“ Liberal-Bloc amendments to C-9 will criminalize sections of the Bible, Quran, Torah, and other sacred texts” — Conservative Leader Pierre Poilievre[i]
The Leader of the Official Opposition is at it again. Discarding rational debate for cheap theatrics, Pierre Poilievre is once more stirring up fear and loathing within his base by making wildly misleading claims about proposed government policy. The issue this time? The plan to remove a longstanding provision from the Criminal Code that exempts an individual from being charged with hate crimes “if, in good faith, that person expressed or attempted to establish an opinion on a religious subject or an opinion based on a religious text.”
The fact is that this provision has been in the Criminal Code for fifty years. According to a number of legal experts it has never been used successfully as a defence, so its retention would hardly matter from a practical point of view.[ii] Indeed, the entire package of so-called ‘hate legislation’ measures in the Criminal Code have rarely been invoked. Experts note that since 1990 there have been fewer than two dozen cases involving “willful promotion of hate” for any reason at all, and only one in four of them have resulted in a successful prosecution.
More significant still is the fact that only one of these rare cases involved the defendant claiming the religious provision exemption, and it failed. This would be the case of Mark Harding of Toronto, who was convicted of inciting hatred as a result of his actions distributing documents and leaving phone messages “that described all Muslims as violent, cruel terrorists bent on world domination.”[iii] Harding, a “self-described Christian pastor”, was convicted, but it is also worth noting that his penalty was a conditional sentence and probation.
The trial judge in Harding’s case described the accused’s use of the religious defence as a “Trojan horse” that would allow hate speech to be shielded by being framed as religious doctrine. When Harding appealed his conviction, the appeal judge not only agreed with the trial judge but went further, stressing the clear difference between expressing a religious belief and promoting hatred against others. In his case, Harding not only decried Islam as wrong but made false allegations about its adherents that put them in jeopardy. Put another way, freedom of religion is clearly protected constitutionally but incitement to hatred on so-called religious grounds is not. “Although expression of religious opinion is strongly protected”, the judge wrote, “this protection cannot be used to shield communications intended to promote hatred simply because they are contained in the same message and the one is used to bolster the other.” [iv]
Experts have also noted that the definition of “hate” found in legal decisions to date is very narrow. Put another way, the bar for something to be described as hate speech or an incitement to hatred is very high. The language used must be extreme. Simply being discriminatory or bigoted, being critical of a group or using racist or other stereotypes, is not sufficient. As Professor Richard Moon of the University of Windsor put it, if the language used is sufficiently extreme to count as hate speech, for example by describing a group as subhuman or a danger to society, “then really…should it matter if they think of this as grounded in scripture?”[v]
It appears that the Canadian Conference of Catholic Bishops has lost the plot on this issue along with Mr. Poilievre. In an open letter to the prime minister, they maintain their strong support for measures to prevent hate speech and also explicitly recognize that “the Courts have made clear that only the most extreme forms of speech fall within the scope of hate-propaganda.” Yet still they inexplicably worry that the removal of this provision “risks creating uncertainty for faith communities, clergy, educators, and others who may fear that the expression of traditional moral or doctrinal teachings could be misinterpreted as hate speech and could subject the speaker to proceedings that threaten imprisonment of up to two years..” To which surely the enlightened among us would reply, as Professor Moon has done, that if the comments are so extreme as to be captured by hate legislation, “should it matter if they think it is grounded in scripture?” And what, exactly is the scripture the Bishops are thinking about? In an era of social media misinformation, conspiracy theories, soaring antisemitism and rampant anti-Muslim rhetoric, removing such an antiquated clause would seem to be the least a government could do. And in the current Christian season of peace on earth and good will to all, the bishops would seem to be particularly out of touch with reality.
In the meantime, it would appear that federal Culture and Canadian Identity Minister Mark Miller does have his pulse on Canadian society, having declared that he does not believe “people should be using the Bible, the Qur’an or the Torah to escape from committing a hate crime or claim that what would otherwise be a hate crime is done in the name of a religious text.”[vi] The most recent Leger poll reveals that a substantial majority of Canadians, in all regions of the country and across all age groups, support removing the religious exemption clause.[vii] Amen.
[i] https://www.msn.com/en-ca/news/canada/conservatives-blast-removal-of-religious-exemption-in-hate-speech-laws-as-assault-on-freedom-of-speech/ar-AA1Rvlqs
[ii] https://www.msn.com/en-ca/news/canada/what-is-the-religious-belief-defence-what-to-know-about-proposed-change-to-canada-s-hate-crime-law/ar-AA1RPUIr
[iii] Op cit
[iv] https://www.msn.com/en-ca/news/canada/what-is-the-religious-belief-defence-what-to-know-about-proposed-change-to-canada-s-hate-crime-law/ar-AA1RPUIr
[v] https://www.msn.com/en-ca/news/canada/what-is-the-religious-belief-defence-what-to-know-about-proposed-change-to-canada-s-hate-crime-law/ar-AA1RPUIr
[vi] https://www.msn.com/en-ca/news/canada/conservatives-blast-removal-of-religious-exemption-in-hate-speech-laws-as-assault-on-freedom-of-speech/ar-AA1Rvlqs
[vii] https://www.338canada.ca/p/leger-canadians-support-removing
