime under the Criminal Code.
Right now, colleagues, if this bill passed with this clause, if there were something under the Canada Elections Act or the Canada Labour Code, which is “any other act of Parliament,” not under the Criminal Code, and it were deemed to have relation to hate, that part of any other act of Parliament that is not in the Criminal Code could be subject to a criminal offence.
With this amendment, it would essentially delete “any other act of Parliament” and keep it within the Criminal Code. So, colleagues, the amendment would keep the new hate crime offence tied to the Criminal Code rather than extend it is to every other federal statute.
Obviously, I’m targeting things that aren’t part of the Criminal Code. As drafted, clause 5 is too broad and creates a real risk of overreach beyond the criminal law sphere. Without this amendment, offences under the statute — as I said, under the Canada Elections Act, for instance, or the Canada Labour Code — could, in theory, attract criminal prosecution if hatred were alleged. If hatred were alleged, that’s carried separately under the Criminal Code in any event.
My amendment wouldn’t negatively harm the bill. Hate-motivated offences, as I said, under the Criminal Code would still be fully covered.
This is a measured amendment that reduces uncertainty, avoids unnecessary duplication and makes the new offence more coherent and easier to justify. In testimony at committee, Mark Joseph, Director of Litigation, the Democracy Fund, warned that the inclusion of “any other act of Parliament” was too broad, and he recommended removing it. I would agree with that.
Senator McPhedran: Senator D. M. Wells, can you give us an example of what could be harmful if we did not follow your amendment?
Senator D. M. Wells: If there were an offence under the Canada Elections Act, in this case, it wouldn’t rise to the occasion of being a criminal act if it were judged to be motivated by hatred. That hatred is already covered under the Criminal Code. My amendment would say that it shouldn’t be attached to something not under the Criminal Code. With respect to “any other act of Parliament,” we do acts of Parliament every day that are created to offshore health and safety, for instance, as you’ve heard me talk about many times. So this would separate that. I’m not suggesting removing it. It would still be maintained as hatred under the Criminal Code.
Senator K. Wells: I have a question for the Department of Justice officials. We talked about this at one of our previous meetings. Could you provide examples of how Bill C-9 would apply to other acts of Parliament specifically related to this legislation? There was one example of the Elections Act, but there could be an example of the Elections Act, where that motivation of hatred would be important to capture as a criminal offence, as well as other acts of Parliament as examples where this could come into play.
Ms. Breese: Thank you for the question. As a starting point, the new hate crime offence would not create new criminality. It would apply to federal offences and any other act of Parliament. That means criminal offences, which are conduct that Parliament has already deemed to be morally blameworthy and criminal.
For example, if we look at the National Defence Act, there are criminal offences in that act. There is an offence for cruel and disgraceful conduct and also an offence for the abuse of a subordinate. If someone who committed those offences did it by hate motivation, then that would be captured by the hate crime offence. So that offence is not targeting noncriminal conduct. It’s still targeting criminal offences; it’s just that there are criminal offences outside of the Criminal Code.
Senator D. M. Wells: I think you’re arguing my point. If it’s already covered under the Criminal Code, then why is there a necessity to attach it to something that is not in the Criminal Code?
Kristen Ali, Manager and Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: As my colleague explained and as we have spoken about at this committee previously, we have examples of offences that aren’t in the Criminal Code. The purpose of the proposed new offence for hate motivation would be to clearly denounce hateful conduct where it is applicable to an offence that isn’t a part of the code. My colleague has used the National Defence Act as one example of many acts where we find true crimes across the federal statute book.
I could perhaps give you another if it would be helpful. For instance, in terms of other federal acts that could be caught by the new offence if motivated by hatred, it could include an incident where someone contaminates a water body to pollute a fish source used, for example, by an Indigenous or First Nations community. This is included in sections 36 and 78 of the Fisheries Act. Where that conduct is motivated by hatred, that would be an example of where the new offence would apply in a context that isn’t otherwise necessarily captured in the Criminal Code, as it is a Fisheries Act offence. I hope that helps to clarify things.
Senator D. M. Wells: I understand, but regardless of the fact that it was motivated by it, any act that is an act of hatred is covered under the Criminal Code.
