The Democracy Fund's Mark Joseph sounds alarm over 'Combatting Hate Act' during senate testimony

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[00:00:00]Good afternoon.

[00:00:01]My name is Mark Joseph. I'm the executive director at the Democracy Fund. We are a non-partisan Canadian charity that provides free legal representation to Canadians whose civil liberties have been violated by the state. Since its founding in 2021, TDF has defended over 2,500 Canadians of every background, religion, race, political persuasion, walk of life. I want to begin there with who TDF actually defends because it's the foundation of everything that follows. TDF defended dozens of clients charged with criminal mischief during the convoy protests. We defended a client charged under section 319 for posing a link to a video critical of gender reassignment surgery. We are defending a pastor charged under section 175 for peaceful street preaching.

[00:00:45]And we represented a woman invited to speak to a BC community center on gender identity and women's rights only for the center to cancel her event on the grounds that her speech might promote hatred, precisely the type of conduct this bill might seeks to criminalize. Based on that experience, we predict that Bill C-9, if passed without amendment, will produce more prosecution for speech crimes and peaceful protest, target dissidents, journalist, academics, religious minorities, and peaceful protesters. It will consume scarce judicial resources that would otherwise be used to prosecute serious violent crime.

[00:01:21]So, I want to move on to the specific concerns. First, the hate symbol provisions.

[00:01:26]Bill C-9 criminalizes the display of Nazi symbols and symbols of listed terrorist entities. We understand the impulse here, but this conduct is already captured by sections 319 and 83.18 of the Criminal Code. The new offenses add nothing except complexity.

[00:01:43]More troubling, the terrorist entities list is compiled by the Governor in Council with no meaningful judicial oversight.

[00:01:50]Parliament could hand the executive the power to ban symbols by regulation. A future government could list communist organizations and ban the hammer and sickle or list anti-racism groups and criminalize their insignia. TDF recommends that the Senate remove or limit this provision.

[00:02:06]Second, removal of the religious religious defense. Currently, an individual charged under section 319 can raise the religious defense, a good faith argument grounded in sincerely held religious belief.

[00:02:18]Supreme Court in R v. Keegstra affirmed this defense as essential to preventing overbroad application of hate speech laws. Bill C-9 rescinds it. Think about who this affects. Orthodox Jews interpreting the Torah on marriage and sexuality, evangelical Christians preaching from the New Testament, conservative Muslims reciting Friday prayers on Friday prayers on gender and interfaith relations, dissidents within their own religious communities who hold heterodox views.

[00:02:46]The men and women TDF defends. Without the religious defense, Crown and church turn attorneys and judges must engage in scriptural interpretation, a discipline with thousands of years of scholarly debate that the criminal justice system is wholly unequipped to resolve.

[00:03:04]Any pattern of prosecution or non-prosecution of particular religious communities will be perceived as persecution or privilege. Both outcomes undermine confidence in the administration of justice and deepen social conflict. TDF recommends the Senate restore the religious defense.

[00:03:21]Third, the new hate-motivated offenses.

[00:03:24]Bill C-9 creates a standalone offense under section 320.1001 for any offense under the Criminal Code or any Act of Parliament motivated by hatred. The phrase any Act of Parliament captions captures even minor federal administrative violations.

[00:03:42]For example, littering in a national park while distributing hateful material could become a predicate for a serious criminal charge.

[00:03:50]Existing jurisprudence under Section 718.2 requires only partial hateful motivation for enhanced penalties.

[00:03:58]And from direct experience, we know prosecutors already over-rely on weak evidence of hatred.

[00:04:04]This provision will multiply charges and divert resources from violent crime prosecutions. It is also unclear whether Section 718.2 that's the enhancements for hate motivation and Section 320.1001 could both apply to the same conduct. An interaction Parliament has left entirely unaddressed. TDF recommends removing the words any act of Parliament and clarifying that interaction.

[00:04:28]Fourth, my last point, the obstruction intimidation offenses.

[00:04:31]Bill C-9 creates new offenses for intimidating or obstructing access to religious buildings, culture centers, education institutions, etc. This instinct is understandable, but this conduct is already a crime under Section 430, 175, 176, and 423 of the Criminal Code. TDF lawyers have defended clients charged under these very sections.

[00:04:53]Police and products prosecutors know these sections and they use them.

[00:04:58]The new provision simply create a second charge to stack on top of an existing one. A protester outside a community center could simultaneously face mischief, obstruction of an enumerated building, and then two hate-motivated offenses under Section 320.

[00:05:12]1001 all for the same act of standing on a road. None of the key terms are defined, guaranteeing years of appeals, and an immediate chilling effect on lawful protest. TDF recommends removing these offenses as superfluous.

[00:05:26]Finally, the evidence from established democracies is that censorship does not reduce social conflict. It may in fact increase it. Suppressing expression drives police underground, removes the possibility of counter-argument, breeds resentment, and over time produces a credulous citizenry more susceptible to demagoguery, not less.

[00:05:46]Our recommendations are straight >> summarizing them, Mr. Joseph?

[00:05:49]>> Sure.

[00:05:50]>> Police and prosecutors already have the tools to prosecute the conduct this bill targets. What Bill C-9 adds is not protection, it's exposure for the dissident, the preacher, the peaceful protester, the minority believer.

[00:06:01]Thank you.