Criminal Code

Honourable senators and Canadians watching across the country, I rise today to speak to Bill C-9, the combatting hate act, at report stage. I am speaking today not just as a senator for Nunavut but as a residential school Survivor. Out of eight siblings, seven of us attended residential schools.

While the Standing Senate Committee on Human Rights adopted several amendments, I will be speaking to one in particular: the committee’s amendment to address the wilful promotion of residential school denialism within the Criminal Code by classifying it as hate propaganda. This amendment was adopted by the Standing Senate Committee on Human Rights by a vote of 7-1. The near-unanimous support reflects the committee’s recognition of a clear gap in the Criminal Code.

The Government of Canada has already formally acknowledged the harms and lasting impacts of the Indian residential school system through apologies, settlements, the Truth and Reconciliation Commission and ongoing reconciliation commitments. These harms are well documented and are not contested in Canadian public law or policy. This amendment does not create a new legal principle; it applies an existing one consistently.

Throughout our study of this bill, we have recognized the very real harms caused by Islamophobia, anti-Black racism, anti‑Semitism and other forms of hate. We have heard compelling testimony about the need for targeted responses where particular communities are disproportionately impacted by hatred and discrimination. I support those protections.

The question before us is why Indigenous Peoples should be treated differently.

The obligation of the Government of Canada to protect Canadians does not diminish when the affected community is Indigenous. Indigenous Peoples should not be required to wait longer for protections already recognized as necessary in other contexts. The Prime Minister has stated that anti-Semitism requires a serious and targeted response, a principle currently reflected in Canadian law, including through the recognition of Holocaust denialism as hate propaganda when it meets the statutory threshold. I agree with that approach.

This legal framework creates a precedent, which has been established by Parliament, that certain forms of denialism, when used to wilfully promote hatred against identifiable groups, can constitute hate propaganda under the Criminal Code. This includes Holocaust denialism where the wilful denial, condoning or gross minimization of genocide, when used to promote hatred, falls within existing provisions. While provisions are reserved for the most egregious cases, the principle is clear: Denialism is captured by hate propaganda law when it is used to promote hatred.

By the same measure, anti-Indigenous hate is also severe and persistent. Indigenous Peoples have been targeted for generations through discrimination, violence and the denial of their lived experiences. Addressing residential school denialism through its inclusion in the Criminal Code is, therefore, a concrete and consistent application of the same legal precedent that Parliament has already established.

With regard to the committee’s amendment, the same safeguards and defences would apply. Truth is a complete defence, and statements that are true cannot lead to a conviction. Likewise, were an individual to make statements that they believed were for public benefit and, on reasonable grounds, believe to be true, the law continues to protect that expression.

That means that some Survivors of Indian residential schools who publicly speak of their own lived experience and who may believe that residential schools were beneficial to them, because they believe it to be true or use that as a coping mechanism to process their own trauma, would not be targeted by this new provision.

The amendment is also narrowly tailored so that it applies only to public communications that wilfully promote hatred; it explicitly excludes private conversations. It does not restrict historical discussions, academic inquiries or personal testimonies.

With regard to penalties, the current wording, that an individual convicted under this provision would be found “. . . guilty of an indictable offence and liable to imprisonment for a term not exceeding two years . . .” is consistent with the established precedent already used in comparable hate propaganda offences. It is important, colleagues, that there is a consistent application in Canadian law. Therefore, this amendment reflects continuity, not expansion. It recognizes that residential school denialism can function as a vehicle for anti‑Indigenous hate, retraumatize Survivors and their families and contribute to intimidation and racism against Indigenous Peoples.

This amendment responds directly to concerns raised by Indigenous witnesses who appeared before the Standing Senate Committee on Human Rights and emphasized that denialism causes harm, fuels racism and undermines reconciliation. The question is whether Parliament is prepared to respond to their calls for action and address the rise of residential school denialism and anti-Indigenous hate in Canada. The Government of Canada has repeatedly acknowledged the harms inflicted on Inuit, First Nations and Métis Peoples through colonial policy, including residential schools.

At its core, this amendment asks whether Parliament is prepared to take a meaningful stand against anti-Indigenous hatred.

Residential school denialism is not a matter of historical disagreement; it is a tactic that can be used to diminish Indigenous suffering, undermine truth and promote hatred toward Indigenous Peoples. Parliament has already recognized that denialism, when weaponized in such manners, can warrant criminal sanction. Today, the Senate has an opportunity to ensure that Indigenous Peoples are afforded the same protections under the law and to demonstrate the fortitude required to confront hatred in all its forms.

When Indigenous Peoples raise concerns about a modern form of Indigenous hate, we are told that further barriers must first be overcome. The real question I place before the Senate today and, if passed, before the other place is whether those harms will be met with equivalent seriousness under the Criminal Code. Indigenous Peoples should not be asked to wait longer for protections that Parliament has already recognized as necessary in other contexts.

This amendment responds directly to testimony heard at committee, as well as recommendations put forward by Indigenous leaders, Survivors and their families; the Standing Senate Committee on Indigenous Peoples report published in 2023 entitled Honouring the Children Who Never Came Home; the Independent Special Interlocutor Kimberly Murray; and the Assembly of First Nations’ resolution calling for the government to criminalize residential school denialism.