Ms. Ali: Not currently. I’ll turn to my colleague Ms. Breese to clarify this as well, but certainly, we have hate propaganda offences in the Criminal Code — as this committee has been discussing and has discussed at length in clause 4 — but there is currently no specific crime of hate-motivated conduct in the Criminal Code. That’s the purpose of this proposed offence: to add that to fill a gap in the current law.
Marianne, I’m not sure if there is anything to add.
Ms. Breese: I think currently most hate crimes are dealt with through an aggravating factor at sentencing. A judge will consider if there is evidence of hate bias or prejudice to influence or determine the appropriate sentence. There is no, as my colleague said, hate crime offence in the code currently.
Senator D. M. Wells: But it is covered in the consideration by the judge.
Ms. Breese: It is not considered in this way. This would make it a more structured, up front denunciation of all hate-motivated crime, and the offence includes an escalating penalty structure that provides a bump-up. That will inform judicial decisions on the penalty, but it does so in a clear and consistent way for all criminal offences found in any act of Parliament. Again, the key here is it is always targeting criminal conduct; we’re adding a hate motivation to the conduct.
Senator D. M. Wells: Chair, I’d like to read the amendment.
Senator K. Wells: Would it be a fair assessment that the objective in this legislation is consistency so that hatred as a motivating factor is treated the same way across federal law, whether that’s the Criminal Code or, as we’ve heard, acts of criminality that sit outside of the Criminal Code in the acts of Parliament in some of the examples that you mentioned? If this didn’t include the acts of Parliament, do we have an inconsistent application?
Ms. Ali: I would certainly say the intent is consistency.
Senator McPhedran: Can I just ask a question of the officials? Could you tell us the likely impact under the Youth Criminal Justice Act if this clause goes forward as stated? What does that do to youth in this country?
Joanna Wells, Senior Counsel and Team Lead, Criminal Law Policy Section, Department of Justice Canada: The Youth Criminal Justice Act itself does not contain criminal offences. Those offences are contained in other statutes. What the Youth Criminal Justice Act does is speak to how to treat young people when they commit offences. For offences motivated by hate, in that context, they would be sentenced accordingly as youth. Because there are no offences in the Youth Criminal Justice Act, the concerns raised by Senator D. M. Wells would not arise in that context, and youth would continue to be sentenced pursuant to the Youth Criminal Justice Act, taking into account their diminished moral blameworthiness, youth and inexperience.
Senator McPhedran: With the amendment by Senator D. M. Wells, would that not be more protective of youth than the way this bill is currently worded?
Ms. Wells: I think it would be neutral. I don’t think it’s more or less protective in that context.
Senator D. M. Wells: Senator McPhedran makes an excellent point, and one that passed by me. Of course, the Youth Criminal Justice Act is an act of Parliament and so would automatically be covered by the direct wording of the bill as proposed.
Senator Simons: I’m just observing. But the editor in me says that what you’re saying is this only pertains to things that are like Criminal Code provisions, right? It doesn’t apply to legislation that is not criminal in nature. So it’s only if, for example, in the waterways law, if I hate my neighbour because of their race or gender identity, poison their fish pond maliciously and create water pollution that you could prosecute me for. I didn’t do it because I accidentally spilled pesticide. I did it because I’m a mean, awful person and I hate who they are. Then it would attach. But it wouldn’t attach to things that are not akin to a Criminal Code violation.
Ms. Breese: Building on your example, from the start, it would have to be criminal conduct. That polluting of the water source in itself has to be an offence. So if that person committed the offence of polluting the water source and that conduct was motivated by hatred, then the hate crime offence would apply. But that underlying included offence, that conduct, has to be criminal.
Senator Simons: I think where people are getting hung up is that when you look at the legislation, when you look at the act, it implies that anything can have a hate crime thing attached to it.
But I understand now from your explanation that only attaches if they do something that is like a criminal offence and not a violation, because there are other ways to violate those acts. So is there a way to parse it out, whether it applies and when it doesn’t?
Ms. Breese: If I read the provision, it says, “Everyone who commits an offence — referred to in this section as the ‘included offence’ . . .” Right from the start, the provision says it has to be a criminal offence. That wording in itself.
Senator Simons: A criminal offence? It says “. . . an offence . . .” There are all kinds of offences you can commit under other kinds of legislation that are not criminal that may have administrative monetary penalties, or AMPs, attached to them, for example.
