Evidence of meeting #7 for Justice and Human Rights in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offence.

A recording is available from Parliament.

On the agenda

Members speaking

Before the committee

Sean Fraser  Minister of Justice and Attorney General of Canada
Ripley  Senior Assistant Deputy Minister, Department of Justice
Wells  Senior Counsel, Criminal Law Policy Section, Department of Justice
Breese  Counsel, Criminal Law Policy Section, Department of Justice

Sean Fraser Liberal Central Nova, NS

Certainly. I find some of the previous questions ironic in this regard. In fact, the argument is somewhat self-defeating. On the one hand, there is a suggestion that free speech is somehow impacted, and in the next breath, you hear a question suggest that in fact it doesn't represent a change in the law. These two positions cannot possibly be reconciled.

When we developed these pieces of legislation, it was a priority to ensure that they didn't have a negative impact on the ability of Canadians to fully enjoy the rights protected by the Constitution, including the right to free expression. That's why, for example, when we wanted to deal with symbols of hate, we didn't use a blanket symbols ban but instead attracted it to the criminal behaviour of wilfully promoting hatred against another Canadian. There's a difference, in my view, between protesting a cause against some initiative or something that's happening in the world that you fundamentally disagree with and showing up to intimidate a person from practising their faith or physically obstructing them from attending their community centre or school or place of worship. Understanding where that line exists, as between sharing an opinion, broadcasting information, and causing harm, sometimes violent harm, to your fellow Canadians, is an important distinction.

I think this bill does a good job of scoping in behaviour that I believe should be criminal, and it will offer a greater degree of protections to Canadians to be themselves without infringing on the protections of the ability to express yourself freely.

Anju Dhillon Liberal Dorval—Lachine—LaSalle, QC

We need a good balance between freedom of expression and hatred, so I have this question for you on your choice to have a clear definition of the word “hatred”. Why was it necessary to include this in the Criminal Code?

Sean Fraser Liberal Central Nova, NS

Law enforcement shared with me that a clear definition in the Criminal Code would help them actually lay charges when they see it. Eliminating ambiguity in the code can change how the laws are applied on the ground, even where they don't necessarily change the substance of the law that underlies the proposed amendments to the code that we're talking about now.

In addition, I think it's essential that we recognize that this cultural impact within law enforcement has a real-world effect on the ability of Canadians to seek justice when they are subjected to hate, not just on behalf of themselves but also on behalf of an entire community. By codifying the principles that were recognized in the Keegstra and Whatcott decisions, we have an opportunity to send a clear signal to law enforcement that you can, in fact, actually enforce these crimes when you see them. It gives victims of hate crimes a sense that justice will prevail at the end of the day.

The Chair Liberal Marc Miller

Thank you, Ms. Dhillon and Mr. Fraser.

We have time for Mr. Baber and Mr. Gill, who will be splitting some time. Then it's Ms. Lattanzio, and then MP Idlout.

The floor is yours.

4:20 p.m.

Conservative

Amarjeet Gill Conservative Brampton West, ON

Thank you, Chair.

Minister, you have said that Canada is not “the Wild West”. Meanwhile, violent crime is up 55%, sexual assaults are up 76% and extortion has surged by 330%. How bad does it have to get before you admit that Canada currently appears lawless?

Sean Fraser Liberal Central Nova, NS

When I look at some of the proposals we've seen put forward by your party in the House of Commons, it becomes clear that copying and pasting the American approach to criminal laws or to guns would not enhance public safety. The Conservative policy of wanting to legalize assault-style weapons, I think, would make Canada a more dangerous place. The repeated introduction of reforms that certainly violate the Constitution would not make Canada a safer place. The example given earlier has led to a whole series of behaviours, including recently in the state of Texas, with the accidental death by gun violence of a child who was ringing doorbells.

It's obvious, when you look at some of the proposals that have come forward, that we need to have evidence-based policies. That's what you'll see with the bill we put forward in a number of weeks to help change Canada's criminal laws to make our country a safer place.

4:20 p.m.

Conservative

Amarjeet Gill Conservative Brampton West, ON

Minister, many of the offences in Bill C-9 restate conduct already captured by existing Criminal Code provisions, such as section 423.1 on intimidation, section 319 on public incitement of hatred, and section 264 on harassment.

Would you agree that the core problem today is the uneven enforcement of current laws and not the lack of legislation? What evidence did the department rely on to conclude that additional offences were needed rather than improved enforcement?

Sean Fraser Liberal Central Nova, NS

I think both are needed. I take your point that enforcement can be improved. Sometimes that will be with more officers on the ground, and sometimes it will be with enhanced training, but I do think we could have better and more equal enforcement of the laws that exist on the books.

