From the Macdonald Laurier Institute

J.L. Granatstein for Inside Policy

“The current prime minister of Canada is not serious about defence. Full stop. A large number of his Cabinet members are not serious about defence. Full stop.”

The Communist regime in China ramps up its aggression against Taiwan, while actively interfering in the political processes of Western democracies – including Canada. In Europe, Russia wages a brutal full-scale war against Ukraine, while sabre-rattling about nuclear strikes on our NATO allies. Meanwhile, Russian President Vladimir Putin’s Arctic ambitions threaten our sovereignty in the North.

With danger all around, one would think Canada’s federal government, led by Prime Minister Justin Trudeau, would be sounding the klaxon – rallying the country and steeling its citizens for looming conflicts with authoritarian regimes while bolstering our military for 21st-century warfare.

Alas, that seems to be far from the case, according to a pair of senior Canadian military leaders who warned recently about the federal government’s lack of commitment to and support of the military.

Over the course of four media reports that were published between May 12 and June 30, 2024, we heard the opinions of Lieutenant General (Ret’d) Andrew Leslie, and General Wayne Eyre, the Chief of Defence Staff who is retiring later this summer. Leslie, a former Liberal MP, was featured in the National Post on May 12 and again on June 30. As for Eyre, he appeared in an Ottawa Citizen article on June 20, and then in an end-of-term interview with the National Post on June 30 – just two days after the federal government announced the beginning of construction planning for the Royal Canadian Navy’s proposed fleet of fifteen destroyers.

Of these four articles, Leslie’s were by far the most important. The former Chief of Land Staff had retired from the Canadian Armed Forces to run for the federal Liberals in 2015. Elected to Parliament, he served four years – but then decided not to run for re-election. If Leslie was disillusioned, and he was, he kept silent in public until his National Post interviews. His remarks were extraordinarily blunt, but they seemingly failed to attract the public notice they deserved. Here in point form are some of his comments from his first interview:

• “The current prime minister of Canada is not serious about defence. Full stop. A large number of his Cabinet members are not serious about defence. Full stop.”
• “Our NATO allies are despairing. Our American friends are frustrated.”
• “[T]he Liberal government has no intention of meeting [the NATO standard of] two per cent (by 2030) and no intention of meeting 1.76 per cent [of GDP] (as promised in the April 2024 budget) because they rest confident in the smug knowledge that the Americans will always defend us.”
• “Since 2015, the Trudeau government has not spent, re-profiled, re-allocated, deferred, or lapsed $20 billion that was promised for defence. The impact of that is that ship fleets have not been replaced, aircraft are extraordinarily old, as are helicopters; the army is in a state of despair.”

These remarks from a former senior officer are, to my mind, devastating – much more so than those from Opposition politicians or academic experts. So too were the remarks Leslie offered on June 30:

• “According to the numbers I have 72% of the army’s vehicles and trailers are offline…. I think the big issue is, right now, the men and women in uniform don’t see any demonstrable proof that the federal government is actually seized of the issue of trying to get them the capabilities they need to better defend Canadians.”
• “The Liberal government sees defence spending as discretionary… They believe there’s a whole host of societal funding requirements, ranging from increases in healthcare, to day care, to children getting breakfast at school – and a bewildering array of boutique allocations of funds to cater to voter-sensitive initiatives. And defence comes after all of that.”

One area of special concern, Leslie maintained, was artillery shells, one of the many military items Ukraine needs in huge quantities. Canada, he stated, was falling down in producing them: “Canada has a tiny stockpile of 155-mm ammo…. One to two years prior to Russia’s latest invasion of Ukraine in 2022, a bunch of idiots decided to cancel the standing offer [with the two Canadian manufacturers of 155-mm artillery shells] because there was no business case for Canada to continue investing in the production of ammunition.”

Leslie ended the second interview by talking of those leaders he admired: “I had the privilege and honour to be in close proximity to three consecutive prime ministers who made the system work such that we bought tanks, artillery ammunition, small arms ammunition, helicopters, guns, armour-protective vehicles, new weapons systems, the list goes on. And those were Prime Minister [Jean] Chrétien, Prime Minister [Paul] Martin, and Prime Minister [Stephen] Harper.”

