Criminal Code

Therefore, honourable senators, in amendment, I move:

That Bill C-9, as amended, be not now read a third time, but that it be further amended, in clause 11.1, on page 6,

(a) by replacing line 22 with the following:

“nicating a statement in good faith on a matter of public inter-”;

(b) by replacing lines 25 to 27 with the following:

“discussion, publication or debate.”.

Honourable senators, our friends, family members and neighbours have faced an onslaught of increasing hate crimes in our communities over the last few years. We cannot delay protections for them any longer. Canada must address the growing crisis in our communities and stand up for all Canadians with clear, effective legislation that protects all Canadians, regardless of religion, race, ethnicity, sexual orientation and gender identity.

Good-faith religious expression, debate and teaching are fully protected by the Charter. They are not criminalized now and would not be criminalized under this bill. The wilful promotion offence already excludes the scenario this clause was meant to address. It is solving a problem that does not exist.

We have heard concerns from Canadians across the country who have heard misleading messages about the intentions of this bill and what its implications might be. I want to be very clear and assure Canadians of all faiths that the combatting hate act does not criminalize practising your religion, reading passages from your holy books, preaching to or counselling members of your congregations or communities.

At the Human Rights Committee, countless stakeholders urged us to pass this legislation without further delay. We heard this clearly from the Canadian Association of Chiefs of Police, the Friends of Simon Wiesenthal Center, Canadian Hindus for Harmony, the Organization for the Prevention of Violence, B’nai Brith Canada, the Alliance of Canadians Combatting Antisemitism, the Toronto Police Service and the Edmonton Police Service, to name only a few.

We heard clearly and directly from the Minister of Justice:

We should recognize through the definition of hate that the ordinary practice of faith is not a hate crime to begin with. . . .

. . . Canada is a country built on multiculturalism and diversity, including religious diversity, and it is a huge part of the strength of the social fabric of Canada.

I would urge my honourable colleagues to oppose this amendment.

Honourable senators, I rise briefly to speak in favour of this amendment.

I come to this after a lifetime of having worked in various ways to advance human rights and equality, and I know very well that the advancements we make are not always solid, that sometimes they are fragile. All it takes is a change of government to wipe out advances. To me, the most important thing is building a broad societal consensus about combatting hate.

I want to thank the Minister of Justice for introducing this bill. It has been a long time coming. It was badly needed. I want to thank my colleague — my seatmate — Senator Kristopher Wells for being the sponsor. I want to thank Senator Paulette Senior and all the members of the Human Rights Committee for their role.

I want to indicate my strong support for this bill. It is badly needed, and it has been a long time coming, but I want to speak to one part of it. The bill deletes section 319 of the Criminal Code, and this has caused considerable controversy. Let me just paint for you the steps that took place.

The House of Commons committee went through the hearings, and, at the very last minute, in order for it to pass, the government was prepared to accept an amendment by an opposition party member to add this clause that would delete section 319, the “good faith” clause.

Seeing the controversies that it generated, they then added a clarification to say, “That clause doesn’t really mean anything; don’t worry about it.” But at that point, a whole lot of people were very upset about that clause. So I ask the question: Why have a clause and then have a clarification saying, “Oh, don’t worry about it. It’s not a problem”? Why don’t we just get rid of the clause that’s causing the consternation to begin with?

I want to say quite clearly that I am less influenced by some of the political initiatives or machinations that have gone on about this bill. I am really concerned about the views of ordinary Canadians that we’ve heard.

In the report from the committee and their observations, they note that they heard from people who were concerned about this defence being removed. They then talked about the legal experts who said, “Don’t worry about it.”

So really, with the greatest of respect to the committee and to the government, they are saying:

We’ve heard from thousands and thousands of Canadians who are concerned about this clause. So ordinary Canadians: we’ve heard from you. We hear that you are concerned about it, but listen to these experts. They are saying your worries are unfounded.

I don’t think that’s a good way of doing politics when we hear from the people and then tell the ordinary people, “You don’t really understand it.”

The report calls on the government to have clear engagement on this matter and to continue explaining it to the population.

Basically, you are saying:

The experts understand it. Thousands of ordinary people don’t understand it. So, experts in government, keep explaining this thing to ordinary Canadians who have written to us in the thousands, and at some point, they’ll gain our level of intelligence and expertise, and they’ll come on board.

Sorry if I’m being a little dramatic, but for a lot of people, that’s the way it comes off, and I caution you against this.

My guiding objective here is to build a consensus about the scourge of hate crimes. We need to strongly oppose the bad actors, the purveyors of hate. Those are the ones whom we should all be working against. There is a large number of people of goodwill who agree with that objective, that there is something rotten about hate crimes and hate harassment that we have to confront and oppose. However, instead, people of goodwill have been divided into two: people who are prepared to support this and people who are concerned that their religious rights are being undermined.

So who is laughing? The purveyors of hate because they’re happy to see that people of goodwill are divided by this.

I want to say this to colleagues: Let’s put a little bit of water in the wine, but for those of you who don’t drink, a little bit of wine in the water. I ask you to compromise a bit and understand that what is more important than getting this through the House of Commons with a narrow vote is to build a consensus about the need for us, as broadly as possible, to unite against the scourge of hatred that is growing in this country and many other countries.

We must, and we can, have a bill that has a broad consensus to combat hate. Thank you.