Ms. Wells: Thank you for that clarification. There is often confusion around true crimes and regulatory offences in the Criminal Code. In this offence in particular, the bill targets true crimes, criminal offences — and criminal offences that are identifiable by a strict prohibition. You may not do this. Regulatory offences are more, “You may do this, but you must follow these rules. If you don’t, there may be a consequence.” So what’s targeted, as my colleague Ms. Breese said, are true crimes, criminal offences, and there are many offences of true crimes that exist outside of the Criminal Code because the criminal law power, as a constitutional power, is much broader. So we do find them in places like the Immigration and Refugee Protection Act, the Fisheries Act and the National Defence Act. There are other places where there are criminal laws.
Senator Simons: All right. I don’t get a vote, but I was initially in accord with Senator D. M. Wells; however, having heard your explanation, I understand and will be quiet. I hope that was helpful to others around the table.
Senator K. Wells: This is a great discussion. When I saw that first, I had many of these same questions about how this applies to an act of Parliament and if that is overreach. Just so I’m clear, if this amendment were to pass, the one being proposed to us right now, this would remove the possibility for prosecutors to target hate-motivated crimes under the acts of Parliament and that then would further limit the government’s ability to combat hate crimes more broadly — those happening outside of the Criminal Code of Canada through the various acts of Parliament. So, in some ways, not only would this create an imbalance, but it would not send as strong of a message about the importance of combatting hate in Canada, as it’s only applied to the Criminal Code and not potentially — again, this is just a potential use — for other acts of Parliament if that motivation of hatred were proven and charged accordingly.
Senator Arnot: I think we should have an answer to this. I see a lot of nodding heads.
Senator K. Wells: Yes, that would be good, or something to that effect.
Ms. Breese: Yes. The result would be that some criminal conduct would not be captured by the new hate crime offence simply because it’s not in the code, even though it is criminal conduct that is hate motivated.
Senator McPhedran: So what we have currently in a number of pieces of legislation at the federal level are prohibitions against unacceptable and harmful conduct that reach a threshold of criminal liability. They already exist. They can already be prosecuted. So why would you introduce this section, this clause, when those prohibitions already exist and can already be prosecuted? I think you used the term “bump up.” Bump up where? Bump up with what result?
Ms. Breese: Perhaps it helps to think about the hate crime offence as an umbrella offence. The hate crime offence will capture all criminal offences across federal laws. For example, take an offence under the Immigration and Refugee Protection Act. Criminal conduct — yes, it can be prosecuted under that act. That is not what the new offence is targeting; it is saying if this offence is committed and it is motivated by hatred, this is an additional, very serious harm that should be recognized and denounced in and of itself, it can be prosecuted under the new hate crime offence.
In practice, all of the elements of that criminal offence under the Immigration and Refugee Protection Act will have to be proven in prosecution, and, if it is found to be hate motivated, then a court will be able to — if you look at the provision, there is an escalating penalty structure.
I do not know offhand, but say that an offence has a five-year maximum penalty of imprisonment. Under the hate crime offence, if it’s prosecuted under indictment, it would go to up to 10 years of imprisonment. The court will have discretion within that range to impose an appropriate sentence based upon the seriousness of the offence and the moral blameworthiness of the offender.
Does that help to explain?
Again, yes, there are already offences. We’re not creating new offences; we’re saying that when you commit these offences and they are motivated by hatred, then they will be prosecuted under the new hate crime offence. First, it can be clearly denounced up front and for data purposes — also recorded as a hate crime — and, second, you can access higher penalties to reflect the serious harms caused by hate-motivated offences. That is not captured in the other federal acts.
Senator D. M. Wells: If the intention is for it to apply only to criminal offences under other acts, then that should be specified. If a person is prosecuted, even if the prosecution doesn’t ultimately succeed, that person would still have to go through an additional judicial process under the Criminal Code. That doesn’t seem right, especially if they are found not guilty or are acquitted.
Chair, I would like to read the amendment.
The Chair: Please.
Senator D. M. Wells: I move that:
That Bill C-9 be amended in clause 5,
(a) on page 3,
(i) by replacing line 21 with the following:
“this Act, if the commission”,
(ii) by replacing line 33 with the following:
“under this Act is not, for”;
(b) on page 4, by replacing lines 21 and 22 with the following:
“(4) and (5), any provision of this Act — including one in respect of procedure, or-”.
