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OTTAWA—The Carney government’s effort to pass its proposed law to combat rising hate crimes faces a critical test this week.
With the Liberals looking for a partner in the minority Parliament on Bill C-9, the Bloc Québécois appear to be hinging its support on a contentious push to remove a shield for religion-based opinions in some of Canada’s already existing hate speech laws.
The new bill has already been roundly criticized by opposition parties as well as left- and right-wing critics, and the Bloc’s proposal has escalated criticism from Conservatives and some Muslim and Christian groups, who decried it as an attack on freedom of religion and expression.
With the Bloc’s support, Liberal MPs agreed this week to drop a proposal in the legislation that would have allowed police to lay charges more easily and speedily for hate-speech by bypassing provincial attorney general approval. Critics had argued it gave too much power to police.
Now the Liberals face a bigger challenge — and Justice Minister Sean Fraser has refused this week to reveal the government’s position. Here’s what we know.
What’s illegal now?
Under Canada’s criminal code, it’s illegal to publicly advocate for genocide, incite hatred, or wilfully promote hatred against any identifiable group. It’s also illegal to wilfully promote antisemitism.
Aside from needing to be made in public, the latter two offences have several exemptions, including one that shields any “good faith” opinion “on a religious subject” or “based on a belief in a religious text.” For years, that has drawn criticism from some Jewish groups as well as in largely secular Quebec, making its removal a long-standing priority of the separatist Bloc.
However, some lawyers say it’s unclear if that defence has ever been used successfully to prevent hate-crime prosecutions. In the landmark 1990 Keegstra ruling, which upheld the constitutionality of the “wilful promotion of hatred” offence, the Supreme Court said the exemptions helped ensure the scope of the law was clearer and not perceived as “overbroad or unduly vague.” Though it noted they represented situations unlikely to fall under a “wilful promotion of hatred” anyway.
“It’s extremely unlikely that religious exemption would ever be available,” said Toronto criminal lawyer Mark Sandler. He said he worried the removal of the defence could reopen the constitutional debate about Canada’s hate-speech laws.
“I don’t think that that defence is needed, strictly speaking, for a section to survive constitutional scrutiny, but I’d prefer that the constitutional argument not be reopened by leaving it out,” Sandler told the Star.
Still, critics have argued the religious defence is a loophole in the law that could lead to hesitancy from law enforcement and prosecutors to pursue hate-speech charges if it comes from a religious leader, for example.
“You can look at the religious texts yourself and see what they mean, but the reality is that there is an exception in the Criminal Code that is making people hesitate,” newly sworn-in Identity and Culture Minister Marc Miller said Tuesday.
And in the context of passing their hate-crime bill in Parliament, some Liberals see the Bloc’s desire for change as something that needs to be considered.
“Obviously, we have to find a solution,” Quebec Liberal MP Peter Schiefke told reporters. “I think in principle, it’s definitely something I would support.”
What does the bill propose?
The bill proposes a slew of Criminal Code revisions to combat rising hate. It proposes criminalizing intimidating or obstructing people from accessing places of worship, schools and community centres, as well as outlawing the wilful promotion of hatred through the display of symbols of government-designated terror groups, as well as Nazi imagery. It would also define hate in the Criminal Code while making hate-motivated crime a specific offence.
None of the proposed offences would have the “good faith” religious opinion defence, though the ban on terror symbols would exempt displays for the purpose of journalism, religion, education or art.
What happens now?
Without any support in Parliament for the bill, a National Post report this week, citing an unnamed source, said the Liberals have made a deal with the Bloc to drop the religious opinion defence from the existing laws in order to shepherd their new hate-crime bill through Parliament.
That caused an uproar from the Conservatives, who had been blocking efforts to pass the legislation and branded it an unnecessary “censorship bill” that lowers the legal standard for “hatred.”
Civil liberties advocates and pro-Palestinian advocates have also demanded the original bill be dropped, expressing fears it would be used to limit Canadians’ right to protest, especially over Israel’s war in Gaza.
The National Council of Canadian Muslims escalated its pushback saying in a social media post this week it would consider a Charter challenge if the Liberal government dropped the defence of “good-faith interpretations of religious texts,” arguing it “risks turning legitimate theological discourse into a criminal offence.”
Rob Dhattu, a lawyer and former B.C. prosecutor, told the Star the change was a “slippery slope” for freedoms of religion and expression that is more likely to “muzzle” people’s speech out of fear of repercussions than lead to more charges.
Fraser did not address the proposed change this week but has told a parliamentary committee studying the bill he sees “no problem with it,” if there is consensus for it. His office said in a statement they “remain open to constructive improvements in good faith.”
On Wednesday, most Liberal MPs approached by the Star said they were not aware that change was being considered. But Toronto MP Nate Erskine-Smith said he thinks “we have to be careful when we impose additional restrictions” on speech, while his caucus colleague Salma Zahid said she has “heard some concerns” about the bill that she will raise.
“After months of Conservative delays, we are ready to move forward on Thursday and see this legislation through,” Fraser’s office said in the statement.