Senator Cardozo, would you take a question?

Sure.

Senator Cardozo, I would have appreciated asking Senator Martin this question, but I am wondering if you can explain to me the purpose in the amendment of removing the line “. . . if they do not wilfully promote hatred against an identifiable group by communicating the statement”?

The amendment replaces lines 25 to 27, so it’s removing this text. I’m wondering if that doesn’t leave doors open, and I wonder what the purpose behind that was.

If there were a way to rewind the clock, I would prefer that you ask that question to the mover of the motion.

I should tell you that my preference would have been Senator Martin’s original motion to the committee a few days ago, which was to just get rid of the whole clause causing this problem.

What Senator Martin has done here is to set aside the objective of getting rid of the whole clause and to indicate that the “good faith” clause still stands. That’s my understanding.

Senator Cardozo, would you take another question?

Yes.

Would you agree that the reason why the current wording of the “greater certainty” clause is circular is because they say that they define what is not hate speech by simply repeating the same standard? It says that communications do not amount to a wilful promotion of hatred if they don’t wilfully promote hatred. This doesn’t give practical guidance to citizens, police or prosecutors about where the line actually lies.

So my amendment is responding to the circular wording in the “greater certainty” clause that will actually create greater certainty as well. Would you agree?

If the question is, would I agree, Senator Martin, I absolutely and totally agree.

Honourable senators, I will be very brief. I want to endorse everything that Senator Cardozo has shared with us. I want to add one other observation: When change needs to happen or when bad things need to be stopped, typically, in our democracy, we turn to organizations that are faith-based. There are many practical reasons why the mobilization of faith-based organizations is one of the most effective ways to communicate and to build momentum for change.

It seems to me that if Senator Martin is content with this amendment, knowing the constituency as she does, it would make sense for us to support this because why would we want to spurn the “good faith” concerns — by those of faith — that have been articulated so well and with such large numbers? For very practical democratic reasons, I support this amendment.

Honourable senators, I would like to thank Senator Martin for her remarks, as well as Senator Cardozo and Senator McBean for her very good question. You will see why it is a very good question in the following remarks. I would like to acknowledge Senator McPhedran as well in the debate. Respectfully, for the following reasons, the government cannot support this amendment.

This bill carefully aims to apply equal protection under the law to all people, and that includes the protection of freedom of religion. This bill offers enhanced protection to religious communities.

As many of our witnesses before the Standing Senate Committee on Human Rights have said, the ordinary practice of religion does not, and will not, constitute a hate crime. Promoting hatred or violence, particularly in a way that amounts to the extreme detestation and vilification against a group of people, is a different thing altogether.

To this point, I wish to reiterate an important message conveyed by the Minister of Justice that I totally share: I don’t think you can promote hate in good faith.

Honourable colleagues, the bill includes a carefully tailored “for greater certainty” clause that clearly states that an expression, whether on religious topics, political topics or any topics relating to public interest, would not be captured by the offence if it’s not expressed to “. . . wilfully promote hatred . . . .”

All the components of this clause are integral and support the interpretation of the relevant provision in the Criminal Code. The clause was precisely informed by round tables and further consultation with stakeholders held by the Minister of Justice earlier this year.

The Alliance of Canadians Combatting Antisemitism, or ACCLA, confirmed that, in their respectful view, the compromise that was struck in the other place is appropriate: It is the removal of conflicting good-faith defences to prevent its misuse or misinterpretation, but that is coupled with the clarification note that it is intended to alleviate any concerns about the overbreadth. ACCLA further affirmed that, as a result of this clarification clause, the provisions of Bill C-9 “will survive constitutional scrutiny.”

Similarly, Richard Marceau, Senior Vice-President, Strategic Initiatives and General Counsel for the Centre for Israel and Jewish Affairs, expressed that:

. . . adding that clarification is signal enough of the desire of Parliament that religious freedom is an important component of Canadian life, protected under the Charter and under different pieces of legislation.

Honourable colleagues, the “for greater certainty” clause is comprehensive, clear and unambiguous.

First of all, the motion in amendment before us seeks to reintroduce the concept of good faith, a subjective concept that has no established definition in criminal law.

Secondly, and to pick up on Senator McBean’s question, it is important to call attention to a less obvious consequence of the motion in amendment. It cuts out a significant portion of the last part of the clarification clause, and eliminates the interpretive direction that the clause gives to the Criminal Code provisions in Bill C-9. This direction provides that offences — and this is the portion that was removed — must not be construed as prohibiting a person from communicating a statement on a matter of public interest — and here I would emphasize — if they do not wilfully promote hatred against an identifiable group by communicating the statement, which takes it to a whole other level.

To establish a criminal offence, criminal law stipulates that the act and its intent must be proven beyond a reasonable doubt. In law, the act, actus reus, and the intent, mens rea, must reach the evidentiary level of “beyond a reasonable doubt.” For a criminal offence, the intent must be obvious.

The amendment, which aims to eliminate the deliberate nature of the act, the last part of the clause, in favour of the vague concept of good faith, would significantly dilute the scope of the clarification clause and, in doing so, would diminish the protection afforded by this clause.

It is legally analogous to the provision of Bill C-9 and drafted as such intentionally, basing its axis on the element of intent of wilfully promoting hate. Every word has been weighed to ensure consistent direction on the proposed offences in Bill C-9.

