Bill C-16: An Act to amend the Canadian Human Rights Act and the Criminal Code

Tabled in House of Commons, October 18, 2016

Explanatory Note

The Department of Justice has prepared this “Statement of Potential Charter Impacts” to help inform public and Parliamentary debate on Bill C-16, An Act to amend the Canadian Human Rights Act and the Criminal Code. The Statement is also intended to promote greater transparency and understanding of the Minister of Justice’s role in examining legislation for consistency with Canada’s Constitution.

The attached Statement outlines some of the key considerations that informed the review of Bill C-16 for consistency with the Constitution, including the Canadian Charter of Rights and Freedoms. In particular, the Statement identifies Charter rights and freedoms that may potentially be impacted by the Bill and provides a brief explanation of the nature of these impacts, in light of the measures being proposed.

The Statement also identifies potential rationales for any limits on these rights and freedoms the Bill may impose. It is important to note that the Charter is not violated every time legislation impacts on or limits a right or freedom. It is only violated where a limit is not demonstrably justifiable as reasonable and proportional in a free and democratic society.

The Statement is intended to provide legal information to the public. It is not intended to be a comprehensive overview of potential impacts, recognizing that the Bill may change over the course of its passage through Parliament. Additional considerations relevant to the constitutionality of the Bill may also arise in the course of Parliamentary study. The Statement is not a legal opinion on the constitutionality of the Bill.

Statement of Potential Charter Impacts

The Minister of Justice has examined this Bill for compliance with the Constitution, including the Canadian Charter of Rights and Freedoms pursuant to her obligation under s. 4.1 of the Department of Justice Act. This review included consideration of the objectives and features of the Bill, including the importance of promoting values that underlie the Charter and the Canadian Human Rights Act - notably equality, respect for diversity, human dignity, liberty and autonomy - in light of the experiences of transgender and other gender-diverse individuals in society.

The following non-exhaustive list of potential impacts on the rights and freedoms guaranteed by the Charter is presented to assist in informing the public and Parliamentary debate.

  1. Promoting Charter values

    Adding “gender identity or expression” to sections 2 and 3 of the Canadian Human Rights Act and sections 318 and 718.2 of the Criminal Code is consistent with core values which underpin the Charter, including equality, respect for diversity, human dignity, liberty and autonomy. These provisions would expressly recognize that everyone, including transgender and other gender-diverse individuals, should have an equal opportunity to live and work in an inclusive society free from discrimination and violence.

  2. Freedom of expression: s. 2(b) of the Charter

    Clause 3, which would amend the definition of “identifiable group” in s. 318(4) of the Criminal Code to include “gender identity or expression” for the purposes of the hate propaganda offences, limits s. 2(b) of the Charter, which protects freedom of expression. The proposed amendment would expand the scope of expression that would be criminalized by the Criminal Code’s hate propaganda offences, to include expressions of hatred toward an “identifiable group” on the basis of the group’s gender identity or expression. Hate speech is protected by s. 2(b) of the Charter, meaning that any limitation of it through criminal prohibition must be reasonable and demonstrably justified in a free and democratic society, as required by s. 1 of the Charter. Although the courts have held that freedom of expression includes the freedom to express hatred, even against vulnerable groups, such expression “falls far from the core values underlying s. 2(b)” and “does little to promote, and can in fact impede, the values underlying freedom of expression”. This makes restrictions on hate speech easier to justify under s. 1 of the Charter.

    Rationale: The Supreme Court of Canada has upheld the prohibition against wilful promotion of hatred as a justifiable limitation of freedom of expression, in R. v. Keegstra. It is the Government’s position that the addition of "gender identity or expression" to the grounds on which hate propaganda is prohibited, would be a justifiable limitation of s. 2(b). Transgender and other gender-diverse persons are vulnerable to discrimination, harassment and violence, and deserve society’s protection against expression that is particularly extreme and harmful. The limitation would be justified considering the narrow breadth of the expression that would be criminalized, the distance of such expression from the core values for which freedom of expression is constitutionally-guaranteed, and the vulnerability of the persons who would be protected by the amendment.

  3. The right to liberty: s. 7 of the Charter

    Clause 3 could also impact s. 7 of the Charter, which protects against deprivations of life, liberty or security of the person that do not accord with the principles of fundamental justice. Individuals found guilty of hate propaganda offences could be punished with up to five years of imprisonment. A criminal prohibition that can be punished with a sentence of imprisonment deprives individuals of their right to liberty and so must respect the principles of fundamental justice.

    Rationale: It is a principle of fundamental justice that offence-creating provisions not be vague. This means that Parliament must use language sufficiently clear both to limit enforcement discretion on the part of police and prosecutors, and to provide fair notice to individuals as to what actions contravene the law. There may be questions whether the term “gender identity or expression” is unconstitutionally vague. The minimum standard that Parliament must satisfy to avoid unconstitutionally vague criminal prohibitions is a low one. The term “gender identity or expression,” interpreted in the context of the hate propaganda prohibitions, provides sufficient guidance for legal debate and is not unconstitutionally vague. This is further supported by the increasing use of these terms in provincial human rights codes.