Rumours were that the federal government was about to table “bubble zone” legislation last week, which, if passed, would have criminalized protests in specific locations such as places of worship, community centres and schools.
That didn’t happen.
While the almost-proposed legislation was to be universal in terminology, there were few doubts that its intent was really to limit protests at synagogues, Jewish community centres and Jewish day schools. This was a response to concerns from Jewish organizations about persistent and often aggressive targeting at community institutions.
Bill C-9, which saw first reading Sept. 19, proposes amending the Criminal Code to add new hate-related offences and to criminalize obstruction or intimidation that prevents people from accessing certain places, like those mentioned. It does not include the “bubble zone” provision, at least not as most advocates had envisioned it. It would proscribe not mere “protests” but criminal behaviours such as obstructing or intimidating people accessing community spaces. However, if such obstruction or intimidation is already criminal behaviour, we’re not sure why new legislation is needed. In fact, this is the larger issue with this whole approach.
The so-called “bubble zone” idea was mooted alongside another piece of legislation being considered. In the last Parliament, the Liberal government had proposed an online harms bill that was wide-reaching, emphasizing content that could lead, for example, to young people self-harming, but also addressing racist ideas that foment hatred. This died on the order paper when the election was called, as all incomplete legislation does.
Both of these proposals elicited concerns from civil libertarians, and rightly so. The right to free expression, while not as unrestrained in Canada as it is in the United States, is, we assume most Canadians agree, a sacrosanct characteristic of Canadian society. Canadians also, though, have tended to accept some limitations on individual expression for what is perceived as the greater good. For example, limiting hateful commentary in the interest of intercultural harmony.
In the case of the bubble zone approach, there is at least one court case that will presumably help determine the balance between free expression and the ability of identifiable groups to be protected from harassment. The Canadian Civil Liberties Association is challenging a municipal bubble zone bylaw in Vaughan, Ont. Some commentators believe the bylaw – and, by extension, the concept – will be determined to be excessive and an unnecessary impediment to legitimate protest under Canada’s Charter of Rights and Freedoms.
One’s hearts and minds can be at odds on this issue, as they can be on so many things. The infuriating and deliberately taunting protests we have seen adjacent Jewish institutions belies the idea, in many cases, that these protests and protesters are always operating in good faith. But people being deliberately provocative and mean isn’t the legal litmus test here.
While the Liberal party made commitments during last spring’s federal election to introduce bubble zone legislation, we do not fault them for awaiting relevant legal decisions. (If we fault them, it would be on making promises in a campaign that they might have known would be subject to Charter challenge.) Here, though, we come back to what we consider the larger issue: we already have laws.
The Criminal Code has prohibitions against harassment, incitement to hatred, uttering threats, intimidation, mischief motivated by hate targeting religious property, schools, community centres and so on. And yet, too often these laws act neither as a deterrent nor as a form of accountability and consequences, perhaps because they don’t seem to be enforceable or enforced. For example, it has been noted that police hesitate to recommend charges because Crown prosecutors don’t lay charges. Crown doesn’t recommend charges, we are told, because they have wasted too many resources on cases courts throw out.
A particular case that has upset and disturbed Jewish community members involves a Vancouver woman who led a shameful chant of “Long live October 7” and called the perpetrators of those atrocities “heroic and brave.”
This case seems, to many of us, an example of incitement to hatred. And yet, no charges have been laid, a reality that some observers have attributed to a lack of political will at the top of the province’s law enforcement bureaucracy – that is, the attorney general’s office.
When a case like this languishes for more than a year without charges, is the problem the people in charge, or the system more broadly? Given the multiplicity of laws already on the books, is the answer to this problem more laws? Or is the problem something related to the human, political and judicial forces that are responsible for enforcing and judging those laws that leads to frustration in communities like ours?
This is the national conversation we would like to see as the new-ish Parliament approaches these topics in the coming weeks.