The Chair: Are senators ready for the question?
It will be a recorded vote.
Ms. Woodward: The Honourable Senator Senior?
Senator Senior: Nay.
Ms. Woodward: The Honourable Senator Arnold?
Senator Arnold: Nay.
Ms. Woodward: The Honourable Senator Arnot?
Senator Arnot: Nay.
Ms. Woodward: The Honourable Senator Bernard?
Senator Bernard: Abstain.
Ms. Woodward: The Honourable Senator Karetak-Lindell?
Senator Karetak-Lindell: Nay.
Ms. Woodward: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Nay.
Ms. Woodward: The Honourable Senator Martin?
Senator Martin: Yea.
Ms. Woodward: The Honourable Senator McPhedran?
Senator McPhedran: Yea.
Ms. Woodward: The Honourable Senator D. M. Wells?
Senator D. M. Wells: Yea.
Ms. Woodward: The Honourable Senator K. Wells?
Senator K. Wells: Nay.
Ms. Woodward: Yeas, 3; nays, 6; abstentions 1.
The Chair: The motion is defeated.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Carried. Thank you.
Shall clause 6 carry?
Senator McPhedran: I would like to propose an amendment for consideration. I am focusing on safeguards for freedom of peaceful assembly.
I want to begin by noting that the Criminal Code is the sledgehammer of the state. We have had numerous references to what happens to people when they are subjected to criminal charges, especially when there ends up not being a finding of guilt. The criminal mind is defined by mens rea. In the amendment I’m proposing, I’m broadening the scope of the exception for obtaining and communicating information, which is a protection of freedom of expression, by adding that protection to intimidation.
Basically, I’m asking:
That Bill C-9 be amended in clause 6, on page 5, by replacing line 18 with the following:
“(4) No person is guilty of an offence under subsection (1) or (2)”.
— remembering that this is an echo of what we already have in the bill as a protection.
The new intimidation offence in Bill C-9 risks enforcement in the context of peaceful protests that could limit rights. Violent and threatening conduct during protests is already prohibited by existing Criminal Code prohibitions — for example, participating in a riot, assault, uttering threats, intimidation, criminal harassment, et cetera.
This is a new additional intimidation offence, but it has a vague and broad threshold: “. . . intent to provoke a state of fear . . .” There’s an important difference between having the intent through a protest to voice unpopular opinions and, thereby, potentially disrupt everyday lives. Our work is here in Parliament; we experience this on a regular basis. This clause in Bill C-9 is highly subjective. You end up with many attributes of a protest — how loud it is, the presence of a large crowd, strong language, an unpopular or polarizing stance and so on — that could be seen by police and interpreted in the moment as evidence of intent to instill fear in others when that is not the intent at all.
These elements are constitutionally protected forms of expression and peaceful assembly that should not be criminalized in a democracy.
Bill C-9, as currently drafted, provides this exception — there is an acknowledgment that there need to be some protection or exceptions — but it only applies to the new obstruction provision.
I’m proposing my amendment to broaden the scope of the exception to also apply to the new intimidation offence. In applying this exception to the new intimidation offence, it would clarify the offence’s mens rea — what has to be in the mind of the person who is potentially charged. It also becomes an alert to law enforcement against conflating mens rea with mens rea that is not there for intimidation but that could be seen or interpreted that way when, in fact, it is the intention to peacefully and non‑violently express something aimed at persuading people of something.
Let me give you a personal example.
I’m part of a network of women known as Women in Black who demonstrate in silence. It is picked up on a model that was developed in Israel about 25 years ago. We stand in silence, dressed in black, at a major intersection in Toronto as a way of expressing concern about the thousands of children who have been killed as part of Israel’s war on Gaza.
Just from commentary from some passers-by, that has been framed as being something that instills fear. That would meet the threshold of the way this is currently worded in Bill C-9.
Let’s look at the current intimidation provision, subsections 423(1) and (2). It provides for an “. . . obtaining or communicating information . . .” exception. This exception clarifies the scope of a subcategory of prohibited conduct that could otherwise be interpreted in a way that violates both freedom of expression and freedom of peaceful assembly.
That is the rationale for extending this protection so that we do not, in fact, overreach. The specific section, just for the record, says:
(f) besets or watches the place where that person resides, works, carries on business or happens to be; or
(g) blocks or obstructs a highway.
