THE STANDING SENATE COMMITTEE ON HUMAN RIGHTS
EVIDENCE
OTTAWA, Thursday, May 28, 2026
The Standing Senate Committee on Human Rights met with videoconference this day at 2:02 p.m. [ET] to consider Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places).
Senator Paulette Senior (Chair) in the chair.
[English]
The Chair: I begin by acknowledging that the land on which we gather is on the traditional, ancestral and unceded territory of the Anishinaabe Algonquin Nation. My name is Paulette Senior, senator from Ontario and chair of this committee. I now invite senators to introduce themselves.
Senator Arnold: Dawn Arnold, New Brunswick.
Senator Ince: Tony Ince, Nova Scotia.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
Senator Karetak-Lindell: Nancy Karetak-Lindell, Nunavut.
Senator Ataullahjan: Senator Salma Ataullahjan from Ontario.
Senator Martin: Hello. Yonah Martin from British Columbia.
Senator Bernard: Wanda Thomas Bernard, deputy chair from Nova Scotia, Mi’kmaw territory.
Senator K. Wells: Kristopher Wells, Alberta, Treaty 6 territory.
The Chair: Thank you. I welcome all of you and all those who are following our deliberations. Today, our committee is continuing its study on Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places).
Before we welcome our witnesses, I would like to provide a content warning for this meeting. The sensitive topics covered today may be triggering for some people in the room as well as for those watching and listening to the broadcast. Mental health support for all Canadians is available by phone and text at 988. For those in Ottawa, there is a crisis line available at (613) 722-6914. Senators and parliamentary employees are reminded that the Senate’s employee and family assistance program is also available to them and that a dedicated phone line has been set up for this session. These phone numbers are provided in handouts around the room.
This afternoon, we will have three panels. Our witnesses have been asked to make an opening statement of five minutes each, which will be followed by questions from the senators. With us online, we have Regional Chief Terry Teegee of the B.C. Assembly of First Nations and Nazila Ghanea, Special Rapporteur on freedom of religion or belief from the United Nations.
I now invite Regional Chief Teegee to make his presentation, which will be followed by Ms. Ghanea. Over to you, Chief.
Terry Teegee, Regional Chief, British Columbia Assembly of First Nations: Thank you, and good day. My name is Terry Teegee, I am the Regional Chief for the B.C. Assembly of First Nations and co-portfolio holder and lead for justice and policing, and the implementation of the federal United Nations Declaration Act for the AFN.
I appear on behalf of the Assembly of First Nations, representing more than 630 First Nations across this country we call Canada.
The AFN supports the intent of Bill C-9 as an important step in addressing the alarming rise in hate-motivated conduct across this country we call Canada. However, the bill must reflect the realities that First Nations face, particularly growing anti‑Indigenous racism, violence and rhetoric surrounding the lasting harm of the Indian residential schools, also known as IRS, and the ongoing spread of denialism and hate that is having real impacts on many First Nations communities and First Nations across this country.
My message is quite simple. Bill C-9 must align with the United Nations Declaration on the Rights of Indigenous Peoples and be strengthened to reduce unintentional harms and fully protect First Nations Peoples, truths and sacred places.
On May 13, my office sent a letter to the Standing Senate Committee on Human Rights, articulating more fully our concerns with the bill’s development, critical gaps and our recommendations for amendments to strengthen the bill.
The AFN supports, in principle, the bill’s goals of strengthening responses to hate propaganda and hate crimes. However, the bill’s complete failure to address the rise in anti‑Indigenous hate must be addressed. The AFN has identified three key gaps that must be addressed: Indian residential school denialism is not explicitly covered; First Nations ceremonial, cultural and burial sites need stronger protections, including former Indian residential school sites; and finally, the bill must not infringe on legitimate First Nations advocacy.
Without these changes, the bill risks falling short of addressing lived First Nations realities, Canada’s commitments under the United Nations Declaration on the Rights of Indigenous Peoples Act and the Truth and Reconciliation Commission’s Calls to Action. It could also potentially be used to perpetuate further harm against First Nations Peoples.
First Nations across the country have noted an exponential rise in violence, hate speech and anti-Indigenous rhetoric directly linked to the recognition of First Nations rights and title. Many of these actions have been linked to Indian residential school denialism. Indian residential school denialism is not an academic debate; it’s hate speech. It’s fact. It re-traumatizes survivors, harms entire communities, disrespects children who have never returned home, denies historical facts, and undermines truth and reconciliation. If left unaddressed, the gap risks enabling harmful narratives that perpetuate racism, misinformation and historical erasure.
Residential school denialism has also impacted communities directly that are working to uncover the truth about residential schools within their traditional territories.
On March 25, 2026, Kúkwpi7 Rosanne Casimir from Tk’emlups te Secwepemc testified before the Senate Standing Committee on Indigenous Peoples, where she highlighted the large number of hateful phone calls received by the band office, where individuals have threatened band members with acts of violence in relation to the announcement of the unmarked burial grave sites at the former Kamloops Indian residential school.
Additionally, some individuals have attempted to exhume the unmarked grave sites by trespassing within Stk’emlupsemc Te Secwepemc territory. This has resulted in the establishment of 24-hour security of the former residential school site to ensure the safety of band members and the unmarked grave sites.
This bill has a critical opportunity to address the rise in this form of hatred.
That is part of the BCAFN and the AFN mandates. We have clear mandates, including motions calling upon the Senate and government to amend Bill C-9. We also advocate for land defenders, who are often targeted for upholding those rights and must be protected from the misuse of legal provisions.
In February 2025, the BCAFN Chiefs-In-Assembly passed Resolution 21/2025, Call to Reject and Criminalize Residential School Denialism, to address the ongoing behaviour of elected political leaders in B.C. who continue to perpetuate denialist rhetoric.
In December 2025, these same concerns were captured with AFN Resolution 34/2025, Calling on Canada to Criminalize Indian Residential School Denialism, which specifically called for Canada to amend Bill C-9 to criminalize the public condoning, denial, justification or minimization of the Indian Residential School system, recognizing denialism as equal to a hate crime against First Nations Peoples.
Certainly, this is a part of the United Nations Declaration Act. Obligations under section 5 of the federal United Nations Declaration on the Rights of Indigenous Peoples Act legally obligates the Government of Canada to consult and co-operate with Indigenous Peoples to ensure all federal laws are consistent with the UN declaration. Given the impacts and implications this bill could have on First Nations Peoples, Canada has failed to live up to its own legislative obligations to fully engage First Nations in the development of Bill C-9. Many of the gaps —
The Chair: Chief Teegee, I’m sorry to interrupt. If you could summarize now, we would appreciate it. Thank you.
Mr. Teegee: Bill C-9 could be a missed opportunity for Canada to live up to its obligations under UNDA, and take unnecessary steps to prevent the continued rise of anti‑Indigenous hatred. Parliament must close the gap on IRS denialism, protect First Nations’ sacred places and ensure that the law doesn’t undermine legitimate advocacy.
These changes are essential to advancing reconciliation, upholding human rights and protecting communities from harm. The BCAFN and the AFN stand ready to work with Parliament to ensure this legislation is inclusive, equitable and responsive to the realities of all our First Nations communities.
Thank you. I welcome any questions later.
The Chair: Thank you very much. Over to you, Ms. Ghanea.
Nazila Ghanea, Special Rapporteur on freedom of religion or belief, United Nations: Thank you very much. It’s an honour to be with you today. I’m going to focus on mandate observations in light of both binding international human rights obligations and the relevant soft law.
I’m going to focus on two points: the first is on hate speech, which constitutes a subset of hate crimes; the former are public expressions that may call for discrimination, hostility or violence against a particular group, and the latter reaching a threshold of crimes and motivated by bias towards a specific group.
The report I submitted to the UN Human Rights Council on Advocacy of Hatred on based on religion or belief draws attention to the multi-faceted harms that can result from hateful expressions, whether or not they amount to human rights violations or constitute crimes.
The report calls on state authorities to be alert to expressions of hatred and ensure appropriate and carefully calibrated measures in response. Criminal liability must always be a last resort and run in parallel with other interventions: preventative, societal, educational, restorative and other. They must also be multi-sectoral, involving actions, for example by NGOs, political parties and civil society actors, including religion or belief communities. Too low a bar for criminalization would not only violate rights, but also prove counterproductive to the objective of making society safer.
The soft law international guidance of the Rabat Plan of Action, which resulted from extensive and extended deliberations at the international level, offers a UN framework focussed on preventing advocacy of national, racial or religious hatred that incites discrimination, hostility or violence. It distinguishes between permissible freedom of expression — Article 19 of the ICCPR and Article 20 of the ICCPR — advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence which must be prohibited by law.
The Rabat Plan of Action proposes a six-part threshold test in order to distinguish between Articles 19 and 20, therefore prohibition and non-prohibition. It calls for taking into account the social and political context, the status of the speaker, the intent to incite an audience against a target group, the content and form of the speech, the extent of its dissemination and the likelihood of harm, including imminence.
The test guides towards a strict and sharp understanding of expression that is to be prohibited. Overbroad understandings restrict and violate rights and freedoms, including freedom of religion or belief, and overly rigid understandings of speech or symbols fixated on content without due consideration — for example, of content, speaker and intent — will be prone to misguided findings. Symbols can and are highjacked, and hate migrates and adapts. Hence, responses need to be well considered and adapt judiciously to new realities.
My second point is a manifestation of religion or belief and possible limitations to it. This is clear in the structure of Article 18 of the ICCPR, which has been binding on Canada since 1976, through, of course, freedom of thought, conscience and religion is also protected in other declarations and Treaties, including articles 5 and 12 of UNDRIP and other articles which Chief Teegee just addressed.
Article 18 makes clear that the right to freely hold and change religion or beliefs of one’s choice should not be interfered with and there should be no coercion around it, but its manifestation or expressing religion or belief, including in community and others and in public, that can be subject to limitations, but it’s strictly laid out in the article when that might be so. It must be prescribed by law, non-discriminatory, absolutely necessary in order to protect public safety, health or morals or the fundamental rights and freedoms of others, with any limitations being strictly proportionate, exercised through the least restrictive measures possible, and only on the grounds given.
Manifestation of religion or belief includes access to places, for example, for worship and assembly where holidays and ceremonies are observed, where representatives and leaders of religion or belief communities are trained, materials are held and funeral rights exercised. And funeral rights were discussed in my latest report to the UN Human Rights Council.
What is implicitly recognized in Article 18 of the ICCPR is detailed in Article 6 of the 1981 UN declaration. Protection of access to places of worship, schools, community spaces are recognized as integral to the protection of freedom of religion or belief, and this is also underscored by understanding rights as being mutually reinforcing.
To end, as in all instances, understanding the diversity of religion and belief communities, which includes non-religious communities, and the variety of ways in which they manifest their religion or belief and gather, worship or hold activities will be critical. Thank you.
The Chair: Thank you both for your statements.
We will now proceed to questions from senators. You have five minutes, which also includes the answer.
Senator Bernard: Thank you both for being with us today and for your testimony. My first question is for Mr. Teegee. Could you please elaborate on your third recommendation? It wasn’t totally clear what you were recommending.
Mr. Teegee: The third recommendation was to strengthen Bill C-9 by supporting implementation through education and training. I was trying to condense my notes.
The intent is for legislative reform with culturally informed law enforcement training and public education on First Nations histories, rights and harms of hate speech. Certainly, here we’re talking about sharing and our shared history, and our history before colonization, but also this issue about residential school. It has implications afterwards. The long history of residential schools certainly bleeds into other institutions such as policing. We have seen a high death and incarceration rates as well as high rates of injury by police forces. That is an example to share more information and also within education institutions about Indian residential schools, but also it goes beyond that. It’s about history.
For example, here in [Indigenous language spoken], the Dakelh people had a long history even before Simon Fraser came up here and before the first governor of Douglas, who came up here. There was a history before that, which was thousands of years.
That kind of history needs to be shared about the true history of parts of British Columbia and Canada. That needs to be shared about the true history of First Nations. Without truth — as Murray Sinclair stated — you can’t have reconciliation, and I think that needs to be shared amongst all citizens of Canada.
Senator Bernard: Thank you. As a follow-up for Mr. Teegee, we have heard that dehumanization can lay the groundwork for hatred and violence. Could you tell us, from your perspective, how does residential school denialism contribute to the ongoing dehumanization of Indigenous Peoples, and why do you believe that addressing it is a necessary part of this legislation to combat hate?
I would also like to ask — if we have time to get the answer in — was your organization consulted as this bill was being developed?
Mr. Teegee: In terms of consultation, we have been aware. I don’t think we’ve been deeply consulted about Bill C-9.
Getting back to the dehumanization and about Indian residential school and about the rise in anti-Indigenous rhetoric, especially in regards to — this Monday was the fifth anniversary of the announcement of the finding of 215 anomalies that could be 215 graves.
We know for a fact there were gravesites at all Indian residential schools. As a matter of fact, if you look at a plan, there was a playground, there was a school, there was a field, and there was a graveyard. The fact remains: How did these children die? There are different ways that they’ve died over the last 100 years.
Let’s be clear. This was genocidal policy. If you look at the United Nations’ definition of “genocide,” it’s the taking away of the children. It’s the breaking up of the families. It’s also taking their language and their culture away, so really dehumanizing our Indigenous children for over 100 years.
