Bill C-9: Senate Passes Bill Without Amendments for Religious Expression

The Senate passed Bill C-9, the Combatting Hate Act without making any amendments to address religious expression despite being urged to do so by lawyers, civil liberties organizations, and a diverse array of faith groups.

Senate Votes on Amendments

At Report stage on June 3, the Senate “negatived” (defeated) an amendment proposed by the Senate Standing Committee on Human Rights, which would have added “condoning, denying or downplaying the Indian Residential Schools Systems” to the offence of wilful promotion of hatred.

At Third Reading stage on June 4, the Senate debated Bill C-9. It passed an amendment to add noose to the list of symbols to the offence of wilful promotion of hatred by displaying terrorism and hate symbols.

The Senate also debated an amendment to the “for greater certainty” clause, as proposed by Christian Legal Fellowship and supported by CCCC. The amendment was defeated in a 40-21 vote.

What is the “for greater certainty” Clause?

The “for greater certainty” clause was intended to clarify the scope of conduct captured by the hate offences and was introduced in response to the significant opposition and concern over removing the good faith religious defence.

Readers may recall that the first version of Bill C-9 did not remove the good faith religious defence. Instead, it became a victim of political bargaining between federal parties whereby the minority government (at the time) required another party’s support in order to pass the Bill. To secure that support, the good faith religious defence was repealed.

As noted, the “for greater certainty” clause was added in response to significant outcry over the repeal of the good faith religious defence.

The clause is included twice in Bill C-9 to “clarify” different offences:

Clarification — subsections 319(2) and (2.‍2)

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

Clarification — subsection 319(2.‍1)

(2) For greater certainty, nothing in subsection 319(2.‍1) 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 they do not wilfully promote antisemitism by condoning, denying or downplaying the Holocaust.

While this change was promoted as being helpful, it does not offer the same protection of religious expression as the good-faith religious defence in the Criminal Code. The good faith religious defence expressly safeguards religious expression in ways this new wording does not. The clauses merely restate the offence; they essentially say ‘your religious statements are not a criminal offence if they don’t wilfuly promote hatred’.

The amendment would have changed the clause to be:

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

Misleading Debate on “for greater certainty” Amendment and Good Faith Religious Defence

During the Senate debate, there was misrepresentation and confusion about the legal implications of the amendment. Some Senators suggested that the amendment would limit protection for good faith religious expression by lowering the threshold for prosecution of the offence. But this confused the offence with a clarification.

The offence sets out what must be proven to prosecute the offence (these are known as elements of an offence). The clarification is not meant to repeat the elements of the offence. Instead it is meant to carve out conduct that is not captured by the offence. The amendment would have fulfilled that purpose.

Senators also suggested that the defence should be repealed because “good faith religious expression, debate and teaching are fully protected by the Charter” and that the proposed amendment was “solving a problem that does not exist.” Senators further argued that the good faith religious defence was “a loophole” that “allowed the deliberate incitement of hatred against Canadians […] simply because the speaker wrapped it in religious language.”

Court decisions say otherwise. The Supreme Court of Canada explained that the defences:

• Make “the scope of the wilful promotion of hatred more explicit”
• Reduce the “danger … that s. 319(2) [the offence] is overbroad or unduly vague”
• Reflect “a commitment to the idea that an individual’s freedom of expression will not be curtailed in borderline cases”
• Ensure the constitutionality of the offences by ensuring they are only “a minimal impairment of the freedom of expression” as required under the Charter

In contrast to Senators’ assertions, the Ontario Court of Appeal has explicitly stated that protection of religious freedom cannot be used “with impunity as a Trojan Horse” to cloak hate propaganda in religious language.

Unanswered Questions

Many unanswered questions remain regarding Bill C-9:

• What specifically are the barriers to enforcing existing hate offences?
• How are the new offences going to avoid those same barriers to enforcement?
• When the Supreme Court stated the good faith religious defence is part of what ensures the offence is constitutionally sound, will it remain so when the defence is repealed?
• How will the “for greater certainty” clause, in its circular drafting be understood?

It is certainly disappointing to see legislators disregard concerns about expression (including religious) from a diverse array of witnesses, organizations, and individual Canadians in regard to this Bill. CCCC understands the real issue of hate crimes that the Bill is intended to address, but remains concerned about the way in which Bill C-9 proposes to address them, and without examining existing tools and barriers to their use.

What is Next for Bill C-9?

When Bills passed by the House of Commons are amended by the Senate, a message is sent to the House of Commons with the amendments. The House of Commons will accept or reject the amendments or possibly make further amendments. Messages will be exchanged until an agreement is reached, or in rare cases, a conference can be held. This is because the versions passed by the House of Commons and Senate must be identical to become law.

Advocating Together

Thank you for your support, prayers, and encouragement as we have worked to advocate for a wise approach to real problems of hateful acts like antisemitism, but which also preserve a necessary scope for good faith religious expression. We’re also grateful that so many of you directly and respectfully shared your own concerns with MPs and Senators.

Legislators have repeatedly stated that the right to read and teach sacred texts, to express sincerely held religious beliefs, to advocate for values in the public square – to practice religion – does not constitute a crime.

While it is important for those protections to be set out in the legislation itself, we trust that these statements were made in good faith and that Bill C-9 will be implemented accordingly.