Then it goes on to say:
(2) A person who attends at or near or approaches a dwelling-house or place, for the purpose only of obtaining or communicating information, does not watch or beset within the meaning of this section.
This is an example of a similar kind of protection that is already in law, and what I would propose is that Bill C-9 similarly respect both peaceful assembly and freedom of expression.
Senator K. Wells: If I understand this correctly, what Senator McPhedran is proposing is sort of an alignment between the obstruction and the intimidation sections that are added here.
Maybe my question, then, is to the Justice officials. Can you explain why those two sections are different and cannot be aligned in the other examples in the Criminal Code, for example, in relation to health services that don’t have those same kinds of elements in them, when it relates to intimidation offences?
I am asking if there are important reasons why these two are similar but distinct.
Ms. Wells: I will do my best to tackle this problem. There was a lot of commentary in that question, so please bring me back to the nub if I get too far away from the actual question.
First, I would clarify that, with respect to intimidation, in the criminal context, intimidation is about what is in the mind of the accused. It is not what is in the minds of people who are observing it. That is the nature of criminal law and the nature of criminal law intimidation.
Even though people feel afraid, that doesn’t speak to the intent of the offender. The challenge that was raised by Senator McPhedran is something that criminal law deals with on a regular basis in terms of looking to see what is in the mind of the accused. It is something that judges and prosecutors are well equipped to put before the court and to draw those inferences from. It won’t be an unfamiliar exercise in a court of law.
With respect to the difference between the intimidation offence and obstruction offence and why the defence is only proposed for obstruction, it has to do with the nature of the specific intent element that is proposed in the intimidation offence.
With respect to the intent to provoke a state of fear, the view of the government is that that is not conduct that requires protection. It is expressive conduct, but it is conduct that is not worthy or is does not necessarily need protection. In contrast, with the obstruction offence, obstruction is often expressed in a protest type of activity. The intent was to be clear that, if you are simply there to communicate, you are not committing obstruction.
It would also be important to point out it would be very difficult to imagine a scenario where someone is at a specific place only to communicate but also has the intent to provoke a state of fear. Like the good faith religious exemption defence, they would cancel each another out, so it is hard to imagine a scenario where that defence could be invoked.
I hope that is helpful. There was a lot in there.
Senator K. Wells: If this amendment were to pass, then it would create inconsistencies in the Criminal Code with other sections. Previously, we had existing obstruction for the offence in relation to health services, which contains the same defence, but there are no such provisions in the intimidation offences protecting health care professionals, justice system participants or journalists.
Ms. Wells: Correct. Thank you for reminding me of that piece of it as well.
Yes, the proposed offences for obstruction and interference with religious and cultural spaces were modelled very closely on the health care protection offences, and the same approach was taken in that the defence was only enacted with respect to the obstruction-related offence and not the intimidation-related offence because of those specific intent elements, to provoke a state of fear, because that intention to provoke a state of fear is not protected speech.
Senator K. Wells: To be clear here, it seems like the nexus is the requirement to provoke a state of fear is a very high threshold to meet, and this ensures that this offence would only capture a narrow scope of conduct rather than something much broader.
Ms. Wells: It is certainly intended to be narrow. A specific intent element is meant to be a high threshold.
Senator K. Wells: Which, again, as you said, is in the mind of the perpetrator.
Ms. Wells: Correct.
Senator K. Wells: It is the intent of the perpetrator and not the feelings —
Ms. Wells: It is not how it is perceived by the general public.
Senator K. Wells: Thank you.
Senator McPhedran: I have two questions of the officials. The first is this: With reference to the health services section, is there any judicial interpretation of that section?
You have modelled this on the health care services section. Has there been any kind of judicial interpretation?
Ms. Wells: Not that we are aware of. We do check fairly regularly, and we have not seen reported judgments. Whether or not there have been prosecutions that have not been reported, there are no reported judgments that we’re aware of.
Senator McPhedran: What is the rationale for bringing this into Bill C-9 when the other section is not in any way proven to be effective?
Ms. Wells: The government’s stated objective in proposing these offences was to provide specific protections because of the challenges that were being reported and being seen across the country, with people being intimidated or prevented from accessing specific places of worship, in particular.
To the extent that there are no reported judgments, it is not necessarily a signal that it is not having an impact on the ground.
