Canada’s Bill C-9 And The Growing Threat To Religious Freedom
(ANALYSIS) Canada's parliament is now considering Bill C-9, also known as the "Combatting Hate Act.” Among other hazards, it threatens freedom of religion.
Appropriately, people may be imprisoned for blocking those trying to go to a place of worship or other religious site. However, while increasing the penalty for "hate crimes," it both loosens and inflates the definition of "hate." The public display of hate symbols such as the banners of the Islamic State, or Hamas, or the Nazi Hakenkreuz, would also be forbidden.
The word Hakenkruez — "broken cross" — is often preferred to "swastika" since the latter also refers to millennia-old Buddhist and Hindu symbols. There is a Canadian town named Swastika that, at the outbreak of the Second World War, refused to change its name and instead posted signs declaring: “To hell with Hitler, we came up with our name first.”
One major reason for the proposed changes is the radical upsurge of antisemitic attacks in Canada. According to B’nai Brith Canada’s “Annual Audit of Antisemitic Incidents in Canada,” ntisemitic incidents rose 124 percent from 2022 to 2024.
"Since Hamas’ Oct. 7, 2023, terrorist attacks in Israel, Jewish institutions in Canada have faced unprecedented threats, such as shootings, arson and bomb threats,” the report added.
But what are called "hate" laws frequently violate freedom of speech, of the press, and of religion. They also tend to be vague and, hence, their scope expands and governments use them to punish views that they simply do not like. Moreover, in free societies, they do not reduce extremist activity.
In addition, as the Canadian Constitution Foundation argues: "Bill C-9 would … remove safeguards against politically motivated charges, remove political accountability for charges, would create a risk of overcharging to force plea bargains, expand the availability of hate offences beyond the criminal law, and risks limiting constitutionally protected protest activity.”
Even if one were to accept the necessity of such laws, sections 318 and 319 of the criminal code already ban advocating genocide and the willful promotion of hatred against an identifiable group.
The courts have also sought previously to define what these existing laws legitimately might cover. In the Supreme Court of Canada’s 1990 decision in Keegstra, "Justice Dickson wrote in the majority opinion: "hatred" connotes emotion of an intense and extreme nature that is clearly associated with vilification and detestation."
However, Bill C-9 proposes a much less precise definition of hatred as “the emotion that involves detestation or vilification and that is stronger than disdain or dislike.” (emphasis added). This proffered definition borrows from high court decisions but lacks their important qualifiers such as that the speech be “intense and extreme.” The planned legislation requires merely that it “involves” detestation or vilification.
Also alarming is a recently proposed amendment that would remove the "religious exemption" that exists in current hate crime laws. This exemption, in 319(3) of the criminal code, provides that people cannot be convicted on charges for willful promotion of hate if the speech is based in good faith on the interpretation of a religious text.
The courts have affirmed that this is a justifiable exemption. Furthermore, it has never been used successfully. In the 2001 case R. v. Harding, the court held that, while the expression of religious opinion is strongly protected, it cannot "be used with impunity as a Trojan Horse to carry the intended message of hate forbidden by s. 319.” (Full disclosure: I was an expert witness in the original trial).
Hence, since the exemption has not vitiated present law, its eradication is a solution in search of a problem.
Partly for these reasons, the bill originally tabled by the Canadian government did not in fact propose eliminating the "religious exemption." However, the governing Liberal Party is one vote short of a majority in parliament. It needs the support of another party for C-9 to be able to pass. The Bloc Québécois has offered its support but only on the condition that the exemption be removed, and the Liberals are so far accepting this change.
The Bloc Québécois is a Québec-based nationalist party at the federal level that is the counterpart of the provincial level Coalition Avenir Québec. As I have written recently for Religion Unplugged, the coalition has introduced legislation that would, inter alia, restrict public prayer. Thus, a post-Catholic secularism is shaping not only Québec but also Canada's federal law.
The law is also likely to expand its reach beyond terrorism and racial and religious violence. As a Dec. 13 editorial in the National Post put it :“In the past, people of faith who expressed their genuine belief on transgenderism and homosexuality, for example, enjoyed full free speech protections; that immunity won’t be certain for much longer.”
The current proposed changes to Canada's hate speech laws could introduce a situation similar to Finland. Päivi Räsänen, a grandmother and Finland's former Minister of the Interior, has been charged under the “war crimes and crimes against humanity” section of the Finnish Criminal Code after quoting the New Testament and criticizing the Evangelical Lutheran Church of Finland's official participation in LGBT Pride celebration events.
Or Spain, where Madrid’s Provincial Prosecutor’s Office has launched an investigation into José Ignacio Munilla, Bishop of Orihuela-Alicante, following remarks he made criticizing a proposed ban on so-called “conversion therapy.”
Canada is certainly correct in taking steps to counter attacks on Jews and other minorities, as well as majorities, but C-9 uses a blunderbuss, or what many Canadians might call a Trumpian approach in which vital, long-established rights are threatened.
Paul Marshall is Wilson Professor of Religious Freedom at Baylor’s Institute for Studies of Religion, director of the Religious Freedom Institute’s South and Southeast Asia Action Team, senior fellow at the Hudson Institute’s Center for Religious Freedom and author of over 20 books on religion and politics. His latest book is “Called to be Friends: Called to Serve.”