Canada’s Criminal Code should punish bad behaviour, not bad feelings. Canadians need protection from crime, not from offensive opinions that might be considered “hateful” by some but not by others.
Bill C-9, the government’s new hate crime legislation now being debated in the House of Commons, is fixated on further criminalizing feelings of hatred that criminals may have had when carrying out their crimes. Defining hate is near-impossible, as can be seen whenever politicians and judges attempt to do so.
Bill C-9 states: “For greater certainty, the communication of a statement does not incite or promote hatred … solely because it discredits, humiliates, hurts or offends.” The bill allows Canadians to express “disdain” and “dislike” without worrying about facing criminal charges, yet Canadians must be careful not to possess illegal emotions that involve “detestation” or “vilification.” It’s not “hate” to discredit, humiliate, hurt, offend, and dislike people; it is “hate” to detest and vilify people. Are we clear?
Bill C-9 creates new legislation to punish the emotion of hate. This ignores the reality that Canada’s judges are already empowered to impose more severe penalties on hate-fuelled criminals. Whether an offence “was motivated by bias, prejudice or hate” is already a required consideration at the sentencing stage, as per Section 718.2(a)(i) of the Criminal Code.
Bill C-9 increases the maximum penalty that a judge can impose on citizens convicted of crimes, if the judge decides that the convicted person’s emotions crossed from the legal territory of “disdain” and “dislike” into the crime of feeling “detestation” or “vilification.”
For a minor crime where the maximum penalty is two years of jail time, possessing this mysterious “hate” can get the convicted person up to five years in jail, instead of two. For the man convicted of a crime with a maximum penalty of five years in jail, if the judge determines that he possessed “hate” in his heart, the judge can lock him up for 10 years instead of five. For more serious crimes, where the maximum penalty is 14 or more years in jail, if the judge thinks the convicted person was “hateful,” the sentence can be imprisonment for life.
Bill C-9 makes existing laws worse by empowering police to use the Criminal Code to impose their own subjective beliefs about what a police officer personally feels is “hateful.” The bill does this by repealing an important safeguard that protects the free speech of all Canadians, namely the requirement that the attorney general consent to any prosecution for hate speech offences. Over the years, this safeguard has allowed hate speech prosecutions to proceed, but only after a review by a higher authority. As Justice Minister Sean Fraser explains it: “By removing this step, law enforcement would be able to act quickly.”
Under Bill C-9, displaying a Nazi swastika (Hakenkreuz or “hooked cross”) becomes a criminal offence, with penalty of up to two years in jail, unless displayed for a legitimate purpose like journalism, religion, education, or art. It likewise becomes a crime to display symbols principally used by (or associated with) terrorist entities as designated by the federal government. The swastika is an ancient Sanskrit symbol of prosperity and good fortune, which some Hindus and Buddhists display on the outside of their houses in Canada and around the world. Will the police take note, before laying criminal charges, that the arms of the Asian swastika are pointing in a different direction than the arms of the more recent version used by Europe’s national socialists?
Under Bill C-9, it will not be illegal for Canadians to display the communist hammer-and-sickle, the symbol proudly used by Russian, Chinese, Vietnamese, and Cambodian communists when murdering tens of millions of people. Following this “tolerant” logic of Bill C-9, Canadians should understand that killing people for belonging to the wrong class or social group is far less evil than killing people for belonging to the wrong race or ethnic group.
Fraser asserts that Bill C-9 would “make it a crime to intimidate and obstruct people from accessing places of worship, as well as schools, community centres and other places primarily used by an identifiable group.” Not true. It is already a crime to utter threats, intentionally provoke a state of fear in people, engage in physical contact (even in a minor way) and physically obstruct people from going about their business.
Bill C-9 creates a duplicative and superfluous criminal offence of impeding access to a house of worship by intentionally provoking a state of fear; this conduct is already criminal under existing laws. By creating a redundant new law, Bill C-9 appears to be an exercise in virtue-signalling.
When announcing Bill C-9, Fraser mentioned “rising antisemitism, Islamophobia, homophobia and transphobia” but said nothing about the burnings of dozens of Catholic churches in Canada, or the vandalism perpetrated against dozens more. Anti-Catholic hate is obviously not on the minister’s radar. If it was, he would have mentioned it when introducing the Combatting Hate Act. It goes to show how Bill C-9 is primarily about politics and appearances, even while undermining free expression in Canada.
John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms (jccf.ca).
