The unintended consequences of Bill C-9

In a nutshell

The CBA Criminal Justice Section and Sexual and Gender Diversity Alliance Section jointly recommend to the federal government that changes be made to Bill C-9, the Combatting Hate Act, introduced in the House of Commons in September. 

The bill would amend the Criminal Code to create additional crimes motivated by hate towards identifiable groups, specifically by making it a crime to intimidate and obstruct people from accessing spaces primarily used by an identifiable group, making hate motivated crime a specific offence, and making it a crime to wilfully promote hatred against an identifiable group by displaying certain terrorism or hate symbols in public. 

However, the application could unintentionally lead to repercussions for marginalized communities. 

Key concerns

Intimidation and obstruction of people accessing places: The sections are concerned that the creation of this offence, as currently drafted, is problematic. It is important that individuals be able to access places of worship, schools, and community centres unobstructed and without fear. However, this offence may be prosecuted in the context of an assembly/protest taking place at or near one of the proposed places set out, whereas the Charter guarantees the right to freedom of peaceful assembly under section 2(c). The meanings of the words “obstruction” and “interference” are also very broad. It is not clear at what point a person, their words, or their actions would constitute an obstruction and interference on the face of the amendments. 

Making hate motivated crime a specific offence: The definition of “hatred”, while derived from the case law, is confusing - hate crimes will, by their very nature, discredit, humiliate, and offend victims. By stating that discrediting, humiliating, and offending alone are insufficient to meet the definition of hatred, the sections think this clarification clause confuses rather than clarifies the meaning.

Hate symbols: The sections note two concerns with this amendment. First, the potential for this offence to impact the right of freedom of speech, and second, that only one specific hate symbol that this crime will capture is set out clearly in the Criminal Code. To ensure this new offence is not overly broad in what it captures, the sections suggest that the bill clearly set out all terrorism or hate symbols that would be captured in the Criminal Code, and that the mens rea of this offence be more specifically curtailed to the display of such symbols “for the purpose of promoting hatred” so that the legislation only captures the display of such symbols in circumstances intended to promote hatred against identifiable groups. 

Why this matters

The sections recognize and support the rights of historically oppressed groups, but there are concerns that despite the protective intent behind hate offence legislation, its application may produce unintended consequences, particularly in light of the historical over-policing of marginalized communities.

Read the full submission.