The intent from Sir John A. Macdonald, our first Prime Minister, was to kill the Indian in the child, and, certainly, he did that over generations of residential school.
Now, we have the fact that there are graves at these sites, at the Indian residential schools, and whether they’re exhumed, or whether they’re repatriated back to their families or their communities is not the point. We need to take the whole picture that over 100 years, our children were taken away. They were dehumanized. They were abused. There were well over 4,000 — the number is probably even higher — of missing children. Where did they go? Most of them died either trying to escape, or most of them died and were placed in some of these graves. Quite simply, those are the facts, and those are the truths.
One thing that we’re really trying to get to the bottom of with the Government of Canada and with all the churches and with the Vatican is to get clear information about the data and the information of those children that are missing and, potentially, of who are in these graves. There’s a lot of missing information with some of these residential schools.
Here in British Columbia, you have 18 residential schools, and there are much more than that, as we well know. Some, such as the residential school in the Northwest Territories — St. Joseph’s — where a child was exhumed. They knew who the grave was, and he was repatriated back to the family.
The point was, how did he die? When did he die? Was it a cause of malnutrition, abuse, sickness or et cetera, et cetera? That’s the dehumanization of our children that went to Indian residential school.
The Chair: Thank you very much. That is time.
Senator Ince: Thank you all for being here.
My question is for Chief Teegee. Last week we heard from the Métis National Council, the Anishinabek Nation and the Chiefs of Ontario that their communities were not consulted during the development of this bill.
Now, let me just go back and clarify. They may have been consulted on the first iteration of the bill. I’m asking: Were the communities — and your community — consulted during this iteration of Bill C-9?
If not, what immediate steps should the government take to correct the exclusion of Indigenous perspectives?
Mr. Teegee: Thank you for the question.
There are two things there. Not only on this bill of Bill C-9, but I’m also — as a part of the United Nations Declaration Act, or UNDA, on behalf of the Assembly of First Nations, or AFN — to align many of the laws with UNDA.
First and foremost, we have been aware of this legislation, and we have been sharing a lot of our information — not only our motions and resolutions — at the BCAFN and at the AFN more recently this past year. But the point is that our recommendation, since the passing of the United Nations Declaration Act, our recommendation — my recommendation — was that with any bill that is in development, we should be consulted at the first point that the bill comes forward.
I think that this law, this bill, is a perfect opportunity to align with the United Nations Declaration Act. Seeing that it is being amended right now, here is the perfect opportunity for this to make amendments to align with the United Nations Declaration Act, considering all of the implications that you heard from myself and fellow witness Nazila Ghanea about many issues that we experience as First Nations people in this country.
Senator Ince: Thank you.
Senator Martin: Thank you to our witnesses today for the insights you bring. My first few questions will be for Ms. Ghanea.
From your perspective as a Special Rapporteur — and it’s a very important role, and you get to see various situations — how important is it under international standards on freedom of religion or belief — and, as you say, these are important standards that Canada is signatory to, as well as other countries — that criminal hate speech laws include clear and explicit safeguards for good faith religious expression? In that light, how should we, as parliamentarians, at this time think about the decision to remove a long-standing religious text defence in Bill C-9 and rely instead on more general wording and Charter protections?
Would you speak to the removal of that protection?
Ms. Ghanea: Thank you very much. What is clear in the international standards is that the right to have, adopt and change religion or belief must be free, there must be no intrusion on it and there must be no coercion around it.
The question that you raise is not explicit in the international standards, but the coercive element is something that we need to be mindful of. It’s very clear from the United Nations Human Rights Committee that the prohibited coercion can be in the socio-economic field and not just in the civil and political field. We’re not just talking about apostasy or a prohibition on the change of religion or belief. The whole environment around having and holding a religion or belief of one’s choice must be free without any coercive influences.
It also relates, of course, to Article 19, which is on freedom of opinion and expression in addition to it relating to Article 18 on freedom of religion or belief, but also freedom of association and assembly.
What might be very interesting to consider is that the UN Human Rights Committee is currently redrafting an article on freedom of assembly and association, and through that redrafting process, the Special Rapporteur on counter-terrorism and human rights, the Special Rapporteur on freedom of peaceful assembly and of association, the Working Group on discrimination against women and girls, as well as this mandate, we have all submitted to that.
I want to repeat that freedom of expression is a necessary right within freedom of religion or belief. Freedom of religion or belief must be also in public and alongside others. There must be a level of autonomy within religional belief communities in order to be able to maintain, perpetuate, share and to teach their religion and belief.
Of course, in many instances, the most vulnerable victims of freedom of religion or belief violations are intersectional. They may be minorities or, indeed, Indigenous Peoples, or they may hold religions or beliefs of African origin.
I want to recall that all of these rights should stand together. There should be no interference in freedom of expression, unless it is necessary to the protection of the rights and freedoms of others.
Senator Martin: Following that, the removal of this long-standing good faith religious text defence has already caused great concern across our country. I’ve heard from witnesses who have appeared at this committee as well. It has that chilling effect.
We talk about what it may do as a result of that removal on lawful religious teaching and public moral debate and in a pluralistic society like ours, how important it is for people to have that real sense of freedom and protection.
Drawing on your comparative experience, what kinds of legislative wording or implementation practices most often lead to that chilling effect? What concrete safeguards are needed in the bill we are studying at this time?
The Chair: We have less than 10 seconds for that. I will give her a minute and see if she can handle it in a minute.
Senator Martin: Okay, thank you.
Ms. Ghanea: Reflecting on it from a global perspective, it is absolutely essential that populism, majority sentiment and preference should have nothing to do with it.
If there is any restriction to speech or, indeed, you are talking about manifestations of religion or belief, if there is any restriction on it, it must be non-discriminatory and applied to all. It must be, as it will be in this case, established in law. But can we guarantee that it will be the least intrusive measure and that it will be absolutely non-discriminatory in its implementation?
I think, Senator Martin, you want me to say that we should keep it. I want to reflect that there isn’t an explicit good-faith protection required. It’s not explicit in international standards.
But we must be very mindful that any limitations must be strictly — because we need to uphold the rights and freedoms of others. It is the least intrusive means that we are using. It must be proportionate.
Senator Arnold: My question is for Ms. Ghanea. I appreciated your methodical approach to assessing hate speech. That’s a helpful framework. Thank you for that.
You have addressed so much of the parallel work that must be done to accompany what has often been referred to as this blunt instrument of legislation.
I’m wondering if you have any positive, tangible examples of situations in which different faith groups have come together and had meaningful dialogue and positive outcomes as a result of that?
Ms. Ghanea: I think you’re referring to the early part of the comments, which gives me the opportunity to reiterate that criminalization must be a last resort, and prevention must be preferred to criminalization.
It is only when it is absolutely necessary, and when it reaches a very high threshold, that there should be any consideration of any restrictions.
Prevention at the grassroots, good relations at the grassroots, having ongoing dialogue, authorities being in touch with the variety of religion or belief communities that will always be changing. The landscape of our countries is always changing in terms of religiosity and non-religiosity and different religions or beliefs. Those interactions, good relations, and ongoing debates are crucial.
As I go on country visits around the world, I often emphasize that it’s not only at a moment of crisis that we should reach out to religion and belief communities; it should be ongoing in order for there to be trust between, within religional belief communities but also with religional belief communities and the authorities.
Senator K. Wells: I want to keep to the line of questioning with our current witness, Ms. Ghanea.
I want to confirm that I heard you correctly when you said there is no international standard for a faith-based religious defence. Was that correct?
Ms. Ghanea: It is not as sharply crafted as it has been in Canada. But what is guaranteed is that freedom of expression and freedom of religion or belief are interrelated. And freedom of religion or belief without the expressive elements is meaningless. Otherwise, we’re privatizing it. It is guaranteed but it is not articulated in the way that Canadian law has been. That’s what I wanted to say.
But as I mentioned, any restriction on manifestation of religion or belief has a very strict framework and must be supervised very carefully. And the Rabat Plan of Action is helpful because it goes beyond merely looking at the content of the speech.
Senator K. Wells: Great. That sounds like you are describing our Canadian Charter of Rights and Freedoms.
Do you feel that Bill C-9 in its current form meets the international obligations you have identified?
Ms. Ghanea: I appreciate recognition of cases associated with manifestations of religion or belief. It is essential to recognize the fact that religion or beliefs are also in public and with others.
When it comes to the terrorism definition and criminalization, there are other UN Special Rapporteurs that I would recommend have a sharper focus on that. I would draw attention to the submission of the UN Special Rapporteur on upholding human rights while countering terrorism to the UN Human Rights Committee for his extensive discussion about how carefully terrorism needs to be drafted.
Senator K. Wells: I’m not quite sure I got the answer to the question I was looking for. I will put it a different way for you.
Ms. Ghanea: Please.
Senator K. Wells: Do you feel that Bill C-9 does not meet any of those specific international obligations?
Ms. Ghanea: Sorry, I thought you meant the amendments. Apologies.
With regard to the amendments regarding terrorism, my expertise is not sufficient for that.
With regard to Bill C-9 —
Senator K. Wells: I am sorry to interrupt.
I mean Bill C-9 in its entirety. Do you see specific parts of Bill C-9 that do not meet those international requirements that you’ve outlined to us? Not in generalities, but in specific relation to the bill.
Ms. Ghanea: No. But when it comes to the amendments regarding symbols, I think it is advisable to allow there to be reconsideration of what the symbols mean over time.
Senator K. Wells: In that sense, you are saying that the section on symbols is not sufficient for the international regulations that you’ve outlined? I’m a bit confused.
Ms. Ghanea: I’m suggesting that there needs to be ongoing care in its implementation. I’m not criticizing the amendment as it stands, but it needs to be reconsidered. One of the submissions suggested a five-year review of its implementation. That’s wise in terms of how it is realized and implemented over time. Thank you.
Senator K. Wells: Thank you. I appreciate the clarifications, very helpful.
I have a question for Chief Teegee. A few days ago, the Department of Justice officials provided some assurance that unmarked gravesites at former residential schools and ancestral Indigenous burial sites could be considered as, quote-unquote, “cemetery” as identified in Bill C-9. Does that reassure you?
Mr. Teegee: I think it is much more than the gravesites. It is the First Nations experience in terms of hate speech but also beyond hate speech.
It is getting quite difficult. This is my opinion. I’ve been the Chief for 17 years. I’ve never seen it this bad. We get a lot of messages here at the BCAFN personally, social media and in the general public, sadly. We are seeing, hearing hate speech, and it is only getting worse. I think we need to call it out, and it needs to be criminalized because, quite simply, you would see implications and also, perhaps, consequences if it were anti‑Semitic speech.
Senator K. Wells: Thank you.
Senator Simons: My first question is for Ms. Ghanea. In your opening remarks, you talked about the necessity to view hate speech in context, based on the social position of the person making the speech and other social elements. I am just wondering if you could take a minute more to explain to us how, ideally, those factors would intertwine.
Ms. Ghanea: I would be very happy to also share case law from around the world, evolving case law that refers to the Rabat Plan of Action and benefits from it. A recent example is regarding the response of Swedish authorities to the burning of holy books.
But why does it matter? It matters because, with the rebut kind of action, we’re talking about a speaker who influences an audience to act against a target because of their Indigeneity, because of their race or because of their religion. It is that triangular relationship. So the speaker matters. The context matters. We can’t just look, of course, at the content of something and decide that this is so grave that it merits criminalization. That’s what I meant by the speaker.
If you recall, about 15 years ago, Pastor Jones had a congregation of 12, in the case of the Quran burning, which, of course, was very hurtful. But that case became notorious around the world. Sometimes we need to consider whether we give attention to a speaker who does not have a following, and we may bring them fame and attention.
Senator Simons: So you create a free-speech martyr and give them a platform and a global audience that maybe they didn’t have before?
Ms. Ghanea: Indeed.
Senator Simons: One of the other challenges of this legislation is that Canada doesn’t have a list of prescribed symbols. What the government has done instead is to use the list of terrorist entities as a proxy. This has created some challenges because there are some symbols on that list that are not hate symbols, and some hate symbols have been left out entirely.
Could you talk a little bit about how some other countries have done that? Because, as I say, I’m not really comfortable with the way we’ve used a list that was created for a completely different purpose as a simulacrum of a list of hate symbols.
Ms. Ghanea: I’m afraid I’m not fully informed or knowledgeable about the terrorism symbol aspect of it. I suggest Ben Saul, the Special Rapporteur on counter terrorism and human rights would be better able to advise on that.
But if we look historically, of course, we have the Nazi symbol, which was originally a Hindu spiritual symbol auspiciousness and good fortune, and then it became distorted and used in this horrible and disturbing way as the swastika. We have the lessons of history. I don’t know of any other democratic countries — this may be my ignorance — that have singled out religious symbols that must be prohibited. On the terrorism side, I must defer to Ben Saul.
Senator McPhedran: Thank you to the witnesses who have come to us today. I want to pay particular tribute to the UN Special Rapporteurs. I have done some work in the UN system, and I have some appreciation of the amount of generous sharing of your expertise that this position requires of you. Thank you for that.