For all these reasons, I must, on behalf of the government, oppose this amendment.

Government leader, will you take a question?

Yes.

Government leader, you said that the minister consulted faith groups far and wide before tabling the legislation. As you know full well, he did consult some faith groups, but it has also come to our attention — and it is clear in the public view — that when it comes to the good-faith clause, it was removed last minute on the other side. So, when the minister clearly consulted with whomever he consulted, the good-faith clause was included in this bill.

It was way after consultation, five minutes to midnight, before the bill was passed in the House that you removed this clause, which has created tremendous concerns among all faith groups across this country. Why?

Senator Housakos, if I may, I will answer your question in French.

First, in law, a good faith defence has never been grounds for an acquittal in the prosecution of an alleged offence in a criminal case.

Second, the amendment that Senator Martin is proposing to the provision adds good faith but removes the elements that provide greater protection, given that there is mens rea when speech that promotes hatred of a particular group of people is made public. There is no clear definition in criminal law of good faith.

However, seeking to ensure that a good faith defence exists undermines the protection that the clarification clause is intended to provide. I believe that some of my Senate colleagues who are familiar with criminal law would agree that there is no clear definition of good faith in criminal law.

That’s why the government has, in the clarification clause, removed the element of good faith, which is easier to understand in the eyes of the public. However, this concept of having meaning within the law has effectively replaced the clarification clause, which will not be part of the Criminal Code, with the provisions that Senator Martin is seeking to remove.

The protection afforded by the clarification clause is much clearer as currently worded than it would be if it were amended to include good faith and remove the mens rea part at the end. This wording ensures that speech, even when religious in nature, is not an offence if it does not promote hatred against a group.

Leader, I realize there’s no definition of good faith in the Criminal Code. However, the term comes up 16 times in the Criminal Code. I’m not questioning your good faith, but if the term comes up 16 times in the Criminal Code, maybe there’s a problem if people are now saying that the concept shouldn’t be used.

Thank you for the question, Senator Carignan.

I’m not saying we shouldn’t use it. I’m saying the criteria at the end of the clause, which Senator Martin’s amendment would remove, are more important and provide better protection than introducing the definition of good faith, which doesn’t exist in criminal law.

How can you suggest that the notion of good faith doesn’t exist in criminal law when it is used 16 times in the Criminal Code?

I’m not saying that it doesn’t exist in criminal law. I’m saying that the concept of good faith as used in criminal law is not specifically defined anywhere in the criminal jurisprudence. If you find any jurisprudence that defines it, you can always submit it to the assembly.

Essentially, I’m saying that the reason the government opposes the amendment is that introducing the concept of good faith and removing the additional protection at the end of the clarification clause diminishes the protection afforded to speech that is not uttered with criminal intent — both mens rea and actus reus — and that it could meet the criteria in the act.

The government’s very clear intention is not to criminalize speech that is clearly not intended to promote hatred in Canada.

Senator Moreau, will you take another question?

Yes.

I want to reiterate that when faith groups supported the intent of the bill, it was when the good-faith provision was in the Criminal Code. It was removed at the last minute, in that amendment, at committee. I believe the minister in the chamber even said that it was a condition of the Bloc’s support. He said that.

My question is this: You say that we need the phrase “do not wilfully promote hatred against an identifiable group” in this “for greater certainty” clause, but that already exists in the bill.

What the communities are saying is that there is no certainty for them that they will not be charged for their “good faith” expression. “Good faith” is the key phrase. What you added at the end is already in the bill, so it is circular.

That certainty is not given to faith communities. We know this because we heard them, witness after witness, at committee and through our communications.

I understand you are in the role of government leader, but we know that the amendment was accepted in the House at the last minute. We then did the study in the Senate. We did our job. We heard from witnesses.

This is a circular clause. We believe that there is no certainty for faith communities by the way it is expressed. That’s why my amendment gives that certainty. We have consulted them.

Thank you, Senator Martin.

There are two parts to your statement, Senator Martin.

I am informed that the Minister of Justice held additional held additional round tables and consultations at the beginning of the year after the defence was removed from the bill.

Second, on the issue of the wording itself, I’m not just playing my role as Leader of the Government in the Senate, I’m informing you that the position of the government and the Department of Justice is this: Diluting the clarification clause by removing the wording at the end of the clause — which your amendment does by adding good faith to it — reduces the protection that the clarification clause is trying to include in this bill.

By removing speech made with a guilty intention, or mens rea, you protect those who do not do so, who do not speak without a guilty intention.

For example, someone who preaches in a synagogue or a church does not do so with a guilty intention. What the clause says is precisely that such speech not made with a guilty intention does not meet the evidentiary level required to constitute a criminal offence.

It’s therefore clear that the protection suggested by the clarification clause is greater with this wording than simply with good faith.

Senator Moreau, would you take a question?

Yes.

Senator, my objective in this question is to build maximum support for this bill. This is a good bill, but it has one flaw. My question to you is this: If people of good faith and people of goodwill hate the law to combat hate, have we failed as a Parliament and can we not do better?

