Criminal Code

Honourable senators, I rise today at third reading of Bill C-9, An Act to amend the Criminal Code (hate propaganda, hate crime and access to religious or cultural places).

I want to begin by reaffirming what I expressed at second reading and what I believe all of us in this chamber share: the commitment to protecting every Canadian and those living in or visiting Canada from hatred and violence.

The rise in hate-motivated acts directed at people because of who they are, what they believe or how they worship is a serious and troubling reality that demands a serious legislative response. It is precisely because those stakes are so high that we must ensure the legislation we enact achieves its purpose without eroding the fundamental freedoms it is meant to defend, and that is why we must legislate with absolute care at this time.

At second reading, I asked honourable members and especially those serving on the committee tasked to study Bill C-9 to do so carefully. The Standing Senate Committee on Human Rights did that work. The committee examined the bill’s provisions with genuine care, scrutinizing the new hate crime offence, the intimidation and obstruction provisions designed to protect access to places of worship, the codified definition of “hatred” and the hate symbol offence.

The committee heard powerful and sobering testimony about anti-Semitism, Islamophobia, anti-Black racism, anti-Asian racism, hatred toward Indigenous Peoples and hatred directed at Canadians on the basis of their sexual orientation and gender identity. Those harms are real. They are serious, and the tools in this bill aimed at addressing them deserve to be as strong and precise as Parliament can make them.

The focus of my speech today is not about what was strengthened; it is about what was taken away and the voices of millions of Canadians who have made it unmistakably clear that they are not reassured by the bill as it currently stands.

Honourable senators, the single issue that generated the most concern, the most testimony, the most correspondence to our offices and the deepest anguish from faith communities, civil liberties organizations, constitutional experts and others from across the country, was the removal of the “good faith” religious expression defence from paragraph 319(3)(b) of the Criminal Code. Those communities and organizations deserve to have their voices brought into this chamber today, and it is my duty — our duty — to do exactly that.

While there were many powerful testimonies before the committee, allow me to highlight just a few that I believe capture the breadth and sincerity of this concern.

Imam Sikander Hashmi of the Canadian Council of Imams, speaking on behalf of over 130 faith leaders across Canada, told the committee that many faith communities were surprised by the removal of the longstanding “good faith” religious defence, and that the concern was not about defending hatred but about preserving legal space for peaceful and responsible religious expression. He warned that scriptures and theological teachings can be misunderstood or mischaracterized when taken out of context, and that an imam quoting difficult passages of religious tradition should not have to fear a criminal investigation because of a bad-faith complaint. He said plainly that a pluralistic society requires sufficient legal space for those beliefs to be expressed responsibly without being weaponized. He put it this way:

Religious scriptures and traditions often contain historical narratives and theological passages that, when quoted outside their religious context, can be misunderstood or deliberately mischaracterized.

That is the heart of this debate. It came not from a privileged institution but from a community that knows what it means to be a target of hate.

James Manson of Charter Advocates Canada went to the constitutional foundation of this issue. He reminded the committee that Keegstra was a 4-3 decision, a narrow majority. The court upheld the hate propaganda provisions in part because the statutory defences, including the “good faith” religious expression defence, helped ensure the provision was not overly broad. Mr. Manson warned the committee plainly that removing the religious defence “. . . calls back into question the very constitutionality of 319(2) itself.”

Why would Parliament invite a Charter challenge that could unravel the very provision this bill is meant to strengthen?

Lastly, there is evidence that I believe is the most decisive of all because it comes not from a critic of the bill but from one of its strongest supporters. Mark Sandler is the chair of the Alliance of Canadians Combatting Antisemitism, a trainer of police and prosecutors across the country, a passionate advocate for vulnerable communities and a man who has spent decades fighting hatred in Canadian courts. He supports Bill C-9, and he said:

There has never been a case where that defence has successfully been invoked — not one.

From my perspective, for practical reasons, there is no difference whether the provision is there or the provision is not there.

If removing the “good faith” religious defence changes nothing for the prosecution of genuine hate, but its removal creates anxiety, uncertainty and a chilling effect on faith communities across this country, then there is simply no case for removing it. The defenders of repeal have not identified a single prosecution it has impeded. They have not pointed to a single hate propagandist it has shielded. So why was it removed in a last-minute amendment at committee in the other place without a single witness’s testimony to justify its removal?

Imam Sikander Hashmi, James Manson, Mark Sandler — these are not fringe voices. These are thoughtful, responsible Canadians arriving at the same conclusion from entirely different starting points.