My question is actually geared toward Chief Teegee, please. In some ways, I’ve been asked to raise this. Not able to be with us today is a member of this committee, who is the only residential school Survivor in the Senate at this point in time. She has encouraged me to give her name, which is Senator Mary Jane McCallum, a sister senator of mine from Manitoba.
She framed this question primarily as a residential school Survivor. While she absolutely shares the concern about the rising level of hate speech, hate crimes against Indigenous people, one of the points that she has raised and that she has asked me to raise here is a concern that, for many Survivors of the residential school system, there is a deeply internalized form of hate that they have been taught. It has been drilled into their very beings.
One of her concerns is that the criminalization of hate speech could potentially get weaponized against, actually, residential school Survivors. Do you want to comment on that? I hope I’ve done adequate service here for Senator McCallum’s concern.
Mr. Teegee: Yes, certainly. I totally respect Senator McCallum and her question. That is a potential issue, I suppose. I don’t want to trivialize it because, quite simply, I was lucky enough not to attend residential school. My older siblings were in residential school and know of the internal dehumanization and the hate that is internalized.
Perhaps this is one of the issues where more consultation is needed. In the end, though, the fact remains that what we’re talking about here are not only residential schools and Survivors but what has come as a result of not only Indian residential schools. It is the current state of affairs, as Senator McCallum noted.
I just noted in a previous question that we’ve seen a rise of hate, especially in the last couple of years. Quite simply, I suppose, in my opinion, it is because of what we are seeing south of us in the United States. Many of those who have similar minds have emboldened themselves to not only raise the issue of denialism but to question the rights and titles and interests of First Nations peoples. It is from political parties, such as one party in British Columbia where member of the legislative assembly Dallas Brodie came out stating not only are the title cases of Cowichan and Secwépemc being questioned, but the fact remains that this bleeds into other things, I suppose.
We really need to call that out in terms of the hate speech that we are experiencing here in British Columbia and elsewhere. I know a decision about title is coming up in New Brunswick today. It speaks to the ongoing issue that all First Nations experience in this country. The anti-hate denialism is bleeding into other things, which is a real problem. It’s not just bleeding into the general public. It’s bleeding into political parties, like what we are hearing from one in B.C. and what we are hearing from the Conservatives.
There is a push here in British Columbia to repeal UNDRIPA and also the United Nations Declaration Act. That is a real concern, considering the great strides we have taken. It is really creating discord and perhaps a strained relationship with governments and, I would say, with the general public.
We are taking recommendations from residential school Survivors and also the Truth and Reconciliation Commission and elsewhere, and we need to make sure that this is a Bill C-9 alliance, once again, with the United Nations Declaration on the Rights of Indigenous Peoples federally. Here is a good opportunity to do that. I will leave it there.
The Chair: Thank you.
Senator Ince: Ms. Ghanea, in your report entitled Call for input: Advocacy of Hatred Based on Religion or Belief — Transformative Responses, you’ve highlighted that the effectiveness of criminalization of hate speech may be limited. Thus, you’ve proposed in the report 10 different transformative approaches to address root causes, such as the creation of collaborative networks to build mutual understanding, encouraging training of government officials in effective outreach strategies and understanding the need to combat denigration by strategizing actions at local and national levels through education and awareness building.
Moreover, based on your discussions with the United Nations Member States, what are some effective approaches they use to address hate crimes that Canada’s bill can learn from?
Ms. Ghanea: Thank you very much for that question.
Speaking to an international human rights audience and speaking to 193 Member States is very different in this current context, so I just want to first suggest that I’m not at polar opposites with Chief Teegee on this matter. When there is structural discrimination and a history of violations, when people’s humanity has been denigrated for centuries, the approach needs to put attention on equalizing and allowing equal enjoyment of human rights fully, without any implicit bias or structural discrimination hindering the reality of access to human rights. That is absolutely necessary and is sort of a different part of this debate.
Then when speaking to 193 Member States, some of whom prohibit particular religions and don’t recognize that religious belief applies to women on an equal basis, half of humanity, but have a list of recognized religions, it happens to be the people in power, not only as a religion but a particular sect or the particular approach of a particular religion. Obviously, to that audience, I’m speaking about not criminalizing too easily.
We know from the International Covenant on Civil and Political Rights, the ICCPR, that criminalization and prohibition of speech are also in the tool box and are a necessary part of the tool box. Article 2.2 of the ICCPR requires prohibition of incitement. But when we take onboard the global reality, we don’t want it to be the first resort, especially when the first resort of criminalization in many contexts may even go with a mandatory death penalty. Let’s look at the broader reality that those international standards need to meet.
Let me just say that I stand by the fact that those other measures are absolutely necessary, but that doesn’t preclude the necessity of criminalization. The state has positive duties to ensure that these rights are actually enjoyed by everybody in society on an equal basis.
Senator Simons: Chief Teegee, believe me, as an Alberta senator, I understand what you are saying about the dangers of politicians inciting hatred against Indigenous communities. Certainly, in Alberta, in the wake of the referendum decision, there has been a lot of concern in the Indigenous community about backlash.
I’m also very cognizant, as a person of Jewish descent, of the danger of denying the Holocaust and of denying residential schools.
Here is my concern, and I wonder if you could speak to this. You talked about the need for better education around the history of residential schools. I am worried that if we were to, as some have suggested, criminalize the diminution of residential schools, we could actually create such a backlash that right-wing people who deny the meaning of residential schools would be empowered and that the results would be catastrophic in a way that education would not be.
I’m just wondering if you could talk a little bit about whether it makes more sense to advocate for better education or to criminalize debate about the reality of residential schools.
Mr. Teegee: Well, not delving too much into the debate portion because that’s new and novel to me right now, but realizing that — and I appreciate you being from Alberta. We are seeing total civil discourse in terms of a premier who is basically capitulating to a small sect of the public in Alberta to separate and ignore and challenge section 35 Treaty rights of historical Treaty 6, 7 and 8 and the Blackfoot Confederacy. We certainly support those First Nations, and we fully support the nations who have a right to say what occurs in Alberta.
Now, in terms of the backlash, it’s already happening. We need to do something in terms of stemming the tide of what we are seeing right now. What we’re seeing and what you are experiencing in Alberta and perhaps what we’re experiencing here in British Columbia over the Cowichan case and the Gitxaala and Ehattesaht case is ground zero. We are seeing it elsewhere as well. Perhaps there will be discussion about the recent decision from judges today on the title case in New Brunswick. We have issues with regard to racism and the rhetoric we are hearing on fishing rights that have been ongoing for quite some time on the East Coast and now on the West Coast as part of decisions on the salmon allocation policy.
My point is that not only is it denialism, it is also bleeding elsewhere, as I stated earlier. Certainly, education is a really important aspect. We’ve been doing our best with local educational institutions, high schools, elementary schools and universities. It’s really important to make sure that the information about the truth of the history of Canada is out there.
I think the criminalization of what you recommended there should be looked at more thoroughly.
Senator Karetak-Lindell: Chief Teegee, one of the witnesses — or maybe more than one — talked about how this legislation doesn’t necessarily cover areas that do not have a physical space, like cultural sites and sacred places. Do you feel this legislation would protect those or do you think amendments are needed to protect non-physical churches, temples or cultural sites where people gather and worship or do their cultural practices?
Mr. Teegee: The bill’s purpose is to stem this tide of behaviour. Certainly, the desecration of gravesites that we’ve seen and experienced in this country, I would say this covers that off in terms of protecting sacred sites.
The point is that the issue is the overall treatment of Indigenous Peoples. Certainly, part of the denialism around residential schools is within the First Nations’ experience. If we can make amendments and align this legislation with the United Nations Declaration on the Rights of Indigenous Peoples Act, it would definitely help in terms of our relations with the general public.
Also, I think and I hope that this would change the behaviour of those bad actors, if you will, of those racist notions and the racist rhetoric that we are hearing as a result of not only denialism but elsewhere, which certainly affects residential school sites and graves.
We’ve seen a lot of graffiti out there, such as, as my colleague stated, the use of the swastika. That is one of the important symbols of anti-Semitism, and certainly, we’ve seen that on many, I suppose, culturally significant murals and whatnot. They have been covered up and/or desecrated. It is much more than just certain sites and certain areas that we call sacred. We’re trying to stem the tide of this racist rhetoric that we’re all experiencing.
The Chair: Thank you to our witnesses. I would sincerely like to express our appreciation for your participation in this meeting today. Your assistance with our study as we continue to consider the bill is most appreciated.
For our second panel, with us in person from The Democracy Fund, please welcome Mark Joseph, Director of Litigation. Next we welcome Lisa Bildy, Lawyer and Executive Director from the Free Speech Union of Canada. Finally, we have James Manson, Senior Lawyer, Charter Advocates Canada.
I invite Mr. Joseph to make his presentation. Over to you.
Mark Joseph, Director of Litigation, The Democracy Fund: Good afternoon. My name is Mark Joseph. I’m the Executive Director of The Democracy Fund. We are a non‑partisan Canadian charity that provides free legal representation to Canadians whose civil liberties have been violated by the state. Since its founding in 2021, TDF has defended over 2,500 Canadians of every background — religion, race, political persuasion, walk of life.
I want to begin there — with who TDF actually defends — because it is the foundation of everything that follows.
TDF defended dozens of clients charged with criminal mischief during the convoy protests. We defended a client charged under section 319 for posting a link to a video critical of gender reassignment surgery. We are defending a pastor charged under section 175 for peaceful street preaching. And we represented a woman invited to speak at a B.C. community centre on gender identity and women’s rights — only for the centre to cancel her event on the grounds that her speech might promote hatred. Precisely the type of conduct this bill seeks to criminalize.
Based on that experience, we predict that Bill C-9, if passed without amendment, will produce more prosecutions for speech crimes and peaceful protest, target dissidents, journalists, academics, religious minorities and peaceful protesters. It will consume scarce judicial resources that would otherwise be used to prosecute serious violent crime.
I want to move on to the specific concerns. First are the hate symbol provisions. Bill C-9 criminalizes the display of Nazi symbols and symbols of listed terrorist entities. We understand the impulse here, but this conduct is already captured by sections 319 and 83.18 of the Criminal Code. The new offence adds nothing except complexity. More troubling is that the terrorist entities list is compiled by the Governor-in-Council with no meaningful judicial oversight. Parliament would hand the executive the power to ban symbols by regulation — a future government could list communist organizations and ban the hammer and sickle or list anti-racism groups and criminalize their insignia. TDF recommends the Senate remove or limit this provision.
Second is the removal of the religious defence. Currently, an individual charged under section 319 can raise the religious defence — a good-faith argument grounded in sincerely held religious belief. The Supreme Court in R. v. Keegstra affirmed this defence as essential to preventing overbroad application of hate speech law. Bill C-9 rescinds it.
Think about who this affects: Orthodox Jews interpreting the Torah on marriage and sexuality, evangelical Christians preaching from the New Testament, conservative Muslims reciting Friday prayers on gender or interfaith relations, dissidents within religious communities who hold heterodox views — the men and women TDF defends.
Without the religious defence, Crown attorneys and judges must engage in scriptural interpretation — a discipline with thousands of years of scholarly debate that the criminal justice system is wholly unequipped to resolve. Any pattern of prosecution or non-prosecution of particular religious communities will be perceived as persecution or privilege. Both outcomes undermine confidence in the administration of justice and deepen social conflict. TDF recommends the Senate restore the religious defence.
Third is the new hate-motivated offences. Bill C-9 creates a stand-alone offence under section 320.1001 for any offence under the Criminal Code or any act of Parliament motivated by hatred. The phrase “any other Act of Parliament” captures even minor federal administrative violations — for example, littering in a national park while distributing hateful material could become a predicate for a serious criminal charge. Existing jurisprudence under section 718.2 requires only partial hateful motivation for enhanced penalties, and from direct experience we know prosecutors already over rely on weak evidence of hatred. This provision will multiply charges and divert resources from violent crime prosecutions. It is also unclear whether section 718.2 — that’s the enhancement for hate motivation — and section 320.1001 could both apply to the same conduct — an interaction Parliament has left entirely unaddressed. TDF recommends removing the words “any other Act of Parliament” and clarifying that interaction.
Fourth, my last point: the obstruction and intimidation offences.
Bill C-9 creates new offences for intimidating or obstructing access to religious buildings, cultural centres, educational institutions, et cetera. This instinct is understandable, but this conduct is already a crime under sections 430, 175, 176 and 423 of the Criminal Code. TDF’s lawyers have defended clients charged under these very sections. Police and prosecutors know these sections and use them. The new provision simply creates a second charge to stack on top of an existing one. A protester outside a community centre could simultaneously face mischief, obstruction of an enumerated building and two hate-motivated offences under section 320.1001, all for the same act of standing on a road. None of the key terms are defined, guaranteeing years of appeals and an immediate chilling effect on lawful protest. TDF recommends removing these offences as superfluous.
Finally, the evidence from established democracies is that censorship does not reduce social conflict. It may increase it. Suppressing expression drives beliefs underground, removes the possibility of counter-argument, breeds resentment and, over time, produces a credulous citizenry more susceptible to demagoguery, not less.
The Chair: Would you mind summarizing now, Mr. Joseph?
Mr. Joseph: Police and prosecutors already have the tools to prosecute the conduct this bill targets. What Bill C-9 adds is not protection. It is exposure for the dissident, the preacher, the peaceful protester and the minority believer.