The general had been a member of the Trudeau government and had worked in drafting the Liberals’ defence platform in the 2015 election. But nothing had been done to implement it in a timely fashion. In Leslie’s list of prime ministers who took defence and national security seriously, Trudeau was notably absent.

The Ottawa Citizen article, by veteran defence reporter David Pugliese, was not a direct interview with General Eyre, but rather, a report on comments Eyre made behind closed doors in a speech to senior officers. Pugliese did not have a copy of Eyre’s speech but learned of it from an audience member.

According to Pugliese, Eyre, who only had a few weeks left as Chief of the Defence Staff, sounded almost optimistic about the Liberals’ 2024 budget that pledged $8 billion in new defence spending by 2030 and $73 billion more over twenty years.

Eyre reportedly told the officers, “Yeah, this policy was not as fast as we wanted it to be. And it did not give us everything we needed. But I will tell you it’s more than I expected, much more than I expected…. The prime minister told me that defence spending is only going in one direction and that is up.”

The general also reportedly spoke of creating a small team to work out an implementation plan for the new defence policy initiatives, and that he wanted some “quick hits… I see ammunition production as one of those quick hits that we absolutely have to get on with.”

In his interview with the National Post on June 20, Eyre was at times both pessimistic and positive in his assessment of the Canadian military: “[The world has entered a] pre-wartime security environment… If you’re in uniform, you learn to be pessimistic about the security situation because you’re trained for the worst case… Given the indicators and the trends that we see, I am pessimistic about the security situation…. Is this a 1938 moment? Is this a 1912 moment? The world has seen this before, with ebbs and flows, and we’re back in a multi-polar dangerous moment where the structures that have kept us generally at peace are fraying.”

If Eyre is right, Canada should be preparing for a war that is certain to affect Canada and its allies. But the Canadian procurement system for munitions and equipment is broken – a fact that Eyre freely acknowledges: “We are applying peacetime processes and peacetime mentalities to what could be considered a wartime or immediate pre-wartime security environment. So, what did we do in 1939? What did we do in 1914? We certainly didn’t take 10 or 15 or 20 years to get capabilities in place, because the war would be over by that point…. We have to deliver, and we have to deliver fast.”

The Chief of Defence Staff then spoke optimistically about Canada’s role in Latvia, where the Canadian Armed Forces leads the NATO brigade stationed there, and where the commitment is supposed to be increased in the next few years.

“We are very well respected in that part of the world,” Eyre said. “Do they want more of us? Yeah, absolutely, but for me it drives home that we produce a pretty good product…. [Canada] has and can do so much on the world stage. Compared to the majority of countries out there, we have got so much going for us.”

On June 28, 2024, Minister of National Defence Bill Blair and Angus Topshee, the Chief of the Naval Staff, announced the government’s plans to replace Canada’s Halifax-class frigates. Fifteen new destroyers would be constructed at the government’s estimate of $56 billion to $60 billion, Blair said. The Parliamentary Budget Officer earlier had estimated the construction cost at $84 billion with a “life-cycle” cost to operate and maintain the vessels at $306 billion. In reality, Blair’s announcement was not for the beginning of construction of the ships but only for a “test module.”

Some background is needed here. The Harper Conservative government in 2010 approved the National Shipbuilding Program, but it was not until 2018 that the Trudeau government, in power for three years, selected the as yet (and still) unproven British Type 26 ship as its choice. The vessels were to be constructed in Halifax at the Irving shipyards that first had to build the Arctic Offshore Patrol Ships, only completed this year (late and over-budget). Now in 2024, work at last can begin on the new destroyers.

The plan is that the first of the ships will be completed and ready for sea trials in 2033, 9 years from now and 23 years after the Harper government announced the shipbuilding program; presumably the first destroyer will not be deemed fully ready for service until at least 2034. (HMCS Halifax, the first of the frigates, went to sea in 1992, and by the time the first replacement is ready, Halifax will be 42 years old.)

