The Criminal Code prohibition on wilfully promoting hatred (Section 319) is highly political because it applies selectively to only some groups, and not to others.
In Canada, wilfully promoting hatred against people on the basis of their race, religion, sexual orientation, and other personal characteristics can land you in jail for up to two years. However, Canadians are perfectly free to promote hatred against individuals and groups identifiable on the basis of their profession, appearance, behaviour, wealth, social status, level of income, means of earning a living, political opinions, and an endless list of other personal characteristics. Promoting hatred against a sexual minority is illegal, while promoting hatred against Canadians who choose not to get injected with a new vaccine is legal.
If promoting the emotion of hate is truly worthy of criminalization, and if this criminalization is a justified violation of free expression as protected by the Charter, why is the law so selective in including only some groups while excluding so many others?
Bill C-9, the Combatting Hate Act, is now being debated in the House of Commons. Bill C-9 makes Canada’s existing hate speech laws even more political by criminalizing the public display of some symbols but not others. Under Bill C-9, up to two years of jail time would await those who publicly display the Nazi swastika or the flag of a terrorist entity. Yet the communist hammer and sickle, the symbol under which tens of millions of people were murdered in the Soviet Union, China, Cambodia and elsewhere, is fully permissible under Bill C-9. Good laws should be based on sound principles, not on politics.
When politicians and judges try to define the emotion of “hate,” they twist themselves into pretzels while doing triple back-flips. Bill C-9 attempts to define “hatred” by excluding expression that solely “discredits, humiliates, hurts or offends,” and by asserting that “hatred” means “the emotion that involves detestation or vilification and that is stronger than disdain or dislike.” As is the case with “hate,” there is no clear, objective or identifiable standard of what does—and does not—constitute “detestation” or “vilification.” Regardless of how courts or legislatures may seek to define the emotion of hate, the determination of what is “hateful” will always depend ultimately on the personal feelings and subjective prejudices of the policeman, prosecutor, and judge who see, hear, or read the expression in question.
Bill C-9 repeals the current requirement that the attorney general consent to prosecutions for hate propaganda offences. This crucial safeguard has served as a necessary check designed to promote a proper public-interest assessment that considers, among other things, the Charter’s protection of free expression. The removal of this review process by Bill C-9 will result in more Canadians being prosecuted over what they say on social media and elsewhere.
Bill C-9 creates a new hate crime offence that escalates—and often doubles—maximum penalties for any offence motivated by hatred. Bill C-9 risks duplicative punishment, as well as excessive and disproportionate sentencing.
Whether an offence “was motivated by bias, prejudice or hate” is already a required consideration at the sentencing stage, as per Section 718 of the Criminal Code. If a person commits a serious crime, the available sentences are lengthy. There is no evidence that current sentences are insufficient, even in cases “motivated by hate.”
The increased maximum penalties created by Bill C-9, which can be imposed when a judge feels that a crime was motivated by “hate,” are disconcerting. Maximum prison sentences rise from two years to five years; from five years to 10 years; from 10 years to 14 years, and from 14 years to life imprisonment. This goes far beyond the considerable power that judges already have to impose longer jail sentences on those whose crimes may have been motivated by hate.
Bill C-9 would create a new crime of deliberately impeding access to houses of worship and to any “building or structure” used primarily by a group that is identifiable by its ethnicity, gender identity, gender expression, and other selective grounds. Moral convictions and political beliefs are excluded as legally recognized grounds. The federal government’s own website references “rising antisemitism, Islamophobia, homophobia and transphobia” as its justification for Bill C-9, while saying nothing about the burning of dozens of Christian churches, deliberately destroyed by arson, and the dozens more that have been vandalized and desecrated. Why this omission?
Apart from the political nature of Bill C-9, it is already a crime to threaten or intimidate a person, and to impede access to houses of worship and other places. The Criminal Code already prohibits Canadians from interfering with lawful access to all public and private property, without exception. In other words, this “protecting access to houses of worship” section of Bill C-9 is redundant, and it distracts from inadequate enforcement of existing laws.
In the United Kingdom, thousands of people are charged criminally each year, based on what they say on social media, and people are literally jailed for their speech. Bill C-9 takes Canada in that same direction. Canadians who cherish free speech need to contact their MPs as soon as possible.
John Carpay, B.A., LL.B., is president of the Justice Centre for Constitutional Freedoms (jccf.ca).
