Members of the Dalhousie Faculty Association walk a picket line on the Halifax university's campus as students arrive to begin the school year on Sept. 2.Darren Calabrese/The Canadian Press
Michael Karanicolas is a professor of constitutional law at Dalhousie University, and the James S. Palmer Chair in Public Policy and the Law.
A few weeks ago, I was walking a picket line in Halifax as part of a labour dispute between Dalhousie University’s faculty association and its board of governors. If the federal government’s Bill C-9 becomes law, what I did could be illegal.
That’s because our picketing route around the university’s downtown campus took us into the vicinity of a number of sites that the proposed Combatting Hate Act now classifies as effectively out of bounds for demonstrations, including the Old Burying Ground cemetery, Saint Mary’s Cathedral and an Irish dance studio. Under Bill C-9, any person who impedes access to sites that serve a religious, cultural, social or administrative function, either directly or through provoking “a state of fear,” could face up to 10 years’ imprisonment.
While the law’s advocates insist that its intent is not to be applied so broadly, protests, by their nature, are raucous events, which can almost always be framed as including an element of intimidation. The recent “No Kings” protests that took place across the United States were generally peaceful, but opponents of the demonstrations were quick to characterize them as violent and hateful.
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It would be exceedingly difficult to plan a march or demonstration in any major city that did not pass by the kinds of sites that Bill C-9 would afford a perimeter, and therein lies the problem with the legislation. The resulting changes to Canadian law could become powerful new tools for police to crack down on politically disfavoured speech, while the bill’s heavy penalties would have a substantial chilling effect on legitimate forms of dissent.
It is obviously uncomfortable to see protests occurring outside of houses of worship, or schools. People have the right to pray and to educate their children without fear of being beset by an angry mob. At the same time, it is worth noting that religious and cultural institutions sometimes make a conscious choice to interject themselves into the political arena. In such cases, protest and counterspeech are core parts of an open society.
If a religious institution, for example, hosted a speaker who advocated harm against a different segment of the population, it would be undemocratic to allow that institution to then retreat behind its protected status when the public expressed outrage. The law could even prevent members of a congregation from protesting against their own institution if, for example, one of their leaders behaved in a way that the members found objectionable.
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The law makes other troubling changes, such as targeting the display of symbols associated with any listed entity that the government proscribes. There is little due process surrounding these designations, which makes the law ripe for abuse. Many will recall Nelson Mandela’s African National Congress being listed as a terrorist organization by the United States and Great Britain. It is not difficult to see how governments now and in the future in Canada could wield these rules abusively, as we saw with the Trump administration’s designation of “antifa” as a terrorist group.
Perhaps most troublingly, Bill C-9 removes the requirement to obtain consent from the attorney-general to lay charges of hate propaganda, granting police and prosecutors far more leeway to exercise their personal discretion, and likely paving the way for a slew of prosecutions in the years ahead, in contrast to the restraint and judiciousness with which Canada’s hate speech laws have historically been used.
In the 1990 case of R. v. Keegstra, the Supreme Court held that Canada’s hate speech laws were constitutionally valid. That case, which had a close 4-3 decision, hinged largely on the careful safeguards included in the laws, such as the narrow category of speech being targeted, and the unlikelihood that the law could entangle legitimate political activity. These characteristics are now being watered down by Bill C-9, leading to questions as to whether the revised formula will pass constitutional muster.
In Keegstra, the court’s majority sought to differentiate Canada’s constitutional tradition from that of the United States. Today, as we see the American civic space becoming more hostile to protest, and weapons of state power wielded aggressively against dissenting views, it is time once again to demonstrate that Canada’s Charter values are distinct, by recognizing the importance of protest to our democratic order.