Honourable senators, the concerns before this chamber did not come only from the many witnesses testifying at, and the numerous briefs submitted to, the committee. They came from concerned Canadians across this country. Hundreds of thousands of people wrote emails and made phone calls to our offices to express their opposition to the removal of the “good faith” religious defence. Then there are the postcards.

Through the 4 My Canada campaign, a multitude of Canadians, individually, paid to have postcards printed and mailed, each one bearing a real name and address, each one addressed personally to a senator. These were not emails automatically generated at the click of a button. These were Canadians who were concerned about the bill, cared enough to act, paid for the printing of a postcard and sent it by mail to an individual senator through 4 My Canada. This is a truly meaningful and deliberate act of democratic participation.

I would like to thank each and every person who took their time and spent their own money writing to their parliamentarians, exercising one of the most fundamental rights in a democratic society. They are expressing their support or objection to a bill, as well as their gratitude, concerns, wisdom, insights and whatever they wish to convey to each and every one of us. We, as senators, who are here precisely to represent the men and women of this country, have a duty to listen and carefully consider what they are saying.

Let us also remember the witnesses from the various faith communities and civil liberties organizations, as well as the legal and constitutional experts, who told the committee very clearly that removing the “good faith” defence has created real anxiety and uncertainty for people of faith, especially when their teaching, discussion, publication or debate touches on contested moral or social questions. Many asked us to restore that defence.

At committee, I moved an amendment to restore the “good faith” religious protection, but it was defeated, narrowly, so I’m not going to re-litigate that today. Instead, I am proposing a narrower amendment to the “for greater certainty” clause, one that responds to the concerns expressed by witness after witness and in the many briefs that were sent to the committee, as well as postcards and other correspondence we have received, while preserving the government’s stated objective.

Bill C-9 did not originally contain the “for greater certainty” clause that is now before us. It was added only after the existing “good faith” religious opinion defence was removed and serious concern was raised about the consequences of that removal. The government’s answer was to insert a new clause meant to reassure Canadians that public-interest expression, including educational, religious, political and scientific discussion, would not be caught. But reassurance is not the same thing as legal clarity.

Let us be clear: As drafted, the clause does not actually provide the greater certainty that it promises. It says that nothing in subsections 319(2) or 319(2.2) prohibits a person from communicating a statement on a matter of public interest if they do not wilfully promote hatred by communicating that statement.

In practice, that simply restates the offence. It tells Canadians they are safe if they have not already broken the law. That’s what the “for greater certainty” clause states. What it does not do is help them see how “good faith” religious, educational, political, scientific or other public-interest expression will be distinguished from the wilful promotion of hate.

In other words, the clause was introduced to address the uncertainty created by removing the “good faith” defence, but it fails to do that, and uncertainty remains.

The amendment I am proposing would replace the circular wording with the familiar, well-understood concept of good faith. As amended, the clause would provide that nothing in subsections 319(2) or 319(2.2) shall be construed as prohibiting a person from communicating a statement in good faith on a matter of public interest, including an educational, religious, political or scientific statement made in the course of a discussion, publication or debate.

This does not create a licence to promote hatred. It simply clarifies that good-faith engagement with ideas, beliefs, doctrines, public policy, science, education, politics or religion is not what the hate propaganda provisions are aimed at.

Bill C-9 is directed at the serious offence of wilfully promoting hatred against an identifiable group. It should not chill legitimate public interest expression simply because the subject is controversial, deeply held, religious, moral, political, scientific or offensive to some.

This amendment keeps the purpose of the bill intact while giving Canadians clearer assurance that good-faith debate about ideas remains protected. It makes plain that the Criminal Code is aimed at the promotion of hatred against persons, not the mere expression of disagreement on matters of public importance.

Though my amendment to restore the “good faith” religious defence was defeated, I believe this chamber still has an opportunity to do right by the faith communities, civil liberties organizations and hundreds of thousands of Canadians who have contacted us with legitimate and well-founded concerns. We can provide the clarity and certainty that the current clause fails to deliver.

Honourable senators, this is a modest, focused amendment. It does not weaken the new hate crime offence. It does not touch the hate symbol provisions, the intimidation and obstruction offences or the codified definition of hatred. It simply ensures that the Criminal Code itself reflects what ministers have repeatedly told us is their intention — that ordinary, peaceful, good-faith religious and public interest expression is not a crime.

I urge you to support this amendment so we can send a clear message that in Canada, hatred will be prosecuted, but good-faith religious conviction will not be silenced. Above all, everyone will be equally protected.

Before I read my amendment, I have to just explain that it doesn’t look very clear the way that it’s written. To be clear, I have the word “-nicating” in my amendment, but the previous line has “commu-,” so it’s actually “communicating.”

May I have more time?