Thank you.
Lisa Bildy, Lawyer and Executive Director, Free Speech Union of Canada: Good afternoon, senators. Thank you for the invitation.
My name is Lisa Bildy, I’m the Executive Director of the Free Speech Union of Canada, or the FSUC. We are a non-partisan, membership-based organization dedicated to defending freedom of expression. The FSUC’s submissions are focused on the deleterious impact that Bill C-9 would have on expressive rights. I will touch on a few of those concerns, first with respect to hate symbols.
Symbols are a form of expression. Criminalizing them is an extraordinary step, and this bill does so in a way that is opaque, vague and prone to politicization. There is no statutory list of prohibited symbols. Instead, the definition depends on association with whatever groups the Minister of Public Safety has placed on the terrorist list. That makes the scope of criminalized expression inherently political. Most listed groups do not have recognizable symbols. There is no requirement that a symbol be notorious, widely understood, or uniquely associated with a terrorist entity.
A person could face prosecution for displaying a symbol at a protest without knowing it has been co-opted by a listed group. As the bill is drafted, it appears that the act of displaying the symbol is all that is necessary to establish the wilful promotion of hatred. That is incredibly overbroad. While there is an exception for “legitimate purposes,” it doesn’t permit symbolic co-option for legitimate political expression. For example, a meme sometimes seen online places four of the Progress Pride flags in such a manner that the triangles resemble a Nazi Hakenkreuz. This is political expression against what some Canadians see as an increasingly oppressive ideology, but in the current political climate it could be characterized as hate and, under Bill C-9, would invite criminal charges.
Symbols evolve. In the U.K., there have been news stories about the St. George’s flag, a centuries-old emblem of English heritage, being removed from public places by authorities because some groups used it in anti-immigration protests. Here in Canada, historic flags such as the Canadian Red Ensign are treated as suspect by some, like the Canadian Anti-Hate Network, even though most Canadians display them out of pride, not hate. Under Bill C 9, it is easy to imagine such flags becoming criminalized by association with nationalist groups that could be politically targeted by the government of the day.
The new intimidation offence criminalizes “any conduct” intended to provoke a state of fear in order to impede access to certain locations. “Any conduct” means the actus reus of the offence is always met. The offence, then, turns on the probable subjective mental state of another person. Is the intent to provoke a state of fear of violence, or a fear that someone might say something offensive? How much fear is required? This low threshold risks capturing ordinary protest activity, which can, by its nature, be somewhat intimidating, especially on contentious issues. Criminal offences must be clear, objective and narrowly tailored. This one is not.
The obstruction offence effectively creates protected sites used by certain “identifiable groups.” This abandons the content-neutral principles that protect expressive freedom. Some topics of protest will be disproportionately restricted, and Canadians may find themselves unable to criticize “protected” ideologies in locations where their protests would have the most impact and relevance.
The breadth and subjectivity of these provisions serve another purpose. They give authorities flexible tools to deploy against unpopular protests or political opponents. We have already seen selective enforcement in recent years. Some hatred is tolerated. Other hatred is punished. That is not the rule of law.
As philosopher Bertrand Russell rather cynically observed, “People seem good while they are oppressed, but they only wish to become oppressors in their turn. . . . ” That dynamic was evident in earlier panels calling for the bill to go even further. The impulse is not merely to stop hate — as if one could stop a basic human emotion — but to stop criticism, offence, dissent and even factual disagreement.
Criminalizing the denialism of contested perspectives — whether on residential schools, gender ideology or critical race theory — is a road Canada must not go down. We must hold fast to foundational principles, especially in polarized times. Those are what ground us.
Freedom of expression is one of them, and it matters because it is the most effective check on abuses of power. It enables the search for truth, even when truth is uncomfortable. It provides a peaceful outlet for grievances, reducing the risk of violence. It exposes bad ideas to scrutiny, allowing society to challenge and defeat them. Neutral principles protect everyone. As Minister Fraser acknowledged last week, these tools could easily be used against environmentalists or other activists when political winds shift. It fosters dialogue and social cohesion. Criminal law cannot manufacture harmony, only open debate and dialogue can.
Bill C-9 risks eroding Canadians’ most fundamental freedom. Criminal law should target conduct not expression, violence not dissent and incitement not unpopular opinion. Our specific amendments and more detailed commentary are contained in our written brief.
Thank you. I welcome your questions.
James Manson, Senior Lawyer, Charter Advocates Canada: Thank you, senators. Let me say that Charter Advocates Canada is pleased to be here to participate in this exercise today.
In the interest of time, I’m going to leave the description of Charter Advocates Canada to our written submissions. I hope that everybody has had a chance to look at them, and I certainly recommend the written submissions to you, senators.
Charter Advocates Canada is a legal charity. We’re a not-for-profit organization, and our mandate is to provide pro bono legal services to Canadians in connection with constitutional rights, human rights, civil rights and other protections under the Canadian Constitution. We represent them in the courts. We represent them before tribunals, and we provide governmental interaction as well.
We have, in our written submissions, senators, four broad categories of concern with Bill C-9, and I want to leave three of them to the written submissions. I echo my friends here beside me with respect to what they’ve said and with respect to three of the four areas of concern. Certainly, we developed those points in our written submissions.
However, in the interest of time, what I would like to focus on is the religious defence concern. This is front and centre in our documents, senators. What we’re talking about, of course, when we see the bill, is the idea of repealing what we call in our brief the religious defence. That is currently located at paragraph 319(3)(b) and paragraph 319 (3.1)(b) of the Criminal Code.
As I’m sure everybody is aware, paragraph 319(3.1)(b) provides that:
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 . . .
Then, that accused person can escape criminal liability. That’s a defence.
Now, of course, Bill C-9 proposes to remove that defence. If I leave you with one point today, it’s that Charter Advocates Canada opposes removing the religious defence from the bill, and here is why. In our submission, the religious defence is an integral part of the constitutional balance that was struck by the Supreme Court of Canada in the seminal case of R. v. Keegstra. This was back in 1990.
Senators, I’m sure you’re aware of Keegstra. It’s a landmark case in our jurisprudence, and what happened in Keegstra was that the constitutionality of the wilful promotion of hatred offence was considered by the court, and it was a very close ruling, as you may recall. It was a 4-3 decision. The dissenting opinion was to strike down the provision itself entirely because it was too great an incursion into the freedom of expression. The dissent would have struck down this provision et al. The majority, as I’m sure the senators are aware, upheld the section. It was a very narrow majority.
What happened was, in Keegstra the majority considered, among other things, these defences that we’re talking about, including this religious defence I mentioned. There are, in fact, four of them, as I’m sure you’re aware, senators, and this was one of the four.
What I want to focus in on here is that the majority of the court in Keegstra held that these four defences together significantly helped reduce the danger that 319(2), the wilful promotion of hatred offence, could be construed as overbroad. They were addressing the overbroad or the unduly vague concern.
This is what Chief Justice Dickson said in Keegstra, and I think it’s important to literally quote what he said:
A careful reading of the s. 319(3) defences shows them to take in examples of expressive activity that generally would not fall within the “wilful promotion of hatred” as I have defined the phrase. Thus the three defences, which include elements of good faith or honest belief — namely, s. 319(3)(b), (c) and (d) — would seem to operate to negate directly the mens rea in the offence, for only rarely will one who intends to promote hatred act in good faith or upon honest belief. These defences are hence intended to aid in making the scope of the wilful promotion of hatred more explicit; individuals engaging in the type of expression described are thus given a strong signal that their activity will not be swept into the ambit of the offence. The result is that what danger exists that s. 319(2) is overbroad or unduly vague, or will be perceived as such, is significantly reduced. To the extent that s. 319(3) provides justification for the accused who would otherwise fall within the parameters of the offence of willfully promoting hatred, it reflects a commitment to the idea that an individual’s freedom of expression will not be curtailed in borderline cases. The line between the rough and tumble of public debate and brutal, negative and damaging attacks upon identifiable groups is hence adjusted in order to give some leeway to freedom of expression.
The Chair: Mr. Manson, that is time.
Mr. Manson: Thank you. Could I wrap up to say that, to remove this defence, senators, calls back into question the very constitutionality of 319(2) itself. It’s potentially counterproductive.
The Chair: Thank you.
Mr. Manson: I’ll take your questions. Thank you.
Senator Bernard: Thank you to the three witnesses for being here today. My first question is for Mr. Joseph.
In your opening remarks, you focus on the risk that Bill C-9 may capture protected expression. Are there specific amendments that would allow you to support the bill’s objective of protecting communities from hate and intimidation, or is it your position that criminal law is not an appropriate tool in this area at all?
We’ve heard from a number of witnesses, for example, who are saying that education may be a better tool.
Mr. Joseph: Yes, that’s a great question. We’re kind of in the trenches with these types of criminal offences. Our position is it’s already covered. The worst of this stuff is already covered.
Of course, you’re going to want to educate your population. Part of doing that is exposing them to some of this stuff, because they have to have reasons for holding the position they do, that this speech or these hateful positions are bad. In order to reach
those positions, they have to engage in the rough and tumble of grappling with terrible speech so they’re more resilient. It’s kind of an anti-fragile position.
We would say that this stuff is already covered. You’re asking the courts to do things they struggle to do. They have to judge speech instead of conduct. We’ve seen over 20 or 30 years that they struggle to do it. You get inconsistent results. Then you get an increase in social conflict, because people say how come he got charged and this other person didn’t, et cetera.
I hope that answers your question.
Senator Bernard: Thank you. The next question is for Mr. Joseph and Ms. Bildy. You both referenced the symbols in your testimony. I’d like to ask about the symbols.
Some witnesses have said, if this bill goes forward, it should be without any symbols at all. We’ve also heard strongly from some witnesses that the list of symbols is incomplete. In particular, we’ve heard the symbols that relate particularly to anti-Black racism should be included, those symbols being the noose, the burning cross or the white pointed hood. We’ve also heard from witnesses about the impact of those symbols.
I’d like to hear your thoughts on whether or not symbols should be included. If there is going to be a list included, should those anti-Black racism symbols be on that list?
Ms. Bildy: I’ll take this one first then. Thank you, senator. That’s a very good question.
First of all, we take the position that the symbols shouldn’t be included at all because they are a form of expression. I know some of them are ugly. That’s beyond question. But they are expressive. They are not in and of themselves conduct. Now, they might cross a line.
Here is where I would draw the line, as pretty much a free speech maximalist: If there’s an incitement to violence, or if there is a threat, then throw the book at them. But the mere display of a symbol — and we’ve talked about a variety of different symbols, and potentially benign symbols that could get caught up in this. By the way, the other issue which you may be alluding to here is lots of people are going to have different ideas of what symbols should be on this list.
We could be at this for years trying to come up with all the different symbols people find offensive. Some are going to be uniformly agreed to be egregious. There will be many questionable ones. The door will always then be open for somebody else to get their symbol on the list that they find offensive.
I think it’s better to draw the line somewhere else and not start including a variety of symbols because, again, it is expressive. It is expressive content. It isn’t conduct, but it could cross the line into conduct if it does get into threats. By all means, then I think that’s a police matter.
Mr. Manson: I wanted to draw the senator’s attention also to our brief. We do address it.
Charter Advocates Canada’s view would be that the offence itself, as proposed, is duplicative. The offence already exists in section 319(2).
Section 319(7) defines the word “statements” as including signs or other visible representations. So what might happen is the police may end up charging people under both of these sections, then that increases the backlog in the court system for no added benefit.
Senator Ince: My question is for Mr. Joseph.
In the TDF’s briefs released yesterday, you highlighted a potential consequence of the bill where all identifiable groups may seek to have hate speech directed against it prosecuted, and failure to prosecute could lead to accusations of political bias, which will undermine the administration of justice.
TDF’s brief points out that the experience occurred in Britain after the introduction of similar legislation. Based on similar U.K. legislation, are there any positive and negative lessons that we could learn from Britain’s experience that we could consider with this bill?
Mr. Joseph: That’s a good question. I would say that the lessons are mostly negative, because there have been plausible accusations of two-tiered policing. I’m sure you’ve seen those. Those are hard to defeat for an administration or government, because it’s the perception. The government could say, “Look, we have good reasons for prosecuting this keep of hate speech and not that other hate speech,” but the perception will always be different. What you get are accusations and counter-accusations. The government ends up being a referee, and they can never satisfy any set of communities who are accusing each other.
It is mostly negative. I think they have about 12,000 hate speech prosecutions a year or something under their legislation, and that’s a massive diversion of judicial resources. We are on the ground and we see our clients spending 13 months from when the charge was laid to just the first time they get disclosure. We are dealing with sometimes three different Crowns just on a mischief charge because they rotate out and we have to brief the charge. This will come down to duty counsel and Legal Aid lawyers dealing with duplicate charges, as I said. That stuff will clog up the court system. That will take judicial resources away from serious violent crimes that I think all of us want to see punished.
That’s really what is happening on the ground. I guess my answer would be mostly, it’s negative.
The Chair: If I may use some of your time, Senator Ince, Mr. Joseph, you mentioned a number of cases that you’ve defended; it was a list you provided based on various areas. Would you provide further information as to the success of those cases?
Mr. Joseph: Sure. Do you have any particular case in mind?