We will have failed as a Parliament, Senator Cardozo, if we pass legislation that is so vague that it results in innocent people being convicted. That is precisely what the clarification clause seeks to prevent. The aim is to ensure that a person who speaks in good faith and has no criminal intent is not convicted. In criminal law, not only must the standard of proof be beyond a reasonable doubt, but the use of words carries a meaning that goes beyond mere intent. Consequently, the wording chosen here is intended to make clear that any speech made without malicious intent does not constitute a criminal offence under this act. This is precisely what members of religious communities are calling for.

However, it must be expressed in a way that holds a very specific legal significance in criminal law, and that is precisely what this provision does.

The amendment you are supporting removes a safeguard that specifically provides that, where there is no criminal intent, where there is no mens rea, there is no criminal offence under the law.

Sometimes the perfect is the enemy of the good.

Senator Moreau, would you take another question?

Yes.

Looking back at Minister Sean Fraser’s answers to some of the questions he received at Senate Question Period last week, he said:

To be clear, Bill C-9, from its very inception, was designed to promote religious freedom in Canada. We were deeply concerned about the intimidation and obstruction for peace-loving citizens of this country being denied the opportunity to practise their faith and to participate fully in the communities of faith to which they belong and which they cherish.

Then he said:

The decision to move forward with a change in terms of how the religious exemption operates was not something baked into the government’s proposal at the outset, but became essential in order to preserve the protections I’ve just discussed that were in the bill as a result of dealings that took place at the Standing Committee on Justice and Human Rights, independent of my office, of course, on the House of Commons side of Parliament.

He indicated that because of the minority government situation that existed at the time these dealings were happening in committee — the government only had a minority at committee and had a minority in the House of Commons, which has recently changed — that was the reason he needed to go forward. Those are his exact words.

Does that provide more clarity to you on what the minister’s reasoning was as to the need for that amendment to agree with the Bloc amendment?

The government’s intention remains unchanged. This has nothing to do with whether the government has a minority or a majority.

We’re amending the Criminal Code. As you and I both know, the Criminal Code says that a conviction hinges on proving something beyond a reasonable doubt. Moreover, what must be proven is not only the fact that the offence was committed — the actus reus — but also the mens rea, the criminal intent.

Senator Martin is correct that the substance of the clarification clause is also in the act. Why? It’s there because we don’t want something like religious speech devoid of criminal intent or the intention to commit an offence to constitute an offence.

As such, the choice of words is important, and the words that were chosen provide better protection that the words “in good faith.” That’s why the government opposes the amendment, which would reduce the protection the government wishes to provide to religious communities or anyone who speaks without criminal intent.

Would Senator Moreau take another question?

Absolutely.

Thank you. We have heard from Senator McPhedran, Senator Cardozo and Senator Martin about concerns that have been expressed, without a doubt, by many Canadians and certain faith groups. We know it was mixed, but the majority in committee was in favour of this, even though it has been presented a little differently.

This clarity clause is absolutely critical, but it seems to me that not many Canadians know about it. They have a perception about this law that we are considering here today. They have concerns. They have fears. These are things that are real for people.

Perceptions that may not be based on the facts can also take off across the country and influence how Canadians are feeling.

Could you tell us, Senator Moreau, what the government plans to do if this bill passes with this clause, without this amendment, to reassure Canadians, who have these very genuine concerns, that they will actually be protected?

The government’s intention is crystal clear in this regard, as the minister said. I would also refer you to the excellent speech that Senator Wells gave earlier. As I myself reiterated in my comments expressing our opposition to this amendment, the bill does not target religious communities or the expression of faith.

I am sure that the government can remind people of that if necessary. You’re right. We are aware of the fact that some people may have concerns about the scope of the bill. The purpose of the clause in question is to reassure them.

However, the challenge here is that, in criminal law, the choice of words is extremely important and can have a significant impact. The goal is to prevent a person who speaks without criminal intent from being prosecuted.

Canadians who are practising their faith in churches, synagogues or mosques do so without any criminal intent. We want to be clear so that they are not prosecuted for doing so.

That is what the bill does. The use of these words combined with the fact that criminal law cases must be proven beyond a reasonable doubt, not only regarding the criminal act itself but also regarding the intent to commit it, provides much greater protection than a mere reference to good faith.

The testimony that we heard underscores the fact that the good-faith defence has not been very successful over the past 50 years.

Since the government’s genuine intention is to provide reassurance, it has no choice but to oppose Senator Martin’s amendment. I don’t want to impugn Senator Martin’s motives in any way, because I know the amendment is intended in good faith, to use the expression yet again, but the government is convinced — and I fully support this view — that this amendment would offer less protection than the current wording in the bill, which will amend the Criminal Code, and the clarification clause that is found outside the Criminal Code.

What is the purpose of this clarification clause? In fact, it enables a judge hearing a criminal case based on an alleged offence to interpret the legislator’s intention, referring not only to the text of the Criminal Code, but also to that of the clarification clause.

Your question gives me the opportunity to address another very important issue. When a court is called upon to rule on a similar offence, the judge may seek to ascertain the legislator’s intention behind a provision. The legislator’s intention is expressed not only in law through the text of the legislation being amended, but also through all the discussions that take place around it, during the legislative process leading to the passage of the legislation.

It has been clearly shown — whether by Senator Wells’ speech, by my intention in this chamber or by the Minister of Justice’s interventions before a Senate committee and during debates in the House of Commons — that the government’s intention is not to criminalize religious practice, whether Catholic, Muslim, Jewish or other.