Senator McPhedran: With this new intimidation offence and its very vague and very broad threshold, the intent to provoke a state of fear, can you get us an example, please, of the way that would be determined in a prosecution and where the surety or where the certainty is?
Ms. Wells: It is difficult to provide specific examples because each case in criminal law would be decided on the facts before a judge. It could take into account the words that an accused used, gestures that they used, what they were wearing and the context that they are in. Are they in a protest? Are they standing alone?
It is difficult to provide a case. It hasn’t been enacted. But there certainly are —
Senator McPhedran: That is very helpful because it captures the nub of my concern here: If someone is participating in a protest — which is a form of peaceful assembly and a constitutionally protected freedom under our Constitution and in our democracy — that gets to be interpreted, potentially, as a demonstration of the intent to intimidate.
I don’t see the value to our democracy in using such a vague and broad threshold, given the risk of peaceful assembly and peaceful expression being misinterpreted in an intense moment.
We have protests in this country that are constitutionally protected and may very well create responses where people feel intimidated. You have made the point that is not the test. But in human rights cases, for example, where we have similar provisions, that’s part of the evidence that goes in for consideration: What was the impact of the expression and/or the action? So to argue that they are divorced and have nothing to do with one another is not really logical or the way in which these cases are decided.
So, the overall risk to the right to peaceful assembly is significant. If we’re prepared to protect regarding the way that “obstruction” is defined, why are we not prepared to protect regarding the way that “intimidation” is defined?
Ms. Wells: Are you waiting for an answer?
Senator McPhedran: I am.
Ms. Wells: I wanted to make sure. I hear you on the difference in the way that human rights cases are adjudicated versus criminal law.
I can tell you that, specifically, the criminal law looks at what is in the accused’s mind before making a conviction. That is a fundamental principle of criminal law. It is about what the accused is actually thinking and what the accused’s intent is.
Whether or not there was fear, that is not relevant to the accused’s intent, and it would not be considered by a judge. It could be relevant on sentencing, to measure the impact on victims, for example, but it wouldn’t go to conviction.
You speak to peaceful protests. I think everyone and the government would agree that peaceful protests are protected, but they also sometimes become unpeaceful. In those situations, there are many criminal offences that can be and are often charged in protest situations, including inciting a riot and unlawful assembly; intimidation can be one and obstruction can be one.
However, I think it is important to look at the underlying conduct that is being protected by both intimidation and obstruction. On intimidation and the way it is proposed by the bill, you have characterized it as broad and vague, but in the criminal section, it is narrow and targeted. It is the specific intent of the accused to provoke a state of fear in another person in order to prevent them from doing something. That is a very narrowly conscribed criminal offence, and we suspect it would be a difficult threshold to meet.
Whereas, in the obstruction context, there is more scope for capturing — because there is no specific intent element proposed for that offence — it is you are obstructing, you are standing there, maybe linking arms with somebody else to prevent someone from accessing. That could be the conduct that you are doing, so the government’s proposing the defence or the exception to say that if the only reason you are there is to communicate information, we will not convict you of that offence. It is really trying to balance the scope and the underlying conduct at issue in both of those offences.
Senator McPhedran: So I think that I have just heard you describe forms of expression and peaceful assembly that could be brought into the criminal prosecution process, starting with being charged in peaceful assembly.
What is the rationale here for these to be criminalized in a democracy?
Ms. Wells: If I said that it would criminalize peaceful assembly, then I misspoke, because that is certainly not the intention of the bill, nor would it have been the intention of my remarks. I apologize if that is what I conveyed. The intent of these offences is not to criminalize peaceful protest. It is to criminalize criminal conduct when people’s conduct meets the element of the offence. We’re talking about two separate offences. I apologize if I’m mixing them up.
For an intimidation offence, if you have the specific intent to provoke a state of fear in another person in order to prevent them from accessing a place of worship or other listed property, the proposal is that it would be criminal conduct.
Alternatively, if you engage in conduct that would prevent somebody from accessing a place of worship and you can’t bring yourself within the proportioned statutory defence, that could also be criminal conduct. None of it is intended to capture peaceful protest. It is all intended to capture conduct when it arises to the level of criminality.
Senator McPhedran: Can we not do that now? Is it not possible to do now?