The Chair: Ones that would relate specifically to this bill.
Mr. Joseph: TDF has been mostly successful in some of our defences. There is one I would highlight, just to show you the level of low threshold that the Crown and the police apply when they look at hate speech cases. One client we’re defending was alleged to have pointed to a keffiyeh and made a political comment. She was charged with mischief. We don’t know what the actus reus was there, but it was referred to the hate crime unit. We thought it was obviously an edge case, but we’re telling you what the threshold is for the police to refer something to a hate crime unit or to see it as a hate crime charge.
We had another client who, again, posted a link to a video of a movie critical of gender reassignment surgery. We thought that was an edge case, but that went to trial. We were successful at trial, but the Crown was convinced that was a section 319 hate speech crime. We won, so the judge disagreed. But they were gangbusters to go to trial to nail this client.
That’s where we are with the threshold, and now we say that this bill coming in lowers the threshold even further.
The Chair: Thank you for that. That’s helpful because I believe, in previous testimony, we heard about many charges being laid with a lot fewer actually being able to go forward and even fewer in terms of actual outcomes. That’s helpful as we think through this bill.
Senator McPhedran: Thank you to all our witnesses for being here with us, for making the time and the effort to actually come here in person.
I’m quite taken by some of the concerns you’ve expressed, which I would maybe put under overreach. I want to make sure I’ve understood. Ms. Bildy, I think you referenced the new intimidation offence. Am I correct that was in your remarks? The question could be answered by any of the three of you but I think I picked it up in your remarks. I think I understood that it was a concern around a vague threshold — what did that actually mean? I want to be specific because the words are “intent to provoke a state of fear.”
To my mind, there is an important difference between having freedom of expression to protest something — maybe an unpopular opinion but, nevertheless, to protest — and potentially disrupt the convenience of people’s lives, which they would like to have. To me, that is different from the intent to provoke a state of fear. But the threshold is pretty unclear.
Things like how loud, the presence of a crowd, strong language, the polarizing positioning of one’s body — those could be interpreted by police as having the intent to provoke a state of fear. You’ve pointed out — and I agree with you — that these elements are constitutionally protected forms of expression. Peaceful assembly is part of this, as well.
Let me wrap this up with this question: Do you think we need this bill?
Ms. Bildy: I don’t. I think the whole thing should be withdrawn.
We’ve heard from a lot of witnesses — and I’ve listened to all the other testimony that you have. A lot of witnesses and Canadians are concerned about this. I just saw a message that some 200,000 postcards have been sent into the Senate, so this is a very concerning issue for Canadians —
Senator McPhedran: [Technical difficulties]
Ms. Bildy: Right, that was the other part of the story.
But I don’t think it should pass. There is too much subjectivity built into it. It is not very tightly drafted. There are too many concerns about how it will be interpreted, particularly on the ground by police who are, in that moment, trying to figure out if they had that intent, and, “Can I establish that? Where does it cross the line?”
I also think you need to consider the impact of how fearful the recipient or the target of the protest. Some people might be very stoic and not be fearful at all. Others may crumble at the thought of moving through a crowd that is not necessarily being aggressive.
Senator McPhedran: I think you all agree — and I want to make sure, because only one person has spoken so far — that we don’t need to go ahead with this bill, that there are sufficient protections and clarity in existing legislation. Am I getting that correct?
Mr. Manson: Senator, from our point of view, that’s correct. The bill is largely unnecessarily. I would say it’s entirely unnecessary. It is duplicative in many senses.
During my response, I also talked about the constitutionality of section 319.
Senator McPhedran: Got it, thank you.
But question goes to now to this: Do you agree that there is a rising incidence of hate speech and hate action in our country? Do you see that from your perspectives?
Ms. Bildy: I think there are tensions mounting across the country for various things. There are a lot of issues that are becoming very concerning to Canadians from all walks of life and all backgrounds, so I wouldn’t say it is one form of hate or one target of hate. It is bubbling all over the place.
This is why I am such an advocate for free expression, because I really think we need to just talk through —
Senator McPhedran: I’m sorry, but I would like to let the other two speak in our very limited time. Thank you.
Mr. Joseph: It is hard to know. I don’t know if people have always been fractious and nasty, for lack of better terms, or we’re just seeing more of it because we are all interconnected. The whole world is now online. Now, it is just a cacophony of people who don’t like each other and there are no consequences for saying whatever you want to say. Our view is that we need to be exposed to some of this stuff so we can identify the ideologies that we don’t want. If we’re not exposed to that stuff —
Senator McPhedran: Would that be a yes to my question? Are you perceiving an increase of —
Mr. Joseph: It is hard to know because —
Senator McPhedran: Okay. Mr. Manson, you have about 30 seconds.
Mr. Manson: I will be quick, senator.
You might be correct that there is an increase. Regardless of whether there is an increase, the government and police already have the tools to root out additional hate speech, whatever it is. There is no dearth of tools. It is a matter of enforcement.
Senator Martin: I have questions for all three of you. Thank you so much, but I have limited time. I want to direct my question and give you the time, Mr. Manson, especially because you quoted Chief Justice Brian Dickson. There was a lot in there, and I wanted to hear your interpretation or assessment of that decision based on if this bill does get enacted and we remove that protection, significance and the consequences of that. Would you please continue your remarks from where you left off.
Mr. Manson: Thank you, senator. My sense of it is that if the religious defence, as I define it in the brief here, is removed from the subsection 319(3) defences, we now have a different legal regime, potentially a different constitutional regime. It is no longer certain that subsection 319(2) is constitutional anymore.
I think we can all agree that would be counterproductive. My organization believes it is a good idea to have hate legislation like subsection 319(2), so why would we want to call that back into question? Why would we want to risk having another Charter challenge, like in Keegstra, where someone says, “Hey, what I said wasn’t hateful or whatever, and the section itself is unconstitutional.” That would require a massive amount of judicial resources, probably go back to the Supreme Court of Canada for another go-around when that would be counterproductive.
To build on what I said in my opening remarks, senator, we are also considering a defence here that has never been successfully used. It is there. It was part of the constitutional balance that was struck by the court. However, there are other cases. Harding is one of them, which I put into my brief.
In Harding, the accused, in fact, was intermingling some hateful remarks against Muslim people with religious texts. He tried to use this defence to exonerate himself, and the court said no, they were not going to have it, because when you intermingle religious texts or quotes with hateful remarks, that is not the intent of the section.
It is a high bar, senators, to actually avail yourself of this defence at all.
Why remove it anyway? If it is too high to get to in most cases, where is the need to remove it? Particularly when we go back to my suggestion that we may be undermining the constitutionality of subsection 319(2) at all, which then throws us back into constitutional uncertainty. And I’m sure you are aware, as lawmakers, senators, we want certainty and uniformity in Canada. We want people to know when they can and can’t say what they want to say.
Senator Martin: This could be for Mr. Joseph or Mr. Manson. I was thinking about unintended consequences or concerns about the removal and that there could even be intentional complaints or court cases designed to push legal boundaries. With the removal of this protection, I feel as if there will be more chaos.
Mr. Joseph: We think about that because we defend people who preach or discuss religious texts in public spaces. Just reading from their religious text could then garner a charge, and they will have no recourse to religious defence.
Again, some people are going to get charged and other people aren’t, and then there will be accusations of bias here. That will happen, I’m telling you. We have clients now who are wondering.
The government will have no response to it. The police will say, “Well, we just happened to pick this guy who made these awful comments reading from his religious book, but we didn’t charge this other guy.” Now you have more social disharmony rather than less.
Senator Martin: Instead of removing it, as Senator Bernard said, there could be education. There could be consistent enforcement. We can focus on resources to do that.
Thank you for your answers.
Senator Ataullahjan: I have to apologize. I wasn’t here because I was in the chamber asking a question of the Minister of Justice
Critics of Bill C-9 warn that vague definitions and expanded hate speech provisions could chill lawful expression, religious discourse and political debate. How can Parliament meaningfully combat genuine hate and incitement to violence without creating laws that future governments could use to suppress controversial, unpopular or dissenting opinions? Do you believe that Bill C-9, as currently written, strikes that balance or crosses a constitutional line?
Ms. Bildy: I don’t think we need it because we already have a way of dealing with hate and with incitement to violence.
The police have tools. They need to use those tools. There are a lot of cases where I think that they are not. They are holding back. They should be using them.
I don’t think we need another piece of legislation. To me, it feels as if this bill was designed to appease groups that felt the tools they already have were not being used by the police. It was almost to send the message: Look, we care about your issue. No, we’re not enforcing it on the ground, but we care about your issue and here is a new bill. But I don’t think it adds anything. It makes things worse.
Mr. Manson: I agree with my colleague’s remarks. The question here is not necessarily about having new laws. I think all of us have mentioned that we believe the laws already exist. We don’t need new laws. We need the laws on the books to be enforced. Perhaps we need more resources. Perhaps it is a resource allocation issue, not a legal issue. Those would be my comments.
Senator Ataullahjan: We’ve had a couple of hearings on this, and the recurring theme seems to be reinforcement of existing laws, which is what you are saying. Is there anything in this bill that would make the community safer? We have laws that we need to enforce.
Mr. Manson: In my submission, no.
Ms. Bildy: I would agree.
Mr. Joseph: No. Again, we’ve seen the police charge people with mischief in the most edge cases. They have laws. They are just not using them.
Senator Ataullahjan: This bill is open to interpretation. Different people will have different interpretations. I am sorry if anybody else asked this question already. People have religious stickers on their cars. Someone might say that they feel threatened by that. Has anybody thought this through? The interpretation will be on the person who is interpreting that.
Mr. Manson: Senator, I think what you are referring to is the new legislation for hate symbols. Our testimony across the panel here is that that offence is duplicative. It already exists in criminal law. You already have a section of the wilful promotion of hatred offence, which is subsection 319(2). And subsection 319(7) says that statements communicated include signs. A bumper sticker, arguably, would be a sign. Therefore, if the police want to charge someone with displaying that sign in a hateful way — I don’t know that that would happen on a bumper sticker, but if they wanted to try to do that, they could. My point is that the offence already exists, so if the police want to do that, they can do it already.
Senator K. Wells: For the record, I want to read from Statistics Canada’s website that says that police-reported hate crime has risen from 2,646 reported incidents in 2020 to 4,882 incidents in 2024. That’s a 54% increase in four years.
Of course, the research also tells us that police-reported hate crimes are actually vastly under-reported, for many reasons: trust with law enforcement, education. That’s just the tip of the iceberg that is actually being reported to police.
Mr. Manson, the Minister of Justice and Department of Justice officials testified at this committee that, logically, a good-faith act, whether it is religious or non-religious, would not be consistent with what is already determined in law, that an act of hate must be wilfully promoted and targeted to an identifiable group.
I think you said in your opening remarks that you did not agree. If that is the case, can you give us an example that would show us why the minister and the Department of Justice experts are mistaken?
Mr. Manson: I am sorry, I’m having trouble following the question. Could you try that one more time for me? Sorry.
Senator K. Wells: Pleasure. We heard the Minister of Justice and the Department of Justice officials testify at this committee that logically a good-faith act, whether religious or non-religious in intent, would not be consistent with what is already determined in the law; that an act of hate must be wilfully promoted and targeted to an identifiable group.
This is not broad, it is narrow, “to an identifiable group”, and must be wilfully promoted. I wonder if you would agree with that, and if not, why would the Minister of Justice and the Justice officials be in error?
Mr. Manson: I think a good-faith act is what these defences are trying to establish. This is what they’re going to, in my submission. These four defences, I believe the Chief Justice said in Keegstra, are all examples of good-faith acts.
This is again, as I mentioned in my opening statement, part of the rationale for the constitutionality of the offence overall. So, once again, to take away one of the four defences potentially undermines the entire constitutionality of the offence.
If we take away the religious defence, as we call it, then, as I think my colleague Mr. Joseph just said, you could have a minister in church, about to give a sermon not knowing whether he or she is allowed to say certain things, certain passages of the Bible, for example. I’m not sure that is really what we want in a free and democratic society.
Senator K. Wells: But would that be — without wilful promotion of hatred, reading Scripture would not apply to the legislation.
Mr. Manson: That’s potentially true, yes. I would agree.
Senator K. Wells: We have not talked about yet the “for greater certainty” clauses added to the legislation that some would argue are more effective than having the good-faith clause in there.
I’m wondering if you have comments if those “for greater certainty” clauses do not satisfy the concerns you have raised?
Mr. Manson: Senator, I have also addressed this in our written submissions, and I certainly commend that to you. The greater certainty clarification provision, in our submission, is really tautological.
And it says is that for greater certainty, just understand that if nobody wilfully promotes hatred, then you wouldn’t be found guilty of the offence. Well, that’s sort of obvious, I think. It’s an obvious statement that doesn’t add any protection in reality.
What we’re doing is swapping out, in my submission, one defence that really does have some protection — albeit, as I mentioned a couple of minutes ago, it is a high bar to clear, but there is some protection there — versus a statement that, in my submission, really doesn’t provide much of anything. It’s really a kind of nothing statement, in my submission.
Senator K. Wells: I think we would agree the threshold has been very high to prove wilful promotion of hatred, and there have been very few successful cases with that. Thank you.
The Chair: If there are no further questions? Did you have a question, Senator McPhedran?