But the planned completion of construction of all fifteen vessels will be glacial. Defence Minister Blair told Global TV  on June 28 that the first nine ships would not be completed until 2040 and the remaining six not until 2050. In other words, it will take a quarter century for Irving to build fifteen ships – if it is able to maintain even that production schedule. The one certainty is that the ships will cost more to build – the rate of inflation for military construction is at least 6 percent higher than national inflation. The costs will be so high for these ships that it is all but certain that fewer than fifteen will ever be launched. Will any of the destroyers still be combat effective by 2050? That seems highly unlikely.

Remember what Eyre told the National Post: “We are applying peacetime processes and peacetime mentalities to what could be considered a wartime or immediate pre-wartime security environment…. We have to deliver, and we have to deliver fast.” And don’t forget Leslie’s damning comment: “The current prime minister of Canada is not serious about defence. Full stop. A large number of his cabinet members are not serious about defence. Full stop.”

At the July NATO summit in Washington, American leaders increased the heat on Trudeau to reach the 2-percent-of-GDP benchmark for military spending. “Welcomed @CanadianPM Trudeau to the U.S. Capitol today,” U.S. Senate Republican Leader Mitch McConnell wrote on X on July 9. “Shared values and close economic ties have always been the strength of the U.S.-Canada relationship. But it’s time for our northern ally to invest seriously in the hard power required to help preserve prosperity and security across NATO.”

The Trudeau government will be long gone by the time the first of the new destroyers puts to sea, and it will be completely forgotten by the time the last one sets sail. We must hope that no war intervenes in the next quarter-century because Canada certainly will not be ready – and not only with its navy. “Not serious about defence”– let’s hope we will not pay a high price for the neglect of this country’s most vital national interest.

J.L. Granatstein taught Canadian history, was Director and CEO of the Canadian War Museum, and writes on military and political history. A member of MLI’s Research Advisory Board, Granatstein’s most recent book is Canada’s Army: Waging War and Keeping the Peace. (3rd edition).

From the Macdonald Laurier Institute

By Stéphane Sérafin for Inside Policy

If adopted, Bill C-63 could unleash a wave of “hate speech” complaints that persecute – and prosecute – citizens, businesses, or organizations while stifling online expression.

Much has already been written on Bill C-63, the Trudeau government’s controversial Bill proposing among other things to give the Canadian Human Rights Tribunal jurisdiction to adjudicate “hate speech” complaints arising from comments made on social media. As opponents have noted, the introduction of these new measures presents a significant risk to free expression on many issues that ought to be open to robust public debate.

Proponents, for their part, have tended to downplay these concerns by pointing to the congruence between these new proposed measures and the existing prohibition contained in the Criminal Code. In their view, the fact that the definition of “hate speech” provided by Bill C-63 is identical to that already found in the Criminal Code means that these proposed measures hardly justify the concerns expressed.

This response to critics of Bill C-63 largely misses the point. Certainly, the existing Criminal Code prohibitions on “hate speech” have and continue to raise difficult issues from the standpoint of free expression. However, the real problem with Bill C-63 is not that it adopts the Criminal Code definition, but that it grants the jurisdiction to adjudicate complaints arising under this definition to the Canadian Human Rights Tribunal.

Established in 1977, the Canadian Human Rights Tribunal is a federal administrative tribunal based on a model first implemented in Ontario in 1962 and since copied in every other Canadian province and territory. There is a Canadian Human Rights Tribunal, just as there is an Ontario Human Rights Tribunal and a British Columbia Human Rights Tribunal, among others. Although these are separate institutions with different jurisdictions, their decisions proceed from similar starting points embedded in nearly identical legislation. In the case of the Canadian Human Rights Tribunal, that legislation is the Canadian Human Rights Act.

Tribunals such as the Canadian Human Rights Tribunal are administrative bodies, not courts. They are part of the executive branch, alongside the prime minister, Cabinet, and the public service. This has at least three implications for the way the Tribunal is likely to approach the “hate speech” measures that Bill C-63 contemplates. Each of these presents significant risks for freedom of expression that do not arise, or do not arise to the same extent, under the existing Criminal Code provisions.