Do you have a supplementary, Senator Coyle?

Thank you. It was not me — or even us — I was asking you to convince. You did a good job of that, by the way.

My question was more about the reassurance. We are in a bubble here. The people who have written to us have real concerns, which are being brought forward by colleagues throughout the chamber on their behalf, so it is not just in this process of legislating. Once we have this legislation — if the bill passes, as the government wishes — what will the government do to reassure Canadians about these concerns that they have?

They firmly believe in these concerns. This is real for people from a number of faiths. What can the government do — assuming the bill passes, as the government desires — to communicate with people to reassure them that their fears can be allayed?

Thank you very much for your intervention, Senator Coyle. I understand the underlying intention. I’m convinced that the government is listening. You’re absolutely right to say that not only are we in a bubble, but that the vocabulary used in law is sometimes too arcane when the goal is to communicate in simple terms with all Canadians.

I can assure you that I will pass on suggestions to the minister about broad communication — without making any assumptions about the Senate’s decision — that is, broad communication if the Senate were to pass Bill C-9 without the amendment proposed by Senator Martin, which I recommend to my honourable colleagues. I am sure that the folks at the Department of Justice and the minister himself are listening to us.

Thank you very much, Your Honour. I have a question for Senator Moreau. I am very puzzled by part of what you said in one of your responses.

Here is what puzzles me: It sounded to me as if you were giving a legal opinion about the amendment being proposed by Senator Martin. If I heard that correctly, could you please provide for us the source of your legal opinion, given that this amendment was just tabled?

In addition, can I just observe the words that you are opposing, perhaps through a legal opinion — and, certainly, your opinion, if not a legal one — are about a statement in good faith, on a matter of public interest and about discussion, publication or debate? I am completely puzzled by the harm that those words would do, and I would very much appreciate more explanation from you regarding your reasoning.

What I shared, Senator McPhedran, was the government’s position on the amendment proposed by Senator Martin. The government’s position is not so much about the aspect of good faith as it is about the fact that this amendment removes the elements that Senator McBean raised in her question, when those elements provide greater protection than simple good faith when it comes to ensuring that people who express their faith are not faced with criminal prosecution.

If we take another look at the words that are struck out by the amendment — they are obviously not included in the amendment because it strikes them out — and if we look at the wording in the clarification clause, this seeks to ensure that anything that is not done with deliberate intent to commit a criminal act, thus in the absence of mens rea, does not result in criminal prosecution under the provisions of the bill. That is what the government wants to do and that is the government’s position.

You may see what I was saying as a legal opinion, but the concept of good faith in criminal law and the concept of criminal intent are legal concepts. It is the government’s position that, based on these concepts, the protection currently afforded by the clarification clause is much stronger than the protection afforded by the simple concept of good faith.

Would Senator Moreau take a question?

I will.

Thank you. Does including the “for greater certainty” clause not represent the legislative intent of Parliament to actually provide these protections? Would removing a good part of that clause not actually end up weakening the protections?

Thank you for your question, Senator Wells. I think it did a nice job of summarizing the reasons why I rose today to lay out the government’s opinion. Removing the words that are struck out by Senator Martin’s amendment would indeed mean less protection.

I really enjoyed Senator Coyle’s speech. She told us that we are living in a bubble. Yes, we are, but we have an obligation as legislators, particularly when we are creating criminal offences, to ensure that we do not target people who should not be targeted. The government is well aware of the concerns expressed by Canadians in that regard and it is paying close attention to the drafting of the bill and the protection clause to reassure those who expressed concerns.

Leader, I want to thank you for the commitment you have to share your perspective as well as what the government intends. This debate, as you say, will be very important for the future.

I was listening carefully to all the questions and the answers you gave, and I am willing to compromise. I understand the importance of the final phrase in my amendment, which you have raised as a concern. Would you agree to a subamendment where I remove (b) and keep that phrase, but we insert “in good faith” because of what we’ve heard around the room and what we’ve heard from millions of Canadians? Would you consider such a compromise? Would you support such a subamendment? It would simply read:

That Bill C-9 be not now read a third time, but that it be amended, in clause 11.1, on page 6,

(a) by replacing line 22 with the following:

“nicating a statement in good faith on a matter of public inter-”.

This is what you have been saying in your responses. Would you accept such a subamendment?

It’s difficult for me to accept it without consulting to see if the government would accept that.

I can suggest that we suspend for me to be able to consult with government officials and get back to you with an answer. Is that something that you might consider?

May I just add one response?

Is that a question to Senator Moreau?

Yes.

The only other point was, because the bill has now been amended, it would need to go back to the House. In terms of a timeline, it would not be adding any more time; is that correct?

The bill has been amended with the amendment suggested by Senator Bernard. The government agreed to that. You are right; the bill will have to go back to the House of Commons for consideration and an answer.

You’re asking me whether I would accept it. I will not accept it without consultation with the government. If you wish to pursue that, I will ask that the Senate suspend for a few minutes. We can do this consultation quite rapidly, and I can get back to you with the position of the government.

I’m not sure if I understand the discussion. Senator Martin, what is your intention? Then I will go back to Senator Moreau.

Are you asking to suspend?

I’m not asking for the suspension; I’m asking the leader if he would consider a subamendment that removes paragraph (b) from my original amendment. He responded that he would need to make a quick call, so he’s calling for a suspension of the Senate.