It is evident, senators, from both our witnesses and publicly available information, that denialism is a growing threat and a hateful phenomenon that demands a legislative response. Importantly, this amendment does not alter, diminish or infringe on Aboriginal or treaty rights. It does not regulate Indigenous governance, lands or jurisdiction. It is narrowly focused on the wilful promotion of hatred and the protection of Indigenous Peoples from harm. It is forward-looking, consistent with existing law and grounded in the principle that all Canadians deserve equal protection from hate-motivated denialism under the Criminal Code.

In closing, senators, we have heard this quote many times in this chamber, but I think it is important to reiterate the Supreme Court of Canada’s Reference re Senate Reform:

Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process . . . .

Today, this institution has an opportunity to stand for and defend those who have long been under-represented and marginalized in Canada. I ask you to vote in favour and adopt the committee’s report. Thank you. Matna.

Would Senator Karetak-Lindell accept a question?

Yes.

Thank you, senator, for your work on this and especially for pouring your lived experience into this. It is much appreciated.

I’m not part of the Human Rights Committee, but I’ve been following this conversation as a concerned Black woman and as an ally. Senator Arnot and I met with representatives of the Anishinabek Nation some weeks ago, as well as with the Chiefs of Ontario. They talked about being in this space where there is an increase in denialism and where people are feeling increasingly unsafe.

But as with everything, there is a balance. Those of us from vulnerable groups tend to anticipate pushback, so I wonder if you could say more about this amendment and how it complies with the right to freedom of speech and how it does not impact legitimate academic inquiries or legitimate historical conversations.

Thank you for the question. I thought of a way to make this comply with precedents, and I was assured that it would not prohibit good-faith academic expression, historical research or legitimate public discourse, but rather that it targets wilful promotion or denial of residential school harms in a manner that rises to the threshold of hate propaganda already outlined.

I want to add that the term “wilful” is an exceptionally high threshold that has been established and that it would not capture good-faith freedom of expression. I feel that because the threshold is high, freedom of expression is not impaired by my amendment. Thank you.

Will the senator accept a question?

Yes, I will.

Nakurmiik. Tshinashkumitin. Thank you very much. Today is a special day and a hard day. It is eight years since the report on the National Inquiry into Missing and Murdered Indigenous Women and Girls, so I say thank you for your courage to speak the truth. I’m exhausted because we have to speak the truth too many times, so I hope the amendment will pass. We are in 2026.

My mom — all our moms — dad and family know what we tasted, what we saw, what we felt — all the five senses. We are very aware of this. I don’t know if you remember this, but the national inquiry spoke about genocide, and it was proven by Québécois Canadian lawyers. Then, the Truth and Reconciliation Commission did that important work, and you mentioned Kimberly, so I thank you —

Yes.

I wonder: Was the Crown’s duty to consult Indigenous Peoples meaningfully engaged in the development of this amendment that you spoke of?

Thank you.

Thank you for the question. I wanted to address concerns regarding consultation by drawing an important distinction that informed my approach throughout this process. Earlier in this study, I considered introducing an amendment that would have expanded protections relating to cultural, ceremonial and religious bases, but I chose not to do that because I would want that to include consultation with the affected groups. I paralleled this with Holocaust denialism, and, in doing that, I hope that it is pretty straightforward and will meet all the obligations. I narrowed my amendment to reflect that.

Senator, would you take another question?

Yes, I would.

The evolution of rights in society comes through struggle and also learning. Six million Jews died in the Second World War. Despite that fact, there are still people who perpetuate the hateful idea that it didn’t happen. I know we must learn.

The treatment of Indigenous people in this country is our own responsibility and burden. Is it your hope that, in introducing the amendment, it will help us learn and change our attitudes and behaviours as to how we conduct ourselves and understand the history of this country and how we have treated Indigenous people in this country?

Thank you for the question.

It is pretty sad that we have to legislate hate and understanding. I would hope that, with my amendment, people are more willing to understand our way of looking at this and our way of looking at all the injustices that have happened to Indigenous people in this country and that it is lived experience, and our point of view is not always considered when studies are done. This is an opportunity for conversation and, hopefully, to continue the path to reconciliation. Thank you.

Honourable senators, I don’t intend to speak for long, but I wanted to put forward a few considerations that I hope will inform your work as we continue to study Bill C-9, which is currently before us.

First, I want to thank the members of the Standing Senate Committee on Human Rights for the hard work they put into examining this bill seriously. Bill C-9 delivers on an election promise and addresses a social issue that matters to all of us.

Bill C-9, the combatting hate act, introduces a targeted suite of Criminal Code reforms to protect safe access to community spaces and religious buildings, denounce hate-motivated crime, clarify the legal meaning of “hatred” and criminalize the wilful promotion of hatred against an identifiable group by displaying hate or terrorism symbols in public.

It is designed to safeguard Canadians’ security and dignity while preserving space for lawful protest and protected expression under the Canadian Charter of Rights and Freedoms.

