Canada’s Combatting Hate Act Hates Religious Freedom

A new Canadian bill that seeks to strengthen existing hate speech law in the country has worrying implications for expressive and religious freedoms. Tabled in September, the Combatting Hate Act, or Bill C-9, was controversial from the get-go and garnered opposition from an impressively diverse coalition of organizations and creeds.

Law professor Bruce Pardy, a witness at the Standing Committee on Justice and Human Rights tasked with examining the bill, said that C-9 would put Canada on a similar path to Britain, where 12,000 arrests for broadly “offensive” social media posts were made in 2023. Pardy later went on to warn that the law gives the government the “discretion to decide that you have stepped over the line without you being able to tell you have stepped over the line.” 

That was all before a hastily constructed amendment was added in early December that would remove a central defense embedded within the Criminal Code statutes: the good faith religious defense.

Canada first criminalized hate speech in 1970 in response to a rise of neo-Nazi activity. Though Canada does not have the First Amendment, sec. 319 of the Criminal Code both narrowly defines the offense and provides four defenses, one of which reads, “if, in good faith, the person expressed or attempted to establish by an argument an opinion on a religious subject or an opinion based on a belief in a religious text.” Subsequent jurisprudence has sought to maintain the delicate balance between the constitutional right to freedom of expression and the law. 

Bill C-9 would make several changes to the law that worry civil rights groups. It codifies the definition of “hate” in a broader manner than the Supreme Court of Canada has in past judgments, defining “hate” as an emotion involving detestation or vilification rather than detestation and vilification, as the Court did in the 1990 case R. v. Keegstra. A little change of a conjunction may seem inconsequential, but when you can land in prison for expressing a strong emotion, words matter in more ways than one.

The new act also removes the obligation of the police to gain the consent of the attorney general to pursue hate speech prosecutions and introduces a new intimidation offense that would criminalize “the act of intentionally instilling fear to impede access” to a wide range of venues, including sports facilities and cemeteries. Canadian Civil Liberties Association executive director Howard Sapers, among others, asserts that the insertion is unnecessary, as “current offenses such as mischief, intimidation, threats, and harassment already give police the tools they need to protect public safety.”

In a recent interview, Pardy suggests C-9 introduces a notion of “fear” that “until recently has been unknown to the law.” He referenced the 2022 Trucker Convoy as an example of what activities might soon fall afoul of the law. The trucker protest and its ilk, “a group of people in your downtown, in a bunch of trucks . . . advocating for an ideology that is contrary to yours,” might now be considered a threat to the prevailing ideology, and “to push against those ideas is now considered to provoke a state of fear.”

Another ideological cat was released amongst the public square’s pigeons during the Standing Committee on Justice and Human Rights hearings. To his obvious surprise, witness Derek Ross, executive director of the Christian Legal Fellowship, was questioned on the topic of the religious belief defense by Bloc Québécois MP Rhéal Fortin, and then by committee chair Liberal MP Marc Miller, both lawyers. At the time, neither the religious belief nor any of the other statutory defenses were mentioned by Bill C-9, and Ross had not raised the issue in his testimony.

Following Fortin’s questioning, Miller exercised his prerogative as chair to interrogate Ross on the meaning of “good faith”: “In Leviticus, Deuteronomy, Romans . . . there’s other passages . . . there is clear hatred towards, for example, homosexuals. I don’t understand how the concept of ‘good faith’ can be invoked if someone were, literally invoking a passage from, in this case, the Bible.”

Ross retorted, “If members of Parliament are of the view that passages of the Bible are hateful, that’s something that Canadians should be aware of.”

Miller, who famously chose to be sworn in as a parliamentary secretary in 2017 using both a Qur’an and a Bible in “solidarity with Quebec’s Muslim Community,” dug out his Bible and doubled down. In an X post Miller wrote, “I say this, in particular because I am a Christian: there should be no defence to the crime of publicly inciting hatred because, for example, someone relied on Leviticus 20:13 or Deuteronomy 22:22 which prescribe death to homosexuals and adulterers. It’s as simple as that.” 

Richard Moon, professor emeritus of law at the University of Windsor, told Global News that, “so much in this area is about optics.” But optics or no, the Liberal Party and the Bloc Québécois came to an agreement, and in early December an amendment was added to the text that would repeal Section 319(3)(b) of the Criminal Code.

Conservative leader Pierre Poilievre said his party will oppose the amendment, which he called an “assault on freedom of expression and religion.” The Canadian Conference of Catholic Bishops issued a strong statement, noting that “eliminating a clear statutory safeguard” will “likely therefore have a chilling effect on religious expression, even if prosecutions remain unlikely in practice.”

With the House now in recess for the “winter break,” Canadians will have to wait until late January to learn whether Bill C-9 will pass the next hurdle to enactment. But the icy grip of confusion and conformity has perhaps already begun to place a deep freeze on the “True North strong and free.”