Senator Moreau, are you asking that we suspend the sitting so you can continue your discussions and come to an agreement?

Your Honour, let me be very clear. I am seeking my colleagues’ consent to suspend for 30 minutes so that I can consult with the departmental officials to ascertain whether or not I can accommodate Senator Martin’s request. I need to ensure that the legislative drafting is consistent with the amendment she has just proposed and that there will be no problems.

My request is as follows: Can we suspend for 30 minutes so that I can carry out the necessary consultations?

Honourable senators, is leave granted to suspend the sitting for 30 minutes with a five-minute bell to call in the senators?

It would amend my subamendment.

I would like us to finish hearing what Senator Moncion was asking.

Is the question for me or for Senator Martin?

Your Honour, I rise on a point of order.

It’s clear that if the will of the chamber is to suspend for whatever reason — if the government leader asks for it or in the case of an emergency — the Speaker can ask for leave to suspend for any period of time for a variety of reasons. It’s within protocol.

Thank you, Senator Housakos. The request for suspension has been made. I’m going to ask for leave from the senators.

Senator Moncion, do you intend to say no? Explain the reason, and I will get back to you with a ruling.

Honourable senators, with your leave, I’ll suspend for 10 minutes to consult the clerks, and then I’ll come back with an answer.

Thank you for agreeing to suspend. Departmental officials are currently looking at how the proposed subamendment would affect the text. As such, I must ask for another suspension for about 20 minutes, which I think will be enough time to get an analysis that will enable me to answer Senator Martin’s question about whether we would be open to her proposed subamendment or not.

Honourable senators, is leave granted to suspend for 20 minutes?

The bells will ring for five minutes beforehand. The sitting is suspended until 5:11 p.m.

I want to once again thank Senator Martin. I know that we are working together here to figure out the best way to word things.

I had the opportunity to submit what will be a subamendment presented by Senator Martin, who wants to add the concept of good faith and keep the end of clause 11.1 as is.

What I have been told is that the House of Commons Standing Committee on Justice and Human Rights looked at various options for a legal certainty clause. It went with the wording that now appears in the bill. The choice was deliberate. The government wanted to clarify the nature of the offence without using any wording that would require additional interpretation, and that includes a reference to the concept of good faith, which, as I said, is not clearly defined in criminal law.

The subamendment proposed by Senator Martin seeks to do what was indirectly rejected in the House of Commons and committee. According to the department, it would reintroduce the idea that hate speech can be used in good faith or that vilification or detestation can be expressed or encouraged in good faith, which is completely unacceptable. I am well aware that this is not what Senator Martin wants to do.

Let me remind you about the question asked by Senator McBean. I’m going to reread clause 11.1(1) of the bill, which is the provision addressed by the amendment. It reads as follows:

11.‍1 (1) For greater certainty, nothing in subsection 319(2) or (2.‍2) of the Criminal Code shall be construed as prohibiting a person from communicating a statement on a matter of public interest, including an educational, religious, political or scientific statement made in the course of a discussion, publication or debate, if —

— while communicating —

— they do not wilfully promote hatred against an identifiable group by communicating the statement.

Those are the words that the amendment seeks to remove. If we keep these words, which the subamendment would allow, but include the notion of good faith, we would end up with an incompatible concept. In other words, if someone communicates a statement or participates in a discussion, publication or debate but does not wilfully promote hatred, they would implicitly be acting in good faith.

By including the notion of good faith in the text, as the subamendment suggests, we end up with a concept that creates a contradiction between the beginning and end of the text, resulting in a clause that makes no sense.

Therefore, for that reason, and considering Senator Martin’s question, the government cannot support a subamendment that introduces the notion of good faith at the start of the text but keeps the words “if they do not wilfully promote hatred against an identifiable group,” since promoting hatred in good faith is unthinkable.

Are there no other questions to Senator Moreau?

Honourable senators, I hadn’t really planned to speak, and perhaps I’m doing so to my own detriment.

I want to start by saying that the issues raised by Senator Martin are very important, as are the comments made by Senator Cardozo. I must say that, like all of you, I read and received letters, emails, cards and so on. I was intrigued and so I decided to look into this more closely. I realized that the initial version of this bill did not exclude the two “good faith” defences, either for the offence of anti-Semitism or for the offence of promoting hatred, offences that existed in the Criminal Code and to which we were going to add a third offence on the use of symbols to spread hate.

I really gave this some thought and I thank Senator Martin for giving us the opportunity to debate it. I went to see her yesterday to tell her that I did not know the answer but that I was going to work on it, and I also asked her whether we could share her amendment, and she agreed. I went to my office last night after the National Finance Committee meeting and stayed until the wee hours of the morning. I even missed the Banking Committee meeting this morning, for which I apologize to the chair, Senator Gignac, because I was busy working on this issue and researching it with my team.

I will try to explain why I think that the proposed amendment must, unfortunately, be rejected. It is because it will have unintended negative effects. I will start by presenting several arguments. I apologize because I do not have a speech prepared.

You may say, in English, I might be rambling. I am sure I will be. Please be tolerant with me.

So, the infraction of promoting hatred is not new, at least not new for me. Maybe some of you were not yet born at the time, but it was introduced in 1970. Before that, it did not exist. We had defamatory comments. That could be extended to defamation against a group, but there was no crime such as committing hatred or promoting hatred.

