Bill C-261 is a piece of legislation that will allow individual members of the public to get Court orders against other people. This can be done if they have “reasonable grounds for fearing” that someone is, or will engage in hate speech, promote hate or violence, or commit an offence that is motivated by hate.
Hate motivated crimes are already illegal, and subject to serious consequences. That being said, this Bill would permit people to seek Court orders based on what someone might do. There’s no requirement that an offense have already been committed.
And what is “hate propaganda” for these purposes? It’s unclear. Would saying that men are men and that women are women qualify?
To address the obvious: yes, this is a Private Member’s Bill. They rarely become law.
However, it’s worth covering as it gives an insight into the kinds of activities our elected officials are talking about. Moreover, the content of a Private Bill may one day be slipped into a larger Bill, receiving little to no scrutiny.
(2) The provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial court judge.
(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for a period of not more than 12 months.
(4) However, if the provincial court judge is also satisfied that the defendant was convicted previously of any offence referred to in subsection (1), the judge may order that the defendant enter into the recognizance for a period of not more than two years.
Refusal to enter into recognizance
(5) The provincial court judge may commit the defendant to prison for a term of not more than 12 months if the defendant fails or refuses to enter into the recognizance.
Here’s where the enforcement comes in. If the person refuses to enter into the recognizance (court order) that person can be incarcerated for a year.
It’s unclear what threshold would be required for the Judge to conclude that someone has a reasonable fear. This comes across as being entirely subjective.
Conditions in recognizance
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(6) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that
(a) require the defendant to wear an electronic monitoring device, if the Attorney General makes that request;
(b) require the defendant to return to and remain at their place of residence at specified times;
(c) require the defendant to abstain from the consumption of drugs, except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(d) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(e) require the defendant to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or
(f) prohibit the defendant from communicating, directly or indirectly, with any person identified in the recognizance, or refrain from going to any place specified in the recognizance, except in accordance with the conditions specified in the recognizance that the judge considers necessary.
Without having been charged or convicted of any offence, a Judge has the power to impose:
(a) electronic monitoring
(b) house arrest or a curfew
(c) an alcohol prohibition
(d) demands to provide samples for testing
(e) no contact orders, or orders to stay away from places
And it doesn’t stop there.
Conditions — firearms
(7) The provincial court judge shall consider whether it is desirable, in the interests of the defendant’s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which it applies.
(8) If the provincial court judge adds a condition described in subsection (7) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant’s possession shall be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant shall be surrendered.
(9) If the provincial court judge does not add a condition described in subsection (7) to a recognizance, the judge shall include in the record a statement of the reasons for not adding it.
A Judge can also order that a person be prohibited from possessing any weapons, and be ordered to surrender any that they do have. Again, a person doesn’t have to be criminally charged for any of this to take place.
Interestingly, the Judge would be required to provide an explanation if there is no provision to prohibit that person from owning or using firearms or other weapons.
The language here is quite similar to Bill C-21, which would allow private citizens to have guns removed if a Judge viewed someone as a threat. There was a lot wrong with that Bill, but C-261 would water down the requirement so that the target didn’t even have to be a threat.
There is the safeguard that the Attorney General has to approve such an application. But that raises the question of to what degree this process will be open to political interference. Worse, the vague wording on what qualifies leaves a lot open to interpretation.
While this particular piece may not go anywhere, it’s entirely possible that the content will be stuffed into another Bill at some point in the future. Vigilance is needed.