Criminal Code

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

There is no denying the need to fight hate in this country, be it anti-Semitism, Islamophobia, homophobia, transphobia or “incel”-like misogyny. We have seen a recent rise in public racism in this country that takes my breath away, targeted at immigrants and refugees from East Asia and South Asia, Africa and the Caribbean, Latin America and the Middle East. Political groups such as the Dominion Society are now openly calling for campaigns of “remigration.”

And then there is the enduring national shame of anti-Indigenous racism, Canada’s original and perpetual sin, a hate that helps to drive the crisis of missing and murdered Indigenous women who are all too often the target of sexual violence because of their racial identity.

Believe me; I am keenly aware of just how much danger there is in a hateful, hate-filled Canada. A dear friend emailed me just the other day to let me know that her synagogue in Toronto had been sprayed by gunfire. In 2024, the synagogue at the end of my daughter’s street in Vancouver was firebombed. For me, as a person of paternal Jewish descent, this isn’t a hypothetical debate; it’s a deeply personal one.

What is fuelling this wave of hate and hate crimes? Some of it can certainly be traced back to the social disruptions wrought on our world by the COVID-19 pandemic, which eroded our sense of community cohesion, fuelled suspicion of government and fuelled, in particular, anti-Asian scapegoating.

Some of it can probably be attributed to leakage from Donald Trump’s America, where his twisted version of the Republican Party has shamelessly embraced race hate and hatred of immigrants, in particular, as a populist drum beat.

And, of course, the terrible wars in the Middle East are driving much of the upswing in anti-Semitism and Islamophobia in Canada and pitting Jewish and Muslim Canadians against one another at a time when, frankly, Canadian Muslims and Canadian Jews need to be standing together as allies against the rising tide of White supremacy.

Some of it, though, is specific to Canada and to this moment. Legislation and court decisions that have upheld treaty rights and the duty to consult with First Nations, Métis and Inuit communities have fed into long-standing anti-Indigenous sentiment. The horrifying rise in homophobia and transphobia is, in part, a backlash against all the legal and legislative victories the queer and trans communities have won in this country over the past three decades. Transphobia, in particular, has also been weaponized in a dangerously cynical and calculated way by certain right-wing Canadian political strategists as a way to win votes in religious minority communities.

All these historical hates, meanwhile, are being supercharged with the most contemporary technologies. Where once upon a time hate-mongers had to stand on street corners, handing out flyers and yelling through megaphones, today, hate propaganda travels at lightning speed via Wi-Fi and fibre-optic cables, finding mass audiences instantaneously. Hate groups no longer have to meet in small groups in dank basements. Instead, haters of all flavours and varieties can find their fellow travellers online. Radicalization happens in real time. Lies, disinformation and conspiracy theories spread unchecked, far beyond the ability of our impoverished and disempowered news organizations to debunk them.

And, thus, we have before us Bill C-9, which seeks to protect temples, synagogues, mosques, gurdwaras, churches and other religious spaces and to ensure that community members have safe and unimpeded access to those places of worship, free from intimidation, be it online or in person.

The bill would offer similar protections not just to faith institutions but to cultural spaces, ranging from pride centres and Native Friendship Centres to cemeteries, religious schools and seniors’ homes linked to faith and ethnic communities.

The bill would crack down on the use of archetypal Nazi insignia to instill hate and horror, and it attempts to include more modern symbols of hate in the same way.

As well, the bill would allow for far stiffer sentences for those convicted of crimes motivated by hatred. At the same time, it would allow a person who commits any offence under any act of Parliament for reasons of hatred to also be charged with a secondary criminal offence of a hate-motivated act.

I think we all understand the need to address the challenge of hate and hate-motivated crimes in our society, and I support the goals of Bill C-9. But as we prepare to send the bill to committee, I want to raise some questions and cautions, which grow from my experiences with past efforts to combat hate with criminal legislation and trials.

I came of age as a human being — and a journalist — in Alberta when it was in the grips of an anti-Semitic fever.

In 1988, as a young magazine reporter, I covered the case of a group of members of the Ku Klux Klan who tried to blow up Calgary’s Jewish Community Centre and to kidnap and murder Calgary philanthropist and businessman Harold Milavsky.

Luckily, I was not assigned — perhaps for obvious reasons — to cover “Aryan Fest,” which took place near Provost, Alberta, in the fall of 1990. The event was organized by several members of the Church of Jesus Christ Christian-Aryan Nations, led by White supremacist Terry Long. At that event, there was a cross burning and the display of a sign reading “KKK White Power” and, of course, a Nazi flag. Participants wore Nazi uniforms, shouted racist and anti-Semitic chants and displayed and discharged weapons.