In 1979, the first decision was rendered on these new provisions. It was a case in the Ontario Court of Appeal called R. v. Buzzanga and Durocher. The court had to deal with the concept of “wilful” and wilfully promoting something against a group. What did it mean? It had to be targeting a specific group. The court dealt with these concepts. That was the first decision.

In 1982, we had the patriation of our Constitution, and it included the Charter of Rights and Freedoms. It came into effect in 1984, as those of us who were alive and practising at the time know.

By 1990, we get the first judgment of the Supreme Court, and it is the case called Keegstra, to which Senator Wells ably referred, and in Keegstra, the court looks at the definitions of the Criminal Code about promoting hatred — section 319 — the one we are dealing with and that is being amended by this bill.

It was Chief Justice Dickson, and it was not unanimous, but he was speaking for the majority. He referred to the defences that are being removed by the bill. The court wrote:

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 . . . would seem to operate to negate directly the mens rea in the offence, for only rarely will one who intends to promote hatred be acting in good faith or upon honest belief. . . .

So the court expressed the concept that good faith cannot be associated with promoting hatred. If you promote hatred, you cannot be acting in good faith. Because if you wilfully promote hatred against a targeted group to harm that group, if you know that you are going to do this and you are wilfully doing this — you are wilfully imposing harm on another group. You cannot be in good faith to do that. I cannot kill my neighbour in good faith, and I cannot promote hatred in good faith.

This is what was behind this amendment. The court continues:

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) —

— the one creating the offence —

— is overbroad or unduly vague, or will be perceived as such . . . .

Therefore, the defence was useful to define what had appeared to the court to be maybe overbroad or vague. We are in 1990.

In 2005, the Supreme Court, in the case of Mugesera — Mugesera is a guy who was one of the main players in the Rwandan massacres and the killing of 1 million people. Mugesera was in Canada, and the question was if we should extradite this person because he is a genocider or a big murderer and somebody who was accused of promoting hatred in Rwanda. When he was on the radio, he would describe the minority group as being cockroaches that deserve to be killed.

As a result of his ongoing campaign rallies — public rallies and everything else — close to a million people died, including wives of men who were killing their own wives.

I was teaching in Rwanda years after about the Charter of Rights and Freedoms and what the role of the courts is, and I met people who were charged with killing their own wives. Hatred, when it is not controlled, can lead to the worst things possible.

Here are the comments of Chief Justice McLachlin of the Supreme Court in 2005. She refers to the case that I referred to, the 1979 Ontario Court of Appeal decision in R. v. Buzzanga and Durocher. She refers to Judge Martin of the Court of Appeal, who compared the two subsections of section 319 and concluded:

. . . that the guilty mind required by subs. (1) is something less than intentional promotion of hatred. On the other hand, the use of the word “wilfully” in subs. (2) suggests that the offence is made out only if the accused had as a conscious purpose the promotion of hatred against the identifiable group, or if he or she foresaw that the promotion of hatred against that group was certain to result and nevertheless communicated the statements. Although the causal connections need not be proven, the speaker must desire that the message stir up hatred.

The “good faith” defence is kind of blurring things a bit, but the word “wilful” means, really, that the accused targeted a group, and that it was designed to achieve a certain result.

So we go on to another judgment from the Supreme Court that supports what I am saying. So you don’t have to believe me, but maybe you will believe the Supreme Court, as I do most of the time.

In 2013, in the decision of Saskatchewan v. Whatcott, again, the definition of what constitutes hatred was considered by the Supreme Court. The Supreme Court — and I will refer to the summary because it will be shorter; I don’t want to exceed my 15 minutes — said:

. . . the legislative term “hatred” or “hatred or contempt” must be interpreted as being restricted to those extreme manifestations of the emotion described by the words “detestation” and “vilification”.

The court came out with a clear definition of what “hatred” is for the first time.

Here, we jump to the bill. What is the bill doing? The bill is proposing, first, to introduce in the Criminal Code a definition of “hatred,” and it is the following definition:

. . . hatred means an emotion of an intense and extreme nature that is clearly associated with vilification and detestation . . . .

We are codifying in that bill what the Supreme Court has defined, finally, in 2013, as “hatred.” Now we know what it means, and the scope of it is very limited.

That’s what the bill is doing. It is true that, at first reading, when the bill was introduced in the other place — and Senator Housakos referred to it ably — the defences were maintained. But the debate we were engaged in at clause by clause, and later on — as Senator Moreau referred to — there were even further consultations with groups, and I think we came to the realization of the fact that it was not necessary to reintroduce these defences.

Why? Because to reintroduce these defences of good faith in what is proposed here will dilute the intent of what is promoting hatred, because if it is a defence, it means that the promotion of hatred should include that type of situation, which it cannot. Because if you are in good faith, you cannot commit the crime. But if you are committing the crime, you cannot be in good faith. If you confuse both, you are making the concept vague — maybe broader or narrower. You are making it an interesting issue for judges in the future, but you are not helping people.

When the minister appeared before us — and I don’t know how much time I have left, two or three minutes, I suppose — I asked the minister a question about it. He answered the question, and I said, “So we don’t need the defence anymore because it is included in the definition?” That was my supplementary question, and he answered:

Even more than that — . . . I believe it is stronger. The previous iteration of the defence would have suggested that the behaviour people may be concerned with was a hate crime to begin with, for which a defence was needed.