I also think, based on the feedback we've had, not just from law enforcement but from affected communities, that these changes are necessary. You can recognize the significant difference when a person may assault someone because they have a disagreement that goes sideways versus specifically targeting someone on the basis of their religion or the colour of their skin, which doesn't just impact the individual victim but the entirety of a community. We believe that warrants.... Although it may be the same behaviour in the instant, the effect is not the same. We think that greater harm that falls on a community demands a new charge with increased penalties to recognize the severity of the impact of hate crimes on affected communities.

4:20 p.m.

Conservative

Amarjeet Gill Conservative Brampton West, ON

I cede my time to Mr. Baber now.

4:20 p.m.

Conservative

Roman Baber Conservative York Centre, ON

Thank you.

Minister, do you really fail to see how allowing private prosecutions for hate offences without the consent of the attorney general could be weaponized against innocent Canadians by vexatious litigants or political opponents?

Sean Fraser Liberal Central Nova, NS

I have a lot of faith in the ability of courts to police frivolous and vexatious litigation. You see the opportunity for courts to screen out those kinds of complaints with great frequency.

If the committee wishes to take evidence from experts in the space to understand the protections that do exist and where they can be improved, do know that I don't come into this with some preordained outcome. I believe in the work of Parliament. I believe in the ability to take evidence from witnesses and to propose amendments, and we would consider each of them in good faith should you wish to move forward with some.

4:20 p.m.

Conservative

Roman Baber Conservative York Centre, ON

Thank you.

I also have a lot of faith in the courts. The problem is that by the time you get through due process—you may be taken through a litigation—your reputation may be ruined, and you may incur a lot of legal fees, so this is a major concern for me.

With respect to the new proposed hate offence, the new criminal hate offence could be laid on top of any offence under any federal law.

Is that correct, yes or no?

Sean Fraser Liberal Central Nova, NS

Yes.

4:25 p.m.

Conservative

Roman Baber Conservative York Centre, ON

An offence under the Canada Elections Act or an offence under the Canada Labour Code may attract criminal prosecution. Someone, for instance, could be charged criminally for non-payment of wages under the Canada Labour Code.

Is that not correct?

Sean Fraser Liberal Central Nova, NS

I have a hard time understanding how non-payment of.... If there's a motivation of hatred toward another individual and you commit a crime against that individual because of who they are, it could attach to virtually any charge. The likelihood it would come up in that set of circumstances, I think, would be quite small.

4:25 p.m.

Conservative

Roman Baber Conservative York Centre, ON

You're basically talking about tacking criminal charges on what is otherwise civil, non-criminal behaviour. This is very concerning. You may have unintended consequences when you combine that with dilution of the definition of hatred, as you're doing, and the possibility for private prosecutions without attorney general consent. This is a very concerning piece of legislation, Minister.

The Chair Liberal Marc Miller

Time's up.

Perhaps Mr. Housefather can let him continue.

Either way, it's over to you, Anthony, for five minutes.

Anthony Housefather Liberal Mount Royal, QC

Thank you so much.

Minister, I don't know if you had a chance to read the Conservative Party's dissenting opinion in the anti-Semitism study.

Sean Fraser Liberal Central Nova, NS

Yes.

Anthony Housefather Liberal Mount Royal, QC

Did you notice that the party didn't dissent on the issue of removing the consent of the attorney general for prosecutions for hate crimes?

Sean Fraser Liberal Central Nova, NS

Specifically, when we were discussing which measures to include, the fact that there was multipartisan support, not just on that item but on some of the others you referenced, made it clear there was an appetite among parliamentarians in Canada to effect these very specific changes. It seems the Conservative Party has now shifted its position when it comes to those measures that were designed to combat anti-Semitism after the recommendations came out of that report.

Anthony Housefather Liberal Mount Royal, QC

Yes. It's exceptionally surprising to me, in fact.

One of the things pointed out is the two defences that have been added for the display of hate symbols and creating hate through the display of hate symbols against an identifiable group. Why are those two defences that, I think, are in proposed paragraphs 319(3.2)(a) and 319(3.2)(b) necessary, Minister?

Some people just believe that if a hate symbol is put up, you automatically need to prosecute. Why have you looked at that and found that these defences are necessary?

Sean Fraser Liberal Central Nova, NS

Which defences, Anthony?

Anthony Housefather Liberal Mount Royal, QC

I mean defences, for example, related to times that you could display a hate symbol publicly without necessarily being charged with an offence.

Sean Fraser Liberal Central Nova, NS

There are many reasons you may wish to pull out certain uses of these hate symbols. Think of journalistic and academic purposes, but also to prevent free expression.... It's really important that we understand at this committee that this is not a blanket symbols ban but is instead a crime of wilfully promoting hate against an identifiable group through the use of hate symbols. This is a very high standard that does not trample on people's free expression rights but recognizes specific learning or public interest opportunities, where we can openly discuss where these symbols have been used over the course of our history.