In its consideration of the legislation, the committee adopted four amendments: first, the addition of the symbol of a noose; second, the creation of a new offence of residential school denialism, which carries a maximum penalty of two years of imprisonment if prosecuted by indictment; third, the extension of the defences for the existing offence of downplaying the Holocaust to the new offence of residential school denialism; and, fourth, the extension of the statutory defence to the obstruction offence to that of the intimidation offence, which specifies that individuals are not to be found guilty where their sole purpose is to obtain or communicate information.

The addition of the noose as a hate symbol is a meaningful step. It acknowledges the specific and documented history of racial terror that symbol carries and sends a clear message that our law does not look away from anti‑Black hatred. I wish, nonetheless, to underscore that the stand-alone hate crime offence as originally drafted in Bill C-9 already applies to anti‑Black hate in all its forms, including conduct involving the noose.

While the government is in agreement with the first amendment, it has reservations with respect to the remainder, and it is the latter point that I wish to expand upon.

Before I address these amendments, however, I want to thank Senator Karetak-Lindell for her work on this bill. The chamber is privileged to benefit from the perspective of residential school Survivors, whose lived experiences bring important and unique perspectives to our deliberations.

Regarding the amendment that would establish a new offence of denying the history of the residential school system, including defences, no consultation has taken place and no legal analysis has been conducted.

As has been reflected in the past, neither the Senate nor the other place is a consultative body. That responsibility rests with the government and the cabinet. The duty to consult on legislative amendments continues to evolve, but it is widely understood that changes directly affecting Indigenous Peoples, their rights or how they are described in federal law must have meaningful engagement.

Proceeding without such consultation risks privileging some voices over others or, worse, silencing them altogether. It is First Nations and Inuit Peoples who are retraumatized by the denial of their harms who have a better understanding of the issue.

This past December, the Assembly of First Nations Special Chiefs Assembly adopted a resolution on the criminalization of residential school denialism, emphasizing the need to work with Survivors, Elders and First Nations leadership across the country to ensure that any legislative approach reflects lived experiences, provides clear legal definitions and can withstand constitutional scrutiny.

Honourable senators may have already noticed that online backlash to the amendment has begun. There was no consultation on whether this amendment was the appropriate way for denialism to be addressed or to have it as stand-alone legislation. In opposing this amendment, the government is not rejecting the objective of addressing denialism. There are avenues in the bill that already cover the protection of hatred toward Indigenous Peoples. Rather, what we are doing is affirming that it must be done in the right way, grounded in a comprehensive and respectful consultation process.

Turning to the amendment extending the proposed statutory defence to the proposed intimidation offence, I respectfully submit that the legal doctrine of absurdity would apply. Furthermore, the proposal would create inconsistencies in the Criminal Code.

Let me explain: The proposed obstruction offence in Bill C-9 includes a statutory defence, which specifies that individuals who attend at, near or approach a religious or cultural institution for the sole purpose of obtaining or communicating information are not guilty of the offence. Given that the elements of the proposed intimidation offence would require proof that an offender had a specific intent — mens rea — to provoke a state of fear in another person, the exception could not apply in those circumstances.

In other words, there could be no situation where an accused person whose sole purpose is to obtain or communicate information exhibits behaviour intended to provoke fear. I can’t imagine a situation where this defence would apply. No one could intentionally provoke fear if their sole purpose is communicating information. Therefore, adding this defence to the intimidation offence is pointless and could cause confusion about behaviours not covered by this offence.

This amendment also weakens the very purpose of the intimidation offence, which is to protect people in their place of worship and community spaces. Bear in mind that this offence was one of the government’s election promises. There is no justification for accepting an amendment that undermines its scope.

Furthermore, as pointed out earlier, the proposal to expand this defence is inconsistent with other similar Criminal Code offences and has absolutely no bearing on the offences regarding intimidation of health professionals, justice system participants or journalists. For that reason, the government cannot consider this proposed amendment to Bill C-9.

Honourable colleagues, while I have raised these reservations on debate, I do not wish to further delay the progression of this important piece of legislation. I raised them out of respect for the collegiality and professionalism we share in an increasingly divisive environment so as to facilitate our deliberations as we proceed.

For all these reasons, when the question is called to adopt this report, I will call, “On division.” If there is a standing vote, I will be voting against the report.

I look forward to your continued dialogue, both within and between our democratic institutions.

Thank you, colleagues, for your kind attention.

Are honourable senators ready for the question?

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour of the motion will please say “yea.”

Some Hon. Senators: Yea.

The Hon. the Speaker: All those opposed to the motion will please say “nay.”

Some Hon. Senators: Nay.

The Hon. the Speaker: In my opinion the “nays” have it.

I see two senators rising. Is there an agreement on the length of the bell?

Is leave granted, honourable senators?

There will be a 15-minute bell. The vote will take place at 4:35.

Call in the senators.

Honourable senators, when shall this bill be read the third time?

(On motion of Senator Wells (Alberta), bill placed on the Orders of the Day for third reading at the next sitting of the Senate.)