In my view, it would be a more accurate reflection of the government’s intent to recognize that the practice of faith is not a hate crime in the first place that the defence is required for.

What is being proposed here is a good-faith attempt, I’m sure, to try to reintroduce that concept in the legislation. The overall result of it will be to create ambiguity and to let arguments be made that members of some groups should be killed or expelled from the neighbourhood, but it was being said in “good faith.” That is contrary to what we are trying to do here, since the Supreme Court has defined what hatred is in a very narrow way.

Colleagues, it all starts with good intentions. Of course, I am mindful of the concerns that were expressed, but the answer to concerns is not to say that the concerns are preventing us from doing it. The answer to concerns is that we’re trying to do it properly, and we’re going to explain why your concerns are real but not actually substantive, and that we should now move on to work within this new framework.

Thank you very much, colleagues.

Bravo to Senator Dalphond for that extemporaneous and very learned exposition. I will not be able to match what he said, and, in some ways, I will be repeating a lot of it but in much less exalted language — much more of a layperson’s interpretation — really, a kind of recounting of where I’ve come to on this bill.

Like all of you who have lobbied actively, I am a member of a faith community and am sympathetic to the concerns of all faith communities about the restoration of the “good faith” protections.

I’m really happy that this exchange has taken place. I’m not sure about this suspension. I’m not sure if it’s a new precedent that we can now negotiate on the floor, but we’ll see what happens in the future. I’m really happy for this exchange, because it has helped clarify some things for me. I am just sharing with you my thought process in the hopes that it might help you, as well.

I was sympathetic to the restoration of the “good faith” defence and would have supported it in its original form. However, as I listened to the debate, particularly Senator Martin’s good-faith attempt to try to bring it back, it struck me that we should not be protecting the “good faith” defence; we should be protecting religious freedom. That is the goal. That struck me very clearly in the course of this very debate, and that’s why these debates are so important.

Even more so, the amendment proposed by Senator Martin, I think, allows for something that goes beyond a “good faith” defence solely for religious groups, and that makes it even more subject to distortion and abuse. As Senator Dalphond explained, there really is no “good faith” defence for calling for the vilification, detestation or extermination of human beings because they are cockroaches; there is no “good faith” defence for that.

One would want to give some latitude, I suppose, to religious communities because their texts are ancient, and ancient texts contain ancient ideas that must always be reinterpreted. Honest religious people do that all the time. I am sensitive to that and would have supported something of that sort, but there are many less honourable groups and people who will use a “good faith” argument to make arguments that are entirely not in good faith but are reprehensible. I would not want this amendment to open up that possibility.

All of that is to say that I’ve come to my own good-faith epiphany on this topic. I still have a lot of reservations about this bill. I’m fundamentally concerned about the erosion of civil rights that it might engender. While that might seem contradictory to the position I’m taking, I think that’s a bigger problem with the bill. I worry it will be implemented in a selective and asymmetrical way, where certain groups are seen to be more likely to be wilfully promoting hate than others simply because of where they come from, what their last names are or what their religions happen to be. That’s not out of the realm of possibility, and I think we can see it today already. I continue to worry about that.

This amendment does not save it. The bill, as a whole, has that problem, and maybe that’s a problem for the courts to sort out in the end.

If I could just conclude by addressing the very astute observation that Senator Martin made that the original clarifying statement was tautological or circular: I don’t think it is. It’s only tautological if you feel that the “good faith” distinction is the way to solve this problem, but it’s not. I’ve come to the realization that it’s not the way to save this bill. The way you solve the problem is to stress religious freedom, which is already captured in our Charter of Rights and Freedoms in section 2.

So, colleagues, I will not support the amendment, and I still have reservations about the rest of the bill. Thank you for allowing me to express my thoughts on this.

Will you take a question?

Of course.

I am not a lawyer, but I am a legislator. I’ve been in the Senate for a long time and have come to appreciate the advice of legal experts and others who can look at what’s happening from their perspectives outside of this Ottawa bubble.

There are people following this debate very carefully, and a very good lawyer is saying that there is a misunderstanding that my amendment is introducing the idea that the promotion of hate can be done in good faith, but it isn’t. In fact, it clarifies that the opposite is true, consistent with the “good faith” defence that still exists in proposed paragraph 319(3)(d).

So, what would you say — not to me — to the lawyer?

I don’t want to debate a lawyer whom I don’t know and who is speaking to you through a cellphone elsewhere. I’m not a lawyer, either.

All I would say is that the reintroduction of the term “good faith” is not helpful. I think that’s really the bottom line. If you and the lawyer tell me that wilful hatred is still the defining feature, that’s good; that’s how it should be. That’s what we have already, so we don’t need to do anything with it; it’s already there.

The introduction of “good faith,” I think, based on Senator Dalphond’s exposition, as well as Senator Moreau’s and others’, is that the introduction of the “good faith” defence actually muddies the water and might create confusion that could harm Canadians because they may latch onto “good faith.” You’re shaking your head, but that’s my interpretation. If a Canadian latches onto “good faith” and downplays “wilfully promoting hatred,” then they can get themselves into trouble.

Are 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.

Is there agreement on the length of the bell?

The vote will take place at 5:54.

Call in the senators.