The first implication is procedural. As an administrative body, the Tribunal is not subject to the same stringent requirements for the presentation of evidence that are used before proper courts, and certainly not subject to the evidentiary standard applied in the criminal law context. But more importantly still, the structure of the Canadian Human Rights Act is one that contemplates a form of hybrid public-private prosecution, in which the decision to bring a complaint falls to a given individual, while its prosecution is taken up by another administrative body, called the Human Rights Commission.

This model differs from both the criminal law context, where both the decision to file charges and prosecute them rest with the Crown, and from the civil litigation context, where the plaintiff decides to bring a claim but must personally bear the cost and effort of doing so. With respect to complaints brought before the Tribunal, it is the complainant who chooses to file a complaint, and the Human Rights Commission that then takes up the burden of proof and the costs of prosecution.

In the context of the existing complaints process, which deals mainly with discriminatory practices in employment and the provision of services, this model is intended to alleviate burdens that might deter individuals from bringing otherwise valid discrimination complaints before the Tribunal. Whatever the actual merits of this approach, however, it presents a very real risk of being weaponized under Bill C-63. Notably, the fact that complainants are not expected to prosecute their own complaints means that there is little to discourage individuals (or activist groups acting through individuals) from filing “hate speech” complaints against anyone expressing opinions with which they disagree.

This feature alone is likely to create a significant chilling effect on online expression. Whether a complaint is ultimately substantiated or not, the model under which the Tribunal operates dispenses complainants from the burden of prosecution but does not dispense defendants from the burden of defending themselves against the complaint in question. Again, this approach may or may not be sensible under existing anti-discrimination measures, which are primarily aimed at businesses with generally greater means. But it becomes obviously one-sided in relation to the “hate speech” measures contemplated by Bill C-63, which instead target anyone engaging in public commentary using online platforms. Anyone who provides public commentary, no matter how measured or nuanced, will thus have to risk personally bearing the cost and effort of defending against a complaint as a condition of online participation. Meanwhile, no such costs exist for those who might want to file complaints.

A second implication arising from the Tribunal’s status as an administrative body with significant implications for Bill C-63 is that its decisions attract “deference” on appeal. By this, I mean that its decisions are given a certain latitude by reviewing courts that appeal courts do not generally give to decisions from lower tribunals, including in criminal matters. “Deference” of this kind is consistent with the broad discretion that legislation confers upon administrative decision-makers such as the Tribunal. However, it also raises significant concerns in relation to Bill C-63 that its proponents have failed to properly address.

In particular, the deference granted to the Tribunal means that proponents of Bill C-63 have been wrong to argue that the congruence between its proposed definition of “hate speech” and existing provisions of the Criminal Code provides sufficient safeguards against threats to freedom of expression.

Deference means that it is possible, and indeed likely, that the Tribunal will develop an interpretation of “hate speech” that diverges significantly from that applied under the Criminal Code. Even if the language used in Bill C-63 is identical to the language found in the Criminal Code, the Tribunal possesses a wide latitude in interpreting what these provisions mean and is not bound by the interpretation that courts give to the Criminal Code. It may even develop an interpretation that is far more draconian than the Criminal Code standard, and reviewing courts are likely to accept that interpretation despite the fact that it diverges from their own.

This problem is exacerbated by the deferential approach that reviewing courts have lately taken towards the application of the Canadian Charter of Rights and Freedoms to administrative bodies such as the Tribunal. This approach contrasts to the direct application of the Charter that remains characteristic of decisions involving the Criminal Code, including its “hate speech” provisions. It also contrasts with the approach previously applied to provincial Human Rights Tribunal decisions dealing with the distribution of print publications that were found to amount to “hate speech” under provincial human rights laws. Decisions such as these have frequently been criticized for not taking sufficiently seriously the Charter right to freedom of expression. However, they at least involve a direct application of the Charter, including a requirement that the government justify any infringement of the Charter right to free expression as a reasonable limit in a “free and democratic society.”

Under the approach now favoured by Canadian courts, these same courts now extend the deference paradigm to administrative decision-makers, such as the Canadian Human Rights Tribunal, even where the Charter is potentially engaged. In practice, this means that instead of asking whether a rights infringement is justified in a “free and democratic society,” courts ask whether administrative-decision makers have properly “balanced” even explicitly enumerated Charter rights such as the right to freedom of expression against competing “Charter values” whenever a particular administrative decision is challenged.

