John Ivison: How I changed my mind about the Liberals ending religious exemptions for hate speech

It is a rare thing to have one’s mind changed by a politician. In the words of the late prime minister Pierre Trudeau, MPs are “nobodies…like pawns in a chess game.”

And yet, as I prepared to write a column questioning the Conservative opposition to C-9, the legislation designed to combat hate crimes and intimidation, I reconsidered my position after listening to the impassioned arguments made by Conservative justice committee member Roman Baber.

To explain: In October last year, I wrote a column pointing to a Leger study that said one in five 18-to 24-year-old Canadians supported Hamas over Israel.

Most were Canadian-born who bought into the settler-colonialism social theory that questions the right of Israel to exist, and proposes that countries like Canada are illegitimate.

To young progressives, Western civilization is an invasion and has no right to exist.

After the massacres in Israel on October 7, 2023, joyous crowds in Mississauga, Ont. honked horns and cheered the news, as if their team had just won the World Cup.

The exhausted majority was forced to watch impotently as the country’s streets and campuses were seized for years by the noisy, illiberal mob.

The consequences were apparent on the streets. In 2024, there was a 125 per cent increase in antisemitic incidents over 2022. Statistics Canada recorded 920 police reported incidents targeting Jews, who were 25 times more likely to experience a hate crime than other Canadians.

Canada has laws against advocating genocide (Section 318 of the Criminal Code), public incitement of hatred (Section 319-1) and wilful promotion of hatred (Section 319-2). But they have been used sparingly because of concerns over freedom of speech and the need to gain the consent of the attorney general to lay charges, which complicates prosecutions.

Jewish groups pressed the government to modernize its hate laws and bring in new legislation, which was the genesis of C-9.

The bill was aimed at Islamophobia, as well as antisemitism, and other forms of hate that have left people feeling unsafe in their own communities.

The legislation would make it a crime to intimidate and obstruct people from accessing places of worship, schools and community centres; would make hate-motivated crime a specific offence; and, make it crime to wilfully promote hatred against an identifiable group by displaying terrorist or other hate symbols, such as the Hamas and Hezbollah flags being waved in Canada after October 7th.

The government was clear that the legislation was not aimed at impacting the freedom to protest or voice concerns peacefully.

But problems have arisen at the justice committee, where the Liberals faced opposition from the Conservatives and needed the co-operation of the Bloc Québécois to pass the bill.

The Criminal Code currently exempts individuals from charges of wilful promotion of hate if the speech is based in good faith on the interpretation of a religious text.

However, the Bloc agreed to support the legislation, on the condition that the bill removed religious exemptions from the wording.

An amendment was added to the bill, with the support of the Liberals, that stipulated the religious exemption defence could not be invoked to justify speech that is deemed hateful.

The deal with the Bloc means C-9 should pass into law, but it is the epitome of Otto von Bismark’s famous quote about legislation being like sausages: “They cease to inspire respect in proportion to what we know about how they are made.”

Baber’s impassioned performance at the justice committee made the case that stripping the religious defence was more likely to criminalize faith than combat hate.

He pointed out that the religious defence has never been used to acquit a defendant accused of public incitement of hatred. “When we start going down the road of criminalizing more and more speech, we kill free speech,” he said.

The Bloc amendment was aimed at separating religion from the state. But Baber said “everyday Canadians” should not have to fear quoting religious scripture. “That is definitely not something the state should engage in.”

When we start going down the road of criminalizing more and more speech, we kill free speech

Roman Baber

He said the problem the Bloc is trying to solve in the Criminal Code does not exist.

Baber pointed out that the religious defence does not apply to the Section 318 of the Criminal Code on advocating genocide. Nor does it apply to the public incitement of hatred.

Proponents of removing the religious defence have pointed to controversial imam Adil Charkaoui who at a pro-Palestinian rally in Quebec in 2023 made a call “to kill the enemies of the people of Gaza” and “take care of Zionist aggressors.” However, the decision not to charge Charkaoui turned on the basic threshold of incitement to hatred, not on the religious defence.

“I’m so tired that there is no nuance in this place,” Baber told the committee.

“For goodness sakes, look at how much money we’re spending and there’s no professional thought. We’ve got to inject a little bit more professionalism into politics.

“You don’t need a fancy lawyer, you need someone to read the section. The problem you (the Bloc) are trying to solve does not exist. You cannot defend yourself with a religious exemption after inciting hatred or inciting violence. I implore you to please not do this.”

But, of course, the Liberals and the Bloc teamed up, and they did.

My takeaway from the gruelling hours of testimony at the committee was that the government made a Faustian bargain to gain passage of their bill.

They won, but it was not a clean win.

The removal of the religious exemption may well prove to be an assault on freedom of expression if misused, and its impact will have to be watched closely.

The Liberals will claim victory but if they rack up more wins like this, they will be ruined.

National Post

jivison@criffel.ca