Senator McPhedran: I may miss this plane, but I can line up.
The Chair: You choose. We will not make that decision for you.
Senator McPhedran: I have one more question. The intimidation clause and the obstruction clause. I’m noticing there is some protection in the obstruction clause and there is no protection in the intimidation clause. I wondered what your thoughts were on that?
I will just be transparent. I’m looking at the possibility of an amendment that at least has something in each of those clauses if this bill goes ahead. I put my notes away, but it’s all captured in 423.
Mr. Manson: Senator, overall our position would be that the offence itself really is not necessary, once again.
Senator McPhedran: I got that.
Mr. Manson: Thank you.
Senator McPhedran: But if the bill goes ahead, that’s my question.
Mr. Manson: What is the protection, senator, that you are looking for?
Senator McPhedran: In the obstruction clause, there is a defining of a threshold; in the intimidation clause, there is no threshold. So it is highly subjective, in my opinion. And I wondered if you had looked at that? Maybe you could write a response.
Mr. Manson: Perhaps, senator, that might be better. I have not addressed that.
The Chair: And forward it to the committee as we are planning to go to clause-by-clause consideration on Monday.
Senator Ataullahjan, did you have a follow-up?
Senator Ataullahjan: In discussions with colleagues on the other side, we talk about section 319. They say, well, it has never been used. My response would be, if it has never been used, why remove it?
Ms. Bildy: It is already a high bar.
Mr. Manson: Correct, senator
Senator Ataullahjan: Thank you.
The Chair: Thank you for providing clarity there.
We have come to the end of this panel. On behalf of the committee, we would like to sincerely thank you for appearing, particularly in person, and for taking the time to share your expertise with us. Your testimony will be very helpful as we move on to deliberation of this bill.
For our third and final panel of the day, we welcome in person Julia Beazley, Director, Evangelical Fellowship of Canada’s Centre for Faith and Public Life; Deina Warren, Director of Legal Affairs, Canadian Centre for Christian Charities; and Joseph Wesley Richards II, Vice-president and General Counsel, Seventh-day Adventist Church in Canada. By video conference, we have with us Philip Horgan, President and General Counsel, Catholic Civil Rights League. Welcome to you all.
I invite Ms. Beazley to make her presentation.
Julia Beazley, Director, The Evangelical Fellowship of Canada’s Centre for Faith and Public Life: Thank you, Madam Chair and honourable senators.
The Evangelical Fellowship of Canada is the national association of evangelical Christians in Canada. We provide a forum for collaboration and engagement among the roughly 2 million evangelicals who are part of our constituency.
We are grateful for the opportunity to speak to this committee’s important work on Bill C-9.
Religious freedom, expression and collaboration have been hallmarks of the EFC’s work for decades. We work together with interfaith partners on issues of common concern and share in dialogue about the role of religion in a pluralistic society. This committee has done important work in studying and naming the alarming increase in anti-Semitism in Canada. We too are deeply concerned by the escalation of anti-Semitic incidents in recent years and the violent and fatal attacks against Muslims. These acts are unacceptable.
We recognize the danger when groups are targeted on the basis of religious belief or practice and have joined with other faith groups to stand against hatred based on religious identity.
At a time of growing intolerance toward religious groups in Canada, Parliament’s duty to ensure the protection of faith communities is especially critical.
We strongly support the intent of Bill C-9 to address anti‑religious threats and violence.
Our primary concern with the bill before you is that it would remove the religious belief defence from section 319(3) of the Criminal Code. This defence acts as an important safeguard for religious expression. It serves to ensure the hate provisions, intended to protect identifiable groups, are not used to silence or suppress the religious beliefs of persons or communities that the majority, or other communities, might find objectionable or offensive.
In the 1990 Keegstra decision, the Supreme Court of Canada found the wilful promotion of hatred offences to be constitutional. As you heard, the majority of the court considered the defences, including the good-faith religious belief defence, to be important and integral to its constitutionality, as they clarified the intent of Parliament to restrict its application and are essential to the balance the current Criminal Code provisions seek to strike between protecting individuals and communities from hate and protecting expression.
Departmental officials stated that repealing the defence reinforces the narrow scope of the offence. But in the Keegstra decision, the court found the defences served to clarify the scope of the offence.
Justice Dickson wrote that the defences provide an assurance, a “strong signal,” that the expression of religious belief and opinion, however unpopular, will not be swept in the ambit of the offence. The removal of that “strong signal” — that the sincere, good-faith expression of minority religious beliefs is not meant to be captured by section 319(2) — would be understood as further marginalization of religious beliefs, and we do not believe this is Parliament’s intent.
We recommend, then, that the clause in Bill C-9, which repeals the good-faith religious belief defence, be deleted. If the defence is removed, it is critically important that it be clarified in legislation that religious texts, in and of themselves, are not to be considered hate, nor is good-faith teaching or preaching from these texts.
We welcome the minister’s strong commitment to uphold and protect religious expression, and the reassurance that Canadians will always be able to pray, preach, teach, interpret scripture and express religious belief in good faith, without fear of criminal sanction. But the minister’s statements don’t have the same impact as a legislative protection or safeguard written into the law.
We also appreciate that the clarification clause was introduced in response to the concerns we and many others have raised about the removal of the defence. And while we welcome the intent of the new “for greater certainty” clause, it doesn’t offer the needed interpretive clarity or protection for good-faith religious expression. It merely restates the mens rea of the offence.
Before this committee, the minister said that a clarification clause shifts the protection of good-faith religious practices so that it is considered from the outset in the definition of hate and what a hate crime is, rather than as a defence. We would welcome a clear recognition — through the definition of “hate” and an amended clarification clause — that the good-faith practice and expression of religious belief is not a hate crime to begin with.
In order for that upfront clarity to be achieved, the clarification clause must be amended. We support the amendment proposed by the Christian Legal Fellowship and urge this committee to amend the clause as they recommend at minimum.
Further, we recommend that the amended clarifying clause be included in the Criminal Code, rather than existing in the bill alone in order to provide the needed interpretive clarity.
Lastly, we recommend the new stand-alone hate offence be limited to Criminal Code offences. Criminal proceedings have robust procedural protections and evidentiary thresholds that may not be required by other acts of Parliament. If a criminal charge is to be laid, it should be for an offence that is tried in a criminal court.
Thank you. I look forward to your questions and discussion.
The Chair: Thank you, Ms. Beazley.
We’ll go to Ms. Deina Warren.
Deina Warren, Director of Legal Affairs, Canadian Centre for Christian Charities: Thank you, Madam Chair and honourable senators, for the opportunity to appear before you today.
My name is Deina Warren, and I am the Director of Legal Affairs at the Canadian Centre for Christian Charities, also known as CCCC. CCCC is a registered charity that supports thousands of Christian ministries across Canada, including churches, schools, camps, relief organizations, environmental protection groups, prison outreach and all kinds of community services, like food banks, recovery programs and shelters.
Our member charities joyfully serve their neighbours and communities because of their faith. Giving of themselves and their resources to support others and affirm the inherent worth and dignity of each person is part and parcel of our shared Christian beliefs.
I want to be very clear: Because of these beliefs, CCCC supports efforts to combat anti-Semitism and other forms of hateful conduct; we understand the good desire to address this real issue. Our concern is, therefore, not with the goal of reducing criminal acts of hate, but do have concerns with the means set out in Bill C-9.
Specifically, I would like to emphasize three issues. First, we question the impulse to expand Criminal Code offences; second, we urge the committee to reinstate good-faith religious defence; and third, we also urge the committee to retain but amend the for greater certainty clause.
First, we question the impulse to expand Criminal Code offences. Perhaps it stems from a charity perspective, where resources are always constrained and leaders ask, “What can we accomplish with what we have?” But it is our position that before Parliament expands criminal offences, it is incumbent to ask whether existing tools are being effectively used; if not, why not; what are the barriers to effective enforcement?
We see this as necessary for three reasons. One, criminal law is the most coercive power the state possesses. Expanding it requires restraint, clarity and precision, particularly when Charter freedoms, such as expression and religion, are engaged and where the right to liberty is at stake.
Two, expanding hate crimes without understanding what enforcement issues exist will only serve to perpetuate those same issues in the context of new offences.
And three, it misses an opportunity to redress potential problems in a more efficient, economical or effective way. We already have a robust framework of Criminal Code provisions to curtail the wilful promotion of hatred and related offences to support them, such as prohibiting mischief relating to religious property, educational institutions or for those used by identifiable groups for administrative, social, cultural or sports activities.
Second, we ask the committee to reinstate the good-faith religious defence.
It is hard to overstate the depth of concern expressed by religious individuals, communities and organizations about the repeal of this defence. I have had organizations specifically ask whether and how they can continue to share publicly about what they believe in the Bible. Can they still tell someone that they believe Jesus died to forgive their sins or that believing in Jesus is the only way to eternal life?
Like this Christian belief, other religions make exclusive truth claims, and they regularly teach and discuss beliefs about morality, sexuality and human flourishing in ways that may be controversial, unpopular and even offensive to those who may not agree. In a free and pluralistic society, that reality is inevitable and, in fact, welcome, because diversity of ideas and opinions is one of the hallmarks of a free society. The question is whether people can continue to express those beliefs in good faith, reassured that their lawful religious expression will not be caught up in an expanded hate speech framework.
This is not an abstract concern. During the House study of this bill, specific Bible passages were described as “clearly hateful,” and questions asked in this committee have described the Christian faith as a place where people experience harm based on hate.
Those comments, even if unintended, underscore why CCCC urges this committee to reinstate the good-faith religious defence. As. Mr. Mason explained earlier, the Supreme Court in Keegstra confirmed that the defences maintain the constitutionality of the offence. It is not a loophole to protect hateful expression cloaked in a veneer of religious language. Rather, its presence makes the scope of the offence more explicit and ensures freedom of expression is not curtailed in borderline cases.
For all of these reasons, the good-faith religious defence should not become the victim of political bargaining. We urge the committee to reinstate the defence.
Third, CCCC is concerned that the good intent behind the for greater certainty clause is undermined in its drafting. As written, it is circular and simply restates the offence itself.
In practical terms, Canadians are left asking what expression remains protected and what expression risks prosecution. This uncertainty is troubling in the criminal law context. Citizens must be able to understand the boundaries of lawful conduct as written in the text of the Criminal Code. Therefore, we urge the committee to include an amended clause in the code, and we also, like the EFC, support the specific amendment proposed by the Christian Legal Fellowship in its brief.
In conclusion, CCCC believes it is possible to combat hate offences while also protecting the freedoms that sustain a diverse and democratic society. Those goals are not in conflict.
We urge this committee to approach expanding criminal offences through Bill C-9 with restraint, precision and careful attention to the impact these provisions may have on religious communities across Canada.
Thank you. I look forward to your questions.
Joseph Wesley Richards II, Vice-president and General Counsel, Seventh-day Adventist Church in Canada: Good afternoon, senators. I am Joseph Richards, the Vice-president and General Legal Counsel for the Seventh-day Adventist Church in Canada. My remarks will focus on the good-faith religious opinion defence.
[Translation]
I’ll start in French. To give you a sense of my background, I’ll say that I’m the son of immigrants. My parents left Jamaica and settled in Sudbury, Ontario, where I was born, and grew up. They brought with them their Christian faith, which had a profound influence on me. Shaped by that heritage, I appear before you today. I am one of more than 20 million Seventh-day Adventist Church members around the world, about 80,000 of whom are in Canada.
[English]
The Seventh-day Adventist Church spreads messages of hope and wholeness across the country, honouring the Sabbath established by God at creation and looking forward to the soon coming of Jesus Christ.
It is because of our distinctive beliefs that we have a special interest in religious liberty matters. For us, this interest is not theoretical. It’s real and practical. It has led our members to go right up to the Supreme Court of Canada, advancing the law of religious accommodation on multiple occasions. It has led us to publish, exactly 120 years ago this year, Liberty Magazine, the oldest continuously published journal on religious freedom in the world.
I now turn to Bill C-9. I reviewed a recent email from an MP, which reads, in part, “I support Bill C-9 because its core purpose is to better protect the freedoms of religion and expression.”
Note that the MP’s support was tied not to what is actually written but what its core purpose is; not whether each amendment is necessary but what its core purpose is. The statement sounds reassuring and, no doubt, well intentioned, but it is a reasoning that should concern us all.
I submit that the purpose of the bill is not enough. The purpose must be weighed against the text, against the risk of misuse and against a basic question: Is each proposed change tied to the stated purpose?
This brings me to the removal of the good-faith religious opinion defence. I have yet to hear a sound, legally defensible reason for removing it. When pressed on the issue at second reading, no direct answer was provided, and the matter was deferred to the minister.
The absence of an immediate and clear explanation is all the more troubling, given the legal history. Our hate speech laws have stood this test of time. In the seminal case — and we’ve heard it multiple times today — of Keegstra, the majority referred to the statutory defences as “an aid in making the scope of the wilful promotion of hatred more explicit.”
Why remove an interpretive aid? The Supreme Court treated the defences as part of the very definition of wilful promotion of hatred, as a helpful clarifier of the limited scope of the offence’s reach. In criminal law, we should always err on the side of clarity, not on removing familiar, long-standing provisions.
Last, let us consider the for greater certainty clause that was added by the House Justice Committee.