Anti-Semitism is, of course, one of the oldest of hatreds. But what on earth triggered such an outbreak of grotesque nastiness in 1980s Alberta? Well, let’s just say that the long, drawn-out prosecution and martyrdom of Alberta’s most infamous Holocaust denier, Jim Keegstra, was, I have no doubt, a contributing factor.

Keegstra was a high school social studies teacher in the small central Alberta town of Eckville. For years, he taught his students that the Holocaust was a hoax, a con job pulled off by a cabal of Jews, the better to control the global economy. He taught this vicious lie, unchecked by any principal, any school trustee or any teacher colleague, until one heroic mother, Susan Maddox, sought to have Keegstra fired. Keegstra finally lost his job in 1982, the year I graduated from high school, which was not in Eckville. Two years later he lost his teaching licence.

Then, in 1984, the Crown charged Keegstra with the wilful promotion of hatred. That case, fought all the way to the Supreme Court twice — there and back again — finally concluded in 1996 with a conviction. What was Keegstra’s sentence? No fine. No jail time. Just 200 hours of community service.

Far from silencing Keegstra, those 12 years of appeals and retrials gave him a bully pulpit to posture as a false defender of civil liberties and to amplify his conspiracy theories. He positively basked in national notoriety. Were it not for his prosecution, he likely would have remained unknown and unheard beyond Eckville and its environs.

Instead, in 1987, he was catapulted from being a village schoolteacher to the leader of the Social Credit Party of Canada. Meanwhile, Keegstra’s own lawyer, a fellow Holocaust denier named Doug Christie, used the profile he gained while defending Keegstra to become the founder and leader of the Western Canada Concept party, Alberta’s original separatist movement. And all the while Keegstra and Christie were gleefully making headlines and spreading their lies, anti-Semitic hate crimes in Alberta spiked.

The landmark legal precedent in the Keegstra case established the constitutionality of Canada’s hate speech legislation. The Keegstra ruling, indeed, provides the legal foundation for Bill C-9.

But the experience of covering Keegstra’s legal battles left me forever dubious about the practical wisdom and unintended consequences of criminally prosecuting hate-mongers.

At least Keegstra’s hate was crystal clear. There was plenty of evidence of what he had taught in his classes over many years, plenty of evidence that he’d carefully endeavoured to brainwash impressionable schoolchildren with his beliefs and plenty of evidence that he stood by his opinions to the bitter end.

Prosecuting speech that’s even a bit more subtle, prosecuting speech that’s ambiguous gets trickier.

As someone who spent 30 years as a journalist, as someone who has spent my life fighting for freedom of expression, I have deep concerns about the wisdom of attempting to regulate, much less criminalize, political speech, even when I might find it vile and reprehensible.

Let’s take the symbol of the Hakenkreuz, the Nazis’ appropriation and perversion of the sacred swastika symbol. For more than 100 years, the Nazi Hakenkreuz has been a powerful, frightening symbol of hate and violence. When used today by neo-Nazi and White supremacist groups, that is exactly what it still is. But because it is such a potent political icon, the hooked cross has also been deployed by protest groups to make provocative political points — as a proxy to accuse various contemporary governments of behaving “like” Nazis or “like” fascists.

Does Bill C-9 have enough safeguards to protect protestors, from the left or the right, who might want to use the Hakenkreuz, not necessarily to intimidate Jews but to make a powerful political point about a regime or a policy they don’t like? I’m not sure that it does.

This leads to the larger question of which symbols we ought to ban. I think the meaning of the Nazi Hakenkreuz is clearly, almost universally, understood.

Other political iconography, though, gets tricky. Since there is no government list of official hate groups in Canada, Bill C-9 uses, instead, the pre-existing list of terrorist and extremist groups to build its list of banned symbols. But that list is a poor proxy.

Some of those groups — the Proud Boys, the Atomwaffen Division, the Maniac Murder Cult and even Boko Haram – are clearly hate groups. But others on the list, such as the Sinaloa cartel or the Bishnoi Gang, are organized crime groups. They may do hateful, horrible things, but they aren’t hate groups with well-known, well-recognized hate iconography.

And then what do we do with symbols that have complicated meanings? Hamas is a listed terrorist group, and one of its main symbols is an inverted red triangle, borrowed from the Palestinian flag. But that red triangle is no longer just a symbol of Hamas. Some peaceful pro-Palestinian protestors have adopted it, too. So if someone shows up at an anti-Israeli rally with an upside-down red triangle banner or sign, might they be liable to prosecution? And if not prosecution, might law enforcement be encouraged by these new provisions to react more restrictively, perhaps inappropriately or unconstitutionally?

There are a number of Sikh extremist groups on Canada’s terrorist list, including the Babbar Khalsa and the International Sikh Youth Federation. Is there a possibility that Khalistani flags or Sikh flags, not a symbol of hate, could end up being labelled unfairly as hate symbols?