Ms. Wells: The Criminal Code has several offences that could be and are often used to charge — mischief to property is one. Section 430 of the Criminal Code is a broad offence that can often apply in this situation. You pointed out previously the general offence of intimidation, and we have health care worker offences, so there are tools.
The government’s stated objective was to provide specific tools to address the concern at the time. That was part of their platform’s commitment to people having challenges with accessing particular places of worship and to provide clarity for law enforcement when they are maybe faced with a situation and they remember, more specifically, the tools of these offences with respect to places of worship and of cultural significance.
Senator K. Wells: I wanted to return to the amendment before us and to clarify that this amendment, should it pass, will significantly change the intent of the legislation and could potentially open that section up to Charter or other legal challenges?
Ms. Wells: I think it would certainly raise questions as to what conduct should be carved out of intimidation, especially as the specific intent is the intent to create a state of fear. What would the government intend to carve out of that? I think the question is more around the clarity of the scope of conduct that would be captured.
Senator K. Wells: It is based on a previous example already in the Criminal Code that we talked about relating to the obstruction part, relating to health care services as opposed to intimidation.
Ms. Wells: Correct.
Senator K. Wells: Okay, thank you.
The Chair: A witness — I cannot recall exactly who, but I think it was the law enforcement panel or a lawyer — talked about the number of charges and how many are dismissed based on the number of charges. That number was quite small in terms of charges that went forward.
Can you speak to how this particular part of the legislation would impact that, considering you want to be much more focused in terms of intent?
Ms. Wells: I think it is certainly the government’s intent that enacting these new offences would help bring clarity to the law as to what is prohibited with respect to access to cultural and religious spaces. But the minister has been clear that these are not issues that we’re going to entirely legislate ourselves out of, and there will have to be partnerships with law enforcement and the provinces with respect to prosecutions and investigations. This is one piece of that broader initiative to better address this conduct.
The Chair: Thank you. Any other questions or comments?
Okay, seeing none, are senators ready for the question?
Hon. Senators: Question.
The Chair: Okay. Is it your pleasure, honourable senators, to adopt the motion in amendment?
We will have a recorded vote.
Ms. Woodward: The Honourable Senator Senior?
Senator Senior: Yea.
Ms. Woodward: The Honourable Senator Arnold?
Senator Arnold: Nay.
Ms. Woodward: The Honourable Senator Arnot?
Senator Arnot: Nay.
Ms. Woodward: The Honourable Senator Bernard?
Senator Bernard: Yea.
Ms. Woodward: The Honourable Senator Karetak-Lindell?
Senator Karetak-Lindell: Yea.
Ms. Woodward: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Nay.
Ms. Woodward: The Honourable Senator Martin?
Senator Martin: Abstain.
Ms. Woodward: The Honourable Senator McPhedran?
Senator McPhedran: Yea.
Ms. Woodward: The Honourable Senator Osler?
Senator Osler: Abstain.
Ms. Woodward: The Honourable Senator D. M. Wells?
Senator D. M. Wells: Yea.
Ms. Woodward: The Honourable Senator K. Wells?
Senator K. Wells: Nay.
Ms. Woodward: Yeas, 5; nays, 4; abstentions, 2.
The Chair: The amendment is carried.
Shall clause 6, as amended, carry?
An Hon. Senator: On division.
The Chair: On division. Shall clause 6 carry?
An Hon. Senator: On division.
The Chair: On division.
Please note, senators, that clause 7 was deleted by the House of Commons. The clauses in the bill have not yet been renumbered due to cross-references to Bill C-9 in other bills.
So, moving on, shall clause 8 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 9 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 10 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 11.1 carry?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: On division. Shall clause 12 carry?
Hon. Senators: Agreed.
The Chair: Shall clause 1, which contains the short title, carry?
Hon. Senators: Agreed.
The Chair: Shall the title carry?
Hon. Senators: Agreed.
The Chair: Shall the bill, as amended, carry?
Hon. Senators: Agreed.
An Hon. Senator: On division.
The Chair: Is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non-substantive changes resulting from the amendments adopted by the committee, in both official languages, including updating of cross-references and renumbering of provisions?
Hon. Senators: Agreed.
The Chair: Agreed. Thank you, senators.
Does the committee wish to consider appending observations to the report?
Some Hon. Senators: Yes.
The Chair: Does the committee wish to move in camera to consider observations?
Some Hon. Senators: Agreed.
(The committee continued in camera.)