We have two principal concerns. First, it introduces uncertainty. It protects only statements on a matter of public interest and only in the course of a discussion, publication or debate that may not clearly capture ordinary religious communications, such as sermons or doctrinal teaching.
Second, as we have heard, it is circular. The clause refers only to a person who does not wilfully promote hatred, but that is already the central legal question under subsection 319(2). The clause does not, in fact, create an independent safeguard. It simply restates the current test. The result? Potentially a chilling effect. When criminal law is unclear, people self-censor, and lawful religious expression is muted, all to avoid complaints, investigation, stigma and legal costs.
In closing, let me say this plainly. Seventh-day Adventists stand against hate. Like all Canadians, we want safe communities where people flourish, free from discrimination and abuse. We advocate for the rights of those who believe like us, those who believe differently from us and those who do not believe at all.
[Translation]
However, in a free and democratic society, laws, especially the Criminal Code, should provide clear and accessible guidelines. That is all the more true when Charter freedoms such as freedom of religion and freedom of expression are at stake. In its current form, Bill C-9 does not do that.
[English]
Therefore, we ask that you remove and replace the for greater certainty clause and retain the good-faith religious opinion defence in the Criminal Code.
Thank you, senators, for listening. I welcome your questions.
The Chair: Thank you, Mr. Richards. We will now go to Mr. Horgan.
Philip Horgan, President and General Counsel, Catholic Civil Rights League: Good afternoon, senators.
My name is Philip Horgan. I’m the President and General Counsel of the Catholic Civil Rights League, a national lay organization seeking to ensure a fair hearing of Catholic positions on matters of public debate.
The CCRL has, in the past, brought submissions to the Parliament of Canada on a host of issues over the years, and we have intervened in Supreme Court cases on over 25 occasions over the past 30 years.
On behalf of our national membership and millions of Roman Catholics across Canada, I propose to speak to the bill generally but, in particular, the proposed removal of the defence of reliance on religious texts, that provision of the existing section 319(3)(b).
I share the concerns of others here and other speakers about aspects over certainty of certain provisions or the wide application to all laws of Parliament provided in section 320.1001. I really wish to focus on the importance of the religious text defence. It’s helpful to go through a brief history of hate charge provisions.
Originally introduced after the Special Committee on Hate Propaganda in Canada, the Cohen committee in 1970, hate charges were introduced to the Criminal Code with the provision that protected anyone who in “good faith” expressed or attempted to establish by argument an opinion on a religious subject.
In 2004, there were efforts to amend the Criminal Code related to hate propaganda, but on that occasion, section 319(3)(b) was updated to its current form — which I won’t repeat — but politicians as diverse as Svend Robinson, Derek Lee, and Paul Macklin all spoke in favour of maintaining that religious text defence. In the words of Svend Robinson at the time, it was updated to ensure that the defence would explicitly make it clear that religious texts were not being targeted by the amendment.
In the midst of that, we have the post-Charter case of Keegstra — already mentioned — and I won’t share the many quotes already made reference to by my friends. The reality is that the court in a 4-3 decision recognized that those defences provided by section 319 were important to allow for the constitutionality of the legislation.
That hasn’t stood in the way of prosecutions, where defendants may have relied upon or tried to exercise the good faith religious defence. We’ve seen the cases of Harding in Ontario as well as Popescu — of a relatively recent date where, whether the term is used as being a “Trojan Horse” or not, in fact, on point with the allegations of pursuing or pushing people to action through violence.
A question was raised on the earlier panel: Have we seen a concern about using section 2(b), the freedom of expression provision? We already had from our Court of Appeal in Ontario in the case of Bracken, 2017, that acts of violence or threats of violence do not come within the scope of section 2(b).
The current revised bill has passed third reading, and owing to the deal with the Bloc Québécois in December, the bill removed that religious text defence. The deal with the Bloc may — these days — not be required, given the changes to the composition of the House of Commons as of the past few weeks, but, in our view, the removal of the religious text defence would no longer expressly protect good faith religious expression as a distinct category. The risk of ignoring our history invites the risk of drifting into constitutional error.
On the passage of the bill and its long history, the maintenance of the charge — with those defences — has been understood as meeting constitutional scrutiny. Take away one side of that, and the arguments of the minority from Keegstra have greater weight. We submit that the impact of removal of that section removes the balancing that was approved by the Supreme Court of Canada in Keegstra.
Finally, in our submission, the repeal of that specific legal protection is a significant change that the Senate should recommend to restore.
Thank you.
The Chair: Thank you all, and thank you for reasonably staying within time limits. I appreciate that.
Senator Simons: Thank you very much to all of our witnesses.
Mr. Richards, I think I want to come and hear you in your other life. We hear a lot of testimony, and that was pretty gripping.
I don’t know if I need to go with all four of you, but, perhaps, I’ll ask Ms. Warren and Mr. Richards to start. “Good faith” is a phrase that doesn’t have — to me — a very clear meaning. I fear that most of the concern around the good faith defence has to do with homophobia.
With all due respect, I don’t think anybody is saying that you’re going to be prosecuted for a hate crime for saying that Christ is the one true saviour or that Christianity is the one true faith. That’s not what we’re talking about here. Let’s not be cute.
We’re talking about homophobia. I remember an incident in Alberta where a candidate — who was running for Danielle Smith’s party — was a minister and had written on his blog that all homosexuals would burn in a lake of eternal fire. He was never charged with anything. He was eventually dropped as a candidate. I would never want him to be charged.
But how do you know if somebody is acting in good faith as opposed to maliciously manipulating scripture — as the devil does — to his own purpose?
Ms. Warren: Thank you for your question, senator.
The question I posed about a saviour and salvation, those were legitimate questions that were brought to me by an organization with concerns in the context of this bill.
Just to be clear, I wasn’t trying to be trite. I was, actually, conveying the nature of concerns that we have received and heard.
Senator Simons: I think you would have to acknowledge that that is a misunderstanding of what we’re talking about here. That is a kind of hysteria that is not borne out.
Ms. Warren: It may be. I think it demonstrates the depth of concern. I’m happy to move to the remainder of your question at this point.
The idea that the question of linking homophobia with a conviction about the nature of human sexuality is a concern in and of itself. That is holding to a traditional, Biblical sexual ethic — homophobic — and the equation of those two things is problematic in the nature of the question.
Believing in a certain conviction does not mean that you’re a homophobic person, and I think that linkage is problematic.
In terms of understanding what good faith is, I think we can look at some of the case law. For example, in the Harding case that Mr. Horgan referred to, the defendant did try to assert a good faith religious defence, and the court grappled with that and found that, given the evidence, it was not an applicable defence in that case.
Within the jurisprudence, we can find the courts are able to grapple with that and understand that and to effect. I don’t know if Mr. Richards has a different perspective.
Mr. Richards: I largely agree with Ms. Warren on this. It is really based on context, and we have a beautiful system of law in Canada, and that’s common law. Every case is decided on its facts. When you have that contextual evidence that comes forward in a trial, you’ll be able to discern whether the person is acting in good faith, at least in order to — as with all criminal offences — prove guilt beyond a reasonable doubt.
I have given you the example of Popescu — which all Sudburians know very well, because it is a Sudburian who is a continuous candidate for office, and I was actually in the prosecutor’s office on his first prosecution.
Senator Simons: Oh, from Sudbury. I was trying to think which religious sect is that?
Mr. Richards: No, people from Sudbury know Popescu, and he is always in the newspaper.
In the first case, I was actually in the prosecutor’s office at that time. But the second case that was referenced here in 2020, what was the context? He was advocating for the execution of the Premier of Ontario, and he did that very boldly, baldly and without any wrestling even with the text. He just said it. He was making these types of pronouncements —
Senator Simons: And this is Premier Wynne that he was talking about?
Mr. Richards: Yes, precisely. He was talking about Premier Wynne.
Again, context would be able to tell you that that is an extreme manifestation. That is outside of the parameters. I grant you that it’s a difficult exercise, but our courts — as has been explained in the cases of Popescu and Harding and others — have been able to do that weighing on a case-by-case basis. They have wrestled with cases going back to Keegstra onward, and they are the best able to do that interpretation.
Senator Simons: I want to ask you about something completely different that the three of you didn’t really address — except Ms. Beazley at the very beginning — and that is the parts of this bill that protect religious institutions from protest and from violence, that protects cemeteries and that protects, say, a retirement home that is run by a church.
Can any one of the four of you talk to me a little bit about whether you think any of the four protections could be beneficial for your faith communities? Will they protect you from hatred — well, not even from hatred because those sections don’t actually speak to hatred. They just speak to people protesting, blocking or denying access.
Think about that, and we will come back in the second round.
Senator Arnold: First, thank you all for being here today, particularly to those who spoke about the interfaith work that you are doing in your communities. That’s really important, and I commend you for that because, as leaders in your respective communities, that is work that really needs to be done. We understand this bill is a very blunt tool.
I’m hoping that you can help me wrap my head around the concerns you’ve expressed by giving us a really concrete, tangible example of where you believe hate crime charges could realistically be laid related to expression of religious beliefs to the point that they are interpreted as hate crimes.
Ms. Warren, you talked a bit about your example. Obviously, if this were to pass, it will have to be coupled with really great communication about where the lines are and that sort of thing. I’m looking for a tangible example.
Ms. Beazley: We’ve been asked a number of times to provide a specific example of the kinds of communication that would be captured. We don’t have specific examples. Within our community, we consider it a high responsibility, an important part of our calling, to watch how we communicate, how we express our beliefs. We haven’t come up with a specific example of the kinds of communication. We are concerned about the trends in public discourse, as Deina alluded to, where simply holding and expressing minority religious beliefs on different topics are often characterized as hateful in and of themselves.
We recognize the high bar that has been set by the courts thus far, and we understand the public discourse and the court of public opinion are not the same as a criminal proceeding. But we want to be really careful that, within the context of the public discourse as it is, we’re not creating conditions under which people could be subject to charges where they shouldn’t be, where there is that risk, whether it is perceived or not, and whether or not those charges are successful.
One of the witnesses the other day spoke powerfully to the consequences of having a charge laid. It may not be successful, but there are consequences, economically, socially, for employment and other things, to having a charge laid. We want to ensure that that clarity remains, that this is not intended to be captured by this offence.
Senator Arnold: Is there anyone else who would like to answer that?
Mr. Horgan: I could wade in potentially, if allowed. From within the Catholic community, you’ve already received numerous submissions from priests and bishops and bishops’ conferences on the removal of the religious text and/or opinion defences.
You are looking for potential concerns raised. Well, before a charge is even laid, which may require the Attorney General’s leave, there is the chilling effect of the language. Many priests, certainly in my acquaintance, have raised this concern, “Well, if this passes, Phil, is it a situation where I could be subject to a charge for preaching and/or engaging in catechism classes where I preach traditional Christian or Catholic sexual morality and a trans activist or someone takes offence?”
We can’t predict. We don’t know the unintended consequences of the bill, but to actually engage in having to respond to the investigation, to have to take time for explaining what the context may have been and so on — that all happens before the charge gets laid at the Crown’s office for the purpose of seeking the leave of the Attorney General.
One of the things I didn’t have time to get into is that we don’t have to look terribly far into our history to see where governments have suppressed certain religious groups. Think of the trilogy of cases coming out of Quebec in the 1950s, notably Saumar and Roncarelli v. Duplessis pre-Charter cases. You could conceivably seek and obtain the leave of an attorney general to pursue certain charges in this category.
The importance of these examples is hard to delineate because the permutations can’t be entirely ascertained.
Senator Arnold: Thank you.
Senator Ataullahjan: Thank you for being here. There is often a gap between how laws are debated publicly and how they affect people privately. If the good faith religious defence were removed, what kind of day-to-day impacts do you think communities, religious leaders or even people in ordinary conversations in places of worship would experience? That is for anyone.
Mr. Horgan: I just mentioned one — the impact of the chilling effect it could have on faith leaders, generally.
Ms. Beazley: That would be our primary concern as well, that there would be a significant chilling effect, and then, of course, the possibility that people could face frivolous or vexatious charges.
As Deina has, we have also had questions from people asking whether they would still be able to say grace in a public location. Of course, we’ve done all we can to help people understand what the legislation does and doesn’t do, but that is the level of concern and uncertainty out there. I don’t think we want to lose the clarity of the defence.
Another thing I might say is that there are four defences, and this is the only defence that’s being removed. On its face, that does have the appearance of unfair or differential treatment of religious expression. In addition to the current concerns you heard from the previous panel about the importance of these defences to the constitutionality of the offence itself, I think that’s something else that may be worth thinking about.
Mr. Horgan: If I may add another proposition, we have seen, in the last five years, over 150 church arsons and vandalism at a greater number of churches, predominantly Christian and Catholic, in response to issues raised primarily from the Indigenous community. According to the MacDonald-Laurier Institute study from last year, for the years 2022-23, the charge rate arising from those “probable crimes,” shall we call them, is less than 5%.
There are provisions in our law that allow for charges to be laid, but they are not being laid. In the circumstances, maybe that’s for lack of ability to prosecute. Maybe it’s a lack of ability to investigate. But maybe the process should be enhanced by taking a look at existing propositions and where the law isn’t serving.