At the same time, there are other hate groups, such as the Ku Klux Klan and Diagalon, that are not on the terrorist list, which means that well-known KKK emblems, such as a burning cross, a white hood, or a noose — long-established icons of evil and intimidation and symbols often clearly deployed to threaten and intimidate — are not included or considered as hate symbols under this bill’s new provisions.

Another issue with the legislation is its degree of subjectivity. In several areas, these new provisions would apply when an accused’s actions are “motivated by hatred” or when there is “intent to provoke a state of fear.” But it’s not always easy as a police officer to deduce someone’s motivation or intention, and provoking a state of fear is yet another subjective test. What if you provoke fear in someone when that is not your intent?

And then come the perhaps unintended consequences. A provision of the bill makes it an offence to obstruct or interfere intentionally with another’s lawful access to a house of worship, a cultural community centre, a religious school or a senior’s home affiliated with a faith or cultural group. But what if teachers in a Catholic school division go on strike and picket outside a school? What if striking health care aides want to picket the church-affiliated seniors’ home where they work? Might they be captured — however unintentionally — by the provisions of Bill C-9?

These are all issues that I hope will be addressed during committee study of the bill.

Now, I want to turn to the issue that has alarmed many Canadians of faith across the country. The original version of Bill C-9 left intact long-standing defences in the Criminal Code. Those defences state that no person shall be convicted of the wilful promotion of hatred or the wilful promotion of anti‑Semitism:

. . . 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.

The bill was amended at committee in the other place to remove those historic defences.

Our Charter of Rights and Freedoms clearly protects not just freedom of expression but also freedom of religion. Any government legislation that could trespass on those rights deserves our keenest critique.

Yet I must say this: For thousands of years, organized religion has been the excuse and the vehicle for some of the worst acts of hatred and persecution the world has ever endured. Whether we’re talking about Christian martyrs in the Roman Colosseum, Muslim victims of the Christian Crusades, Jewish victims of the Spanish Inquisition, Protestant victims of Catholic persecution, Catholic victims of Protestant persecution, Indigenous children in residential schools, religion has been the goad and the excuse for hateful acts of all kinds.

Here we are, in the 21st century, in the world where we see Taliban Muslims attacking Afghan Sikhs; Buddhist persecution of Muslims in Myanmar; Hindu, Sikh and Muslim internecine tension and violence in India and abroad; Jewish-Muslim violence in the Middle East; Muslim-Christian tension in Nigeria.

I could sadly go on.

In the words of the great 17th-century philosopher Blaise Pascal, “Men never do evil so completely and cheerfully as when they do it from religious conviction.”

Or, to quote the original in French, from Pascal’s Les Pensées:

Jamais on ne fait le mal si pleinement et si gaiement, que quand on le fait par un faux principe de conscience.

Let’s not be coy. The thing that most people out there seem most worried about is that Bill C-9 will prevent them from being publicly homophobic and transphobic. I’ll be blunt. I will defend, with my last breath, your freedom of religion and conscience, your right to be homophobic and transphobic, if you think that’s what your faith teaches you and demands. For that matter, I’ll defend your right to be anti-Semitic if that’s what you think your scripture teaches you. But if you, in Canada, are preaching hatred and advocating violence against an identifiable group on the basis of your religion, I’m not convinced that your protestations of sincerely held faith ought to offer some kind of elevated protection from the law.

The truth is that hate laws of any kind must strike a difficult balance. We don’t want legislation that infringes unfairly or unduly on freedom of expression, freedom of association or freedom of religion. We need to protect the right of free political speech, the right of peaceful public protest and picketing and the right of faith groups to worship as they believe right. But we need the right tools to fight crimes of intimidation, crimes of violence and crimes that diminish the safety of all Canadians as well.

Whichever committee or committees end up studying Bill C-9 will not have an easy time of it. I hope they will be able to hear from a broad cross-section of witnesses, not just those who strongly support or denounce the bill but from many experts and civil society groups in the middle who might support the bill’s ends but are also ambivalent about the means.

Bill C-9 proposes changes that may deeply affect how all Canadians can exercise their core democratic rights, which are so fundamental that they were recognized in our law and our political traditions long before the Charter was enacted. What’s more, the bill would make substantial changes to what the Supreme Court of Canada has recognized: that our current criminal offences against the promotion of hatred represent a delicate constitutional balance.

The goals of Bill C-9 are noble. The means demand careful scrutiny. This isn’t a bill that should be held up for frivolous or partisan reasons. It deserves our sharp and timely attention. At the same time, this isn’t a bill that ought to be rushed. If there were ever a time, place or case for sober second thought, Bill C-9 presents it.

Thank you. Hiy hiy.