This approach to Charter-compliance has led to a number of highly questionable decisions in which the Charter rights at issue have at best been treated as a secondary concern. Notably, it led the Supreme Court of Canada to affirm the denial of the accreditation of a new law school at a Christian university in British Columbia, on the basis that this university imposed a covenant on students requiring them to not engage in extra-marital sexual relations that was deemed discriminatory against non-heterosexual students. Four of the nine Supreme Court of Canada judges would have applied a similar approach to uphold a finding by the Quebec Human Rights Tribunal that a Quebec comedian had engaged in discriminatory conduct because of a routine in which he made jokes at the expense of a disabled child who had cultivated a public image. (With recent changes to the composition of the court, that minority would now likely be a majority). This approach to Charter-compliance only increases the likelihood that the proposed online hate speech provisions will develop in a manner that is different from, and more repressive than, the existing Criminal Code standard.

Finally, the third and potentially most consequential difference to arise from the Tribunal’s status as an administrative rather than judicial body concerns the remedies that the Tribunal can order if a particular complaint is substantiated. Notably, the monetary awards that the Tribunal can impose – currently capped at $20,000 – are often imposed on the basis of standards that are more flexible than those applicable to civil claims brought before judicial bodies. An equivalent monetary remedy is contemplated for the new online “hate speech” provisions. This remedy is in addition to the possibility, also currently contemplated by Bill C-63, of ordering a defendant to pay a non-compensatory penalty (in effect, a fine payable to the complainant, rather than the state) of up to $50,000. This last remedy especially adds to the incentives created by the Commission model for individuals (and activist groups) to file complaints wherever possible.

That said, the monetary remedies contemplated by Bill C-63 are perhaps not the most concerning remedies as far as freedom of expression is concerned. Bill C-63 also provides the Tribunal with the power to issue “an order to cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from recurring.” This remedy brings to mind the Tribunal’s existing power to under the anti-discrimination provisions of the Canadian Human Rights Act.

It is not entirely clear how this kind of directed remedy will be applied in the context of Bill C-63. The Bill provides for a number of exemptions to the application of the new “hate speech” measures, most notably to social media platforms, which may limit their scope of application to some extent. Nonetheless, it is not inconceivable that remedies might be sought against other kinds of online content distributors in an effort to have them engage in proactive censorship or otherwise set general policy with little or no democratic oversight. This possibility is certainly heightened by the way in which the existing directed remedies for anti-discrimination have been used to date.

A prominent example of directed remedies being implemented in a way that circumvents democratic oversight is provided by the Canada Research Chairs (“CRC”) program endowed by the federal government at various Canadian universities. That program has recently come under scrutiny due to the on appointments under the CRC program. In reality, those implementing the quotas are merely proceeding in accordance with a settlement agreement entered into by the federal government following a complaint made by individuals alleging discrimination in CRC appointments. That complaint was brought before the Tribunal and sought precisely the kind of redress to which the government eventually consented.

Whatever the merits of the settlement reached in the CRC case, the results achieved by the complainants through their complaint to the Tribunal were far more politically consequential than the kinds of monetary awards that have been the focus of most discussion in the Bill C-63 context. As with the one-sidedness of the procedural incentives to file complaints and the deference that courts show to Tribunal decisions, the true scope of the Tribunal’s remedial jurisdiction presents significant risks to freedom of expression that simply have no equivalent under the Criminal Code. These issues must be kept in mind when addressing the content of that Bill, which in its current form risks being weaponized by politically motivated individuals and activist groups to stifle online expression with little to no democratic oversight.

Stéphane Sérafin is a senior fellow at the Macdonald-Laurier Institute and assistant professor in the Common Law Section of the Faculty of Law at the University of Ottawa. He holds a Bachelor of Social Science, Juris Doctor, and Licentiate in Law from the University of Ottawa and completed his Master of Laws at the University of Toronto. He is a member of the Law Society of Ontario and the Barreau du Québec.