Senator Ataullahjan: We’ve looked at anti-Semitism in this committee. We looked at Islamophobia. Consistently, we’ve heard there are laws on the book which, if they were enforced properly, we wouldn’t need to be bringing in extra laws. But we also heard, throughout these studies, that quite often police hesitate to charge people with hate crimes. What happens if this bill passes, because we’re hearing that the language is very vague and open to interpretation. Do you think it will make their jobs any easier?
Ms. Warren: In our submissions, we actually spoke to that because it is our view that the tools are available. If there are real issues with enforcement, those should be addressed first. We know that the sections are constitutional, in their current forms at least, so that’s also a reassurance in ensuring that these can be properly enforced.
I do agree with you, senator, that that needs to be first examined because if we don’t understand the issues in enforcing the existing provisions, it would be somewhat unwise to assume similar enforcement issues will not follow the new provisions, particularly when there are additional concerns about interpretation, vagueness, overbreadth and lack of clarity in the current drafting of the additional defences.
Senator Ataullahjan: Supporters of Bill C-9 say it is about protecting people of faith and other identifiable groups. Some were worried that the language could have broader implications for public gatherings, protests and activities surrounding places of worship. For example, if a group meets at a park or a public building, that park or building becomes protected under this bill.
Do you think there is a risk of overreach when it comes to criminalizing interruptions, demonstrations or organized activity in public spaces?
Mr. Horgan: I will jump in again. Yes, there is a great concern, because think of that demonstration. Will they charge 250 people individually? How will we go about bringing that prosecution or investigation forward? Will we be in a situation where use of public facilities is now verboten territory to engage in either counterprotests or protests of any kind? It is a hallmark of democracy that demonstrations and protests are part of the system.
I think we have a thicker skin in Canada than to effectively say, “Well, you religious folks are the problem, and therefore we need to get rid of the religious interpretive text defence.”
Mr. Richards: I would add to that. There is also a risk of inconsistent enforcement. There is nothing to say that there will be one standard in one province and another standard in another province, depending on the location and the situation. That’s also a very concerning point.
To your previous question, with respect to police hesitation, yes, you will have a situation where police — with the removal of the defence, it changes the landscape. When you change the landscape like that, you introduce uncertainty. Then the question is, how will it actually be enforced on the ground? It will require significant education, significant training, which should be done already under the current legislation, rather than attempting to amend the legislation and then create uncertainty by the very nature of having these new amendments.
The Chair: Thank you very much.
Senator Martin: Your testimonies were all very well articulated. My question is to Mr. Horgan, even though others can also add to what I’m asking. I think the key is the clarity that is so important with law and the uncertainty that it creates when there isn’t clarity.
Ironically, the “greater certainty” clause will cause more uncertainty and the fact that faith communities across the board — it is very diverse. I am a Christian, but I went to a Catholic school, and, like my best friend here, one of my best friends is Muslim. But we’ve heard from people across the board their concern about the removal of the good-faith religious defence.
Mr. Horgan, you talked about how this defence has actually been a very helpful interpretation tool and that if we ignore history and where we’ve come from — this has been around for over 50 years — that we drift into constitutional error.
Would you expand on those comments, because I think it sort of sums up what many witnesses have brought to us — that we have certainty and we have clarity, but this bill does the opposite.
Mr. Horgan: Well, that history includes Keegstra itself. Remember, Keegstra was a teacher in Alberta who was a Holocaust denier, and/or neo-Nazi by allegation. It went all the way to the Supreme Court and survived scrutiny under a Charter challenge by a 4-3 vote. If you take away what Chief Justice Dickson said at the time, that the importance of those defences in section 319 are part of the matrix of the understanding of the hate crimes legislation, and just remove the one related to good-faith opinion religious text, that balance is now gone.
You are going to have any number of people — if I were giving advice to someone who is charged with a hate crime, regardless of what I actually thought, because lawyers are supposed to be acting in the vigorous defence of our clients’ interests, you would bring a Charter challenge. Absolutely. Because the legislation, as my friend Ms. Warren indicated, is currently constitutional and has the blessing of a Supreme Court decision.
If you now take away the underpinning of that decision, you are inviting all sorts of defences to charges. We know now, if you think through the process of how long it takes to get to trial and the risks of jamming our court system, well, that’s a further motivation for any defence counsel to bring the Charter challenge and take a run at the change to the law.
Yes, there is a concern that we have balance currently, even if some would argue that it is overbearing as it is. The reality is that to move forward with these propositions should be of great concern to senators. Thank you.
Senator Martin: Ms. Warren, with what you were talking about, even the examples you cited that that uncertainty is creating a real chilling effect. But it is a reality that there could be activist litigation as a result of the removal of this protection, with the passage of Bill C-9, so that people can intentionally bring complaints or court cases designed to push legal boundaries and that it is a normal part of modern legal activism across the spectrum. There could be frivolous charges or multiple charges that would divert resources.
I don’t know if you or Mr. Richards — that there are church resources that may be diverted as a result. Have you thought about some of these concerns that you have heard from members of your organization?
Ms. Warren: Thank you for your question. That is definitely a concern that is certainly motivating some of the questions we are receiving, and a concern about a constraint and inability to manifest religious beliefs as section 2 allows and permits and protects Canadians across the country to do — to declare and manifest their beliefs. As you rightly point out, almost all our religious organizations across the country are registered charities and have strained resources, and they want to use those effectively for their local communities and not litigation, and certainly not defending charges when there is a good-faith religious defence that is currently constitutional and ensures the defence is constitutional, as we heard multiple times.
That’s absolutely a concern, the fear and the chilling effect that we have heard about, and how it could manifest through court action. I do think that’s a legitimate concern.
Senator Martin: Yes, and the reputation of the individuals who are involved. They could suffer all sorts of personal damage as well. Thank you.
Senator K. Wells: Thank you all for being here. Thank you for the great discussion. It is not often we get all of these legal minds together in one place, and thank you for the respectful nature of the discussion. I think we are really modelling how we can talk about these important issues.
My thought here and my question is that we are hearing a lot about — and it has been raised — the removal of the good-faith defence in the legislation and, in particular, referencing back to Keegstra and how that was part of an aid that was defined in that case around interpretation.
The argument here for Bill C-9 would be that the actual inclusion of the “greater certainty” clause is not an aid. It is actually legislative intent, and that is actually stronger than having an aid or a guide, that this is the intent of Parliament to direct the courts.
We are hearing both sides of this. Some are saying the removal of the “greater certainty” clause is a problem, even though we haven’t had a prosecution successfully use that, or that the “greater certainty” clause is actually more beneficial and more important the way it is put into the legislation. Maybe, Mr. Richards, since you were the first to bring that up, if you have any thoughts about that.
Mr. Richards: Thank you, senator, for the question. My response to that would be to look at first principles. Before you even get to legislative intent, you have to look at what the text is. Now the text will be without one leg of that four-legged stool, which are the defences. That’s where the courts will focus first. Later on, they could then look at legislative intent.
But your very question poses the risk that you have one person who may be saying, along your lines, “Go look at the legislative intent.” And others will be saying, “No, look at what the actual legislation is.” There is a debate, there is a controversy, there is litigation, which is unnecessary under the current regime. So you are exposing what the real issue is with removing the “good faith” opinion defence.
Senator K. Wells: Just in response to that, this is the opportunity for the government to clearly clarify the intent through the legislation.
Ms. Beazley: As I said, we recognize that clause was introduced in response to concerns, and we are grateful for the dialogue and the conversation that has been happening around that. We listened very closely to the minister’s comments, and we welcome an approach that says up front that the good faith expression and practice of religious belief is not a hate crime under any circumstances. He said some wonderful things to that effect, but, as I said, the clause, as written, I don’t think gets us there. It doesn’t provide that upfront interpretive clarity that is being discussed and promised.
So we would love to see, at minimum, as I said, an important amendment to that clause. I’m most familiar with the one that has been put forward by the Christian Legal Fellowship. I think you all have that. Over the course of these hearings, I have also seen great suggestions from the Seventh-day Adventists and the Canadian Council of Imams. So you have lots of good options to consider. I think the important thing is that, as written currently, the clarification clause doesn’t do the work that I think it is meant to.
Senator K. Wells: Thank you. We have not talked about the other safeguard in the legislation that was not there in the first iteration of the legislation when it was introduced and then was put back in through amendments at the House of Commons, and that is the AG’s consent as providing the sober second thought, if you will allow me. I guess it is the end of the day, if I can slip in that bad joke or bad pun, but another important safeguard that was restored. We have the high bar of the wilful promotion. We now have the AG consent to go with that, particularly when we are talking about the hate propaganda charge here.
What are your thoughts on that? Is that a good thing? Do you like the AG consent, or would you see something else there?
Ms. Beazley: Yes. We asked for that to be reinstated. We were pleased to see that change made.
Ms. Warren: I would agree. I don’t think we can necessarily look at it as something new or additional. It is maintaining the status quo. Although it was removed initially from the bill, it does currently exist in the code. So it is not any new or special protection. It is maintaining the status quo, which I think is important.
If I can just quickly say, in terms of the clarification clause, I agree with my colleagues, but it also does need to be in the code. When we talk about statutory interpretation, the first place we go is the actual statute. Anything outside of that creates challenges and potential interpretive issues, so it needs to be in the statute.
Senator K. Wells: Thank you. And, of course, the AG is new with the hate symbols charge, which is a new section altogether.
Ms. Warren: Arguably. It is also perhaps a derivative of what currently exists. But I appreciate the question, senator.
Senator K. Wells: Thank you. I appreciate your responses.
The Chair: We now go on second round to Senator Simons. Do you want to repeat your question?
Senator Simons: Do I need to repeat it? I think you all got it the first time.
Ms. Beazley: I will start and be brief because I know my colleague has more to say about those offences. We, too, recognize that there are existing tools that have not been used or are not being used for whatever reason, and we think there is wisdom in understanding why that is. Why have these tools not been made use of?
Beyond that, the language we use is generally supportive of the intent of these offences. We do think, as you have heard and will hear, there needs to be real clarity and precision to those offences, but we are generally supportive of the intent. You are probably right that there may well be circumstances in which the churches within our communities would benefit from these offences as well.
Just to pick up on Senator McPhedran’s passing comment on the way out the door about adding that clarification to both, that might be something else you want to think about.
Senator Simons: Okay.
Ms. Warren: Not to be unduly repetitive — and thank you, senator, for your question about some of the elements that would potentially protect religious institutions — I do see many of those already in the code. As I understood the departmental officials’ testimony, a lot of the language in the intimidation offence, for example, is actually pulled from an existing section of the code that is mischief relating to religious property and educational institutions, et cetera, under section 430(4.1).
I think many of these protections already exist or can be more finely tuned to the potential offence that is taking place, such as uttering threats or intimidation or criminal harassment.
I do think there are many tools in the tool box and we need to be very careful before adding more to ensure that we know what impediments currently exist to effectively using those.
Mr. Richards: Picking up on that last comment from Ms. Warren, I would say our position is that we have to be very careful when introducing new offences. It is very positive when you look at it from the perspective of faith communities. However, the reality will be in the enforcement. How will it actually affect things on the ground? That, we don’t know. There will be some discretion involved, so I’m always cautious. As others have talked about, what tools already exist. We should be looking at those tools through continuous education with our law enforcement and the interplay between our law enforcement and our prosecutors. It is very important, and that’s where we need to start.
Senator Simons: For our final witness, who is online and I’m afraid has not had as much airtime, you mentioned — correctly — that Catholic churches have been victims of vandalism. There was a terrible incident not far from my home city of Edmonton, not far from where Senator Wells lives, where a beautiful Catholic church was burned to the ground a couple of summers ago.
From a Catholic faith perspective, what do you make of these provisions? Could they be helpful, or do you think they are redundant or potentially confusing?
Mr. Horgan: No, I think the existing laws would be available to bring prosecutions or augment them with a hate charge. Let’s just think through the arson of a Catholic church or Christian church or a synagogue or other temple. They seem to have the sniff test of being hateful, but I mentioned the Macdonald-Laurier report from April 2025 which talked about the charge rate. I should add that the charge rate in typical arsons is not that great either. It is perhaps in the range of 15% to 18%. But to have a charge rate in these cases of less than 5% when we have the tools to pursue such investigations, I think there is a concern. The Chiefs of Police have certainly said they are in favour of this change because it allows their job to be made easier. Well, of course, if you are knocking out one of the defences that might be available, that’s true.
But I don’t know if there would be a defence of a religious community or “good faith” defence on religious text to the burning of Catholic churches. That falls in the category of violence that is not protected by section 2(b) of the Charter.
Senator Simons: Thank you very much.
The Chair: Thank you to all our witnesses for your testimonies today. I agree with Senator Wells that it has been an extraordinary dialogue with you.
I remind honourable senators that the committee is scheduled to commence clause-by-clause consideration of this bill on Monday, June 1, at 4 p.m. during our regular time slot. Members who wish to propose amendments during clause-by-clause consideration of the bill should consult the assigned legal counsel from the Office of the Law Clerk and Parliamentary Counsel to ensure amendments are drafted in the proper format and in both official languages.
Members considering amendments or observations are encouraged to send them in advance to the clerk.
Thank you, all. That concludes our meeting and, again, thank you to our witnesses.
(The committee adjourned.)